Find a Lawyer

Criminal Acquittal Appeal No. 436 of 1961, decided on 29th March 1963.

Delegation by Government, of power to sanction prosecution‑Does not include power to withdraw prosecution under S. 10(4).

Sanctioning authority failing to grant sanction within 60 days‑Sanction deemed to be accorded by operation of law‑Such sanction cannot be vitiated by subsequent withdrawal of sanction.

Murtaza Hussain for A. A: G. and P. P. for Appellant.

Talmiz Burney for Respondent.

Dates of hearing : 27th, 28th and 29th March 1963.

Choudhry Muhammad Hafiz, a Health Inspector in the Karachi Municipal Corporation, being a public servant, was prosecuted by the Special Police Establishment under section 161, P. P. C. and section 5 (2) of Act II of 1947, in the Court of the Special Judge Karachi (Mr. K. M. Mirza). The challan was put up on the 2nd of February 1961, but it was not accompanied by a sanction as required by section 6(5) of the Criminal Law Amendment Act XL of 1958. The learned Special Judge wrote for such a sanction in terms of the proviso to the aforesaid subsection. This letter was sent on 16th Feb ruary 1961. No sanction was received and as sixty days expired from the receipt of the letter by the Administrator the Special Judge proceeded with the case on 11th May 1961. On that day, he gave the substance of the charge to the accused, and examined 3 prosecution witnesses. Then on 13th May 1961, the Special Judge received through the P. P. a communication from the Secretary to the Administrator of Karachi which contained the following order "In exercise of the powers conferred on him by subsection (4) of section 10, of the Pakistan Criminal Law Amendment Act 1958 (XL of 1958), the Administrator of Karachi is pleased to order that the prosecution in respect of offences punishable under section 161, Pakistan Penal Code for which Chowdhary Muhammad Hafiz son of Chowdhary Muhammad Din, Health Inspector, K. M. C. Karachi, is being tried in the Court of Mr. K. M. Mirza, Special Judge, Karachi, be withdrawn."

2. A copy of this order was also sent by the Secretary of the Administrator to the I. G. Special Police Establishment and the endorsement contains a statement that "in view of the opinion expressed by the Public Prosecutor Karachi, it was not considered a fit case for prosecution sanction of Choudhary Muhammad Hafiz. He will be dealt with departmentally." When this was received by the Special Judge, he recorded an order oii the same day, that is, 13th May 1961. The Special Judge observed that since this order of withdrawal had been received from the Administrator he had no discretion in the matter and as the Administrator of Karachi had the power of granting or refusing a sanction under a delegation, but must also be deemed to have power to withdraw the prosecution. He, therefore, acquitted the accused in as much as his trial had already commenced. As against this order, the Public Prose cutor, Special Police Establishment, has filed this appeal under the authority of the Deputy Secretary to the Government of Pakistan.

3. Mr. Khalid Ishaq, the learned Additional Advocate -General, attacked the validity of this order of acquittal upon the ground that the Administrator of Karachi had no power to withdraw the prosecution. It was pointed out that such a power could only vest in the Administrator if it had been delegated to him, and in this case no such delegation had taken place. It was urged that subsection (4) of section 10, of the Criminal Law Amendment Act, prohibits the withdrawal of any prosecu tion, except under the orders in writing of the appropriate Government, and in so far as there was no order in writing of the appropriate Government in the present case the Special Judge could not have acquitted the accused upon the basis of the order which was produced before him, and to which we have referred earlier.

4. The first question to determine in this matter is as to which was the appropriate Government in relation to this case. The offence is alleged to have been committed on 5‑8‑1960, and the challan was put up in the Court of the Special Judge, Karachi on 2nd February 1961. By President's Order 20 of 1960, namely, the Seat of Government Order which was enacted on the 15th of July 1960, and took effect retrospectively from the 20th day of October 1959, the territory demarcated by the Pakistani(Establishment of the Federal Capital) Order, 1948, known as the Federal Capital, was henceforth to be known as the Federal Territory of Karachi and it was to be administered by the Presi dent from such date forward as he might appoint, acting to such extent as he might think fit through an Agent to be appointed by him. This is contained in Article 5 of this Order. By an Order notified in the Gazette dated the 23rd November 1960, the President appointed the Governor of West Pakistan to be the Agent for the Federal Territory of Karachi on and from the 1st day of December 1960, in exercise of his powers in pursuance of Article 5, of the Seat of Government Order, 1960. On the 1st of December 1960, the Agent to the President of Pakistan in the Federal Territory of Karachi notified an order, the relevant portion of which may be reproduced : (i) sub ject to such general or special instructions as may be given to him from time to time by the Agent to the President of Pakistan in this behalf, the Administrator of Karachi shall con tinue to be the Administrator of the Federal Territory of Karachi as reconstituted ; (ii) in addition to the powers exercised by him before the said date, the Administrator of the Federal Territory of Karachi shall have the same powers which are exercised by the Commissioner of a Division in West Pakistan."

