1988 P Cr (PLP)

The State v. Saeed Ahmad P L D 1962 SC 277ref. Syed Zahid Hussain for Petitioner. S.M. Zubair, Addl. A.‑G. for the State. Date of hearing: 10th May, 1987. In brief the facts of this case are that Tazeem Hussain petitioner, in the year 1974 was posted as Patwari in village Lakhoki. He, at the instance of Ali Muhammad entered inheritance Mutation No. 1393 after the death of his father Fateh Muhammad. Another Mutation No. 1394 was entered by him at the instance of Ali Muhammad regarding the death of his uncle Qutab. Both these mutations were sanctioned by the Naib‑Tehsildar. Another Mutation No. 1402 was entered on 13‑5‑1975 on the basis of sale‑deed alleged to have been executed by the widows and daughters of Fateh Muhammad and Qutab in favour of Ali Muhammad. This mutation was also sanctioned. The widows and daughters of Fateh Muhammad and Qutab, came to know of Mutation No. 1402. Alleging that they did not alienate any of their property to anyone, the matter was reported to the police. A case was registered against Tazeem Hussain petitioner, Muhammad Sharif, Girdawar and Mumtaz Ahmad, Naib‑Tehsildar. The sanction for their prosecution was granted by Chairman, Anti‑Corruption Committee No. III whereafter challan was filed in the Court of learned Special Judge. Anti‑Corruption, Lahore. An objection on behalf of the accused was taken that the sanction to prosecution was not granted by the competent authority and as such proceedings against them were illegal. This objection was sustained by learned Special Judge vide order, dated 1‑10‑‑1983. He acquitted the accused with permission to the prosecution to procure new sanction order and initiate fresh proceeding against the accused.

2. The prosecution after acquittal of the accused vide order, dated 1‑10‑1983 secured sanction for prosecution against the accused from Commissioner, Lahore Division, and filed fresh challan against them. The petitioner again made an application under section 249‑A, Cr.P.C. on the grounds, firstly, that the Commissioner, Lahore Division, was not competent authority to accord sanction for prosecution and that the Court of Special Judge, Anti‑Corruption, therefore, had no jurisdiction to try the accused. Another application on behalf of Mumtaz Ahmad Naib‑Tehsildar was filed on the ground that he had acted in a bona fide manner in discharge of his duties and as such was not guilty of any offence. The learned Special Judge accepted the application on behalf of Mumtaz Ahmad Naib‑Tehsildar and acquitted him from all the charges. The application on behalf of Tazeem Hussain petitioner was however, dismissed, on the ground firstly, that the Assistant Commissioner/ Collector worked under the Commissioner and as such the sanction was not defective. And secondly that although three separate charges were framed against the accused but only one application for acquittal was filed. Hence this petition seeking quashment of the impugned order, dated 20‑9‑1986.

3. I have heard the learned counsel appearing on behalf of the parties and have also gone through various documents which form part of this file. It is agreed between the parties that at the time of commission of the offence, at the time of the filing of the challan and even till today the appointing and dismissing authority of Tazeem Hussain petitioner, a Patwari, was Assistant Commissioner/ Collector and not the Commissioner. According to section 6(5) of the Criminal Law (Amendment) Act, 1958, the sanction for prosecution is to be accorded by the appropriate Government. In explanation to this provision of law it is mentioned that for the purpose of this subsection, appropriate Government shall mean Government which at the time of commission of the offence was the appropriate Government. As held in The State v. Saeed Ahmad P L D 1962 SC 277, 'there is clear provision in the Act of 1958 that appropriate Government has reference not to the' time of grant of sanction but to the time of commission of the offence'. In view of this judgment, the sanction accorded by the Commissioner Lahore Division in the instant case could not be considered a valid sanction. Admittedly at the time of commission of the offence Assistant Commissioner/Collector was the appointing and dismissing authority of Tazeem Hussain petitioner. In view of this, the impugned order dated 20‑9‑1986 is set aside. There being no valid sanction to prosecution of Tazeem Hussain petitioner, he is acquitted. The prosecution however, is permitted to obtain proper sanction for prosecution of the petitioner and, thereafter file challan in Court for proceeding according to law. S.G.D./T‑24/L Order accordingly.