1. ' HAMOODUR RAHMAN, C. J.-These two appeals, by special leave arise out of two judgments and orders of the High Court of West Pakistan, Karachi Bench, in two different revisional applications, which were disposed of by the same learned Judge on the same day.
2. ' The facts giving rise to Criminal Appeal No, K-31 of 1969 are briefly as follows :- ' In 1955 service road No, 10 within the P. W. D. Main Line Division of Tando Muhammad Khan was found to be in unserviceable condition. The Superintending Engineer ordered Muhammad Ismail, the Sub-Divisional Officer, Tail Regulator Sub-Division, to get this road repaired immediately. His repair work was carried out by Azmatullah, a contractor, who submitted a bill for Rs, 4,200. This was passed by the respondent Muhammad Ibrahim Parekh, the Executive Engineer of the Division and payment thereof was made to the contractor on the 12th of May, 1955. Three years later, on the 29th of November, 1958, the local Anti-Corruption Inspector, after holding an enquiry lodged a report that this amount had been misappropriated by the above-mentioned three persons and one Muhammad Bashir.
3. ' In due course, after completion of the investigation, the Director, Anti-Corruption Department, by his letter dated 30th of August, 1963, approached the Provincial Government for the necessary sanction to prosecute the respondent Muhammad Ibrahim Parekh. The Chief Engineer, Irrigation, Sukkur Zone, was also approached on the 1st of October, 1963, for sanction to prosecute the respondent Muhammad Ismail, as the former was the appropriate authority for sanctioning the latter's prosecution. In the case of the Executive Engineer Muhammad Ibrahim Parekh, the Government on the Ist October, 1963 declined to grant the sanction and informed the Chief Engineer, Irrigation Sukkur Zone, that it had been decided that his case was fit for a departmental enquiry. On the basis of this decision, the Chief Engineer, Irrigation on the 27th of May, 1964, also informed the Director, Anti-Corruption, that the opinion of the Government Advocate was that the whole case being based on the confused statements of Azmatullah and Muhammad Bashir, contractors, who were co-accused, was not likely to succeed in a Court of Law, if challaned.
4. Therefore, sanction to prosecute Muhammad Ismail, the Sub-Divisional Officer, was not called for and that his case too should be departmentally enquired into alongwith that of Muhammad Ibrahim Parekh by the same Enquiry Officer who had already been appointed by the Government.
5. ' Thereafter, on the 13th of June, 1964, the Government changed its mind and communicated to the Chief Engineer, Sukkur Zone, that the Government had since accorded concurrence to the prosecution of Mr. Parekh ; as such, the question of Departmental Enquiry did not arise. By the same letter, vide Exh. 11, the Chief Engineer, Sukkur Zone, was requested to issue the necessary sanction for the prosecution of Muhammad Ismail, the Sub-Divisional Officer. He complied with this direction by endorsing the sanction on the same letter that he had received.
6. ' A prosecution was then launched and a challan filed under sections 409, 467, 477-A, 468, 471, 420 and 109, Pakistan Penal Code, read with section 5(2) of the Prevention of Corruption Act, 1947, on the 23rd of November, 1964; but at the trial, before the Special Judge-cum-Enquiry Officer, Hyderabad, objection was taken to the proceedings on the ground that both the sanctions were bad in law. This plea prevailed with the trial Court which discharged all the three accused on the 15th of May, 1965. The Government went up in revision to the High Court, but a learned Single Judge took the view that since there was no provision for the review of the order passed by the appropriate authority under the provisions of the Pakistan Criminal Law Amendment Act, 1958, the sanctioning authority was not competent to change its decision, unless fresh or additional matter was brought before it.
7. ' The contention that under section 20 of the West Pakistan General Clauses Act the Governor could revise his orders, was also repelled on the ground that this section had no manner of application in such a case.
8. ' In Civil Appeal No, K-32 of 1969, the facts are as follows :- ' The respondent, who was an S. H.
0. Of a Railway Police Station was sought to be prosecuted in respect of certain allegations of demanding illegal gratifications in 1961 while investigating into a theft case. He was successfully trapped and subsequently challaned on the 22nd of November, 1961. Sanction for this Prosecution was at first granted under subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act by the Deputy Inspector-General of Police ; but, at the trial, on an objection being taken to the validity of the sanction, the Special Judge-cum-Enquiry Officer, Hyderabad, discharged the accused on the 12th of July, 1962, on the ground that the Deputy Inspector-General of police was not the competent authority to grant such a sanction in the case of the said respondent.
9. ' This order was not challenged by the Government in any Court of Law; but subsequently that Inspector-General of Police, West Pakistan, was approached for a fresh sanction. He refused to grant the sanction by his order of the 12th of September, 1962. Again, nothing was done for about three years ; but, on the 7th of June, 1965, a fresh sanction was obtained from the Governor of West Pakistan and a fresh challan was filed on the 8th of July, 1965.
10. ' This time the said respondent moved the. High Court for quashing the proceedings sought to be started on the basis of the fresh challan on two grounds, namely, inordinate delay in obtaining the second sanction, and that once the sanction had been refused by the competent delegatee, the delegator could not subsequently revise the order of the delegatee, as the power to grant the sanction becomes exhausted after being exercised by the delegatee. This latter contention too was accepted by the High Court and the proceedings were quashed.
