1. Mr. Habibul Wahab El-Khairi, a Senior Advocate, initially, brought this Constitutional petition against the Government of Pakistan through Secretary, Interior Division, and Mr. Jamal-ur-Rehman Durrani, the Public Prosecutor appointed by the Federal Government in a complaint case against respondents Nos.3 to 7 in the Court of Special Judge (Central), Rawalpindi, praying that the orders and directions of the Government for withdrawal of prosecution pending against such respondents be declared to be without lawful authority and of no legal effect and that respondent No,2 be restrained from acting as a Public Prosecutor in the said case. Later on, in pursuance of an objection of the learned Standing Counsel of the Federation and with the permission of this Court, respondents Nos.3 to 7 were impleaded as parties to the present petition alongwith respondent No,8.
2. 2.Briefly, the facts giving rise to the present petition are that Mr. Habibul Wahab El-Khairi filed a complaint before the Special Judge (Central), Rawalpindi, on the 30th March, 1978, for initiating proceedings against the present respondent's Nos.3 to 7, the officers of the National Savings under sections 165, 166, 409. 420 of the Pakistan Penal Code read with section 109 therefore and section 5(2) of the Prevention of Corruption Act, 1947, for their alleged corrupt practices and causing loss to the public exchequer as according to him the Federal Investigating Agency had failed to take any action against them. Consequently, in accordance with subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958, the learned Special Judge moved, the Federal Government for according sanction to prosecute the accused officers (respondents Nos.3 to 7). Since the requisite sanction was not received within the period of sixty days, the learned Special Judge presumed the requisite sanction to have been granted in accordance with the first proviso to the aforesaid sub- section, and proceeded with the trial against the respondents. During the said proceedings, it also transpired that one Muhammad Nawaz, Additional Secretary, Finance Division, Rawalpindi (respondent No,8) was protecting the accused officers from prosecution. A complaint against respondent No,8 thereupon was also moved by the petitioner before the Special Judge (Central) on the 10th August, 1978. Consequently, the learned Special Judge sought necessary sanction under section 6(5) of the Pakistan Criminal Law Amendment Act. 1958, for prosecution of respondent No,8 as well. The Federal Government, however, by its order, dated the 12th September, 1978, declined to accord such sanction.
3. 3.In the meanwhile, the Ministry of Interior, Government of Pakistan by its order, dated the 30th September, 1978, passed in pursuance of sub-section(4) of section 10 of the Criminal Law Amendment Act, 1958, withdrew the prosecution against the accused officers, namely, respondents Nos.3 to 7. In consequence thereof, respondent No,2 was appointed as a Special Prosecutor in the case and was directed to take necessary action for such withdrawal. Being aggrieved of these orders of the Federal Government, the petitioner has brought this Constitutional Petition challenging the authority of the Federal Government to refuse prosecution of an officer alleged to have been involved in corrupt practices and to withdraw prosecution against the Government officials who were being prosecuted in a Court of law in pursuance of a complaint filed by a citizen.
4. 4.The present petition was opposed by the respondent as well as the learned Standing Counsel of the Federation appearing on behalf of the State.
5. 5.Mr. Abdul Karim Kundi, the learned counsel representing respondents Nos.3 to 8 appreciated the efforts of the petitioner for eradication of corruption from the society, but at the outset contested the very maintainability of the present Constitutional petition on the ground that the petitioner was not an aggrieved person within the meaning of Article 199 of the Constitution. In this context, he referred to Ch. Muhammad Yunus v. The Islamic Republic of Pakistan and others (PLD 1972 Lahore 847) wherein a Division Bench of the Lahore High Court had held as under:-- "In order that a person is an aggrieved person within the meaning of Article 98 he may not have right in strict juristic sense but he must show that he had a 'personal interest in the performance of the, legal duty' and that the non-performance of the duty is to result in the loss of some 'personal benefit or advantage or the curtailment of a privilege'. Unless he shows that he will lose' some benefit or advantage which he would have gained if the order was in accordance with law' he cannot be an aggrieved person. A tax-payer has no personal interest. It has never been held that a tax-payer has a 'personal interest in the performance of the legal duty by all the public functionaries in all cases. It has also never been held that if the order by a public authority is not in accordance with law or results into 'loss of some personal benefit or advantage' to a tax-payer. A tax-payer- cannot maintain a petition pro bono publico."
