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Criminal Revision No. 1046 of 1969, decided on 28th, September, ltm0,

-- S. 197, Pakistan Criminal Law Amendment Act (XL of 1958). S, 6 (5) read with Penal Code (XLV of 1880), S. 409--Sanction for prosecution declined by delegates (Municipal Corporation) and pets. (loner punished departmentally-Anti-Corruption agency obtaining fresh sanction from delegator/governor for prosecution.-Held; Power once competently exercised by delegatee gets exhausted and no longer left in delegator to be exercised in a different manner,. (Sanction for prosecution).

Naseem Fatima case P L D 1967 Lah. 103 ref.

West Pakistan Land Commission v. Fateh Ullah Khan P L D 1971 S C 393 rel.

------S. 409-Case against petitioner registered 16 years back and heard 11 years after its institution-Amount involving only Rs. 205 for which petitioner already punished departmentally-Held: Not just and proper to put petitioner to jeopardy of trial after such a long time.

Nemat Khan for Petitioner.

Shaman Mahmood for the State.

Date of hearing; 28th September, 1980.

The facts giving rise to this petition are as follows: -

Shabbir Ahmad Khan petitioner was sent up for trial under sec tion 409. P. P. C. before Special Judge, Anti-Corruption, Lahore. He is an employee of the Lahore Municipal Corporation which is his appointing and dismissing authority. The Anti-Corruption authorities moved the Corporation twice for obtaining sanction for his prosecution, but it was declined on the ground that having been punished departmentally, he could not be punished again for the same offence. The Anti-Corruption -Authorities then moved the Governor for the grant of sanction which was accorded vide Letter No. SOI(LG)LMC-1-10/63, dated 26th September, 1967.

2. The petitioner moved an application before the Special Judge. Anti-Corruption, raising an objection that the competent authority having already declined to accord sanction, his prosecution was invalid and further that having already been punished departmentally, he could not be punished again for the same offence. Relying on Naseem Fatima's case (P L D 1967 Lah. 103) the learned Special Judge rejected the application with the following observation

I cannot help concluding with the observation that where by delegation the powers were transferred to the person--the Lahore Municipal Corporation in the instant case, to do certain things which the Corporation could not otherwise do, in the absence of such delegation, it does not necessarily mean that the delegator (Governor in the instant case) is thereby shorn, of his plenary powers."

3. The learned counsel for the petitioner concedes that the delegator, i.e. the Governor in the instant case, having delegated his powers was not divested of the powers which he had delegated to the Municipal Corporation, but contends that the power having been exercised by the delegatee, it was exhausted and was no longer left with the delegator to be exercised in a different manner. In support of his contention he has relied on West Pakistan Land Commission v. Fateh Ullah Khan (P L D 1971 S C 393). In this case the view expressed by a Division Bench of this Court that the ordinary incident of delegated authority is that if once it is competently exercised by the delegatee, it gets exhausted and there is no power left in the delegator to exercise the same authority in a different manner, was approved. I, therefore, agree with the contention raised by the learned counsel for the petitioner.

4. Another aspect which requires consideration is that the case was registered more than sixteen years back and this petition is being heard about eleven years after its institution. The amount involved is only Rs. 205 for which the petitioner has already been punished departmentally. In the circumstances, it will not be just and proper to put the petitioner to the jeopardy of a trial after such a long time. Consequently, this petition is allowed and the impugned order is set aside. The proceedings against the petitioner are quashed.

Petition accepted.

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