P L D 1959 (W (PLP)

ORTCHESON, J.‑This is a writ petition by Mr. Hamed Ghulam Sadik against (1) Pakistan, through the Secretary, Ministry of Interior, (2) Pakistan, through the Secretary, Ministry of Food and Agriculture, (3) Mr. Mushtaq Ahmad Cheema, C. S. P., Deputy Secretary, Ministry of Agriculture, (4) The Establishment Secretary, Cabinet Secretariat, Government of Pakistan. Karachi.

2. The main relief sought is a writ of certiorari quashing the proceedings pending before the Special Judge, Karachi. As the petition was filed before the introduction of Martial Law, the petitioner has also asked for the issue of any other appro priate order or direction. It is further prayed that respondent No. 3 be called upon to produce "the relevant record of the minute of Honourable Minister, Mr. Abdul Latif Biswas and other relevant records, to show that the fact of the previous decision to drop proceedings having been acted upon."

3. The facts as alleged by the petitioner are that he was in the service of the former Punjab Government but was trans ferred on deputation as Deputy Secretary in the Ministry of Food, Government of Pakistan. in January 1953. On the 3rd March 1955 he was given a charge‑sheet of the same date which runs as follows :‑ "That you, being a public servant in the Ministry of Food, accepted for yourself valuable things viz., one Frigidaire worth Rs. 1935 on 27‑4‑53, one pedestal electric fan worth Rs. 300 on 6‑6‑53 and Rs. 4,200 advance rant of bungalow No. 151/C in Pakistan Employees Co‑operative Housing Society occupied by you till September 1953 and later subletted to Abdul Rehman for Rs. 2,680 on 23‑9‑53 without consideration from Messrs Firdaus Trading Corporation, Karachi, whom you knew to have been concerned in a business having connection with your official functions and thereby committed the offences of criminal misconduct under section 5 (1) (b) of Act II,of 1947 punishable under section 5 (2) of Act II of 1947 within the cognizance of Mr. S. A. M. Ghaznavi, Special Judge, Karachi."

4. The petitioner was required to reply to the above charge by the 26th of March, 1955, but a few days after the handing over of the charge‑sheet, he was asked to proceed on leave, it being stated that the police so desired. The petitioner complied with the direction, but when the leave expired on the 12th of May, 1955, he was again asked to go on leave, which he did under protest. His request to be allowed to inspect the relevant files and papers was not granted, the petitioner being informed that they were with the police. He, however, submitted his explanation on the due date.

5. An inquiry started against the petitioner on the 29th of September 1955, but was suspended. For a number of months nothing happened, and as the petitioner's health had been seriously affected by the worry he had undergone, he applied on the 21st of October 1955, for permission to retire from service. A few days later, he was called by Mr. Abdul Latif Biswas, then Minister of Food and Agriculture, and informed that the Minister had consulted his colleague the Minister of the Interior (Mr. Fazul Haq), and that it had been ordered that, to quote the petitioner's own words, "everything against the petitioner be dropped and he should be allowed to retire." The Government of Pakistan then informed the petitioner's parent Government that he was being allowed to retire with effect from the 21st of October 1955, and that his service with the Central Government was satisfactory. The petitioner retired accordingly.

6. In August, 1956, however, the petitioner was informed that the Minister of the Interior had reversed the previous decision and sanctioned his prosecution. He was subsequently challaned in the Court of the Special Judge (Anti‑Corruption) Karachi. He applied for dismissal of the proceedings and raised a preliminary objection to the jurisdiction of the Court. The Special Judge granted him an adjournment to approach the Central Government, which failed to take any decision with the result that on the 5th of May, 1957 a charge was framed by the Special Judge against the petitioner.

