P L D 1969 Supreme Court 418 (PLP)

M. R. KHAN J.‑‑These appeals by special leave are directed against the judgment of the High Court of West Pakistan, Karachi Bench, dated the 19th August 1966, dismissing the appellants' Criminal Revision Applications Nos. 527 to 536 of 1965. The facts of the case are as follows :‑ The Additional Settlement Commissioner, Nawabshah, by his order, dated the 27th April 1964, directed prosecution of the appellants herein on the ground that they had fraudulently obtained separate allotments of agricultural lands by filing bogus claims. By the same order, he directed cancellation of the allot ments in favour of the appellants. In pursuance of that order, separate complaints were lodged against the appellants on the 7th May 1964. On the basis of these complaints, a competent Magistrate of Nawabshah took cognizance of an offence under section 27 of the Displaced Persons (Land Settlement Act, 1958. Meanwhile, the appellants went up in appeal against the Additional Settlement Commissioner's order, dated the 27th April 1964, cancelling their allotments. On the 10th May 1964, the Settlement Commissioner passed an interim order in the appeals maintaining the status quo, and by another order, dated the 19th June 1964, he advised the Additional Settlement Commissioner to withdraw the criminal cases against the appellants. Accord ingly, the District Public Prosecutor of Nawabshah made an application before the Magistrate under section 494 of the Code of Criminal Procedure on the 30th June 1964, for permission to withdraw the criminal cases on the ground that the filing of the complaints was premature inasmuch as the question relating to the allotments in favour of the appellants was awaiting decision of higher Settlement Authorities. The Magistrate accepted this application and permitted withdrawal of the criminal cases. Accordingly, the Magistrate discharged all the accused persons, namely, the present appellants under section 494 of the Code of Criminal Procedure. The appeals filed by the appellants were dismissed by the Settlement Commissioner on the 28th September 1964, on the finding that the order of the Additional Settlement Commissioner cancelling the allotments was just and proper. Thereafter, on the 19th January 1965, fresh complaints on the same allegations were filed against the appellants and processes were, accordingly, issued against them by the Magistrate. Being aggrieved by the fresh prosecution, the appellants moved the Sessions Judge, Nawabshah, for making references to the High Court for quashing the criminal proceedings against them, but this prayer was refused. Thereafter, the appellants made applications in the High Court under section 439, read with section 561‑A of the Code of Criminal Procedure for quashment of the fresh criminal proceedings against them. These applications were numbered as Criminal Revisions Nos. 527 to 536 of 1965. The main question that arose for consideration in the revisional applications was whether there was proper sanction for fresh prosecution of the appellants. A learned Single Judge of the High Court answered this question in the affirmative and, accordingly, dismissed the revisional applications. Whether there was proper sanction for prosecution in these cases depends upon the true interpretation of section 29 of the Displaced Persons (Land Settlement) Act, 1958 and rule 9 of the Rules made thereunder. Section 29 of the said Act does no require sanction for prosecution, but merely provides that no Court shall take cognizance of any offence punishable under that Act save upon complaint in writing made by an officer appointed under that Act. In these cases, the complaints in writing were' made by the Assistant Rehabilitation Mukhtiarkar who, as con ceded by the learned counsel for the appellants, is also an Assistant Settlement Commissioner. Thus the complaints were made by a competent officer, as required under section 29 of the said Act. The necessity of sanction for prosecution, however, arises out of rule 9 of the Rules made under the Displaced Persons (Land Settlement) Act, 1958. The said rule 9 runs thus :‑ "

