1986 P Cr (PLP)

(b) Provisional Constitution Order (1 of 1981)

Art. 9--Penal Code (XLV of 1860, S. 167--Criminal Procedure Code (V of 1888), S.197/249-A--Pakistan Criminal Law Amendment Act (XL of 1858), S.6 (5)--Sanction for prosecution--Whether duty of Court to obtain--Offence under S.167, P.P.C. not covered by schedule--Rules framed under Criminal Law Amendment Act requiring Court to obtain sanction. held, would riot apply to facts of case--No illegality in Proceedings in complaint found, orders of Courts below would not call for interference in circumstances. Hassan Ahmad Khan Kanwar for Petitioner. Sardar Muhammad Akram and Kh. Haris Ahmad for Respondents. Date of hearing: 27th April, 1986. The petitioner who is a Superintending Engineer, is prosecuting his Chief Engineer and, a Director, working in the office of the Chief Engineer, for having written a letter on 2-5-1983, to him, asking for his explanation and to show why action should not be initiated against him, under the Efficiency and Discipline Rules. The case of the complainant is that the letter amounts to an offence under section 167, P.P.C. After recording preliminary evidence in the complaint of the petitioner, the Ilaqa Magistrate summoned the respondents. They however, moved an application under section 249-A, Cr.P.C. seeking their acquittal. This application was disposed of by the Ilaqa Magistrate on 25-10-1484, by which order he directed the complainant-petitioner to produce sanction for prosecution of the accused under section 197, Cr.P.C. as, according to the learned Ilaqa Magistrate, the letter was written by the accused in performance of their duties. The petitioner challenged the orders in revision but the revision petition was dismissed by the Court of the Sessions on 24-1-1985. The petitioner challenges the order of the Ilaqa Magistrate and of the learned Additional Sessions Judge in a writ petition.

2. It is argued by the learned counsel that the Ilaqa Magistrate has prematurely asked for a sanction for prosecution as under the law he was required to record some evidence before he could decide whether sanction was necessary or not. He has also argued that the sanction, if at all was necessary, had to be obtained by the Magistrate himself and he could not ask the petitioner to do so.

3. A simple reading of section 167, P.P.C. would show that the offence referred to can be committed only by a public servant in exercise of leis official duties. Besides the letter of 2-5-1983 would show that this has been written by a Chief Engineer to his subordinate, pointing out certain- irregularities allegedly committed by the subordinate. This should be sufficient material for a Court to determine that the sanction under section 197, Cr.P.C. was necessary. This was not a case for stifling of the case of the prosecution at a preliminary stage. The rule laid down in the case of Syed Mushtaq Hussain Shah Bukhari v. The State and another P L D 1981 S C 573 has, therefore, been satisfied in the present case. Even otherwise the preliminary evidence can be looked C into to determine the ancillary questions of sanction of prosecution as laid down in the case of Matiar Rehman Dewan v. The State P L D 1958 S C 21.

4. The question whether the sanction was to be obtained by the Court itself or that the Court could ask the complainant to do so, has also been determined in Syed Musthaq Hussain Shah Bukhari's case. It refers to giving of an opportunity to the complainant to produce sanction for prosecution and does not lay down any rule that the sanction is to be obtained by the Court itself. The rules framed under the Pakistan Criminal Law (Amendment) Act, 1958 under which a sanction is obtained by the special Judge himself do not apply to the facts of the present case as section 167, P.P.C. is not covered by the Schedule of offences under the Pakistan Criminal Law (Amendment) Act, 1958.

5. In view of the above considerations, I find no illegality in the proceedings in the complaint. The orders of the trial Court and that of the Court of Sessions do not call for interference. The writ petition is, dismissed. There shall be no order as to costs. S.A. Petition dismissed.