1982 P Cr (PLP)

Dates of hearing : 9th and 25th March and 18th April, 1981. Masud-ul-Hassan Qureshi, an employee of Auqaf Department, has filed two petitions, one under section 561-A, Cr. P. C. for quashment of proceedings pending before the Special Judge Anti-Corruption, Sahiwal, and the other under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 for a direction that the petitioner's prosecution was illegal and without lawful authority. As a matter of fact prayer in both the petitions was the same although the Constitution petition was filed two years before the petition for quashment.

2. The petitioner has 20 years' service at his credit out of which he served the Auqaf Department for fifteen years. He was posted as Administrator at the shrine of Baba Farid Ganj Shakar, Pakpattan vide Chief Administrator's order dated 3rd November, 1973. After having discovered some embezzlement and misappropriation in the accounts by the Audit Officers, the then Chief Administrator Auqaf vide letter dated 20th February 1975, reported the matter to the Director of Anti-Corruption Establishment Lahore naming six persons responsible for it. The Anti- Corruption Police, after preliminary investigation, got registered an F. I. R. on 31st January, 1976 under section 409/420/468/471/109, P. P. C. read with section 5 (2) of the Prevention of Corruption Act, 1947 accusing the petitioner and one Muhammad Aslam clerk. The challan was put in the Court of Special Judge Anti-Corruption Multan on 29th July, 1977. The petitioner was suspended by the Department on 31st October, 1974, and he remained so till today. He challenged the validity of the sanction order before the Special Judge who held the same to be valid vide his order dated 31st August, 1978.

3. The first point urged by the learned counsel was with regard to the sanction order. Learned counsel has repeated almost the same points already urged before the trial Court. He contended that in the first instance the sanction order is undated. Even otherwise, it is not a proper sanction order because of no direction for the petitioner's prosecution. He further contended that the sanction having not been accorded by the competent authority, was illegal as the requirements of section 6 of the Pakistan Criminal Law (Amendment) Act, 1958 (herein after to be referred as the Act) pertaining to the conditions precedent to the grant of sanction to prosecute, had not been complied with. The contention is not without force. A persual of the alleged sanction order shows that neither it bears a direction for the prosecution of the petitioner nor any date. Thus it cannot be treated as proper sanction.

4. Learned counsel then contended that the petitioner could not be held responsible for the reason that he was never posted nor he acted as a Manager Auqaf and under rule 8 (a) of the West Pakistan Waqf Property (Accounts) Rules, 1960 it was the Manager who handled all receipts and payments to and from the Auqaf Fund. Elaborate procedure in this regard is provided in rule 8 (a), (b) (c) and (d) of the Rules. But this is more or less a technical objection.

5. The sole question to be considered in this case is whether the prosecution has sufficient evidence which would ultimately result in the conviction of the petitioner or it will be just a formality to prosecute him

6. I have gone through the relevant record and also the Annexures to the petition a perusal of which shows that the petitioner has been accused of misappropriation to two capacities. Once is that he misappro priated a sum of Rs. 2,200 received by him from a woman and encashed a sum of Rs. 9,900 from a Bank being the security money. The other was that he was also held responsible for a sum of Rs. 73,581.70 misappropriated by Muhammad Aslam clerk co-accused the petitioner being his Drawing & Disbursing Officer. As regards Muhammad Aslam co-accused, I think it will not be proper to make any observation which may affect his case. Even otherwise, his case is not, before me. Therefore, keeping his case apart, I have considered the case of the petitioner and I am of the view that the prosecution has no evidence to secure the conviction of the petitioner on either count. As already stated, the petitioner was suspended in the year 197 and uptil now not a single witness has been examined by the trial Court. Even otherwise, the prosecution is not in possession of such evidence which may ultimately result in the conviction of the petitioner.

7. In these circumstances, I am of the view that continuance of proceedings against the petitioner would amount to an abuse of the process of the Court. I, therefore, allow this petition and quash the criminal proceedings pending against the petitioner. Proceedings quashed.