6. 6.The learned Counsel next referred to Muhammad Boota and others v. Commissioner Sargodha Division Sargodha and others (PLD 1973 Lahore 580) and Adeeb Jawedani v. Chief Administrator Auqaf and others (PLD 1987 Lahore 286) in which the same principle was followed. The learned Counsel also relied upon on Dr. Abdur Rauf and others v. Sh. Muhammad Iqbal and others (1991 SCMR 483) wherein the Supreme Court had held as follows:-- "No exception can be taken to the above conclusion. It cannot be denied that the private respondent had locus standi in terms of the celebrated case of this Court, namely Mian Fazal Din v.
7. Lahore Improvement Trust, Lahore and another (PLD 1969 SC 223), in which Hamoodur Rehman, .C.J., inter alia observed that the right sufficient for maintaining a proceeding in writ petition is not necessarily a right in the strict juristic sense, but it is enough if the applicant discloses that he had personsl interest in the performance of the legal duty which had not been performed in manner required by law."
8. 7.The petitioner on the other hand, opposing these contentions of the learned counsel for the respondents referred to Federation of Pakistan v. Zafar Awan (PLD 1992 SC 72); wherein the Court had held that the provisions relating to sanction of prosecution were "clearly violative of the Injunctions of Islam which make all public power a trust and hence all persons exercising it accountable to the persons suffering at its hands and this process of accountability can take place only in forums and avenues which are independent and regulated by properly set out guidelines for the prosecution and adjudication of causes. The petitioner was, therefore, of the view that he had a right to move the Court of law against corrupt persons. He was also of the view that in an Islamic State and under the provisions of Article 2A of the Constitution, public power is a trust and in pursuance thereof he was fighting war against corruption.
9. 8.The question whether the petitioner is an ' aggrieved person' to file a complaint against Government functionaries allegedly involved in corrupt practices and for causing loss to public exchequer is not a matter in issue in the present petition. It is for the learned Special Judge to determine whether to take cognizance of the complaint filed by the petitioner before him or not, although such determination perhaps at this stage, may not be necessary as the Special Judge had already taken cognizance of the complaint filed by the petitioner against respondents Nos.3 to
7. In the present petition, the petitioner has actually challenged the authority of the Federal Government in issuing directions of withdrawal of a complaint filed by him before the Special Judge (Central). In that matter, he is certainly an aggrieved person as the order of withdrawal of prosecution would amount to dismissal of his complaint without hearing him. He has, thus, claimed such order of respondent No,1 to be without lawful authority and usurpation of his rights to move a Court of law through a private complaint. In this respect, the case of the petitioner is fully covered under the case of Abdul Rauf and others (191 SCMR 483) referred to by the learned counsel for the respondents. Presently, the grievances of the petitioner are against the Federal Government for withdrawal of prosecution, appointment of Special Prosecutors for the purpose of such withdrawal and refusal of the Government to accord sanction for prosecution against respondent No,8. Since all these orders were made as a result of the complaints filed by the petitioner, he certainly is an aggrieved person within the meaning of Article 199. of the Constitution as he is the person who is directly hit by the impugned orders of withdrawal of prosecution against respondents Nos.3 to 7 and refusal to accord sanction for prosecution against respondent No,8.
10. 9.The learned Counsel for the respondent next contested the maintainability of the present petition on the ground that an adequate and alternate remedy was available to the petitioner. It was contended by the learned counsel that instead of filing the present Constitutional petition, the petitioner should have, in the first instance, approached the Special Judge (Central) and oppose the withdrawal of the complaint as directed by the Federal Government and if any adverse order is passed against him, he could then approach the appellate authorities including the High Court.
11. According to the learned counsel for the respondent in this manner the present petition was premature.
12. 10.It is true that the High Court does not entertain a writ petition when another appropriate remedy is yet available but as held by the Supreme Court in The Murree Brewery Co. Ltd. v. Pakistan and 2 others (PLD 1972 SC 279), it is not a 'rule of law barring jurisdiction but a rule by which a Court regulates its jurisdiction.' It was also held therein by the Court 'that one of the well recognized exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority. In Abdul Qadir and others v. The Settlement Commissioner and others (PLD 1991 Supreme Court 1029), while determining the rule of audi alteram partem by a lower forum, the Supreme Court observed that "if the forum before which such a question is raised is able to examine the merits as we have done in this case and or as was done by the High Court in one case, there would be nothing wrong in deciding the matter finally and refraining from multiplicity of proceedings; which as an end product also causes injustice and misery in so far as the delay, expense and anxiety is concerned".
