1988 P Cr (PLP)

It was contended by Mr. ,4.Q. Halepota Advocate that the applicant No.1 is working as DSP. whereas the applicant No.2 is posted as Additional Director Anti‑Encroachment Cell and Magistrate First Class in KDA, while the applicant No.3 is posted as Assistant Engineer KDA. In their capacity as employees of KDA the above applicants were assigned the job of removing encroachment from the properties which were under the management and control of KDA. By virtue of Notification dated 26th stay, 1983 issued by Housing Town Planning, Local Government and Rural Development Department, Government of Sind, among others the Director Land Management Karachi Development Authority is also appointed as "Authorized Officer" to exercise the powers and to perform the functions under para‑6 of MLO 202 in relation to removal of the encroachment in area under their jurisdiction. Consequently plot No.B‑S‑16, Block 14, Federal 'B' Area, Karachi which vested in KDA and was illegally encroached upon by respondent No.2 and one Amir Khan was got vacated from encroachers including respondent No.2 under the orders of Director Land Department KDA (Authorized Officer under para‑6 of MLO 202) after service of requisite notice on respondent No.2 and Amir Khan under MLO

202. After removal of encroachment the physical possession of the said plot was delivered to its owners and such acknowledgment was obtained from him. That one of the encroachers of the said plot namely Amir Khan filed a Constitution Petition being C.P. No. D‑137 of 1986 in this Court which was dismissed in limine by a Division Bench of this Court on 24‑4‑1986. That the respondent No.2 filed a direct complaint before the learned Special Judge (Prow.) who was pleased to write a letter on 7‑6‑1986 to the Chief Secretary, Government of Sind for grant of sanction for prosecution of the applicants. That this letter was replied to and the learned Special Judge was intimated vide letter dated 3rd August, 1986 that due to unavoidable circumstances the meeting of the Anti‑Corruption Committee No.1 (which was to be headed by Chief Secretary Government of Sind) could not be held and that the matter regarding grant of sanction for prosecution of the applicants in direct complaint will be put up in the ensuing meeting and decision thereof will be intimated to him in due course of time. That latter on the Anti‑Corruption Committee No.1 met on 31‑8‑1986 and declined to grant sanction for prosecution of the applicants for offences under section 161, P.P.C. r/w section 5 (2) of Act II of 1947 and such intimation was sent to the learned Special Judge Anti‑Corruption. It was further contended that in spite of refusal to grant of sanction for prosecution of the applicants the learned Special Judge held preliminary enquiry and issued process against the applicants on 16‑2‑1987. That in view of the above position the proceedings before the learned Special Judge were incompetent and were liable to be quashed. Mr. Makhdoom Abdul Wali learned counsel for the State has contended that in view of the fact that the Anti‑Corruption Committee No.1 had declined to grant sanction for the prosecution of the applicants which was mandatory for proceeding with the case, the proceedings could not be continued with and same is liable to be quashed. I have considered the contentions of the learned counsel and have gone through the documents produced alongwith the application. The letter dated 3rd August, 1986 written by Director Anti‑Corruption Establishment and Secretary Anti‑Corruption Committee No.1 Karachi which has been produced as Annexure 'C' clearly shows that the learned Special Judge was informed that due to unavoidable circumstances the meeting of Anti‑Corruption Committee No.1 which was to be headed by Chief Secretary Government of Sind could not be held and that the matter regarding grant of sanction for prosecution of the applicants will be put up in the ensuing meeting and decision thereof will be intimated to him. The letter Annexure 'I' written by Section Officer‑III to the learned Special Judge Anti‑Corruption shows that the matter was placed before the Anti‑Corruption Committee No.1, Karachi in its meeting held on 31‑8‑1986 for consideration. That the committee did not agree to grant sanction for prosecution of M/s. Haji Karim, D.S.P., Captain Shahid and Shakeel, but accorded permission for open enquiry against them by the Anti‑Corruption Establishment. Under section 6, subsection (5) of Pakistan Criminal Law Amendment Act, 1958, the previous sanction of the appropriate Government was essential and in the absence of such sanction the learned Special Judge had no jurisdiction to proceed with the case. Subsection (5) of section 6 reads as under: "Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), or in any other law, the previous sanction of the appropriate Government shall be required for the prosecution of a public servant under this Act, and such sanction shall be sufficient for the prosecution of public servant for an offence triable under this section. Of course the learned Special Judge had written a letter to the appropriate authority for grant of sanction and if no reply was received from the authority whether granting or refusing to grant sanction within 60 days, then the learned Special Judge could presume that the sanction was granted as envisaged by proviso to subsection (5) of section 6 of the Act, and he could proceed with the case. But in the present case letter dated 3‑8‑1986 shows that the learned Special Judge was informed that the question of granting sanction was under consideration and will be decided in the ensuing meeting. In such situation the learned Special Judge had no other alternative but to wait for further reply from the Chief Secretary because time was not the essence of sanction. In the case of Gul Mohammad Chahal v. Raho Mohammad Amir Khan and others 1983 P Cr. L J 643 it was held that: "the Special Judge Anti‑Corruption did not receive sanction nor refusal but was informed that it was under consideration of competent authority. Special Judge adjourning case and awaiting sanction. Eventually when competent authority refused to accord sanction same was intimated to the Special Judge. Contention that sanction should have been deemed by Special Judge to have been accorded when same neither received nor refused by appropriate authority within 60 days, as time was essence of sanction, held not tenable." It was further held that: "when Special Judge was knowing that matter of sanction was under consideration of competent authority it was not incumbent on him to summon accused at that stage." In the case of Ainuddin v. The State P L D 1962 Kar. 738 it was held that: "the learned Special Judge was not justified to decide the question whether some of the accused had prima facie committed any offence under the Anti‑Corruption laws. It was his binding duty, on the receipt of private complaint to obtain sanction from appropriate Government before taking any proceedings against these gentleman. It seems to me that the learned Special Judge in this respect has exceeded his jurisdiction and his order in this respect cannot be sustained," In the case of Dr. Abdul Fateh Ursani v. The State 1972 S C M R 239 it was observed by their Lordships that:‑

