P L D 1967 Karachi 590 (PLP)

7. The next contention raised by Mr. Azizullah Shaikh is that the proceedings now pending against the petitioners in the Criminal Court are invalid and incompetent on. account of the fact that there is no proper sanction for their prosecution as required by section 29 of the Displaced Persons, (Land Settlement) Act (hereinafter referred to as the Act). The grounds urged in support of this contention ace manifold, namely: ‑ (a) that, in the first place, there is no sanction on the records of the Settlement Department for prosecuting the petitioners; (b) that even if there is any such sanction, it is not by any officer specially empowered in this behalf by the Chief Settlement Commissioner; (c) that in any case the officer concerned has not applied his mind to the fact of the case before granting sanction as would appear from the fact that even the law cited in the complaints filed against the petitioners is irrelevant and inapplicable, and although the person mainly responsible was only Muhammad Sadiq (petitioner in Criminal Revision No. 527/65). yet prosecutions have been launched against nine other persons as well; (d) that the sanction, if any, has not been placed on the judicial file along with the complaints and, therefore, the Magistrate was not competent to, take cognizance of the cases and; (e) that the complaints in all these cases are signed by an Assistant Rehabilitation Mukhtiarkar who was not at all empowered to act in this behalf.

8. Before I discuss the several grounds urged by Mr. Shaikh, it would be useful to refer to section 29 of the Act, which is in the following terms:‑ "

29. Cognizance of offence by Court. No Court shall take cognizance of any offence punishable under this Act save upon a complaint in writing made by an Officer appointed under this Act." It will be seen that section 29 does not speak in terms of any previous sanction by any specified authority; it merely lays down that the complaint in writing should be made by an officer appointed under the Act. The requirement of sanction is, thus, not a requirement laid down by the Act. However, rule 9 of the Displaced Persons (Land Settlement) Rules, 1959, framed under section 34 of the Act by the Central Government lays down that "no report under section 29 shall be made without the previous sanction in writing of the Chief Settlement Commissioner, or if empowered by the Chief Settlement Commissioner in this behalf any Settlement or Additional Settlement or Deputy Settlement Commissioner". The entire argument regarding the question of sanction, therefore, really rests on rule 9 and not on section 29 of the Act.

8. On behalf of the respondents it was pointed out that by an order issued on the 5th of February 1960, bearing Endorsement No. 6894‑69/491‑(P) the Chief Settlement Commissioner has specially empowered the Additional Settlement Commissioners to sanction prosecutions in terms of rule 9 and section

29. Now In the present case, the original order dated the 27th of April 1964, directing the prosecution of the petitioner was passed by the Additional Settlement Commissioner, Nawabshah. It is, therefore, clear that that order was by a competent officer specially empowered under rule

9. The learned counsel for the petitioners has built his argument, in its manifold aspects, on the basis of subsequent actions taken in this case, but it seems to me that the basic order against the petitioners still continues to be the order, dated the 27th of April 1964, passed by the Additional Settlement Commissioner. I have already remarked that the appellate order of the Settlement Commissioner, dated the 30th of September 1964, did not interfere with the direction given by the Additional Settlement Commissioner for prosecuting the petitioners. It is true that during the pendency of the petitioner's appeal or appeals, the prosecution previously initiated against them under the order dated the 27th of April 1964; were withdrawn, but the withdrawal of those prosecutions was clearly an interim measure, in obedience to an interlocutory order passed by the Appellate Authority. Once the petitioner's appeal/appeals were dismissed by the Settlement Commissioner, the order passed by the Additional Settlement Commissioner on the 27th of April 1964, became operative in all its aspects and the complaints now pending against the petitioners must, in reality, be deemed to be in pursuance of this original order.