13. 11.It is a settled principle that no prosecution can be withdrawn except with the consent of the Court but it would be interesting to note that in the instant case the Federal Government had itself issued an order for withdrawal of prosecution without approaching the Special Judge (Central). In this respect, it would be pertinent to reproduce the impugned order, dated the 30th September, 1988, issued by the Ministry of Interior Government of Pakistan:-- "ORDER ' In pursuance of subsection (4) of section 10 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958), the Federal Government is pleased to withdraw generally the prosecution under the said Act against (1) Iftikhar Ahmad Sherwani, (2) Muzaffar Din Malik, (3) Haji Riaz Ahmad than, (4)
14. Muhammad Hand and (5) Miss Zaman Islam.
15. (Amin-ur-Rehman Khan) Deputy Secretary."
16. In view of the above order, prima facie hardly anything was left for the Special Judge (Central) to proceed in the complaint. In that respect too, the petitioner was within his right to approach the High Court seeking redress of his grievance by invoking its extraordinary jurisdiction under Article 199 of the Constitution. Even otherwise the procedure suggested by the learned counsel for the petitioner would have taken away the purpose for which the complaint was filed. In this connection, the apprehension of the petitioner appears to be justified that in this manner he would be involved in protracted litigation on technical issues instead of pursuing his complaint. Likewise, the claim of the petitioner against appointment of respondent No,2 as a Special Prosecutor and vires of refusal of the Federal Government to accord sanction for prosecution of respondent, No,8 could not be agitated before the Special Judge (Central). For that purpose, the provisions of Article 199 of the Constitution through the present petition have rightly been invoked.
12. Now coming to the main issue as to whether the Federal Government (respondent No,1) could order for withdrawal of prosecution against respondents Nos.3 to 7 pending adjudication before the Special Judge (Central) in pursuance of a complaint filed by the petitioner under the provisions of subsection (4) of section 10 of the Pakistan Criminal Law Amendment Act, 1958, the same are reproduced below:-- "(4) No prosecution under this Act against any person either generally or in respect of any one or more of the offences for which he is being tried shall be withdrawn except under the orders in writing of the appropriate Government."
17. Learned counsel for the respondent urged that the wards "except under orders in writing of the appropriate Government" used in the aforesaid subsection (4) were very significant. Under these provisions, no prosecution whether initiated by the State or through a complaint by a citizen could be withdrawn without the approval of the appropriate Government (in the present case, the Federal Government). He was thus of the view that, since the final approval for withdrawal of prosecution was to be given by the Government, the Government would itself be empowered to withdraw prosecution initiated in pursuance of a private complaint. There appears no force in these contentions because if such proposition is accepted, the whole purpose of filing a private complaint would be defeated. Under the provisions of Chapter XVI of the Code of Criminal Procedure, 1898, the complaints are generally filed when either the police does not register a case reported to it or consider the prosecution in a matter to be of no use. The provisions of Chapter XVI, Cr.P.C. provide an opportunity to a citizen to approach the Court directly where the citizen is of the view that an offence has been committed. In this process, in the first instance, the Court is required to satisfy itself by examining the complainant on oath, consider other material hold or cause.an inquiry or investigation without the intervention of the police. In the circumstances, if the State is given an open hand to withdraw the prosecution initiated on the basis of a complaint, the very purpose of the provisions relating to complaints shall be lost.
