1990 PCr (PLP)

S. 5(2)

Penal Code (XLV of 1860), S.161

Sanction

Sanction for prosecution is not an expression of opinion on guilt of public servant, nor withholding it an indication of his clear innocence

Such sanction merely enables prosecution of accused for offences with which he is charged for which prior sanction is required by law.

[Sanction for prosecution]. Muhammad Ilyas Siddique for Petitioner. Petitioner is an Assistant Sub-Inspector of Punjab Police. At the relevant time, he was posted at Police Station Waris Khan, Rawalpindi City. On a particular date, one Muhammad Saleem was found in possession of heroin by the petitioner. He arrested him and produced him before the Magistrate who remanded him to police custody for investigation. Haji Muhammad Azeem is real brother of above said Muhammad Saleem. He approached the petitioner with request that his brother Muhammad Saleem be not put to harm and further that his remand should not be obtained. Petitioner is shown to have entertained the request and demanded illegal gratification. Some bargain was struck between the two. Muhammad Azeem reported the matter to the officials in Anti-Corruption Establishment. After fulfilment of usual formalities in this behalf, they arranged for a raid on the petitioner on 17-12-1988. In its course, Rs.1,129 were recovered from the person of the petitioner and the marked currency notes (Rs.2,000) were statedly recovered from a drawer of the table in the office of the petitioner. Petitioner denied receipt of the illegal gratification and explained that marked currency notes were inserted in the drawer in his absence with malice merely to enrope him in the charge of corruption. Magistrate who conducted the raid recorded in his report that taking of bribe by the petitioner appears to be a doubtful event. Police investigated the case. Learned counsel submits that police have exonerated the petitioner from the charge of corruption and have recommended for cancellation of the case against him. However, Commissioner Rawalpindi Division gave sanction for prosecution of the petitioner in respect of the offence noted in the F.I.R. Petitioner seeks annulment of sanction for his prosecution and quashment of F.I.R. lodged against him with Anti-Corruption Establishment. It was stated that criminal case lodged against the petitioner was product of ill-will and malice to wreak vengeance for the arrest of complainant's brother in the heroin case and innocence of the petitioner is proved by the proposed recommendation of police to the Court for cancellation of the case. Learned counsel also submits that sanction for prosecution granted by the Commissioner was a routine like matter which did not take notice of the material facts constituting the offence and the evidence collected in course of investigation which if looked into properly would have amply demonstrated that it was not expedient to sanction prosecution. Seen from the above, two points require determination. First is about the quashment of F.I.R. and second is in regard to validity of sanction for prosecution of the petitioner. As for the first point, there is good authority for the view that save in exceptional circumstances neither the course nor manner of investigation A by the police ought to be interfered with by the High Court in exercise of its constitutional jurisdiction. Registration of the report by the police gave them authority to investigate the offence and discover truth as to the innocence or guilt of the accused. If, in course of investigation, sufficient material is available to connect the accused with the offence, police are enjoined to place its results of investigation before the Court of competent jurisdiction for trial of the accused to take place in accordance with law. Conversely, if it is found that no case was made out against the accused and he was innocent, the police are required to recommend for cancellation of the case. In the facts of the instant case, if the police have found the petitioner innocent and propose to recommend to the competent Court for cancellation of the case against him, as stated by the learned counsel, then the petitioner's worries are at end. Only thing for him to see is that law must take its ordinary course. There are no exceptional circumstances in the present case for departing from the ordinary rule for putting an end to the proceedings commenced with the report of Haji Muhammad Azeem and consequent raid upon the petitioner, There is no material to hold that either the complaint by Haji Muhammad Azeem to the official in Anti-Corruption Establishment or the F.I.R. registered in the result of raid conducted under supervision of the Magistrate had any taint of illegality or mala fides. In absence of clear mala fides or abuse of process of law which two elemants do not exist in the present case, interference with police investigation cannot be caused. Likewise; registration of F.I.R. with the police which is their duty to record cannot and ought not to be quashed. In taking the above view, I am firmly l supported by observations in Emperor v. Khawaja Nazir Ahmad A I R (32) 19451 PC 18 and Shahnaz Begum v. The Honourable Judges of the High Court of Sind and Baluchistan and others P L D 1971 SC