5. The "appropriate Government" for Karachi was the Central Government and in order that the Administrator could withdraw the prosecution under the provisions contained in sub. section (4) of section 10, this power had to be delegated to hits by the Central Government. No such delegation has been brought to our notice. The learned Special Judge was of the opinion that in so far as the Administrator had been given the power to grant the sanction, he had also the power to withdraw the prosecution. This inference is on the face of it erroneous, and in fact Mr. Burney for the accused before us, did not press his case upon this basis. The Chief Commissioner had been delegated the power to sanction prosecution under subsection (5) of section 6, of the Pakistan Criminal Law Amendment Act, on behalf of the Central Government in respect of all such public servants to whom the said Act applied, and who were not Government servants. This notification is dated the 17th of January 1959. ,q This delegation which had been made in favour of the Chie Commissioner devolved upon the Administrator by various enabling provisions which were enacted as a result of the change in the status of Karachi which ceased to be the Federal Capital. By this notification, the delegation was limited to the extent of granting of sanction for prosecution. It clearly did not extend to delegating power withdrawing prosecution as provided by subsection (4) to section 10.

6. Mr. Burney, the learned counsel for the accused‑respondent, had initially contended that the Administrator was acting, after the coming into force of The Seat of Government Order, as an Agent of the President, and he having exercised the power of withdrawal, the validity of it could not be ques tioned. This contention was dropped when it was pointed out that it was the Governor of West Pakistan who had been appointed the Agent of the President, and not the Admi nistrator.

7. The next contention of Mr. Burney, as we understood it, was this: that a sanction to prosecute within the meaning of subsection (5) of section 6 of the Criminal Law Amendment Act, must be a valid sanction, and that this validity must endure throughout the trial. It was urged that it is open to the Court to examine a sanction, even at the end of the trial to see if the sanctioning authority had applied his mind to the facts of the case, and if it was found that he had not done so, the sanction could be held to be invalid. In the present case, the argument proceeded, sanction was deemed to have been granted by the expiry of 60 days from the date of the receipt of the letter from the Special Judge asking for sanction, and when the sanctioning Authority wrote to say that it was withdrawing the prosecution upon the advice of the Public Prosecutor, the effect would be that "such" sanction would cease to have any validity or existence in the eye of law. We have not found it possible to accept this argument, though there might have been a temptation to do so. The argument does not take note of the change in the law brought about by the amendment whereby this proviso, to subsection (5) was added. Under this proviso, the sanction is deemed to have been duly accorded, if no sanction is received within 60 days. It is clear that this sanction is not one which is granted by the appropriate Government, but has come into existence by the operation of law. If the sanction had been once duly accorded, as it was by the operation of law, and the Court had become seized of the case and had B assumed jurisdiction, and started the proceedings, it appears to us that the sanctioning Authority who had failed to grant the sanction within 60 days would not have any further say in the matter once that period expired. Thereafter the jurisdiction is of the Court. The sanction which came to be accorded by the ope ration of law independently of the appropriate Government cannot be vitiated by something which that Government does after the matter has passed out of its hands. Therefore, we cannot treat this case as a case of no sanction within the meaning of the law as it stands today by virtue of the order of the Admi nistrator about the withdrawal of this case. Once the Court had become seized of the matter after the accord of sanc tion, then it would appear that the only way to deal with the matter would be to withdraw the case, as indeed it was attempted, by the order referred to above. That attempt became in‑effective for want of power in the Administrator to withdraw prosecution.

8. For the reasons given above, we find that the order of withdrawal was without jurisdiction, and as such the acquittal of the accused which is based entirely upon that order, must be set aside. We order accordingly.

K. B.A.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.