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Criminal Miscellaneous No. 1063 of 1966, decided on 9th January 1968.

S. 185‑‑Notice directing demolition of unauthorised construction‑Non‑compliance of notice-----No action by Authority for non‑compliance‑Issuance of another notice not barred.

The offence consists in the failure to comply with a requisi tion issued by the appropriate authority. If a particular requisi tion or notice is not enforced, there is nothing; in the Cantonment Act that prevents tin appropriate authority from issuing another.

S. 271‑Limitation‑Date a final notice cannot be pressed into service for extending period of limitation where successive notices are issued ‑ Prosecution launched after expiry of prescribed period of limitation‑Pro ceedings quashed as barred by limitation ‑ Criminal Procedure Code (V of 1898), S. 561‑A.

The complaint was lodged after expiry of the period of six months of limitation as provided in section 271 of Cantonment Act, 1924. The prosecution was held barred by limitation and the proceedings were quashed.

S. 109 read with Cantonment Act (II of 1924)‑Provisions of S. 109, P. P. C.‑Not applicable to offences under Cantonments Act, 1924, it special enactment.

Ch. Khurshid Ahmad for Petitioners.

Mian Ata‑ul‑Haq for Respondent No. 1.

Sh. Abdul Majid for the State.

This is a petition under section 561‑A, Cr. P. Code, praying this Court to quash the proceedings pending against Ahmad Ullah and Sh. Siraj Din under section 268 of the Cantonment. Act, 1924, read with section 109, P. P. C. in the court of Cantonment Magistrate, Lahore.

2. The facts of the case are these. Ahmad Ullah is the occupant of a portion of property No. 369. survey No. 581858 situated inside the notified Bazar area of Lahore Cantt. and is managed by the Auqaf Department. This being s notified area is being managed by the Contonment Board under the Cantonment Act, 1924.On 15th May 1964, the Cantonment Board served a notice under section 185/256 of the Cantonment Act, 1924, on Ahmad Ullah petitioner directing him to demolish the unauthorized construction carried by him. A second notice was also served on Ahmad Ullah. On his failure to comply with the two notices a final notice dated 17th April 1965, was duly delivered to him on 21st April 1965, calling upon him to demolish the unauthorized construction. On his failure to do so a complaint under section 268 of the Cantonment Act against Ahmad Ullah was launched in the Court of Cantonment Magistrate, Lahore, on 30th October 1965.

3. The first question that falls for determination is whether the prosecution is barred by limitation under section 271 of the Cantonment Act. Section 271 of the Act reads as under:

"271. No Court shall try any person for an offence made punishable by or under this Act, after the expiry of six months from the date of the commission of the offence, unless complaint in respect of the offence has been made to a Magistrate within six months aforesaid."

In the instant case the first notice was served on Ahmad Ullah on 15th May 1964 and a final notice was delivered to him on 17th April 1965. He failed to comply with it and the prosecution was launched on 30th October 1965. The argument of the learned counsel for the petitioner (Ahmad Ullah) is that in the instant case the first notice was served on him on 15th May 1964. Therefore, the offence was committed on the expiry of first notice viz. on 14th June 1964, and the complaint having been instituted on the 30th October 1965, the prosecution is barred by limitation in view of section 271 of the Cantonment Act. Furthermore, the subsequent notice issued by the Cantonment Board was irrelevant as regards the prosecution of Ahmad Ullah for non‑compliance with a notice under section 185 of the Act, as there is no provision which warrants the service of a second notice purported to be given under section 185 of the Act and as such the final notice dated 17th April 1965 cannot be pressed into service for extending the period of limitation under section 271 of the Act. The question then for consideration is whether there is anything in the Cantonment Act that prohibits the issue of subsequent notice when no action has, for one reason or the other, been taken on the first. I can myself see nothing that does so. The offence consists in the failure to comply with a requisition issued by the appropriate authority. If a particular requisition or notice is not enforced, I can find nothing in the Cantonment Act that prevents an appropriate authority from issuing another. In the case in hand no steps were taken to enforce the first and the second requisition and it was the third notice after the non‑compliance with which the prosecution was launched. Unfortunately this complaint was lodged after six months of the limitation as provided, in section 271 ' of the Cantonment Act of 1924. Therefore this prosecution is: barred by limitation. In the circumstances, the present prosecution cannot possibly by sustained and the present petition must succeed.

4. Before parting with this judgment I may say that the prosecution of Sh. Siraj Din under section 109, P. P. C. would be clearly wrong as section 109, P. P. C. would not be applicable for the offences under the Cantonment Act which is a special enactment. Furthermore, as no offence has been com mitted, the question of abetting the offence does not arise.

5. The result is that the petition is allowed and the proceedings against the petitioners are hereby quashed.

S.A.H. Petition allowed.

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