677. This brings me to the second point in regard to the validity of sanction granted by Commissioner for prosecution of the petitioner. Petitioner is a public servant. In absence of required sanction from the appropriate authority, his prosecution to respect of the aforesaid offences cannot take place. It was not denied that in his case, Commissioner of the Division was the competent authority to give sanction. Only objection raised to the sanction was that it had been granted in absence of the required material to connect the accused with the offence charged against him. As much criticism was addressed against the sanction order, it appears appropriate to make a reference thereto. It reads:-- Sanction Order. WHEREAS, I, Muhammad Saeed Mehdi, Commissioner, Rawalpindi, Division, Rawalpindi have good reasons to be satisfied that Faryad Hussain A.S.I., while posted at Police Station Waris Khan in December, 1988, acting dishonestly and by abusing his official position demanded Rs.2.000 from Muhammad Azeem complainant on the assurance that he would not take physical remand of Muhammad Saleem accused, brother of the complainant who was arrested to a theft case. On the complaint of Muhammad Azeem a raiding party was arranged. The raiding party recovered the tainted currency notes from the possession of Faryad Hussain A.S.I. during the raid. Thereby a prima facie case is made out against Faryad Hussain A.S.I. under sections 161, P.P.C. and 5(2) 47 P.C.A. AND WHEREAS after considering the facts constituting the said offences and other circumstances of the case, I am satisfied that the sanction for his prosecution is necessary and expedient. NOW THEREFORE, in exercise of the powers conferred upon me by Anti-Corruption Rules, 1985 framed by the Government of the Punjab 1, Muhammad Saeed Mehdi, Commissioner Rawalpindi Division, Rawalpindi hereby sanction the prosecution of the above said Faryad Hussain A.S.I. in respect of the offences specified above. (Sd.) Commissioner Rawalpindi Division. The object of sanction as a condition precedent for prosecution of the public servants in respect of specified offences is to guard them against vexatious and frivolous proceedings and to discourage and prevent doubtful and improper prosecutions. There is no prescribed form in which the sanction order is to be expressed. Granting of sanction for prosecution appears to be an executive rather than a judicial act. In this view, sanctioning authority is neither authorised nor expected to hold a judicial enquiry before it decides to grant or withhold sanction. Any enquiry conducted in this behalf by the sanctioning authority can fairly bet characterised as a departmental one intended to discover whether it shall be expedient in interest of service to order prosecution of the public servant or to withhold it. It is clear that sanctioning authority is not bound to grant sanction in each case. It has discretion either to grant or withhold it. Giving of detailed reasons in support of the sanction is not the requirement of law nor it need be based on legal evidence. Similarly, accused public servant is not required to be associated in the enquiry culminating in the order relating to his sanction for prosecution. Therefore, no notice before sanction is granted need be given to him. But it does not mean that order granting or refusing sanction can be made in routine without conscious application of mind by the sanctioning authority to the required material placed before it. In the very nature of things, the sanctioning authority is obliged to apply its mind to the material placed before it and then decide whether it shall be expedient to grant or withhold sanction. Naturally, it cannot be a mechanical and routine order as the act of the sanctioning authority touches upon the service career of the concerned public servant. When the case is looked at from the above view point, it is clear that order sanctioning prosecution did not suffer from the vice of mala fides or non-application of mind to the facts of the case as also the expediency of prosecution of the petitioner. Sanction fork prosecution is not an expression of opinion on the guilt of pubic servant nor withholding it an indication of clear innocence. It merely enables his prosecution for the offences with which he is charged and in regard to which prior sanction is required by law. As said above, there is no element of mala fides or illegality on the part of Commissioner granting sanction for prosecution of the accused petitioner. From the available records, it cannot be said that the material records including the raid report were not before the Commissioner when he gave the impugned sanction. Therefore, no fault can be found with his act. In view of what has been said above, I do not find it a proper case to annul the sanction and quash the F.I.R. Writ petition has no merits and is dismissed summarily. Law must take its own ordinary course. N.H.Q./F-151/L Writ petition dismissed.