P L D 1975 Lahore 1404 (PLP)

The petitioner was a Watch and Ward Inspector posted at the Coal :Dump, Chichoki Mallian in the month of June 1967. On receiving informa tion that coal was being illegally removed from the dump, Mirza Anwar ,.Husain, Joint Director went towards the dump at about 2 a.m. and found that a truck in which coal had been loaded, left the dump with great speed towards Railway Station, Chichoki Mallian. The officer pursued the truck in a car. The truck driver left the truck near the gate of Hydel Power Station and disapaeared. Hard coke weighing four tons was found in the truck. On enquiry from one Khushi Muhammad Chaukidar, the officer came to know that when the truck was being loaded, Muhammad Akbar Shah, petitioner, and two other Chaukidars were present.

2. A case was registered against the petitioner and others vide F.1. R. No. 109 of 1967 in Police Station Muridke under sections 279/379/409; 411, P. P. C. The Superintendent of Police by letter dated 21st of August 1968, requested the Director to send the requisite sanction for the prosecution of ‑the petitioner and others. The Director sent a reply on 10th of May 1969, in which he did not categorically refuse to grant sanction but the letter tends to show that he was of the opinion that Muhammad Akbar Shah, petitioner, was not at fault. It was said in this letter that Muhammad Akbar Shah was not present at the dump and that when the dump stocks were checked after ,the suspension of Messrs Sajid Husain Shah and Muhammad Akbar Shah, were found to be correct which would mean that there was no deficiency in the stock. It was also said that the persons involved in the raid f e. Muhammad Sadia, Assistant Director and Messrs Mumtaz Illahi and Bhally .Coal Inspectors were inimical to Muhammad Akbar Shah. The Director asked the Superintendent of Police to take any action which was deemed fit in the light of the facts narrated in his letter.

3. The cumulative effect that this letter creates on one's mind is that the Director was not willing to accord sanction, but it appears that he thought that the final word lay with the Superintendent of Police, Sheikhupura, and it is why he asked him to take action in the light of the facts stated in his letter. After this letter the matter remained hanging for more than four years.

4. On 4th of December 1973, a challan was put in the Court of the Special Judge against the petitioner and his co‑accused. It may be mentioned that the first challan drawn up and the papers connected therewith had been lost before they were presented in Court. The present is a supplementary challan and there are no original documents of recovery etc. on the file.

5. The learned Special Judge after the supplementary challan was filed, wrote a letter to the Director, Provincial Coal Control in terms of proviso to subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958, asking him to accord sanction for the prosecution of Muhammad Akbar Shah and five others. The Director before passing an order wanted to discuss the matter with the Investigating Officers. It took come time for the police officers to come. They ultimately saw him on 28th of May 1974. They also met the Deputy Director and told him that the Director had agreed to accord sanction for the prosecution of the petitioner. The Deputy Director got it confirmed from the Director on the same day and thereafter a formal sanction under the signatures of the Director was sent to the Court concerned on 29th of May 1974.

6. It is submitted by the learned counsel for the petitioner that the occurrence took place in 1967 and the belated prosecution initiated in 1973 is likely to operate to the prejudice of the petitioner who may not be in a position now to put up his defence which was available to him at the time of the registration of the case. It is further pointed out that according to the first letter dated 10th of May 1969, the Director had found Muhammad Akbar Shah petitioner innocent and his letter was tantamount to refusal to accord sanction although he did not say so in so many words. It is further submitted that the sanction now sent to the Court is a mechanical one and the Director before signing the formal sanction had not applied his mind to the facts which were favourable to the petitioner and on account of which the first Director had not accorded sanction for his prosecution. The iearned counsel for the State submits that these objections can be raised before the learned Special Judge against the competence of the prosecution:

8. The sanction is a condition precedent to the initiation of sac criminal proceedings. The provision for according sanction by the approa priate Government is for the advantage of the public servant concerned who is sought to be prosecuted, so that the head of his Department considers tile merits of the case and if he finds the prosecution amounted to harassment, he may refuse to accord sanction. I find force in the submission of Ch. Khalil ur‑Rehaman that the first letter having mentioned the facts which pointed to the innocence of the petitioner, was actually tantamount to a refusal to accord sanction. I also find force in the submission of the learned counsel that the present sanction sent to the Court is a mechanical one and the file does not disclose that the Director had at any time applied his own mind to the facts of the case. The least that he should have done in this case was to deal with the facts mentioned in the earlier letter of his predecessor which pointed to the innocence of the petitioner. There is no indication as to what was orally discussed between the Director and the two police officers who me him. It was the legal obligation of the Director himself to took into the entire bundle of fac;s and come to his own independent conclusion.

9. The objection of the learned State Counsel that the question of the validity of the sanction should have been raised before the learned Special Judge does not appeal to me. Where a jurisdictional pre‑requisite has no been complied with or has been complied with in a manner which renders it nugatory in the eye of law, the very basis for the prosecution of an accused disappears and he has a right to come to this Court and ask for quashment rather than to face the vicissitudes of a trial,

10. The result is that I quash the proceedings against the petitioner. s. A. H. Proceedings quashed.