THE STATE Versus A. K. MUHAMMAD ALI
By a short order dated 21-8-1972, I had allowed this Revision Application and ordered further inquiry in the case and I now proceed to give my reasons for the same.
2. The facts briefly are that the respondent was a temporary Steno-Typist in the Ministry of Foreign Affairs and on 6-7-1963 he left for East Pakistan without obtaining any permission. Steps were taken to serve him with a notice to return on duty but without success. The Ministry of Foreign Affairs then authorized Mr. Noor Ellahi Leghari, Protocol Officer, to file a complaint on behalf of the Government as required by section 7(3) of the Essential Services (Maintenance) Act, 1952 (hereinafter referred to as the Act). The complaint was to be for an offence under section 5 of the Act punishable under section 7 of the said Act.
3. The complaint was filed before the District Magistrate of Karachi but it appears that in the meantime a case was also registered against the respondent at Clifton Police Station. The complaint and the case proceeded before Mr. Shaikh Muhammad Bux, Additional City Magistrate, Court No. XVIII, Karachi. The prosecution examined Mr. Abdul Hafiz, Cypher Officer, Ministry of Foreign Affairs, to produce various documents including the order authorising Mr. Noor Elahi Leghari to file a complaint. The learned Magistrate discharged the accused/respondent on two grounds namely that Pakistan Essential Services (Maintenance) Act did not apply to the case of the respondent and that no other witnesses besides Mr. Abdul Hafiz have been examined. The learned Magistrate while discussing the case did not con sider the evidence of Abdul Hafiz to be sufficient, only for the reason that he had not produced any document to show that the post that the respondent was occupying had been notified h as an employment or class of employment to which the Act applied. On a reading of the order of discharge it appears that the respondent/accused was discharged solely on the ground re that he was not in such service to which the Act applied.
On a bare reading of section 3 of the Act, the position becomes very plain. Section 3(1) of the Act reads as follows:-
"3.-(1) This Act shall apply to every employment under the Central Government, and, subject to the provisions of subsec tion (2), to any employment or class of employment which the Central Government may, by notification in the official Gazette, declare to be an employment or class of employment to which this Act applies."
The above-quoted provision contemplates two types of employments. The first is every employment under the Central Government and the second is any employment or class of employment which the Central Government may by a notifica tion specify. With regard to the application of the Act to the employees of the Central Government, there is no dispute whatsoever. No notification is necessary for application of the provisions of the Act to employees of the Central Government. The respondent was an employee in the Ministry of Foreign Affairs and would, therefore, be clearly covered by section 3 o the Act. The notification would be required only in such case where the employee concerned is not an employee of the Central Government. The reason, therefore, for the discharge of the respondent/accused is misconceived. Eves, the Second Addi tional Sessions Judge, Karachi before whom a Revision Application was preferred by the applicant under the provisions of section 435/ 436, Cr. P. C. had held the same view on the ground that the prosecution had not proved that the respondent was declared to be in the category of Essential Services. This view is also fallacious for the same reasons.
4. The only other point which was raised by the learned counsel for the respondent/accused was that the Revision Applica tion filed by the applicant in the Court of Session was barred by time. In this case the record has been called by this Court and examined for the purpose of considering the legality and propriety of the proceedings and the discharge order. Under section 439, Cr. P. C. this Court can pass an order at any time and no limits- R tion is provided. Since the order of discharge had proceeded on an erroneous and misconceived position in law, I am not inclined to refrain from acting because that would not advance the ends of justice.
5. In the result, this Revision Application is allowed and I direct that further inquiry shall be made in this case. The records shall be forthwith despatched to the City and Additional District Magistrate, Karachi, who may either try this case himself or make it over to any other Court of competent jurisdiction.
Application allowed.