Qazi Khalid Saifullah, petitioner is a member of the Local Council Service. He is facing trial before the Special Judge Anti-Corruption Gujrat for an offence under section 420/511/467/109/204, P.P.C.
Read with section 5(2) of the Prevention of Corruption Act, 1947. He moved an application before the Special Judge, Anti-Corruption that the case against him be dropped because the Commissioner Gujranwala Division had withdrawn the sanction for prosecution through an order, dated 9-5-1985. He also produced a similar odder withdrawing the prosecution passed by the Government of the Punjab in the Local Government and Rural Development Department on 11-8- 1985. The learned Judge, however, rejected the application on the ground that the appropriate Government referred to in section 10(4) of the Pakistan Criminal Law (Amendment) Act, 1958 will mean appropriate Government in the department concerned and since under the Rules of Business of Punjab Government, 1974, the subject to of Anti-corruption has been entrusted to the Services, General Administration and Information Department, the sanction granted by the Secretary Local Government and Rural Development Department was of no avail. The petitioner has challenged the orders in the High Court.
2. It is an admitted position that the Commissioner was the appointing, and dismissing authority in this case and that sanction for prosecution was also granted by the Commissioner. The Commissioner was, therefore, acting as the appropriate Government visualised by section 10(4) of I the Pakistan Criminal Law (Amendment) Act, 1958. The petitioner, additionally produced the orders of the Secretary, Local Government Department because as member of the local council service, the Administrative Department, of the Provincial Government under which the petitioner is serving, is the Local Government and Rural Development Department. The mere fact that the Anti- Corruption Establishment for the time being is attached with the Services Department, is no reason to assume that the sanction for prosecution and the withdrawal from B prosecution is to be made by the Services Department and not by the Department under whom the petitioner is serving. No doubt, Services Department regulates personnel side of the Anti-Corruption Establishment but by that too it cannot assume administrative control over the employees of the Government which do not otherwise fall within the administrative control of that department. The petitioner belongs to the Local Government Department, therefore, the appropriate Government in his case will be the Local Government Department and not the Services Department. In the case of the petitioner, however, the appropriate Government means the Commissioner, because he is appointing and dismissing authority of the petitioner and not even the Local Government Department.
3. The learned Assistant Advocate-General has referred to the case of Muhammad Arshad Javed v.
The State 1985 P Cr. L J 310, but with utmost respect, I am unable to contribute to 'the view expressed in that judgment.
4. In view of the above considerations, the writ petition is allowed. Since the appropriate Government has withdrawn from the prosecution of the petitioner, the criminal proceedings against the petitioner are declared to be without lawful authority. There shall be no order as to costs.