MUHAMMAD NASIM Versus THE STATE

Muhammad Nasim petitioner, a Land Superintendent of the Cantonment Board, Rawalpindi, is being prosecuted by the Special Police Establishments under section 161 of the Pakistan Penal Code read with section 5(2) of the Prevention of Corruption Act for having; demanded a sum of Rs. 50.00 on 12th October 1964 from Muhammad Aslam P. W. as illegal gratification and having received the same from him on the next day, i e., 13th of October 1964, as a motive or reward to secure permission for his erecting a - signboard on Peshawar Road, Rawalpindi.

2. The sanction for his trial was accorded on 20th May 1965 by the -Secretary of the Home Affairs Ministry of Pakistan and the challaa, was put in Court on 24th of May 1965. On being summoned to face this charge he submitted an application on 10th June 1965 raising a preliminary objection about the jurisdiction of the Special Judge (Central) to try this case on the ground that there was no legal sanction from the appropriate Government. His contention being that the appropriate Government to grant sanction for his prosecution was not the Central Government in view of the provisions of section 2(a) and (b) of the Pakistan Criminal Law Amend ment Act of 1958, which was overruled by the learned Special Judge (Central) in accordance with the dictum of this Court in Shah Muhammad's case (P L D 1958 Lah. 137). To question the correctness of this order the petitioner approached, this Court through a petition under section 439, Cr. P. C. (Criminal Revision No. 587 of 1965) on almost the same grounds, which was dismissed on 9th January 1968 confirming the view taken by the learned Special Judge (Central) and the Supreme Court also refused to grant leave to appeal in the matter on the basis of the view already expressed by them in Ali Ahmad's case (P L D 1962 S C 102) vide its judgment dated 20th June 1968 in P. S. L. A. No. 71 of 1968.

2. During this long period of four years spent in pressing this pre liminary point the petitioner had somehow succeeded in obtaining an order for a departmental enquiry on the charges levelled against him resulting in issuance of a confidential letter on 20th July 1965 in the following terms:

"In Supersession of this Ministry's letter No. 3/44/65-S P(P), dated the 21st May 1965, on the subject noted above, I am directed to say that, on reconsideration it has been decided that the case against Mr. Muhammad Nasim, Land Superintendent, Cantonment Board.. Rawalpindi, should be withdrawn from Court and referred to the Ministry of Defence for taking departmental action against the accused: under the relevant rules. The Ministry of Defence is being asked to initiate departmental proceedings in this case and contact you in due course, to depute an Officer of the S. P. E., to produce documents etc. before the Inquiry Officer.

2. An order under section 10(4) of the Pakistan Criminal Law --Amendment Act, 1958, for the withdrawal of the case is enclosed."

It was addressed to the Inspector-General of Special Police Establishment, Rawalpindi, along with the formal order under section 10(4) of the Pakistan Criminal Law Amendment Act.

3. It appears that on some representations made by the Inspector- General of Special Police Establishment, the proposed course of action, i.e, the withdrawal of the prosecution of the petitioner, was receded by the Government a few days later vide its confidential letter No. 3/44/65-S P(P), dated 3rd August 1965, which reads as under:

"I am directed to say that this Ministry's letter No. 3/44/65-S P(P), dated the 20th July 1965, on the subject noted above may be considered as withdrawn. The order under section 10(4) of the Pakistan Criminal Law Amendment Act 1958, for the withdrawal of the case, forwarded therewith, may also be considered as cancelled and may please be returned to this Ministry. The trial of the case under reference may proceed in accordance with the law."

4. The petitioner somehow came to know of these confidential letters and moved the Special Judge for filing the case urging that the aforesaid order (dated 20th July 1965) of its withdrawal could not be revoked by the Government, but this objection was also turned down We his order dated, 19th December 1968.

5. The petitioner has now approached this Court for the second time under section 439, Cr. P. C. for examination of this point on the following, grounds:

(1.) That the order dated 20th July 1965 as communicated by letter No. 3/44/65-S P (P), amounted to final withdrawal of the case against the petitioner as it had created a vested right in his favour and had become irrevocable;

(2) that it at least amounted to withdrawal of the sanction for his prosecution which had taken away the jurisdiction of the Court to try him for the alleged offence:

(3) that as such the proceedings before the learned Special Judge were resulting in abuse of the process of the Court and called for quashment. Reliance was placed on Pakistan v. Muhammad Hamayat Ullah Farukhi (P L O 1969 S C 407) and Collector of Central Excise and Customs v. Aziz-ud-Din Industries Ltd. (P L D 1970 S C 439).

6. A notice was, therefore, issued and after hearing the counsel for the parties and perusal of the record I find no reason to differ with the conclusion of the learned Special Judge (Central) on this point.

