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Criminal Revision Petition No. 771 of 1954 decided on 24^th January 1955.

S. 13‑D‑Sanction of Custodian‑Whether necessary for offence falling under section.

No sanction of the Custodian is necessary for an offence falling under section 13‑D, Pakistan Rehabilitation Ordinance (XIX of 1948). There is no provision in that Ordinance re quiring sanction of the Custodian.

S. 32‑Whether applicable to offences under Ordinance XIX of 1948.

Section 4 of Ordinance XIX of 1948 does not make section 32 of Ordinance XV of 1949, requiring sanction of the custodian to prosecutions for offences under the latter Ordinance, applicable to offences under the former Ordinance.

No sanction is therefore required for prosecutions under Ordinance XIX of 1948.

Sh. Islam‑ul‑Haq for Appellant.

Sh. Khurshid Ahmad for Respondent No. 1.

Aslam Riaz Hussain for Respondent No. 2.

S. Virasat Hussain for Crown and Respondents.

The petitioner filed a complaint under section 13‑D of Ordinance XIX of 1948 against the two respondents in the Court of 1st Class Magistrate, Lahore. The learned Magistrate after having summoned the accused was of the opinion that he could not take cognizance of the offence without the sanction of the Custodian under section 32 of Ordinance XV of 1949 and discharged the accused. The learned Sessions judge rejected a revision petition against the order.

I have no doubt that both the lower Courts were in error in applying the provisions of section 32 of Ordinance XV of 1949 to this case for the simple reason that the offence which the respondents are alleged to have committed is not one under any of the provisions of that Ordinance. It was alleged that an offence had been committed under Ordinance XIX of 1948 and there is no provision in that Ordinance requiring sanction of tile Custodian. Section 4 of Ordinance XIX of 1948 does not make section 32 of the other Ordinance appli cable to offence under that Ordinance. Probably the Courts below were misled by the fact that section 13‑D (a) of Ordi nance XIX of 1948 is couched in exactly the same language as section 26 (a) of Ordinance XV of 1949. This only shows that the nature of the offences under the two provisions is precisely the same; but while the one is committed in relation to the performance of the functions of the Rehabilitation Department, the other can be committed only with reference to proceedings under Ordinance XV of 1949. I, therefore, set aside the order of both the Courts below and order that the case be tried in accordance with law.

It has been urged before me, and not denied by the learn ed counsel appearing for the Crown, that in this case the learned Magistrate made no preliminary enquiry before sum moning the accused. It appears that the present complaint was filed a very long time after the commission of the alleged offence and this requires some explanation at the very outset, Similarly one of the accused is alleged to have committed the offence in his capacity as an official of the Rehabilitation Department and it was the duty of the Court to consider whether the complaint against him was not barred by section 15 of Ordinance XIX of 1948. I, therefore, direct that before summoning the accused the learned Magistrate will make such preliminary enquiry into the alleged offence as he may consider proper petition is allowed.

K. B. A. Petition allowed.

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