The facts which gave rise to this petition for quashing of the proceedings are these: The petitioner Malik Muhammad Zahur was a Naib Tehsildar attached to the Thal Development Authority Leiah in the District of Muzaffargarh in the year 1959. Begum Jahan Ara Shahnwaz had purchased some land measuring over seven thousand kanals in Khata No. 192 from Ijaz Husain and Muhammad Afzal etc. In the year 1938. The mutation was attested in 1938. At the the of preparation of the Jamabandi for the year 1939-40 either erroneously or by over-sight the then Patwari made a note against Khata No. 328 "Bashara Khata No. 192". This entry meant that like Khata No. 192 the land comprised in Khata No. 328, which measured about eight thousand kanals, had also been sold away to Begum Jahanara Shahnawaz. The entry continued in the subsequent Jamabandi for the year 1943-44. It is the case of the prosecution that Fard Badar was got prepared by the Patwari and was ultimately sanctioned by the present petitioner on 30-9-1959 showing that Begum Jahan Ara Shahnawaz was not the owner of the land in Khata No. 328 and the land continued vesting in Ijaz Husain and others. It also appears from the narration of facts in the challan that Ijaz Husain and others who were declared to be the owners in consequence of the Fard Badar sanctioned by the petitioner transferred about 85 acres -of land to Sh. Abdul Aziz on 7-5-60 which transfer according to the prosecution was actually meant for the benefit of the petitioner as a reward for sanctioning the Fard Badar in favour of Ijaz Hussain etc.
2. The sanction for prosecution of the petitioner under section 468/371/218/161/167 and section 5(2) of the Prevention of Corruption Act, 1947 was accorded by Mr. Ahmad- Raza Khan; Commissioner; Sargodha on 22-1-1968. The case came up for hearing before Ch. Muhammad Ilyas, Special Judge, Anti-Corruption, Multan Camp at Muzaffargarh on 16-7-1969. While the statement of the accused under section 242, Cr. P. C. Was being recorded. Mr. Shabbir Hussain, Prosecting Inspector made a statement that the sanction was not complete as one of the allegations of the prosecution was that id lieu of allowing the correction in the Fard Badar the accused had got 85 acres of land from Ijaz Hussain etc. In the name of Abdul Aziz co-accused but no sanction for prosecution had been accorded so far -as that allegation was concerned. The prosecutor on account of these circumstances submitted that the case before the Court should be consigned to the Record Room subject to the right of the prosecution to receive the matter by filing a fresh challan. The Court on the same day passed an order in accordance with the request made by the prosecutor and discharged the accused.
3. A fresh challan was filed on 9-9-69 apparently without any fresh sanction. It appears, from file No: 265/1 of 1969 that Mr. Ihsanul Haq Sethi who had by then replaced Mr. Ilyas Khan addressed a routine letter on 6-4-1970 to the Commissioner, Sargodha Division, Sargodha for according sanction for .The prosecution of the accused. The Commissioner on 5-5-70 sent letter to the Special Judge, Anti-Corruption saying that sanction had already been accorded and a copy of the original sanction was enclosed for necessary action. The Special Judge again addressed a letter, on 8-6-70 to the Commissioner, Sargodha Division, stating that the precious sanction had been declared by the prosecution to be invalid and since challan had been put in afresh, a fresh sanction was required. It was stated in that letter that the sanction be either accorded or returned to enable the Court to proceed with the case.
4. We; also find at page 18 of the above file that the Commissioner, Sargodha Division, Sargodha addressed a letter to the Superintendent, Anti-Corruption Establishment, Central Region, Lahore asking him to intimate to him the reason for which the earlier sanction had been held to be invalid.
A copy of the letter was endorsed to the Special Judge on 23-6-70. No reply to this query is forthcoming on this record. The learned Special Judge passed an order on 7-8-70 that the case be proceeded with under, subsection (2) of section 12 of the West Pakistan Criminal Law Amendment Act of 1958.
5. Mr. Gul Mohammad Khan, the learned counsel for the petitioner has submitted that the allegations against the petitioner had no substance and in view of fact that no sanction had been accorded, with regard to the allegation of transfer of land for the benefit of petitioner to Abdul Aziz, the whole proceedings required quashment. He has urged with some force that it is not a case where the provisions of section 7(5) read with sec--tion 12(2) of the Pakistan Criminal Law Amendment Act, 1958 are attracted. It is his case that the Commissioner had not applied his mind to the second allegation in spite of the fact that he was reminded to do so by the Superintendent, Anti-Corruption and the Special Judge. This according to him should, therefore, be treated as a case of refusal to accord sanction. He has further contended that a reading of the F. I. R. Clearly shown that Begum Jahan Ara Shahnawaz had purchased land only in Khata No. 192 and the correction made by the petitioner with regard to the entry in Khata No. 328 was done with good intention in performance of his duties as a Revenue Officer.
6. In my opinion it is not a case where sanction can be presumed to have been given under section 6(5) read with section 12(2) of the Pakistan Criminal Law Amendment Act, 1958. It is a case where a previous sanction was held to be insufficient by the prosecution itself. The learned Commissioner appears to have applied his mind to the facts of the case and has for some reasons . Not mentioned in the original sanction the particular allegation of transfer of land benami in favour of Abdul Aziz. It is not a case of complete absence of sanction but on the other hand, sanction has been accorded and this allegation in spite of reminders by the Special Judge has not been at out in my fresh order of sanction. I, therefore, think that it will be legitimate to hold that this is a case of refusal to accord sanction so far. As the allegation of land is concerned. The learned Special Judge will have therefore no jurisdiction to go into this allegation.
7. The previous sanction dated 22-1-1968, by the Commis--sioner, Sargodha however stands. The contention of Mr. Gul Muhammad Khan that the fard badar was sanctioned bona fide and with no ulterior motive can be borne out only if some evidence is recorded. The order of the petitioner was set aside by the Collector and the fact whether this order was passed in due course of the performance of his duties or with some ulterior motive will be determined by the Court below. I cannot give any categorical opinion on this matter. The case shall e therefore proceed in the light of the previous sanction. The matter is decided accordingly.