The appellants have called in question in this Intra-Court Appeal order dated 2-2-2005, passed by a learned Single Bench of this Court in Writ Petition No,190 of 2005.
2. The learned counsel for the appellants has prayed that the order of the learned Single Judge be set aside and F.I.R No,24/05 dated 14-12-2004, under sections 409, 420, P.P.0 read with section 5(2) of Prevention of Corruption Act, 1947 registered at P.S. Anti-Corruption Establishment, Toba Tek Singh be quashed, etc.
3. The background of filing Writ Petition No,190/05 given in the writ petition is that, "all the petitioners/appellants are Patwaris". On 3-2-1991, the Members, Municipal Committee, Gojra moved an application for extension of municipal limits of Municipal Committee, Gojra. Apparently a Notification was issued by the Commissioner, Faisalabad Division on 17-7-1991, whereby the Municipal limits of M.C. Gojra were extended, but the said Notification was not published in the Gazette of the Government of the Punjab. An anonymous application was sent by a citizen to Senior Member, Board of Revenue and Directorate of Anti-Corruption Establishment, Faisalabad, alleging that in certain mutations, of Chak No,296/JB, Tehsil Gojra, District Toba Tek Singh, grave irregularities had been committed causing colossal loss to the Government. According to the application, the sale of certain land had to be transferred only through registered deeds, whereas, the lands were transferred through oral mutations, thereby a lot of money on stamp fee account and development fee account was embezzled by the appellants, and approximately a loss of Rs,40 lacs was caused to the Government. The DDO(R) suspended all the appellants on 31-5-2004. The DDO(R) also made a reference to the Additional Director, Anti-Corruption Establishment, Faisalabad on 9-6-2004 attributing illegalities, irregularities to the appellants. The appellants challenged registration_of case against them on the grounds that there was no one as complainant against the petitioners in the instant case. The inquiry and subsequent F.I.R was registered on an anonymous application, on which, no signature or name was mentioned. Neither any extension of urban limits of Gojra was registered in the 'Roznamcha Waqiati' nor was it published in the Gazette of Government of the Punjab and without Gazette Notification there could not be imposition of stamp duty on registration of sale deed under the Registration Act, even the value table drawn by the Collector was never notified in the official Gazette, under section 27-A. No such demand could be made even by the Sub-Registrar; that the appellants' duty was only to enter the mutations in the `Roznamcha Waqiati', which was to be further attested by the attesting Revenue Officer. Therefore, the basic responsibility was of the Revenue Officer and not of the appellants. The appellants were not aware of any official Notification through which the urban limits were extended. For the above reasons, the learned counsel for the appellants contends that registration of F.I.R. No,24/05 is without lawful authority and of no legal effect.
4. The learned Single Bench dismissed the writ petition while observing that the Notification was issued by the Commissioner, Faisalabad Division regarding extension of the municipal limits of M.0 Gojra and it was also notified by the Commissioner on 17-7-1991, therefore, appellant cannot say that they were not in the knowledge that limits of Municipal Committee had not, been extended. On this question, according to the learned Single Bench, trial Court could go into further details after recording the evidence of the parties. The learned Single Bench further observed that a thorough inquiry was held in this matter by Section Officer, Anti-Corruption Establishment, according to which, appellants as well as concerned Teshildar who attested the, mutations were found guilty.
5. The first hurdle which the learned counsel for the appellants has been asked to over-come is, whether an ICA is competent against an order of a Single Bench of this Court whereby quashment of F.I.R has been refused? According to the learned counsel, the I.C.A. is competent in this case.