7. Learned counsel for the petitioner, however, did not dispute the principle enunciated in the case of Shahb7z v. The Crown (P D 1956 F C 46) that apart from the question whether the provisions of section 21 of the General Clauses Act applied or not locus poenitentiae, i.e. the power of receding till a decisive step is taken is left with the Government if the order has not been carried into effect. In the first case cited by the learned counsel himself, Re: Pakistan v. Muhammad Hamayat Ullah (P L D 1969 S C 407) their Lordships of the Supreme Court had taken the same view adding that the existence of such a power is in fact necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them.

8. Keeping in mind this guideline while examining the facts of this case I cannot think for a moment that the letter dated the 20th July 1965 (directing the withdrawal of the prosecution) indicated that the Government had taken any final step till 3rd August 1965 when it wag recalled as will be borne out from the contents of the letter itself which was apparently a confidential communication about the proposed course of action in the matter to the relevant department. It was only addressed to the Inspector- General of Special Police, Rawalpindi as stated above, intimating him that on reconsideration it had been decided that this case should be withdrawn from the Court and referred to Ministry of Defence for a departmental enquiry endorsing its copy to the latter (department) as a bare formal informa tion. Even the necessary order under section 10(4) of the Pakistan Criminal Law Amendment Act was only sent to the Inspector-General of Special Police along with the said letter which was almost couched in the same terms, intimating that this case shall be withdrawn. It was, however, detained in his Office by the Inspector-General of Special Police who seems to have cautioned the Government that the Special Judge having assumed the jurisdiction it would be better to leave it to the decision of the Court which advice appears to have prevailed with them (the Government) resulting in the second letter dated the 3rd of August 1965, withdrawing the earlier letter dated the 20th of July 1965. During these fourteen days the formal order under section 10(4) of Pakistan Criminal Law Amendment Act had not seen the light of the day as it did not find its way either to the Court seized of the case or the department concerned for further action on the same, so it could not be urged that it had taken any legal effect or created any vested right in favour of the petitioner. On this confidential communication between the two departments concerned with his prosecution, the Government reconsidered the matter and concluding that it was a wrong step retraced the same before it had been acted upon by the Inspector-General of Special Police.

9. Even the Defence Ministry seems to have taken no action on this letter as I specifically questioned the learned counsel of the petitioner, if his client had received any intimation about it through his own Department or any officer had been appointed to initiate the proposed enquiry against him, but he replied in the negative adding that it might have been withheld by them. For my own satisfaction, I had sent for all the relevant files and perused the same with this idea through the courtesy of the Deputy Attorney General which confirmed that the Defence Ministry had not even forward this letter to the Director Military Lands and Cantonments, the Head of his department, what to say of the petitioner, and it had been withdrawn before it had taken any legal effect. In the two cases: Pakistan v. Muhammad Hamayat Ullah Farukhi and Collector Excise and Customs v. Aziz-ud-Din. Industries Ltd. relied upon by his learned counsel a vested right had been created in favour of the party concerned due to the decisive steps taken in the matter before the concessions were actually withdrawn and were thus of n help to the petitioner.

10. Now what is a "decisive step" which would create a vested right and make an order irrevocable in law. The interpretation put on this phrase by the Full Bench of the Dacca High Court in a case of remission of the sentence, Re: Bhatta Charyia v. The State (P L D 1963 Dacca 422) is that it would deem to have been acted upon after the Government had done everything that was necessary for it to do to give effect to its order. In this case Col. Bhatta Charyia was convicted under Martial Law Regulation by a Special Military Court with a sentence of rigorous imprisonment for eight years. On appeal the President of Pakistan remitted four years out of this sentence and a copy of the press note issued by the Central Government about it as also that of the resolution passed by the Provincial Government to implement the same hall been sent to the Home Secretary, the Inspector-General of Prisons, and the Superintendent of the Jail wherein he was confined, with a direction that it should be communicated to him and an entry was actually made in his "history ticket" about the remission, before the said resolution was recalled. It was on this data that the Dacca High Court held that the relevant order had since been carried into effect. adding that a right had already accrued to the petitioner to claim the advantage given to him under the orders whatever may be the nature of such right, when it was communicated to the relevant authorities and was recorded in the history ticket of the petitioner, that the criterion as to whether there is a locus poenitentiae is not dependent upon the fact that the prisoner has or has not been released, the crux of the matter being whether the order has been acted upon, that is, whether the authority exercising such power has done that which is necessary for it to make the same effective and when such a step has been taken the order was acted upon thereby conferring a right upon the prisoner, so the subsequent order of cancellation can have legally no effect whatsoever. In taking this view their Lordships had also relied on Shahbaz v. The Crown (P L D 1956 F C 46) and Venkartycase Yeshwant Deshpande v. Emperor (A I R 1938 Nag. 513).