9. In this order the Additional Settlement Commissioner had fully applied his mind to the facts alleged against the petitioners and had arrived at a considered opinion that, apart from the cancellation of their excess allotments, the petitioners should also be prosecuted for having filed bogus claims. It is clear to me, therefore, that the argument that the comp.‑tent authority has riot applied its mind properly to the facts of the case before sanctioning prosecution of the petitioners has no substance. The Additional Settlement Commissioner did not mention the law under which the prosecutions were to be launched but on the facts stated in that order, it is clear that the offence would fall under section 27/28 of the Act and not under any provisions of the law cited in the complaints actually instituted in the Criminal Court. The citation of inapplicable provisions of law in the complaints drafted and instituted in pursuance of a well‑considered and valid order does not, to my mind, invalidate the proceedings. Reference in this behalf may be made to Manu v. State (P L D 1964 Kar. 34) in which it was observed, following Chittaranjan Das v. State of West Bengal and others (A I R 1963 Cal. 191) that the question of form Is not material when the complaint contains all the information required by section 173, Criminal Procedure Code. It is true that fn the complaints filed against the petitioners the law mentioned in section 7 of Act V of 1949, read with section 29 of the Dis placed Persons (Compensation and Rehabilitation) Act, 1958. It was stated at the bar that there was no Act V of 1949 but only Ordinance V of 1949 which was promulgated to amend the Pakistan Refugees Rehabilitation Finance Corporation Ordinance, 1948. It is clear that this Ordinance has no application in the present case. Similarly, the Displaced Persons (Compensation and Rehabilitation) Act, 1958, is inapplicable as it deals with urban properties, whereas the property involved in the present cases is agricultural land. It is, thus clear that the law cited in the heading of the complaints is irrelevant, but the irrelevancy of this citation has nothing to do with the substance of the complaints and with the legality of the prosecution order made lay the Additional Settlement Commissioner on the 27th of April, 1964. As already stated, in that order the facts alleged against the petitioners are clearly set out and the competent officer has arrived at an opinion that the petitioners should be prosecuted.

10. The contention that the sanction should be considered invalid for the reason that the main part was played only by the petitioner Muhammad Sadiq, who acted as special attorney for the remaining petitioners, has no force. All the ten petitioners were the beneficiaries of the allotments obtained by Muhammad Sadiq and it would be for the trial Court to determine as to whether any criminal liability attaches to the remaining nine petitioners or not. The sanction for prosecuting the petitioners cannot be said to be vitiated simply because the Additional Settle ment Commissioner has decided to prosecute the remaining nine petitioners as well.

11. On this view of the matter, it is clear that there is on the record an elaborate order by an officer specially empowered in this behalf, which shows that the facts alleged against the petitioners were properly considered before sanction was accorded to their, prosecution. Accordingly, the requirements laid down by their Lordships of the Privy Council in Gokulchand Dwarkadas v. The King (A I R 1948 P C 82) and by the learned Judges of the High Court in Muhammad Younis v. Crown (P L D 1953 Lah. 321) stand amply fulfilled in the present case, in spite of the fact that section 29 of the Act, which applies in the instant case, does not require any previous sanction, and it is only rule 9 which speaks of such sanction. As require ments of rule 9 also stand fulfilled, I need not examine whether rule 9 goes beyond the scope of section 29 of the Act.

12. Even if for any reason, which I cannot see, it is assumed that the present prosecutions are not in pursuance of the original order made by the Additional Settlement Commissioner on the 27th of April 1964, I find that on page 493 of the relevant file of the Rehabilitation/Settlement Department, Nawabshah there is a note recorded by the Assistant Rehabilitation Mukhtiarkar and Assistant Settlement Commissioner (Lands), suggesting that "in view of the dismissal of the petitioners' appeals by the learned Settlement Commissioner, action for prosecution of the accused may be taken afresh as requested by the D. S. P. Enforcement Claims, Hyderabad". This proposal was accepted by the Deputy Commissioner who also functions as the Additional Settlement Commissioner in the following terms:‑ "As suggested." It was stated at she bar on behalf of the respondents that the Deputy Commissioner, who passed this brief order, was the same person who had earlier passed the detailed order on the 27th of April 1964. In this background, it is clear that the rote and the order appearing on page 493 of the file, a copy of which has now been placed on the High Court, record, would amount to a proper sanction within the meaning of rule 9 referred to above. There is no case here of the lack of application of his mind by the Deputy Commissioner/Additional Settlement Commissioner, as the action proposed to be taken was merely in pursuance of a previous judicial order which had been maintained in appeal by the learned Settlement Commissioner.

13. We may now turn to the contention that the Magistrate could not take cognizance of the complaints against the petitioners for the reason that the proper sanction for prosecution was not placed on the judicial file. In support of this contention Mr. Azizullah Shaikh placed reliance on A. F. M. Taher v. The State (P L D 1958 Dacca 569) in which it was held that:‑ "lf a previous sanction is necessary for the initiation of a prosecution, then a prosecution initiated without such sanction is entirely null and void and the obtaining of such sanction during the pendency of such proceedings does not cure the defect of the proceedings. Sanction is required by a Court to vest it with jurisdiction to hear the case. It. is necessary, therefore, that it must be before the Court before it takes actual cognizance of a case and begins to take proceedings in it; otherwise the entire object of having such sanction may well be defeated. The sanction has to be formally proved in the case and is a condition precedent to the initiation of the prosecution case. The mere bringing into existence of the sanction without filing it in Court is of no avail." These observations were made in respect of the prosecution of a public servant before a Special Judge under the provisions of the Criminal Law (Amendment) Act which require .previous sanction before cognizance can be taken by the Special Judge. Now, in the present case, as already stated, there is no requirement in section 29 of the Act, under which the complaints have been filed against the petitioners, that there should be previous sanction for prosecution of offences falling under section 27 or 28 of the Act. All that section 29 requires is that the complaint should be made by an officer appointed under the Act. Such being the case, the dictum in the case relied upon by the learned counsel for the petitioners is not attracted.