6. Similar question came under consideration before the Hon'ble Supreme Court in Nawazul Haq Chowhan v. The State and others 2003 SCM R 1597. Briefly, facts of the above cited case are that a Writ Petition No,178 of 1993 was filed before the. Lahore High Court, Rawalpindi Bench, Rawalpindi to seek quashment of an. F.I.R. No,553/94. The prayer was allowed against which I.C.A. No,7 of 1993 was filed which was also accepted and the order passed by the learned Single Bench for the quashment was set aside. The order of the Lahore Court Lahore in the I.-C.A. was challenged in Civil Petition No,29 of 1994 before the Hon'ble Supreme Court in which leave to appeal was granted, inter alia, on the ground as to whether or not I.-C.A. lie against the order passed in Writ Petition by the learned Single Bench and as to whether or not the word "proceedings" mentioned in the proviso (1) of section 3 of Law Reforms Ordinance, 1972, includes the F.I.R. The Honourable Supreme Court held that the above controversy had been resolved by the Court in the case of Mst. Karim Bibi and others. v. Hussain Bakhsh and another PLD 1984 SC 344 and Settlement Commissioner (L) and others v. Mauj Din and others 1989 SCM R 1351. The Honourable Supreme Court held while holding that in view of section 3(2) of the Law Reforms Ordinance, 1972 I-C.A. is not maintainable, accordingly, Civil Appeal No,553/94 was allowed and order dated 14-3-1993, passed in I.-C.A.
No,7/93 by the learned Division Bench of the Lahore High Court, Rawalpindi Bench was set aside.
7. The important question before the Hon'ble Supreme Court in the above case was whether the word "proceedings" mentioned in the proviso (1) of section 3 of ,the Law Reforms Ordinance, 1972, includes the F.I.R.? The Hon'ble Court accepted the argument that it does while referring and relying Mst. Karim Bibi and others v. Settlement Commissioner (L) and others, two earlier cases decided by the Hon'ble Supreme Court as referred to above. It is important to point out that above cases were decided in settlement matters. The definition of word "proceedings" was discussed with the help of previous case law, similarly, the expression "original order" was also discussed as these words are essential, to determine in the above context, whether I.C.A. is competent or not? For convenience, paras-8 and 9 of the said judgment cited above are reproduce as under:-- "(8) After giving our anxious consideration to the arguments urged in support of this appeal we are, however, not impressed by any of the contentions raised. The test laid down by the Legislature in the proviso is that if the law applicable to the proceedings from which the Constitutional petition arises provides for at least one appeal against the original order, then no appeal would be competent from the order of a Single Judge in the Constitutional jurisdiction to a Bench of two or more Judges of the High Court. The crucial words are the "original order". It is clear from the wording of the proviso that the requirement of the availability of an appeal in the law applicable is not in relation to the impugned order in the Constitutional Petition, which may be the order passed by the lowest officer or authority in the hierarchy or an order passed by higher authorities in appeal, revision or review, if any, provided in the relevant statute. Therefore, the relevant order may not necessarily be the one which is under challenge but the test is whether the original order passed in the proceedings subject to an appeal under the relevant law, irrespective of the fact whether the remedy of appeal so provided was availed of or not. Apparently the meaning of the expression "original order" is the order with which the proceedings under the relevant statute commenced. The word "proceedings" has been used in different enactments and has been subject to judicial interpretation in a number of cases wherein it has received either restricted or wide meaning according to the text and subject-matter of the particular statute. I do not consider it necessary to notice the various judgments in which this word was so construed. Suffice it to refer to the case of Nawab Din v. Member Board of Revenue (1) in which this Court had occasion to examine the scope and meaning of the word as it occurs in section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. A useful discussion will be found in this case with reference to precedents as the meaning of the term "proceedings". An earlier case of Jan Muhammad and another v. Home Secretary, West Pakistan and others (2) was referred to in this connection and the view taken therein was declared by this Court as the correct enunciation of the law on the subject. In the latter case reference was made to the definition of the term "proceedings" in the book "words and phrases" which may usefully be reproduced as under: "The term 'proceedings' is a very comprehensive term, and, generally speaking means a prescribed course of action for enforcing a legal right, and hence it necessarily embraces the requisite steps by which judicial action is invoked. A `proceedings' would include every step taken towards the further progress of a cause in Court or before a Tribunal, where it may be pending. It is the step towards the objective to be achieved, say for instance the judgment in a pending suit. The proceeding commences with the first step by which the machinery of the law is put into motion in order to take cognizance of the case. It is indeed a comprehensive expression and includes all possible steps in the action under the law, from its commencement to the execution of the judgment."