18. 13.The next question would arise as to who will be competent to withdraw a complaint. Section 248 of the Code of Criminal Procedure, 1898, provides that where a complainant, at any time before a final order is passed in any case satisfies the Magistrate that there were sufficient grounds for permitting him to withdraw his complaint, the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused. These provisions do not include the State, meaning thereby that the power to withdraw a complaint is only with the complainant. Again such withdrawal is subject to permission of the Court and is not an automatic affair. When the provisions of section 248 (ibid) are read in juxtaposition with section 10(4) of the Pakistan Criminal Law Amendment Act 1958, it seems that an embargo is placed that even where the complainant seeks withdrawal of a complaint under the said Act, approval of the appropriate Government shall have to be obtained, in writing, for such withdrawal. In other words, that the Court can even refuse such withdrawal and where it permits the withdrawal, the Court must record an order for acquittal. In S. Paramananda Nadar v. Karunakara Doss and another (AIR 1914 Madras 387-1), where. the Municipal Council had withdrawn a case relating to illegal election practices, the Court held that the Municipal Council was not competent to withdraw the complaint as the complainant had not withdrawn it. Similar principle was laid down in Emperor v. Elias Arz Muhammad (AIR 1940 Sindh 112) that where an application for withdrawal is made by a person who is not a complainant, Magistrate cannot grant permission to withdraw the complaint.
19. 14.On the same analogy, in the instant case the Federal Government has no authority to withdraw the case pending against respondents Nos.3 to 7 in the Court of Special Judge (Central) as in the said case the State was not the complainant. The said case can only be withdrawn' by the petitioner being the complainant and that too with the approval of the Federal Government in writing under the provisions of section 10(4) of the Pakistan Criminal Law Amendment, Act, 1958, and subject to the permission of the Special Judge (Central). In view thereof, the Order No,3/5/78- FIA(I), dated the 30th September, 1978, issued by Deputy Secretary conveying the directions of the Ministry of Interior, Government of Pakistan, for withdrawal of prosecution against respondents Nos.3 to 7 was illegal, void and without lawful authority.
20. 15.As regards the appointment of respondent No,2 as Special Prosecutor, to pursue the aforesaid order of withdrawal of prosecution, dated 30-9-1978 and for prosecution of the case by him against respondents Nos.3 to 7 pending before the Special Judge (Central), Rawalpindi, pursuant to the complaint of the petitioner, it may be pointed out that under the provisions of section 492 of the Code of Criminal Procedure, the powers of appointment of prosecutor by the Government are unfettered. For that purpose, the complainant or any other person cannot have a choice for selection or appointment of a public prosecutor.
21. It is the prerogative of the Government to appoint an officer generally or in any case or for any specified class of cases to perform the duties of prosecutor. Similarly, under the provisions of subsection (6) of section 6 of the Pakistan Criminal Law Amendment Act, 1958, the Federal Government is authorised to appoint an officer, by general or special order, or to appoint one or more persons to conduct prosecution before any Special Judge including the cases sent by the Special Police Establishment and also in all other cases. The appointment of respondent No,2 for conducting the prosecution before the Special Judge in F the matter of complaint against respondents Nos.3' to 7, therefore, cannot be opposed by the petitioner, particularly when summons are issued in a complaint case, it becomes a State case. Hence, for the purpose of prosecution of the case against respondent Nos.3 to 7 before the Special Judge (Central), Rawalpindi, the appointment of respondent No,2 as a prosecutor is in order. He can prosecute the case before the Special Judge on behalf of the State if the Federal Government so desires. But, since the Order, dated 30-9-1979, in respect of withdrawal of prosecution against respondents Nos.3 to 7 has been held .to be illegal and without lawful authority, he will have no right to make any request for withdrawal of prosecution.
22. 16.The petitioner has also assailed the refusal of the Federal Government to accord sanction for prosecution of respondent No,8 who had allegedly been protecting the alleged misdeeds of respondents Nos.3 to 7. The petitioner 'has very vehemently claimed the refusal of the Federal Government to accord sanction for prosecution against respondent No,8 was against the Islamic concept on the analogy of the decision of the Shariat Appellate Bench of the Supreme Court in Zafar Awan's case (PLD 1992 SC 72).
23. 17.Sanction for prosecution of a public servant is required under subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958. If such sanction is neither received nor accorded within sixty days of the receipt of the letter by the Government from the Special Judge seeking such sanction by virtue of first proviso to section 6(5) (ibid.), the sanction is deemed to have been accorded. In the instant case, the learned Special Judge (Central) had sought permission for prosecution of respondent No,8 by his Letter No,128/SJC(R), . dated the 10th August, 1978. The Federal Government conveyed its refusal to accord such sanction to the learned Special Judge by its letter, dated the 12th September, 1978. Such refusal was well within the time specified in the first proviso to subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958.
