Law: Government of India Act, 1935

Section: 17(1),Provision

Law: Pakistan Penal Code, 1860

Section: 162

Law: Pakistan Criminal Law Amendment Act, (XIX of 1948)

Section: 5(5)

Government of India Act, 1935, S. 17 (1)-Provision only directory and not mandatory-Sanction for prosecution given by Central Government under S. 5 (5), Pakistan Criminal Law Amendment Act, (XIX of 1948) not expressed to be given in name of Governor-General not invalid. Held that the provision contained in subsection (1) of section 17, Government of India Act, 1935 is directory rather than mandatory and that non-conformity with it does not invalidate an order if in fact such order proceeds from the appropriate authority after a consideration of the relevant facts. It would be too much to make a fetish out of this provi­sion and to give it a construction which might entail a consi­derable amount of inconvenience not only to the Government but also to the public at large and might even be calculated to bring the business of Government to a stand still. The directory character of the provision relates to the form which an order should take when being pub­lished and not to the method of making the order which is a process to be distinguished from the expressional pattern of the order in writing. The order of sanction for the prosecution of the two appellants emanated from the Ministry of Interior, Govern­ment of Pakistan, under the signatures of a Deputy Secretary. After setting out the allegations against the two accused, the order recited that the Central Government was pleased, under subsection (5) of section 5 of the Pakistan Criminal Law Amendment Act, 1948, to sanction the prosecution of the accused for the offences falling within section 162 P. P. C. etc. It was contended that the order of prosecution was not a valid order inasmuch as it was not expressed to be issued in the name of the Governor-General, as was required by sub­section (1) of section 17 of the Constitution Act. Held that the sanction was not invalid. Sarfraz Khan v. Crown P L D 1950 Lah. 384, J. K. Gas Plant Manufacturing Co., v. Emperor A I R 1947 F C 38, Crown v. Abdur Rashid, Cr. A. No. 51 of 1955 State of Bombay v. Purushottam Jog Naik A I R 1952 S C 317, ref. Qamar-uz-Zaman Khan v. Punjab Province P L D 1955 Lah. 612 ref. JUDGMENT RAHMAN, C. J.-Khalid Waheed and Badr-e-Alam were…

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