ALI NAWAZ BUDHANI, J.-In this Constitutional Petition the Petitioners Syed Khadim Hussain, Ghulam Samdani and Khalid Taqi have challenged the vires, legality and the jurisdiction and the bona fide of the sanctions for their prosecution Annexures "A, B and C". The petitioners were public servants.
At the relevant time they were serving as A. S. I., P. I. And A. S. I. Respectively at Ferozabad Police Station under the Deputy Inspector, General of Police at Karachi. The Deputy Commissioner (East), Karachi directed Illaqa Magistrates to conduct raids and in compliance of such directive on 21-7- 1979 and 31-7-1979 they conducted raids. One of the shops raided belonged to one Dilawar Ali Khan, whose salesman was found selling Coca-Cola at Rs. 2 per bottle and eggs at Rs. 5 per half dozen against the control price of Rs. 4.50. Thus, Dilawar Ali Khan was fined. Then again police pickets were arranged and despatched on 18-8-1979. One of the pickets point was Nursery Super Market and General Store, Shahr-e-Kamal, Block No. 6, P. E. C.,H. S., Karachi. On 18-8-1979 when petitioner No. 3 -was just near the Super Market and General Store, he saw a car which stopped just in front of Nursery Super Market, in which two persons were sitting whose names later on transpired Afzal and Mir Jawed Zehri both residents of P. E. C. H. S., Karachi. The occupants of the car gave indication when~or within a short time the petitioner No. 3 saw a man whose name later on transpired Dilawar Ali Khan who is the owner ' of Nursery Super Market giving a bottle of whisky make Jonny Walker wrapped in a paper bag to his salesman Khursheed Ali Khan for handing it over to the occupants of the car but before bottle could be delivered to the persons sitting in car, the petitioner No. 3 apprehended accused Khursheed Ali Khan at the spot and also arrested both the said persons namely Mir Jawed Zehri and Afzal and Mashirnama was prepared in presence of Mashirs. During the personal search of the said persons foreign currency was recovered.
2. Subsequently it was found that the case against Dilawar Ali Khan and his Manager was a false one and. The Crime No. 275 of 1979 was dropped against them and a case was registered against the petitioners under Anti---Corruption Act. It is contended inter alia by the petitioners in this Constitu--tional Petition that the sanction so granted was illegal and unwarranted. The petitioner No. 2 was appointed by the then Inspector-General of Police under District Bombay Police Act due to which his sanction by the reason--dent No. 1 is illegal and unwarranted. Even otherwise the sanction was granted without sufficient material on record. The respondents did not give notice to the petitioners in granting such a sanction for prosecution.
The comments were called for in this case which recites to the effect that the petitioners have agitated this very point before the Special Judge, Anti-Corruption Karachi in their application under section 249-A, Cr. P. C. Which was dismissed and again in Criminal Miscellaneous Petition No. 937 of 1981 before the High Court was moved which was also dismissed by the learned Mr: Justice Z. C.
Viliani on 3-12-1981. It is further stated that the petitioners are no doubt public servants and that two raids on 21-7-1979 and 31-7-1979 were made on the shop of Dilawar Ali Khan situated at Nursery area. It was falsely alleged by the petitioners that Coca-Cola and eggs were being sold at the higher prices than the controlled one. It was proved to be illegal and C. P. No. 1218 of 1979 filed by Dilawar Ali Khan in the Sind High Court was allowed by the High Court on 17-3-1980 with costs. The posting of Police pickets at Nursery Super Market, though irrelevant with the facts of this case, shows that on 18-8-1979 during the month of Ramazan, the Police party was present just in front of the shop of Dilawar Ali Khan. It can hardly be imagined that a shopkeeper would be so fool that he would dare to sell contraband liquor in the presence of police party. Currency case registered by the petitioners was also found to be false. This was a false case inspired by the petitioners. The case against Dilawar Ali Khan was dropped and instead the Director Anti-Corruption Establishment accorded permission for opening inquiry. The respondent No. 2 initiated the inquiry and recommended the filing of F. I. R. Under section 161/218/342/109 read with section 5(2), Act 11 of 1947.
Briefly the comments read with the prosecution sanction against the present petitioners was obtained from Chairman A. C. C. II and they were challaned. It is contended in the comments that Bombay District Police Act has since been repealed and all the police officers are now governed by the Police Act, 1860 and Punjab Police Rules. The sanction granted by the Chairman A. C. C. 11 is proper and legal. The sanction was granted after verifying the material on record. Earlier a Constitutional petition was filed which was withdrawn by the learned counsel for the petitioners.
The allegations in the previous Constitutional Petitions are same which are borne by this Constitutional Petition. There was no need of issuing any show-cause notice before granting sanction for prosecution.
4. Annexure `D' is the notification dated 22nd April, 1978 where the constitution of Anti-Corruption Committee is mentioned. The Anti. Corruption Committee No. 2 is consisted of Divisional Commissioner as Chair--man, Regional Head of Department as Co-opted Member and Superinten--dent of Police as Member. It is mentioned in the said notification that the can accord sanction for prosecution. In the objections submitted by the petitioners they have however contended that even Anti-Corruption Committee No. 2 was not properly constituted inasmuch as D. S. P. Atta Muhammad wits one of the members besides the Regional Head of the Department for the petitioners. These and other objections raised by the petitioners arc not sounding well and are besides the point because the Chairman was the Commissioner whose say in the matter appears to be more or less final. How, ever, sanction for prosecution as accorded is not the final word as regards their guilt. Sanction is accorded that the petitioners may face the fair trial at a Court of Law and submit the entire defence in the Court of Law. Any short cut methods by stifling the proceedings are not in the interest of justice and they are not in consonance with the principle of natural justice.
5. We are referred to Rashid Ahmed v. State (PLD1972SC271). In this case a person working as Cashier in the Office of Cantonment Board was prosecuted for defalcation of accounts. The sanction for his prosecution was accorded by the Executive Officer who was an employee of the Provincial Government. It was held that the sanction accorded by an Officer of Wah Cantonment Board was without jurisdiction. Wah Cantonment is under the Central Government and the sanction could only be granted by the Central Government or by an officer authorised by it. It was further held that the trial of accused was illegal. This authority is on the point of jurisdiction because the officer of the Provincial Government cannot accord sanction in a case where an officer of the Central Government was authorised. This authority is distinguishable inasmuch as the sanction is accorded in the present case against the petitioners by the Committee framed under the Notification quoted above. It does not seriously hamper the case of the prosecution.
6. The second authority referred to is PLD 1971 SC 124. It was held in this authority that an accused person is to be heard before the question of his guilt or innocence is referred to the tribunal under section 3 of the Criminal Law Amendment Act, 1963. The facts in this case referred to section 3 and it is mandatory that accused was to be heard. It is in this specific statute the provisions is made.
This is also distinguishable in case of sanction for prosecution granted in the present case before us.
7. The upshot of the entire discussion in the preceding paragraphs is that the petitioners have moved an application first in the trial Court under section 249-A, Cr. P. C. And then they have resorted to Constitutional Petitions and also an application under section 561-A, Cr. P. C. All these petition and applications were dismissed because the proper forum for agitating these applications was the trial Court. Even the Constitutional Petition based on B the facts of the present Constitutional Petition was withdrawn and dismissed earlier and fresh grounds are not shown in the present petition. The petitioners can agitate all these and other relevant grounds before the trial Court and in the writ jurisdiction we have hardly any scope to go into the facts of this case and into the evidence against the petitioners. It is for then trial Court to adjudicate all the facts now put up in the present Constitutional Petition. We, therefore, dismiss this Constitutional Petition.