24. 18.There is nothing on the record which may establish that the aforesaid refusal to accord sanction was mala fide, arbitrary or capricious. In this context, it was pointed out by the learned Standing Counsel for the Federation that a petition for review of the judgment in Zafar Awan case (PLD 1992 SC 72) was also pending adjudication and in view thereof, the provisions of section 6(5)
(ibid) dealing with the sanction for prosecution do not stand omitted from the statute book being in violative of Islamic Injunctions. Even otherwise, the sanction for prosecution of respondent No,8 was sought in August, 1978, and was refused in September, 1978, while the judgment in Zafar Awan case was announced on the 30th November, 1991. The said judgment was not made with retroactive operation. In fact, their Lordships of the Supreme Court had directed the Legislature for br,inging changes in the relevant statute by the 30th June, 1992, failing which the provisions regarding sanction for prosecution would have ceased to have any effect. By virtue of clauses (2) and (3) of Article 203-D of the Constitution of Pakistan read with Article 203-H, thereof, where any law or provision of law is held to be repugnant to the injunctions of Islam, such law or provision of law ceases to have effect on the day on which the decision of the Federal Shariat Court or, as the case may be, the Shariat Appellate Bench of the Supreme Court takes effect. In the present case, as stated above, the Supreme Court had itself fixed the cut out date to be the 30th June, 1992.
25. Hence, only after the said date, the provisions of section 6(5) of the Pakistan Criminal Law Amendment Act, 1958, dealing with the sanction for prosecution could be held to cease to have effect, if in the meanwhile, the Legislature would have failed to bring the necessary changes therein. Consequently, the refusal to accord sanction of prosecution of respondent No,8 under section 6(5) of the Pakistan Criminal Law Amendment Act, 1958, by the Federal Government on the 17th September, 1978, cannot be ignored being contrary to Islamic Injunction as the same was declined in accordance with the existing statutory provisions.
26. 19.It is an admitted fact that respondent No,8 has since been retired from the Government service and' is no more a public servant within the meaning of the Pakistan Criminal Law Amendment Act, 1958. In Atta-ur-Rehman v. The State (PLD 1967 SC 23), it was held by the Supreme Court that the bar to prosecution contained in subsection 6(5) of the Pakistan Criminal Law Amendment Act, 1958, would apply only to those persons who are public servants at the time when the Courts take cognizance of the offence with which they are charged under the Act but not to the persons who at the time of alleged commission of offence were not such public servants. In view thereof, the petitioner may, if so advised, approach'the Court concerned for the desired relief as now no sanction for prosecution would be necessary in the case of respondent No,8.
27. 20.It may also be pertinent to observe that although the petitioner had, in paragraph 7(d) of the ground of the present writ petition, specifically urged that respondent No,1 had not exercised its discretion honestly, legally and fairly in refusing to accord sanction for prosecution of respondent No,8, but no relief was claimed against such refusal of the Government. In Usman Enterprises v.
28. Collector of Customs, and another (1995 CLC 1137), a Division Benth of Balochistan High Court has held that where the petition is silent regarding any point that cannot be agitated at the stage of arguments. In the light of the said dictum, no interference of this Court against exercise of its discretion by respondent No,1 in refusing to accord sanction for prosecution of respondent No,8 is called for.
21. In view of the above discussion, the order dated 30-9-1978 issued by Deputy Secretary, Ministry of Interior, Government of Pakistan, conveying the decision of the Federal Government for withdrawal of prosecution under section 10(4) of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958), against respondents Nos.3 to 7 before the Special Judge (Central), Rawalpindi, is declared to be illegal and without lawful authority. Consequently, respondent No,2, a Special Prosecutor appointed by the Federal Government is restrained to agitate for such withdrawal in pursuance of the aforesaid order of respondent No,1 before the Special Judge (Central), Rawalpindi. He may, however, if so desired by the Federal Government, can conduct the prosecution in the complaint case filed by the petitioner against respondents Nos.3 to 7. Likewise no directions of this Court are warranted against refusal of the Federal Government conveyed by its Letter No,3/5/78 FIA(I), dated the 12th September, 1978, to accord sanction for prosecution of respondent No,8. The writ petition is allowed to the extent specified above with no orders as to costs.