7. The petitioner's grounds for the issue of the writ prayed for are : (1) that When the prosecution of the petitioner was ordered by the Ministry of the Interior he was not a person serving in connection with the affairs of the Federation, the sanction of the Central Government being consequently invalid, and the Special Judge has no jurisdiction; (2) that in any case, the Central Government had no jurisdiction to sanction the petitioner's prosecution at a time when he was neither in the service of the Central Government nor serving in connection with the Federation; (3) that the sanction accorded by Government is a nullity, the petitioner having been given a clear under standing both from the conduct of the responsible Government officials concerned and from their minutes on the file that he would not be prosecuted, it being on this assumption that he applied for premature retirement. In this connection the petitioner relied on the Privy Council case of Rangachari v. Secretary of State (A I R 1937 P C 27) ; (4) that as the respondents had, after due consideration, granted the petitioner a clear retirement certificate, on the basis of which pension had actually been paid to him, the earlier decision had been acted upon, and it was not open to the respondents to rescind it ; (5) that no notice was given to the petitioner of the rescinding of the first decision made jointly by the Minister of the Interior and the Minister of Food and Agriculture, the petitioner being consequently denied natural justice ; (6) that the conduct of the respondents in sanctioning the prosecution of the petitioner at such a late stage is in contravention of the rules of service laid down in rule 6 (4) of the Civil Service Rules, Punjab, Vol. II, relating to sanction of pensions to Government servants (7) that there has been serious interference with the rights and conditions of service of the petitioner without authority and without notice.

8. The petitioner's allegations were supported by an affidavit, to which a counter‑affidavit was filed by the respondents. They admitted that the petitioner was asked to proceed on leave but stated that this was done in accordance with the Prevention of Corruption Rules, 1953, and not at the instance of the police. The petitioner was directed to contact the Superintendent of Police, Special Police Establishment, who was in possession of the relevant records, but failed to avail himself of the facility. It is admitted that the first inquiry did not proceed, but it is stated that the reason was the petitioner's own failure to appear before the Enquiry Officer: According to the respondents, the Minister for Food on the 19th of October 1955 noted that the petitioner should be tried by a Court of Law, and that he should con sequently be suspended and sanction for his prosecution given with out delay, it being for that reason that the petitioner applied for permission to retire. It is conceded that the Government of West Pakistan was informed of the retirement of the petitioner with the necessary certificate, but it is contended that this action was invalid, the sanction of the Prime Minister being necessary under the rules of business of the Pakistan Government.

9. In reply to the petitioner's allegation that it was decided to drop the proceedings relating to criminal misconduct against him, the respondents submitted that, apart from the question of the validity of the decision to drop the proceedings relating to criminal misconduct, the petitioner's retirement could be no bar to his prosecution for a criminal offence, sanction for which was granted on the 25th of June 1956. The respondents argued that the withholding of the sanction for the prosecution of the petitioner at the earlier stages does not amount to the acquittal of the accused so as to bar his prosecution, and that in fact no positive order was ever passed by Government refusing sanction.

10. Finally, it is contended that the petitioner has an alternative remedy, and that the points urged in the present petition could be raised in the course of the criminal proceedings, there being consequently no case for the issue of a writ as prayed by him.