9. Sanction to prosecution.‑No report under section 29 shall be made without the previous sanction in writing of the Chief Settlement Commissioner, or if empowered by the Chief Settlement Commissioner, in this behalf, any Settlement, Additional Settlement or Deputy Settlement Commissioner." Thus, previous sanction in writing by the Chief Settlement Commissioner or his delegate is a condition precedent to the making of a complaint under section 29 of the Displaced Persons (Land Settlement) Act, 1958. The learned Single Judge of the High Court has taken the view that the sanction of the Additional Settlement Commissioner, dated the 27th April 1964, on the basis of which complaints were filed for the first time against the appellants was not exhausted after the withdrawal of the criminal cases against them under section 494 of the Code of Criminal Pro cedure and that the same sanction continued to remain operative for the purpose of making fresh complaints. I am unable to accept this view as correct. The taking of fresh cognizance on the basis o fresh complaints did not amount to revival of the earlier criminal proceedings. On the Prosecutor's application for withdrawal of the earlier criminal cases, the Magistrate discharged the appellants by his order, dated the 30th June 1964. That order of discharge, which remained undisturbed, brought to an end the earlier com plaints as also the prosecution commenced on the basis of those complaints. The order of discharge, however, did not debar fresh prosecution on fresh complaints. Accordingly, fresh complaints in writing were made by the Assistant Rehabilitation Mukhtiarkar p on the 19th January 1965, against the appellants. Although the accusations against the appellants in the fresh complaints are the same as in the earlier complaints, the fresh complaints are quite independent of the earlier complaints. In fact, the complaints made for the second time are new complaints. Now, rule 9 the Rules made under the Displaced Persons (Land Settlement) Act prohibits the making of any complaint under section 29 of the said Act without the previous sanction in writing accorded by the Chief Settlement Commissioner or his delegate. Thus, every complaint under section 29, in order to be a proper com plaint, must have at its back a proper sanction under rule.

9. This being the requirement of rule 9, it follows that the sanction, dated the 27th April 1964, was exhausted with the discharge of the appellants consequent upon the withdrawal of the earlier criminal cases. Hence, fresh sanction by the competent authority was necessary before making fresh complaints against the appellants under section 29 of the said Act. The learned Single Judge, however; alternatively held that if the earlier sanction did not survive, the fresh prosecution oil the fresh complaints was quite in order inasmuch as the Additional Settlement Commissioner, by his order, dated the 11th January 1965, accorded fresh sanction for prosecution. The learned counsel for the appellants submits that this is not a proper sanction inasmuch as the Additional Settlement Commissioner merely endorsed the Assistant Rehabilitation Mukhtiarkar's note suggesting fresh prosecution against the appellants, but he himself did not properly apply his mind for the purpose of according sanction. The learned Single Judge is of the view that the Additional Settlement Commissioner applied his mind to the facts of the case and that his endorsement of the Assistant Rehabilitation Mukhtiarkar's note amounted to proper sanction for fresh prosecution. Although the Additional Settlement Commissioner did not write any elaborate order according sanction, his endorsement of the note of the Assistant Rehabilita tion Mukhtiarkar, for the reasons given by the learned Single Judge, amounted to proper sanction by him after proper application of mind. Learned counsel for the appellants next contends that the Additional Settlement Commissioner was not empowered to accord sanction under rule 9 of the Rules made under the Dis placed Persons (Land Settlement) Act, 1958, and, as such, his endorsement, dated the 11th January 1965, was not a sanction by a competent authority. Relying on an alleged order of the Chief Settlement Commissioner, dated the 5th February 1960, the learned Single Judge held that the Chief Settlement Commissioner delegated to the Additional Settlement Commissioner the power to accord sanction under rule

9. The alleged order of the Chief Settlement Commissioner, dated the 5th February 1960, is not on record; it only finds mention in an annotated copy of the Displaced Persons (Land Settlement) Act, 1958. As no copy of the said order has been produced, it is difficult to say if the power to accord sanction under rule 9 was, in fact, delegated to the Additional Settlement Commissioner. However, there appears to be another strong reason for which the Magistrate's order for prosecution cannot be sustained in law. As already stated, the prosecution against the appellants on the first occasion was for an offence under section 27 of the Displaced Persons (Land Settlement) Act, 1958, on the basis of the Additional Settlement Commissioner's sanction, dated the 27th April 1964. It appears from the judgment of the learned Single Judge that he proceeded to consider the propriety of the sanction for fresh prosecution on the assumption that the fresh prosecu tion of each appellant was again for an offence under section 27 of the Displaced Persons (Land Settlement) Act, 1958. The learned Judge, therefore, while considering the propriety of the