14. It seems to me that rule 9 which speaks. of sanctioning prosecution by the Chief Settlement Commissioner or by an officer specially empowered by him in this behalf has reference necessarily to the internal working of the Settlement Department and cannot be read as constituting a pre‑requisite for the taking of cognizance of a complaint filed under section 29 of the Act. In any case, the complaint, itself, recited that sanction had been accorded, and the sanction was already in existence in the shape of a proper judicial order. In these circumstances, I am not persuaded that there has been any violation of the statutory provisions contained in section 29 of the Act.

15. The last ground of attack may now be considered, namely, that the complaints are signed by the Assistant Rehabili tation Mukhtiarkar who is not an officer specially empowered by the Chief Settlement Commissioner to sanction prosecutions of the present kind. In the alternative, it was submitted that the Assistant Rehabilitation 4fukhtiarkars in the former Sind Province had been appointed as Assistant Settlement Commis sioner only for the limited purpose of sanctioning mutations, etc. and, therefore, they could not be regarded as officers appointed under the Act for the purpose of section 29 of the Act. I see no substance in either of the two grounds urged by the learned counsel for the petitioners. All that section 29 requires is, as already pointed out, that no Court shall take cognizance of any offence punishable under the Act save upon a complaint in writing made by an officer appointed under the Act. There is no requirement in this section that the complaint should be made by an office specially empowered by the Chief Settlement Commissioner. That requirement, as mentioned in rule 9 is for the preliminary process of deciding within the department whether any prosecu tion should be ordered or not, and cannot be imported into section 29, as enacted by the Legislature. The only requirement contained in this section is that the complaint should be in writing and should be made by an officer appointed under this Act. It is conceded that the Assistant Rehabilitation. Mukhtiarkar, who has signed the complaints in the present case, is also an Assistant Settlement Commissioner and, accordingly, he is an officer appointed under this Act, as mentioned in section 29 of the Act. The learned counsel contended that by means of a Notification No. 218/F. S. (143)/59‑A. III, dated the 12th of January 1960, issued by the Central Government all Tehsildars and Additional Tehsildars were invested with the powers of the Assistant Settle ment Commissioner for the disposal of mutation work under rule 7 (a) of the Displaced Persons (Lands Settlement) Rules, 1959 and that the same position should be attributed to the Assistant Rehabilitation Mukhtiarkar of the former Sind Province, with the result that officers of this category could act only for the purpose of deciding mutations and could not perform any other functions under the Act.

15. I find that, in the first place, the relevant Notification limiting the functions of the Assistant Rehabilitation Mukhtiarkars to attestation of mutations only has not been placed on the file by or on behalf of the petitioners and, accordingly, it is difficult for me to hold that the Notification relating to Tehsildars and Naib‑Tehsildars, presumably of the former Punjab and Bahawalpur areas, should be employed to define the position of the Assistant Rehabilitation Mukhatiarkars as well. In the second place whatever the functions assigned to the Assistant Settlement Commissioners they clearly remain officers appointed under the Act and, therefore, the requirement of section 29 of the Act would be amply fulfilled if the complaints are signed by such officers. Finally, the Assistant Rehabilitation Mukhtiarkar, who signed the complaints in the present cases, was present in Court and made go statement before me that he was not merely attesting mutations of evacuee lands allotted to displaced persons but was also carrying out the work of allotment itself. He asserted that he was a full‑fledged Assistant Settlement Commissioner in every respect. In these circumstances, I cannot hold that the complaints have not been properly signed or made as required by law.

16. For the forgoing reasons, I have come to the conclusion that the complaints made against the petitioners have been made after proper compliance with the provisions of rule 9 and section 29 of the Act, that the appropriate authority has properly applied its mind to the facts alleged against the petitioners before directing their prosecution and that the Criminal Court has, therefore, acted in accordance with law in taking cognizance of the complaints instituted against the petitioners.

17. The last contention that the law cited in the complaints is irrelevant and inapplicable has already been dealt with in the preceding paragraphs and nothing more needs be said about it.

18. As a result, the petitions fail and are hereby dismissed. K. B. A. Petition dismissed.