1968 SCMR 423 (PLP)

CORNELIUS, C. J.-The simple facts are that the Registrar of Co-operative Societies, Karachi has made an order, purporting to be under subsection (1) of section 43 of the Co-operative Societies Act, for an inquiry into the financial position, constitution and working of the petitioner Society, viz, the Pir Illahi Bukbsb Co-operative Housing Society Ltd. Subsection (1) of section 43 enables a Registrar, "of his own motion" to make such an order. The order in the case, however, gives the following reasons for its making: "as this office has received various complaints and representa tions from the members of the Society against the Managing Committee;" Subsection (2) of the same section requires the Registrar to hold such an enquiry in any one of the following contingencies, viz:-- (1) on the requisition of a society, duly authorised by ,rules made in this behalf to make such requisition in respect of one of its members, such member being itself a society; or (2) on the application of a majority of the Committee of the society; or (3) on the application of one-third of the members of the society. The order was attacked by a writ petition moved in the High Court by the Society. The ground that because of the mention of complaints, the order fell to be made under subsection (2) aforesaid, or not at all, was repelled by the High Court, holding that it was a suo mow order. The High Court found no mala fides in the order. The facts stated in the writ petition and the accompanying documents indicate that the affairs of the society are in a some what confused state. The Chairman and the Honorary Secretary of the Managing Committee had been removed and replaced at a meeting on the -16th October 1966, but a month later, an Assistant Registrar (Housing) informed the Society that this resolution was not in order and was inoperative. The new Honorary Secretary and the previous Honorary Secretary moved higher authorities with allegations against each other, and a few days later, the Registrar made the impugned order. At the time, there were pending in the High Court (1) a Civil revision in a suit of 1964 to challenge certain elections and (2) a writ petition moved by the Society itself against the Provincial Government, in which a stay order had been made as early as the 22nd March 1966. The last-mentioned matter being raised before the High Court, the opinion was expressed that the Court concerned was competent to deal with the contravention if any. The details of the earlier writ petition do not appear in the paper-book of this petition. The High Court's view, that the alleged contravention did not lend any strength to the prayer for a writ, seems to us to be correct. Nor does any ground appear, in the background of events, for thinking that the impugned order was made to gain any end ulterior to the purposes underlying the statutory provisions in question. It seems clear enough that none of the conditions specified in subsection (2) of section 43 was in existence when the order in Iquestion was made, so that the Registrar did not act under any obligation such as Lit created by this subsection. His action therefore, clearly lay under subsection (1), e., he acted in exercise of the discretion conferred by that subsection, and it does not translate his action to the second subsection that he was moved so to act by reason of complaints reaching him of maladministration of the Society's affairs The petition is dismissed. Petition dismissed. 1968 SCMR 425 Present: Fazle-Akbar and Muhammad Yaqub Ali, JJ DR. ABDUL FATEH-Petitioner Versus THE STATE Respondent Petition for Special Leave to Appeal No. K-60 of 1967, decided on 29th January 1968. (On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 4th October 1967, in Criminal Revision Application No. 65 of 1966). Pakistan Criminal Law (Amendment) Act (XL of 1958), S. 6 (5)-Appropriate authority refusing sanction for prosecution and instead accepting resignation of accused-Special Judge on refusal of sanction discharging accused-High Court on revision against discharge ordering retrial-Contention that cognisance of offence having been taken long before resignation of accused, sanction for his prosecution, was necessary and as such High Court was not justified in ordering retrial-Special Leave to Appeal granted by Supreme Court-Prevention of Corruption Act (II of 1947), S. 5 (2). Muhammad Hayat Junejo, Advocate Supreme Court instructed by Hyder Bakhsh Sheikh, Attorney for Petitioner. Nemo for the State. Date of hearing: 29th January 1968. ORDER FAZLE-AKBAR, J.-The petitioner Dr. Abdul Fateh who, at the relevant time, was working as Assistant Health Officer (Veterinary), Municipal Committee, Hyderabad, is being prosecuted under section 161, P. P. C. read with section 5(2) of the Prevention of Corruption Act, 1947, upon the allegation that on 25-6-1965, he accepted an illegal gratification of Rs. 100 from one, Hakim Ali, Secretary of the Tonga Drivers' Union, Hyderabad. On 4-10-65, the Special Judge, Hyderabad, after registering the case issued summons to the accused. On 11-10-65, the Special Judge wrote to the Municipal Committee, Hyderabad, asking for necessary sanction for the prosecution, of the accused as required under section 6(5) of the Pakistan Criminal Law (Amendment) Act, 1958. The Municipal Committee by their resolution No. 847 dated 21-10-65 refitsed to grant the required sanction and also accepted the resignation of the said Assistant Health Officer. On receipt of the said resolution of the Municipal Committee, the Special Judge discharged the accused on 11-11-65. The State then moved a revision in the High Court against the order of the Special Judge. A learned Single Judge of that Court has ordered retrial of the accused. He now seeks special leave to appeal to this Court against that order. The learned Counsel for the petitioner has contended inter alia (i) that the Court had taken cognizance of the offence allegedly committed by the petitioner long before his resignation and as such a sanction for his prosecution was necessary under the law, and (ii) that the learned Single Judge was wrong in holding 'that the prosecution only can be said to start when the rubkari or substance of the accusation is read to the accused'. In our opinion, these points, which are of general public importance, require onsideration. We accordingly grant leave to appeal as prayed. Further proceedings before the Special Judge are stayed pending disposal of this appeal. Petition accepted.