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Case No. S‑K‑33 of 1977, decided on 31st May, 1978.

---S. 16‑Sanction for prosecution‑Nothing on record to show that Home Secretary either initialled application received from Superinten dent, Police, seeking sanction for prosecution of accused or made any endorsement to indicate that he found case as made in allegation by Police against accused, sufficient for sanction‑Sanction, held, not given legally, in circumstance.‑‑[Sanction for prosecution].

Jalaluddin Baloch for the Complainant.

Nooruddin Sarki, Sp. A. P. P. for the Accused._

Date of hearing: 31st May, 1980.

The accused in this case was challaned in this Court on 7‑8‑1977, for trial for offences under section 13 of the Prevention of Anti :National Activities Act, 1974, the basis of this challan was a First Information Report No. 104/76, which has been registered on 19‑7‑1976, at Mirpur Mathelo, Police Station, Sukkur, by complainant Abdul Ghafar A. S. I. The allegations shortly were that the accused was a worker of Sindho Desh Movement and he was instigating the public against the then Prime Minister of Pakistan Mr. Z. A. Bhutto and was using unbecoming language against him. It was alleged that the purpose of the accused was that the public might support the Sindho Desh Movement and oppose the People's Government. He was also trying to create riots amongst the Sindhis against the non‑Sindhis which ultimately was aimed to create riots. In the challan the type of the incident was described to be about six months before the first information report which had been filed as already stated on 19‑7‑1976, although a final challan is said was ready on 27‑2‑1977, it was produced in Court on 7‑8‑1977 and then the accused was shown as an absconder.

2. Repeated process was issued for the arrest of the accused by this Court but he voluntarily appeared on 10‑9‑1977 and was granted interim bail on 12‑9‑1977, as the ' Additional A: G. desired to examine the question of the validity of the sanction which was dated 11‑2‑1977 and which point was raised by the learned counsel for the accused as an initial objection to the commencement of the prosecution. This bail was confirmed on 20‑9‑1977, as Mr. Suleman Memon, Additional A.‑G. stated that he has no objection to the confirmation of bail.

3. The learned Prosecutor avoided to discuss the question of the .validity of the sanction and the charge was framed on 23‑10‑1977 under section 13 of the Anti‑National Activities Act, 1974, to which the accused pleaded not guilty whereafter several witnesses 1. e. P. W. 1, Abdul Ghaffar A. S. I. P. W. 2, Haji Noor Muhammad S. H. O. Faizguug; P. W. 3, Hamidullah S. H. O., Mirpur Mathelo; P. W. 4, Abdul Rahim Head Constable Special Branch: P. W. S, Zaffaruddin S. I. F., besides P. W. 6, Hidayatullah Memon. Section Officer Home Department of Sind, who brought the file relating to the sanction for the prosecution and P. W. 7, Mumtaz Ahmed Baig, the Deputy Secretary Home Department and P. W. 8, Mr. Mughal, Private Secretary to Home Secretary, Government of Sind were examined.

4. The file relating to the sanction disclose that the S. P. Sukkur, had made an application on 27‑1‑1977, addressed to the then Home Secretary, Government of Sind which had a marginal note "shown to Home Secretary who has ordered that sanction may please be given". This is dated 11‑2‑1977 and was endorsed to Deputy Secretary, who on the same date had written underneath "please issue sanction". Pursuant to these endorsements Hidayatullah Memon prepared the sanction bearing a date I1‑2‑1977, which, it would be interesting to reproduce verbatim:‑

No. 1/69‑(SO‑J II)/77.‑Whereas the Superintendent of Police, Sukkur has reported that F. I. R. No. 104/76, under section 13 of the Preven tion of Anti‑National Activities Act, 1974, has been registered at P. S. Mirpur Mathelo, against Allah Bachayo son of Gut Muhammad Marnas, resident of Bago Daho, Taluka Ghotki of Jie Sind Movement;

And whereas the Superintendent of Police, Sukkur has requested vide his letter No. PB/G/179, dated the 27th January, 1977, for sanction of prosecution as required by section 16 of the Prevention of Anti- National Activities Act, 1974, of the said Allah Bachayo son of Gut Muhammad Marnas;

And whereas after perusal of the investigation of the said case submitted by the Superintendent of Police, Sukkur, it is manifestly clear that ho openly makes propaganda in support of Sindhu Desh by misguiding innocent people and excites them against non‑Sindhis. He makes un-parliamentary utterances against the Prime Minister of Pakistan and always continues campaign for Sindhu Desh which is likely to create tension between New and Old Sindhis and thus all his notions and utterances amount to Anti‑National Activity within the meaning of clause (a) of subsections (i) and (ti) of section 2 of the Prevention of Anti‑National Activities Act, 1974, which is punishable under section 13 of the said Act;

And whereas the Government of Sind after examining the investigation case papers submitted by the Superintendent of Police Sukkur and considering all the facts and circumstances of the case, has been satisfied that it is a fit case in which accused Allah Bachayo son of Gut Muhammad Marnas be prosecuted under section 13 of the Prevention of Anti‑National Activities Act, 1974, in the public interest ;

Now, therefore, in exercise of the powers conferred under section 16 of the Prevention of Anti‑National Activities Act, 1974, the Provincial Government of Sind are pleased to sanction prosecution of the said Allah Bachayo son of Gut Muhammad Marnas of Tie Sind Movement, for the said offence and authorises the S. H. O., Mirpur Mathelo, to challan the accused before the Special Court established under the Suppression of Terrorists Activities (Special Court Act) for Sind."

(Sd.)

(Hidayatullah Memon),

Section Officer (Judicial‑II)

for Secretary to Government of Sind.

5. The learned counsel for the defence had raised the initial argument that the sanction was neither proper nor valid as there was nothing in the file to show that the Home Secretary or another competent Officer of the Government had in fact applied his mind to the facts of the case and considered the feasibility of the accused being prosecuted. The document reproduced above was signed by a Section Officer on behalf of the Secretary to Government of Sind. He in his evidence in this Court did not say anything in support of the contents of this document but merely produced the file. Mumtaz Ahmed Baig, the Deputy Secretary upon a presumption that the Home Secretary must have applied his mind to the facts of the case and thereafter given instructions to the Private Secretary merely passed on the file to the Section Officer, Hidayatullah Memon for issuing the sanction. Mr. Mughal, the Private Secretary to the Home Secretary Government of Sind deposed that he had put up the papers to the Home Secretary who saw them and gave him directions that the sanction way be issued. There is nothing on record to show that the Home Secretary initialled the application in token having received the same or made any endorsement to indicate that he had found the case as made out in the allegations made by the police against the accused is sufficient for sanction. The Private Secretary categorically stated that he did not know the rules regarding issuance of a sanction. He admitted that the letter was not in warded but this according to him indicated that the sanction was urgently required by the S. P. The facts on the contrary shows that even on the date of the challan police had not apprehended the accused. According to the Private Secretary he would not remember whether there were any papers alongwith the letter of the Superintendent of Police no that the Home Secretary bad read another papers excepting the letter o sanction. In these circumstances, looking to the dates of the offences, of the first report, of the sanction and also the challan the learned prosecutor was in a position of utter helplessness and had to state that he could not support the validity of such a sanction. As the sanction was admitted not given legally in this case, the accused is discharged without discussing an further evidence. He is on bail and his bail bond is cancelled.

Petition allowed.

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