11. ' The Government obtained leave to appeal in both these cases by the same order to examine the questions of law raised in these petitions regarding the validity of the sanctions on the condition that the Government should bear the costs of the defence of the respondents in the shape of fees to be paid to their counsel, irrespective of the results of the cases.
12. ' The respondent Muhammad Ismail in Criminal Appeal No, K-31 of 1969 has, we are informed, since died and, therefore, the appeal against him has abated. It is, accordingly, dismissed as such.
13. ' Criminal Appeal No, K-31 of 1969 is, therefore, now in respect of Muhammad Ibrahim Parekh, the Executive Engineer, and Azmatullah, a contractor.
14. ' The learned. Advocate-General appearing in support of these appeals has, firstly, contended that the grant of sanction being an executive or administrative act does not exhaust itself merely by its exercise, for the power of receding or revising such an order must necessarily subsist in the executive authority as a concomitant thereof until a decisive step is taken. In support of this contention, reliance is sought to be placed on decision of the Federal Court in the case of Shahbaz v. The Crown (1) and of this Court in the case of Pakistan v. Muhammad Himayatullah (2).
15. ' In both these cases reliance was placed on the provisions of section 21 of the General Clauses Act, and it was held that, even apart from the provisions of the aforesaid section, the power of receding till a decisive step is taken is available to the Government or to the relevant authority as a necessary concomitant of the power to pass different orders or to retrace the wrong steps taken by such authorities. It is, however, significant that in both these cases the appeals were dismissed, and in the case of Shahbaz v. The Crown it was held that the order of commutation of sentence was given effect to and the decisive step taken the moment the prisoner was removed from the death sentence cell to cells where sentences of imprisonment and transportation had only to be undergone.
16. ' Similarly, in the case of Pakistan v. Muhammad Himayatullah, it was held that an earlier order of the President giving a higher initial salary to Himayatullah could not be revised subsequently to his disadvantage, because, it had already been given effect to and be had for sometime drawn his salary at the previously sanctioned rate.
17. ' The principle of locus poenitentiae, 1. e., the right in law to recede till a decisive step is taken, was also referred to by this Court in the case of Lt.-Col. G. L. Bhattacharya v. The State (3) and given effect to even in the case of an order of a Provincial Government which was issued under a misconception.
(1) P L I) 1956 FC 46 (2) PLD 1969 SC 407
(3) PLD 1964`SC 503 Applying this principle to the facts of the present cases, it seem to us that even in the case of Muhammad Ibrahim Parekh, the decisive step was taken in so far as the earlier order for departmental enquiry was, in fact, given effect to and an Enquiry Officer was appointed in pursuance of that order. It cannot, therefore, be said that there was any locus poenitentiae left in the Government to revise that order. In the case of Masood Hussain (Appeal No, K-32 of 1969) the position was, if anything, worse. Here a delegatee had competently exercised the power delegated to him and in exercise of that power refused to grant the sanction. It was clearly not open to a higher authority thereafter to revise that decision, because, the decision of the delegatee was in fact to be deemed to be the decision of the delegator and the power became clearly exhausted by the decision of the delegatee.
18. ' The contention advanced on the analogy of the decisions of this Court in Settlement Cases, such as /alai Din v. M. Sheikh Muhammad Rafiq (1) and Abdul Majid v. Chief Settlement Commissioner
(2) that since the powe delegated under subsection (4) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, to the Chief Settlement Commissioner was only a power of pronouncing a house to be divisible, therefore, an order by which a house had not been divided was not an exercise of the delegated power, are not apt in the present cases. The position under the above-mentioned Act is that, unless a house is divided, it has to be treated as one house ; whereas the position here under subsection (5) of section 6 of Criminal Law Amendment, Act, 1958. Is that, if sanction is not granted, no prosecution can take place.
19. ' The decision which may more appropriately be referred to in this connection is the one in the case of West Pakistan Land Commission v. Fateh Ullah Khan (3) where it has been held that an order made by virtue of a delegated power must be deemed to have been passed by the delegator himself and, therefore, in not amenable to appeal or revision.
20. ' The learned Advocate General has further relied on a decision of a learned Single Judge of the Lahore High Court in the case of Muhammad Yousaf v. The State (4) where it was held that the mere fact that the sanction was not in a proper form or was otherwise defective would not lead to the conclusion that it "was either refused or not received". This is not the petition in the present cases. Here we have no hesitation in coming to the conclusion that the sanction was refused on the first occasion, in one case by the Government itself and in the other case by the delegatee of the Government. Apart from this, the orders were also given effect to, and hence they could not be subsequently revised or varied. It is significant that the learned Judge has not said that even if the order was "refused" in the first instance it could still be revised. This decision has not taken into consideration the decisions of this Court on the question of locus poenitentiae. It is, therefore, of no assistance to the learned counsel.
21. ' For these reasons, we have come to the conclusion that the High Court rightly decided both these cases.
22. ' Both these appeals are, accordingly, dismissed.
(1) PLD 1965 SC 261 (2) PLD 1967 SC 437
(3) PLD 1971 SC 393 (4) 1971 P Cr. L J 520