2000 SCMR 1797 (PLP)

IFTIKHAR MUHAMMAD CHAUDHARY, J.

Relevant facts of the case necessary for disposal of instant petition are that prosecution of the petitioners was sanctioned by the Commissioner, D.G. Khan for their trial under section 409/420/467/468/471/109, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947. The petitioners were booked for alleged offences vide F.I.R. registered against them as back as on 21st January, 1981 for misappropriating an amount of Rs.2,22,000 belonging to public exchequer by tampering/manipulating relevant record. Trial proceeded against them in the Court of Special Judge, Anti-Corruption, D.G. Khan Division. When the trial was about to be completed as except delivering judgment after hearing final arguments no other proceedings were required to be done, Secretary Local Government and Rural Development Department/Chairman, Punjab Local Government Board vide its order, dated 7th November, 1990 and 11th August, 1991 issued directions to withdraw the case against them. Relevant text of the orders for convenience are reproduced hereunder:-- Dated, Lahore the 7th November, 1990 "In exercise of the powers under section 10(4) of Pakistan Criminal Law Amendment Act, 1958 prosecution proceedings against Mr. Muhammad Aslam Khokhar, formerly District Engineer, Zila ' Council, Muzaffargarh now posted as Municipal Engineer, Metropolitan Corporation, Lahore in case F.I.R. No.l, dated 21-1-1981, Police Station A. C. E., Muzaffargarh, under sections 420, 467, 409, 468, 471 and 109, P.P.C. read with section 5(2) 47, P.C.A., are hereby withdrawn." Dated Lahore the 11th August. 1991 "In exercise of the powers under section 10(4) of Pakistan Criminal Law Amendment Act, 1958. prosecution proceedings against Mr. A.R. Saleemi, formerly .Chief Officer, Zila Council. Muzaffargarh in case F.I.R. No.l, dated 21-1-1981, Police Station A.C.E., Muzaffargarh, under sections 409,.467, 471 and 109, P.P.C. read with section 5(2) 47, P.C.A. are hereby withdrawn. "

2. Learned Special Judge, Anti. Corruption declined to accord permission to the prosecution to withdraw the case vide its order, dated 11th May, 1993, therefore, petitioners feeling dissatisfied from the above order, preferred Criminal Revision No. 133 of 1993 before the' Lahore High Court, Multan Bench. Learned Division Bench vide. impugned order, dated 3rd December, 1999 dismissed the, revision petition filed by petitioners. As such instant petition has been filed.

3. Mr. Sh. Abdul Manan, learned counsel for the petitioners contended that under section 10(4) of the Criminal Law Amendment Act, 1958 (hereinafter referred to as the "Act") Special Judge Anti-Corruption had no jurisdiction but to accord permission to withdraw the prosecution, once orders in writing in this behalf have been issued by the appropriate Government. To substantiate his argument he relied on 1989 PCr.LJ 1361.

4. On the other hand Ms. Yasmeen Sehgal, learned A.A.-G. contended that without prejudice to the reasons which have been assigned by learned Judges in Chambers of 'High Court, the orders of withdrawal; dated 7th November, _ 1990 and l lth August, 1991 have not been issued by the appropriate Government as defined under section 2(a) of the Act read with. Pakistan Criminal Law Amendment (Punjab). Rules, 1985 (hereinafter referred to as the "Rules"). Reliance was also placed by her on PLD.1979 Lah. 275, PLD 1980 Kar. 424.

5. We have heard learned counsel for parties at length and have gone through the definition assigned to the word "appropriate Government" under the Act, which means that in relation to a person serving in connection with the affairs of the Province, the concerned Provincial Government shall be the "appropriate Government". According to section 12(2) of the Act, the "appropriate Government" has been authorised to frame rules to carry out the purposes of the Act. Thus in exercise of these powers Provincial Government promulgated Rules known as Criminal Law Amendment (Punjab) Rules, 1.985 and under rule 2 sanction for prosecution was prescribed, according to which Commissioner of the Division where the offence or part thereof has been committed will be the sanctioning authority. It is an admitted fact that the alleged offences have been committed at the. relevant time by the petitioners within the jurisdiction of Commissioner, era Ghazi Khan. It is also an uncontroverted fact that sanction for prosecution of the petitioners was granted by the Commissioner. As it has been pointed out hereinabove, the Rules of 1985 were framed by the Provincial Government of Punjab in exercise of its jurisdiction under section 12(2) of the Act authorising various authorities to' grant sanction for the prosecution of the officials/officers of Grade-1 to 18 etc. This Rule in fact has extended the definition of the appropriate Government. We are conscious of the fact that ordinarily Commissioner of a Division under the Rules of Business cannot be deemed to be an "appropriate Government" but as per above provisions. of the Rules when an authority i.e. Commissioner etc' has been given powers to grant sanction for the purposes of prosecution as required under section 6(5) of Act, it means that power of an appropriate Government have been delegated upon such authority. Now the question is as to whether without the consent of appropriate Government who had granted sanction for prosecution, whether any other authority i.e. Secretary, Local Government etc. with reference to case in hand can withdraw the case. To answer this question we have to examine firstly that under section 20 of General Clauses Act, 1956 the Authority who: had passed an order retains the .jurisdiction to withdraw the same. In the instant case although the sanction for prosecution of b petitioners was granted by the Commissioner but it had not issued the notification wherein orders have been made to withdraw the case against the, petitioners, which means for limited purpose, appropriate Government has not withdrawn from the prosecution of the case. Secondly, the appropriate Government, may be Commissioner or any other authority, cannot withdraw the case by discharging its functions mechanically i.e. . merely on the application submitted by the accused who are facing the trial. There is no doubt that under section 10(4) of the Act the appropriate Government is authorised to withdraw the. prosecution pending against an accused but such authority has to be exercised judiciously and if the order has been passed on the consideration other than . judicious then it shall be deemed that the appropriate Government has not acted legally under section 10(4) of the Act. It is also to be observed that if the appropriate Government is authorised to act callously and orders passed without lawful authority are carried out in a mechanical manner it would not only tantamount to interference in the judicial process of law but can also be a clog on the independence of judiciary particularly in those matters where trial has been completed and judgment is to be announced after hearing arguments and if the 'case is allowed to be withdrawn in the garb of an arbitrary order, it would lead to an anomalous situation and in this manner unscrupulous persons shall succeed in making the mocker of law. Thus we are inclined to hold that in the instant case notwithstanding the reasons prevailed upon the learned Judges in Chambers of Lahore High Court to decline to grant relief to the petitioners we are of the considered B opinion that no injustice has been caused to the petitioners warranting interference by this Court in exercise of its jurisdiction under Article 185(3) of the Constitution of Islamic Republic of Pakistan. Accordingly petition is g dismissed and leave to appeal refused. Petition dismissed.