sanction, construed section 29 of the said Act and rule 9 of the Rules made thereunder. An examination of the records of the Magistrate, however, reveals that on the fresh complaints made on the 19th January 1965, the Magistrate, by his order, dated the 15th March 1965, took cognizance of offence under section 7 of Act V of 1949, read with section 27 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and not of an offence under the Displaced Persons (Land Settlement) Act, 1958. The Magistrate's order taking cognizance runs thus :‑ "Complainant is a public servant. Offence seems to fall under section 7..of Act 5 of 1949 read with section 27 of the Displaced Persons (Compensation and Rehabilitation) Act. Issue B. Ws. in sum of Rs. 1,000 against accused." 'The alleged bogus claims of the appellants were admittedly in respect of agricultural lands. Hence, the Displaced Persons (Compensation and Rehabilitation) Act is wholly inapplicable here and, as such, no cognizance of an offence under section 27 of that Act could be taken against the appellants for the alleged bogus claims. The proper Act whereunder the appellants could be prosecuted for the alleged bogus claims is the Displaced Persons (Land Settlement) Act, 1958, the same being applicable to agricultural lands: The learned Judge's assumption that the fresh prosecution on the basis of fresh complaints was for an offence under the Displaced Persons (Land Settlement) Act, 1958 not being factually true, his view that the Magistrate acted in accordance with law in taking cognizance, cannot be accepted as correct. The Magistrate's order for fresh prosecution, quoted above, refers also to section 7 of Act V of 1949. In the opinion of the learned Judge, this Act No. V of 1949 has no application in the present case. The name of this Act has been mentioned in the Magistrate's order taking cognizance. If this is a Central Act, then, it is wholly irrelevant here inasmuch as the Central Act No. V of 1949 is an Act which amended the Partnership Act of 1932. In the order granting leave it was, however, noticed that Act V of 1949, is the Punjab Refugees (Registration of Land Claims) Act, 1949. Even if Act V of 1949 referred to in the Magistrate's order is accepted as the Punjab Refugees (Registra tion of Land Claims) Act, 1949, there will be no change in the legal position. The Punjab Refugees (Registration of Land Claims) Act, 1949 (West Punjab Act V of 1949) was enacted by the then West Punjab Legislature and it extended to the whole of the former Province of West Punjab, but did not extend to the district of Nawabshah which was then a part of the former Province of Sind. In the former Province of Sind, there was a similar Act, namely, the Sind Refugees (Registration of Land Claims) Act, 1950 (Act II of 1950), which repealed and re‑enacted the Sind Refugees (Registration of Land Claims) Ordinance, 1949. The alleged offence having been committed in the district of Nawabshah, a part of the former Province of Sind, the West Punjab Act V of 1949 has no application here. Even otherwise, no prosecution for any offence punishable under the West Punjab Act V of 1949, in view of section 8 thereof, could be instituted except on a complaint in writing by the Settlement Officer of the district in which the off nee was committed. For the purposes of the West Punjab Act V of 1949, Settlement Officers were appointed by Notification No. 3677‑R (L), dated the 20th July 1949, issued in exercise of powers conferred by section 3 of the West Punjab Act V of 1949. The Assistant Rehabilitation Mukhtiarkar of Nawabshah who made the complaints in the present case, is not a Settlement Officer under the said Notification. For these reasons, I agree with the learned Judge of the High Court that Act V of 1949, whether it is Central Act or the Punjab Refugees (Registration of Land Claims) Act, 1949, has no application here, although my reasonings are different. The position, therefore, is that the appellants have beers prosecuted for the second time for an offence under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and not for an offence under the Displaced Persons (Land Settlement) Act, 1958. When the lands in respect of which allotments were said to have been obtained by making bogus claims are agricultural lands, the Magistrate erred in law in issuing processes against the appellants for an offence under the Displaced Persons (Compensation and Rehabilitation) Act. It is for this reason alone that the order of the learned Single Judge dismissing the appellants' revisional applications cannot be sustained. In the result, I would allow the appeals, set aside the judgment and order of the High Court and quash the prosecution against the appellants. This, however, will not debar fresh prosecution against the appellants according to law. MUHAMMAD YAQUB ALI, J.‑I agree. K. B. A. Appeal accepted