11. One of the main points urged by Mr. Brohi is that as the Central Government had earlier decided to drop the charges against the petitioner and allow him to retire, their subsequent action in sanctioning his prosecution is ultra vires and void. In support of this contention he relied upon the Privy Council ruling cited by the petitioner, Rangachari v. Secretary of State, but the facts of that case are distinguishable from those of the present. In the Privy Council case the plaintiff‑appellant had been charged with irregular and improper conduct in the execution of his duties as a police officer. An enquiry was conducted by one Mr. Charsley, an Assistant Superintendent of Police, who arrived at a conclusion adverse to the appellant. A conference then took place between Mr. Charsley and the Superintendent of Police, one Mr. Kalimullah, as to the course to be adopted. The appellant applied for leave to retire on the ground of ill‑health and Mr. Kalimullah, holding that the evidence against him was doubtful and inconclusive, arrived at the decision that the charges should be dropped, that the appellant should be allowed to retire, and that an invalid pension should be awarded to him. Mr. Charsley accepted the above decision, as he was bound to do, but safeguarded himself by stating that he would send in a report. He later did so and adhered to the view he had already expressed to Mr. Kalimullah. The appellant was granted a pension by the then Deputy Inspector -General of Police one Mr. Moore, who was aware both of Mr. Charsley's view and of that of Mr. Kalimullah. He was further aware that Mr. Charsley intended to submit a report against the appellant. Meanwhile, Mr. Kalimullah was transferred and the report, which had not been put up to Mr. Kalimullah by his office, came to the notice of his successor, who gave more weight to the adverse view of Mr. Charsley in writing than to the unrecorded reasons of Mr. Kalimullah in forming a more lenient and more cautious judgment as to the extent to which the charges' made could be or were supposed to be established by reliable evidence. Unluckily for the appellant, Mr. Moore had also been meanwhile succeeded as D. I. G., by one Mr. Filson, who was equally unacquainted with the full facts, and who passed an order purporting to remove the appellant from service from the date upon which he was invalidated. Against that order the appellant filed a suit which was dismissed by the, Madras High Court in its original civil jurisdiction, an appeal being also dismissed by another Bench of the same Court in its appellate jurisdiction. The case then went up to the Privy Council, and Their Lordships held that the appellant had suffered a wrong and further that the wrong was justiciable. In the course of their judgment. they remarked :‑‑ "In these circumstances the case becomes a case in which, after Government officials duly competent and duly authorized in that behalf have arrived honestly at one decision, their successors in office, after the decision has been acted upon and is in effective operation, purport to enter upon a reconsideration of the matter and to arrive at another and totally different decision. It seems to require no demonstration that an order purporting to remove the appellant from the service at a time when, as their Lordships hold, he had for some months duly and properly ceased to be in the service, was a mere nullity and cannot be sustained. It follows that in their Lordships' view the appellant had, and has, every right to complain of the stoppage of the pension as a breach of the rules relating to pensions. Both Courts below so held and their Lordships are in entire agreement with their decision on this point."

12. It will be seen from the above that the decision arrived at by Mr. Kalimullah and Mr. Moore that the charges against the appellant be dropped and he be given an invalid pension, was arrived at after a full enquiry into the charges against him and a consideration of the evidence. In the present case, on the other hand, the material at our disposal is extremely scanty, and I am unable to hold that any decision was arrived at refusing sanction for the prosecution of the petitioner. It follows that I am equally unable to give any finding as to whether the fact that the proceedings were first ordered to be dropped invalidates the subsequent sanction. This ground, therefore fails.

13. The other important point urged by Mr. Brohi is that since, at the time the sanction for the prosecution of the petitioner was given, he was no longer in the service of the Central Govern ment, that Government had no jurisdiction to grant the sanction. In this connection he relies on section 5 (5) and section 2 (a) of the Criminal Law Amendment Act, 1948. The former runs:‑ "5 (5). Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1890, or in any other law, the previous sanction of the appropriate Government shall be required for any prosecution under this Act and such sanction shall be sufficient for the prosecution of a public servant for an offence triable under this Act Section 2 (a) defines the expression "appropriate Government" as follows :‑ "2 (a). `appropriate Government' means in relation to a person serving in connection with the affairs of the Federation, a railway employee and any other person employed by the Central Government or by such organization or body as may be notified by the Central Government in pursuance of the next succeeding clause, the Central Government and in other cases, the Provincial Government concerned :" Mr. Brohi's contention is that the words "serving in connection with the affairs of the Federation" must be interpreted as relating to the date on which the sanction is given, and not to the date of the offence, but I cannot agree. It would appear that when framing the Act the Legislature overlooked the possibility that the alleged offender might be serving one Government at the time of the commission of the offence and another at the time of the granting of the sanction, but the plain meaning of the section in question appears to me to be that the Government by which A the sanction is to be granted is that under which the person concerned was serving at the time the alleged offence was commit ted. Any other construction would lead to the absurd conclusion that the Government under which the alleged offender was subse quently serving would have to inquire into the circumstances surrounding the commission of an offence with which it had no concern. I have accordingly no hesitation in holding that, con sidered from the point of view of whi6h Government is competent to grant it, the sanction given in the present case is valid. It has not been contended before us that the sanction is invalid on any other ground.

14. The above findings will dispose of this petition, which is accordingly dismissed. In the circumstances, I would pass no order as to costs. WAHIDUDDIN AHMED, J.‑I agree. K. B. A. Petition dismissed.