"a plain reading of the provisions of sections 2, 4 and 6 (5) of the Criminal Law (Amendment) Act and the description of the offences in the schedule leaves no doubt that the Special Judge had jurisdiction only to try public servants for the commission of the specified offences. No matter even ii' his services are terminated he does not loose the protection provided in section 6, subsection (5) that previous sanction of the Appropriate Government will be required to prosecute him." From the above discussion it is clear that when the learned Special Judge was intimated that the question of grant of sanction was under consideration he sought to have waited and could not proceed with the case without having any further intimation. In the present case since the appropriate Government had refused to give sanction the learned Special Judge could not examine the complainant and witnesses in preliminary enquiry and issue process against the applicants, after the receipt of letter Annexure 'I' refusing sanction. Even otherwise story mentioned in the complaint appears to be absurd, unnatural and unbelievable. The evidence of witnesses produced by the complainant/ respondent shows that witness Mohammad Altaf is real brother of the complainant, while witness Mohammad Hussain only talks of demand of illegal gratification of Rs.40,000 whereas the witness Maqsood has stated that those persons told the complainant that unless he would give them something as bribe they would not bother about the stay order granted by the Court. The complainant refused to give any bribe to those three persons. PWs Maqsood and Mohammad Hussain have not given the names of any of the accused. In view of the above discussion I am of the considered view that the cognizance taken by the learned Special Judge and process issued against the applicants was without jurisdiction, and that the complaint on the face of it appears to be absurd. To continue with the above proceedings will be an abuse of the process of the Court, and therefore, I allow this application, and quash the proceedings pending against the applicants before the learned Special Judge. S.A./A‑183/K Proceedings quashed.