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Criminal Appeal No. 184 of 1957, decided on 5th December 1957, from the order of Khawaja Ghulam Mustafa, Special Judge, Gujrat, dated the 6th February 1957.

Ss. 5 (5) & 11 (3)‑Prosecution of Secretary, Market Committee formed under Punjab Agricultural Produce Markets Act (V of 1939) under S. 409 Penal Code (XLV of 1860) Sanction for prosecution given by Deputy Commissioner and not by Market Committee‑Conviction held without jurisdiction --Entire proceedings quashed.

S. 16 and r. 41 (5), Punjab Agricultural Produce Markets Rules‑Employee of Market Committee can be dismissed by Committee only anal not by Deputy Commissioner.

Muhammad Zafar for Appellant.

Rashid‑ud‑Din for the A. G. West Pakistan.

Mazhar‑ul‑Hague for Complainant.,

Dates of hearing: 26th arid 28th November 1957 and 2nd December 1957.

This is an appeal against an order dated the 6th February 1957, of the learned Special Judge, Gujrat, convicting the appellant Muhammad Akbar (who at the time of the alleged commission of the offence was in the employ of the Market Committee, Dinga, District Gujrat, as its Secretary) under section 405, P. P. C. and sentencing him to three years' rigorous imprisonment and to a fine of Rs. 3,000 or a further period of six month' rigorous imprison ment in default.

It has been urged on behalf of the appellant that the sanction for the prosecution of the appellant given by the Deputy Commissioner, Gujrat, on the 9th of November 1955 under section 5 (5) read with section 11 (2) of the Pakistan Criminal Law (Amendment) Act, 1948 is invalid because the Deputy Commissioner, not being the authority empowered to dismiss the Secretary of the Market Committee, had no power to give the sanction. The sanction itself recites that the Deputy Commissioner was competent to dismiss Muhammad Akbar under rule 41 (5) of the Punjab Agricultural Produce Markets Rules, 1940. Mr. S. M. Zafar, learned counsel for the appellant, who argued the case with considerable ability, contends that that rule does not authorise the Deputy Commissioner to dismiss the appellant.

Sub‑rule 5 of rule 41 runs as follows:‑

"(5) If at any time in the opinion of the Deputy Commissioner.

(a) The number of persons employed by a market committee, or the remuneration allowed to them or to any one of them is excessive, or

(b) any such person is unfit for the post held by him, or

(c) any punishment awarded to any such person is inadequate or excessive or uncalled for,

the market committee shall in accordance with the Deputy Commissioner's directions reduce the number or remuneration, as the case may be, dismiss the unfit person, or increase, reduce or remit the punishment awarded to any one of them.

Provided that the market committee, or the officer or servant adversely affected by the Deputy Commissioner's direction, may appeal against it to the Commissioner whose decision shall be final

Provided further that the provisions of sub‑rule (1) of rule 49 shall be applicable to such appeal and the direction given by the Deputy Commissioner shall be deemed to be an order for this purpose".

Learned counsel for the State said that the present case fell under clause (b) of sub‑rule (5) and, therefore, the Deputy Commissioner being of the opinion that the appellant was unfit for the post held by him was entitled to direct the ‑Committee to dismiss the appellant and that the Committee was bound to carry out that direction. In other words, the substantial power of dismissal was vested in the Deputy Commissioner and the Committee was in effect only an agency for the purpose of giving effect to the Deputy Commissioner's direction. Mr. Zafar's forceful reply was that whatever may be the Deputy Commissioner's power or authority in the matter it fell short of the competence in the Deputy Commissioner to actually dismiss the appellant. He urged that there is nothing in the Punjab Agricultural Produce Markets Act of 1939 or the Rules made thereunder to show that any employee of the Market Committee could be dismissed from service by the Deputy Commissioner if the Committee itself was dead set against it‑even though it might, subsequently, have to pity the penalty for disobedience to the direction of the Deputy Commissioner by being superseded by an order of the Provincial Government. He, therefore, contends that the actual authority competent to dismiss is none other than the Market Committee itself. This contention of the learned counsel for the appellant appears to be sound and the learned counsel for the State was unable to meet it.

The contention of the appellant's learned counsel also finds support from the provisions of section 16 of the Act which is as follows:

"16. Appointment and salaries of officers and servants of Market Committee.‑(1) Subject to such rules as may be made by the Government in this behalf, a market committee may employ such persons as may be necessary for the management of the market, may pay such persons such salaries as it may think fit and shall have power to control and punish them. The committee may also, in such manner as may be prescribed, provide for payment to its employees of such leave allowances, gratuities or compassionate allowances as it deems proper; and may contribute to any provident fund which may be established for the benefit of such employees.

(2) The committee shall, in the case of any Government servant whom it employs pay to Government such contribution towards the pension and leave allowances of such servant as may be payable under any regulations in force".

This section makes it clear that the power of appointment and punishment of the servants of the Market Committee vests in the Committee and that only its exercise can be regulated by rules made by the Government. Apart from this section, there is no other provision in the Act authorising anybody else to dismiss the servant of a Committee. There fore, this section, read with the General Clauses Act, must be deemed to vest the power of dismissal in the Committee alone. Any rule to the contrary by the Government would be ultra vires of the Act.

For the foregoing reasons I hold that there is no sanction f the appropriate authority for the prosecution of the appellant and, therefore, the appellant's trial in the Court, below was without jurisdiction. I accordingly quash the entire proceedings and setting aside the order of the trial Court direct that the appellant be set at liberty forthwith. It is for the Market Committee of Dinga to consider whether the appellant should be prosecuted for the offence alleged against him.

K. M. A. Appeal accepted.

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