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Criminal Miscellaneous No. 408 of 1968, decided on 20th January 1969.

S. 561‑A read with Pakistan Criminal Law (Amendment) Act (XL of 1958), S. 6(5)-- Complaints under Ss. 419/420/468/465/467/471/109, P. P. C. lodged against public servant in Court of Special Judge‑Delay in according sanction for prosecution by appropriate authority taking place due to correspondence between various Departments‑‑Certain allegations against petitioner found to require determination by a proper forum‑Delay in case not so colossal as to pursuade Court to quash proceedings on such sole ground‑Section 561‑A not applicable in circumstances of case.

State v. Qamar‑uz‑Zaman P L D 1960 Lah. 1199 no longer valid.

Muhammad Rafi Pervaiz v. State P L D 1960 Lah. 986 and M. S. Khawaja v. State P L D 1965 S C 287 ref.

Ch. Muhammad Sadiq for Petitioner.

Malik Abdul Hamid for the State.

The petitioner in this case asks for quashment of proceed ings which have arisen out of three F. I. Rs., namely, Nos. 29 and 214 registered on 26th of January and 7th of June 1965, respectively at Police Station Old Kotwali, Multan, and F. I. R. No. 133 dated 29th of August 1965, lodged in Police Station Leiah in the District of Muzaffargarh. The two first‑mentioned F. I. Rs. were under section 419/420/468/465/471/109 of the Pakistan Penal Code, whereas the third F. I. R. was registered under section 419/420/467/468/109, P. P. C.

2. The present application was moved on the ground that the sanction of the prosecution of the petitioner had not yet been received from the Department concerned and he was unneces sarily being harassed. It was further contended that no case was made out from the contents of the F. I. Rs.

3. A report was called from the Special Judge by order of Abdul Hamid, J. dated 1st of February 1968. The Special Judge reported that two cases registered under F. I. Rs. Nos. 29 and 214 were received by him from the Court of the Senior Special Judge, Multan, on 20th of February 1967, and were pending in his Court. He denied any knowledge about the case which arose out of F. I. R. No. 133 registered at Leiali. It was also stated in the report that two draft sanctions were available on the files of the cases concerned, but there was no signed sanction available. The report also shows that the Prosecuting Sub‑Inspector had requested the learned Special Judge to move the competent authority to accord sanction, but he had not done so.

4. Another report dated 19th of December 1968, from the Additional Settlement Commissioner (Administration) was submitted to this Court. It appears from this report that the case arising out of F. I. R. No. 133 had been filed in Court in November 1968. It was conceded that in none of the three cases, the sanction of the appropriate authority had been received. It was, however, pointed out that the Directorate of Enforcement had in the first instance, moved the Secretary, Board of Revenue for prosecution of the petitioner. The Board, in its turn, sent papers to the Settlement Organization. Since then some correspondence is going on between various functionaries of the Settlement Department and finally reference was made to the Central Government on 12th of December 1968, for according sanction. The reply to that reference still awaited.

5. It would appear from the above narration of facts that the delay in according sanction occurred because the provisions of the proviso to subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958, were not complied with by the learned Special Judge. It also appears that before this Court called a report from the learned Special Judge, it was not brought to his notice by the Prosecuting Sub‑Inspector that action had to be taken under the above proviso. It is not understood as to why the learned Special Judge did not take any action even after the prosecution brought the correct state of affairs to his notice. In any case, this delay in departmental correspondence and the failure of the Judge to act according to law, does not furnish the petitioner with a sound ground to ask for the quashment of the proceedings against him. The two cases, which arose out of F. I. Rs. Nos. 29 and 214 were sent to the Court of the Special Judge in February 1967, whereas the third case, which arose out of F. I. R. No. 133, was sent to his Court in November 1968. The Central Government is considering the question of grant of sanction and there is no indication on this record that they have made up their mind in this connection.

6. The learned counsel for the petitioner relies on the case of State v. Qamar‑uz‑Zaman (P L D 1960 Lah. 1199). In that case there were three cases against the petitioner and the challans were submitted in Court on 26th of April 1956. The challans remained pending in the Court of the Additional District Magistrate till 25th of July 1957, when they were directed to be placed before a Special Judge. There was no progress in the cases even in the Court of the Special Judge, and the petitioner filed three miscellaneous petitions in 1957. A Single Judge of this learned Court quashed the proceedings because the Central Government had not been able to make up their mind for more than two years. The sanction was granted thereafter, and the proceedings against the petitioner were revived. The Division Bench, dealing with the case cited by the learned counsel quashed the proceedings on the ground that fresh proceedings were not competent.

7. The facts, however, in this case indicate that the Directo rate of Enforcement had been abolished in 1965 and erroneously a reference was made to the Board of Revenue. The Settlement Department was approached in May 1967. The delay took place because the matter was being considered and certain documents were asked for in this connection. In considering the delay that may have occurred in criminal proceedings the time spent in investi gation not to be taken into consideration. Section 561‑A will be applicable to proceedings pending in the Court only. This was so held in Muhammad Rafi Pervaiz v. State (P L D 1960 Lah. 986). It was observed that a delay in instituting proceedings for want of legal sanction or for want of completion of investigation appears to stand on a different footing, and if delays of this type are allowed to bar prosecution, the law of limitation will stand projected in criminal proceedings. In M. S. Khawaja v. State (P L D 1965 S C 287) it was observed that it can only be in a very rare case that a superior Court acting under its inherent power to prevent abuse of the process of any Court or otherwise to secure the ends of justice would deem it appropriate to act so as to place an alleged offence outside the operation of the crimi nal law, and on incidental grounds such as delay and for any reasons other than reasons going to the question whether the allegation is sufficient to constitute an accusation of an offence in law. In my view, the law laid down in the judgment relied upon by the learned counsel has been modified by the above pronouncement of the Supreme Court. The only delay in this case is not so colossal as to persuade me to quash the proceedings on this sole ground.

8. It is also not correct to say that this is a case of complete B lack of evidence. There are certain allegations made against the petitioner which require determination by a proper forum. I, therefore, find no force in this petition which is hereby dismissed. I would, however, direct the learned Special Judge to move the authorities concerned for deciding whether or not they are prepared to accord sanction for the prosecution of the petitioner. If no intimation is received within the time fixed in proviso to subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act of 1958 he shall proceed according to law.

Petition dismissed.

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