In dealing with a similar case Re: Farid Khan v The State (P L D 1965 Pesh. 31) a Full Bench of that High Court had adopted the same line, rather went a step further by observing that the order of remission of the sentence could have been carried into effect after the convict had been actually released from the jail and it would only then that a decisive step could be said to have been taken in pursuance of that order. In taking this view, their Lordships had referred to the decision of a Division Bench of Lahore High Court in Writ Petition No. 780 of 1962. It will not be out of place to mention here that Col. Bhatta Charyia had gone in appeal to the Supreme Court against the above judgment of the Dacca High Court, but failed in obtaining any further relief. Their Lordships, however, confirmed the view taken by the Dacca High Court observing that the remission of the sentence becomes effective when duly communicated to the Superintendent of the Jail, who is bound to give effect to the remission in accordance with the provisions of section 3 of the Prisoners Act (I1I of 1900) (P L D 1969 S C 503).

The Government was faced with a similar difficulty in Muhammad Hamayat Ullah Farukhi's case as the communication issued by the Secretary to the President (in his favour on 1st October 19j9) had been duly endorsed to the Secretary of the concerned Department (Finance) as also to Muhammad Hamayat Ullah Farukhi which had ensured its implementation, so the subsequent order had to be declared void and ineffective.

In the above-referred Full Bench case of the Peshawar High Court, the leading judgment was written by Mr. Justice Anwarul Haq (now the Judge of the Supreme Court) wherein a "decisive step" was defined in the following terms:

"It seems to us that the phrase "taking a decisive step" or the alter native phrase "carrying an order into effect" as used in respect of an order capable of a physical implementation cannot mean "mere documentation", but must connote the taking of an active physical step by which alone the order could be effectively implemented."

In accordance with this definition so long as the decision of the Governments about withdrawal of the case as also the formal remission order under section 10(4) of the Pakistan Criminal Law Amendment Act remained a part of the confidential files of the Home and the Defence Ministry as also the Inspector-General of Special Police Establishment, Rawalpindi, it amounted to mere documentation and was thus an "inchoate order".

11. What was necessary for the Government to give legal effect to its order under section 10(4) of the Pakistan Criminal Law Amendment Act in view of the above authorities it should have been communicated to the Court seized of the case through any representative of the concerned department, or the Inspector-General of Special Police Establishment through its Special Public Prosecutor or at least the petitioner himself as an effective physical step for its implementation. All the relevant files are, however, silent about any such action in this behalf before the 3rd of August 1965 when it was withdrawn, so no vested right could be claimed by the petitioner in this respect duly revoked before it "had been carried into effect". A formal move for withdrawal of a case under section 10(4) of the Pakistan Criminal Law Amendment Act was also envisaged in Riaz-ur-Rehman's care (P L D 1965 Quetta 1) by Waheeduddin, J. (as he then was).

12. With this conclusion on the first point, the second contention raised by the petitioner must also fail as by its letter dated the 3rd of August 1965 the Government had cancelled the order under section 10(4) of the Pakistan Criminal Law Amendment Act regarding the withdrawal of the case and directed the trial to proceed in accordance with law which had firmly re-instated the sanction already granted for his prosecution. On the basis of the Privy Council judgment in Gokul Chand Dwarkadas Morarka v. The King (P L D 1948 P C 11) it was held in the above-noted Quetta case that no particular form has been prescribed for according sanction for prosecution and that in law even if the form of the sanction is found to be defective it would be open to the prosecution to remove the defect, if any, by leading extraneous evidence to that effect.

13. It was lastly urged that ten long years had passed between the committal of the alleged offence and the decision of this petition resulting in heavy expense and agonishing suspense for him so the commencement of his trial after such an inordinate delay would amount to the abuse of the process of the Court, but delay howsoever long and languishing caused by the manoeuvres of the petitioner himself cannot be adopted as a ground for quashing these proceedings in a case involving such a moral turpitude. I this view, I am fortified by the observation made in M. S. Khwaja's case (P L D 1965 S C 287) wherein their Lordships were pleased to lay down that:

"The view that time is of the essence for the competency of a criminal prosecution cannot be accepted as of a universal application. Limi tation does not apply to criminal prosecutions, and it is also inappropriate to examine questions of delay through the actions of the Government, or the prosecution authorities, as if they gave rise to equities, on the same footing as in a civil matter inter partes. Every prosecution for a criminal offence is to be deemed to have been commenced and continued in the public interest as a duty of the State."

This view is being persistently followed by the superior Courts and in Feroze Khan's case (1971 P Cr. L J 1063) his retrial was ordered after ten years. It was also disclosed that the petitioner was in the meanwhile prosecuted in another criminal case resulting in his conviction and sentence with consequent dismissal from service and loss of all benefits accruing to him therefrom, but these compassionate grounds cannot form the basis for any relief at this stage. I am, therefore, not persuaded to invoke the provisions of section 561.-A of the Criminal Procedure Code in this case. As a result, this petition fails and is dismissed accordingly.

15. If his trial ends in conviction, the learned Special Judge may take into consideration this delay, expense and suspense as also his dismissal from service in awarding the sentence, in accordance with the view taken by the Supreme Court in Saeed Ahmad's case (P L D 1964 S C 266).

S.A.H. Petition dismissed