' The petitioners have moved this application for quashment of the proceedings pending in the Court of Special Judge, Anti-Corruption (Provincial), Karachi. The respondent No,2 filed a complaint under section 419/420/464/471-A/474/170/171, P.P.C. Before the Deputy Commissioner, Karachi who directed the Assistant Commissioner and Sub-Divisional Magistrate, Liaquatabad, Karachi to hold an enquiry into the complaint. The enquiry was conducted by the Sub-Divisional Magistrate and then ordered the complaint to be registered and sent the same under section 190(3), Cr.P.C. To the District and Sessions Judge, Karachi for trial being triable by Court of Sessions Judge. The complaint was transferred to the Court of Additional District and Sessions Judge, Karachi where from the process was issued to the petitioners. An application under section 265/D was filed in the trial Court by the petitioners but the same was rejected, and then an application under section 561-A, Cr.P.C. Was filed in this Court, which was allowed by Mr. Justice Z.C. Villiani (as he then was) by order, dated 7- 3-1983, thereby quashing the proceedings pending against the petitioners on the ground that the trial Court has no jurisdiction in the matter. It was observed that the alleged offence has been committed while acting as public servant. In the order, it was stated that it would be open to the prosecution to take the case against the present petitioners before competent Court. The Court came to the conclusion that the petitioners are covered by the definition of public servants under section 65(B) of Co-operative Societies Act, read with section 21 of the P.P.C.
' The respondent No,2 then filed the complaint before the Special Judge, Anti-Corruption (Provincial), Karachi who recorded the statement of the complainant/respondent No,2 on 8-6-1983 and directed preliminary enquiry by the Police and on the report of the Police, bailable warrants were issued against the petitioners. The petitioners had moved an application under section 265-K, Cr.P.C. In the Court of Special Judge, Anti- Corruption, but the same was rejected.
' I have heard the learned counsel for the petitioners, the learned counsel for the State and the learned counsel for the respondent No,2.
' The learned counsel for the petitioners had submitted that the petitioners have ceased to be the office-bearers of the Co-operative Society and, therefore, they are no more public servants. As such the Court of Special Judge, Anti-Corruption has no jurisdiction in the matter. This contention has no force as at the time of alleged offence, the petitioners were office-bearers of the Co-operative Society and they were public servants and this fact has not been challenged by the petitioners. Their previous petition for quashment was accepted on this ground alone. The alleged offence had been committed when they were public servants and, therefore, the cognizance of the case property taken by the Special Judge, Anti-Corruption.
' The next contention raised by the learned counsel for the petitioners is that no sanction was accorded by the Government. The matter was referred to Chief Secretary to the Government of Sind, Karachi, by the Special Judge, -Anti-Corruption. It was observed by the trial Court that as the sanction has not been accorded within sixty days, therefore, it means that sanction has been accorded. The Chief Secretary to the Government of Sind, Karachi, took a view that as the petitioners were not public servants when they were being prosecuted, therefore, no sanction was necessary. No sanction was required in this present case as observed by the Chief Secretary.
As to the allegations on merits, it is the case against th petitioners that the Sub-Divisional Magistrate did not give any permission to the Firdous Co-operative Housing Society to issue notices to respondent No,2 under M.L.O. 130, therefore, the petitioners hay committed offences alleged against them. The learned counsel for th petitioners has referred to M.L.O.
130. In this order para. 2(b describes public property. Under para. 4 Government or any authorit or an Officer - authorised by the Government or the authority in this behalf, may, by an order, require the person directly or indirecti responsible for encroachment to remove such encroachment togethe with structures, if any, raised by him on the public property, withi such period as may be specified in the order. According to the learne counsel, the petitioner No,1 as Secretary of the Society, issued notice to the respondent No,2 to remove his encroachment. The grievance o the petitioner No,1 is that he had issued notice on behalf of th Assistant Commissioner otherwise it has not been denied that he wa authorised to issue notice under the law. This. Is also the stand taken by the Deputy Commissioner on behalf of the Government (Annexur F/1) that under M.L.O.
130, para. 4, the Societies are empowered t issue notices and after the expiry of the notice period, the encroachment could be removed by force under the M.L.O. As such the P.E.C.H. Society Limited may be advised to issue notices to the encroacher under M.L.O.
130. The documents filed alongwith this petition support the case of the petitioners that they had issued notices under the direction of the Deputy Commissioner and Sub-Divisional Magistrate and the contention of the petitioners has not been repudiated by the State. The petitioner No,1 was duly authorised person to issue notices under sub-clause (4) of section 2 of M.L.O.
130. The Firdous Co-operative Housing Society had authority and thus no offence was committed by the Secretary of the Society. On the other hand, documents filed by the petitioners show that notice had been given with the concurrence of the authorities. The letter, dated 27th April, 1981 (Annexure I) was written by the petitioner No,1 to the Assistant Commissioner and Sub-Divisional Magistrate, Nazimabad, Karachi to the effect that the notices were served upon the shopkeepers under M.L.O. 130 and the concerning department K.D.A.
Was informed by the office. A request to the Assistant Commisioner and Sub-Divisional Magistrate for his presence at the site on 2nd May, 1981 at 10-30 a.m. Was also made in connection with law and order situation.
Annexure A written by the Deputy Controller of Buildings to Sub-Divisional Magistrate, Nazimabad states that his office intended to remove the unauthorised encroachment on Main G Road (Nawab Siddiq Ali Khan Road)
Firdous Co-operative Housing Society, Karachi requesting to give Police for maintanining law and order. The letter, dated 26th April, 1981 (Annexure D) issued by the Secretary, Firdous Co-operative Housing Society Ltd., Karachi t the Zonal Officer, Nazimabad, states that he was directed by the Sub-Divisional Magistrate, Nazimabad to keep him (Zonal Officer) informed regarding the programme to manage the disconnection of the Main Electric Supply Line. The Deputy Commissioner and District Magistrate had written a letter (Annexure J) to Sub-Divisional Magistrate, Nazimabad, Assistant Commissioner, Nazimabad, the Management of Firdous Co- operative Housing Society and the Representatives of Shopkeepers informing that the shopkeepers to whom notices under M.L.O. 130 were served by the Firdous Co-operative Society have filed a representation requesting therein that they should be heard personally and that meeting was arranged to discuss all the issues of Firdous Co-operative Housing Society Ltd., and the grievances of the residents of that area. A similar letter, dated 29th April, 1981 (Annexure E) was also written by the Additional Deputy Commissioner, Karachi to the various authorities informing them that the Deputy Commissioner had ordered that till further orders no demolition is to be made. The matter was adjourned by the Deputy Commissioner from time to time. All these facts would clearly indicate that the notices have been issued by the petitioner with the consent of executive authorities and this fact and contents o the letters have not been denied by the State. Such notices have bee issued to many persons but no other person has challenged the legality of such notice. In the circumstances and the documents filed in thi petition are sufficient to show that no conviction can be recorded. The executive authorities have not taken any action against the petitioners. On the other hand they have endorsed the action taken against the petitioners. The petition is accepted and proceedings pending against the petitioners in the Court of Special Judge, Anti-Corruption are quashed. No order as to costs.