(9) In the light of the aforesaid definition the proceedings under the Displaced Persons (Compensation and Rehabilitation) Act would seem to commence with the application of a person entitled to the transfer of a property in the compensation pool under the Schedule and the Schemes framed thereunder. Normally the application will be disposed of by an order passed by the Deputy Settlement Commissioner which will apparently be the original in the proceedings. Any party aggrieved by such an order may then invoke appellate or revisional jurisdiction conferred under the statute before the higher authorities or officers. In such a case the proceedings remain the same until their conclusion by the order of the final authority as all the intermediary stages are steps taken towards the further progress of a cause of towards the objective to be achieved, the transfer of a particular property to the person entitled thereto under the relevant provisions of law.
Before the amendment of the Displaced Persons (Compensation and Rehabilitation) Act in 1973 there was a right of appeal provided by section 19, therefore, no Letters Patent Appeal was then competent against the order of a Single Judge of the High Court to a larger Bench of the same High Court. Similarly there can be no dispute that in cases in which the original order was passed after the aforesaid amendment of law such appeal was competent as the right of appeal under the Displaced Persons (Compensation and Rehabilitation) Act was taken away by the amendment."
8. From the above judgment, it is clear that proceedings are taken before a judicial forum and proceedings include any stage before the matter is finally concluded. Similarly, the expression "original order" means an order passed under a law which provides an appeal or revision to challenge the said order. The subject-matter of the present I.-C.A. or subject of Civil Appeal No,553/94 before the Hon'ble Supreme Court was for registration of an F.I.R. Taking an application before S.H.O. for registration of an F.I.R., according to the appellants, cannot be called "proceedings".
It is also contended that Criminal Procedure Code does not provide any right of appeal or revision if registration of an F.I.R. is refused 'or if a request for registration of an F.I.R. is accepted and the same requires to be challenged. A similar controversy is reported to have been decided by a Division Bench of this Court in Iftikhar Hussain, etc. v. Government of Pakistan, etc. PLD 1996 Lah. 82, D.B.) The learned Division Bench held that the relevant law does not provide appeal or revision against an act of the registration of an F.I.R. The learned .Division Bench also discussed PLD 1984 SC 344 for guidance para.6 of the report is reproduce as under:-- "(6) According to the view taken by the learned Judges of the Division Bench the impugned order dated 24-11-1973 by the Additional Settlement Commissioner was passed in proceedings arising out of the original order dated 25-7-1960 by which property was initially transferred in favour of the predecessorin-interest of the appellants and in that view of the matter, as the Displaced Persons (Compensation and Rehabilitation) Act, 1958 contained provisions for appeal etc. the bar contained in the proviso to subsection (2) of section",3 'of the Law Reforms Ordinance as amended was plainly applicable- and no Letters Patent Appeal was, therefore, competent."
9. Coining back to the facts and circumstances of the present case, the learned counsel for the appellants submits that facts in Nawazul Haq Chowhan's case 2003 SCM R 1597 are different from the present appeal pending before us. In support of his contention, the learned counsel submits that in the cited case, the learned Single Bench had allowed Writ Petition No,,178 of 1993, against which, I.-C.A. No,-7/93 was accepted and the order of Single Bench of quashment and the F.I.R. was set aside. -According to the learned counsel, in the present case, the learned Single Bench, has disallowed, his writ petition wherein he sought quashment of F.I.R.; against that order, he has tiled= the present I.-C.A. The above contention of the learned counsel for the appellant is not accurate.
The exact point in view of decision of Supreme Court i,e, Nawazul Haq Chowhan's case 2003 SCM R 1597 is whether word -"proceedings" mentioned in proviso (1) of, section 3 of Law Reforms Ordinance, 1972 includes the FIR.? According to the Hon'ble ,Supreme Court, it does. Therefore, it is not relevant whether the learned Single Bench has allowed registration of case or refused registration of a case, the relevant point is ,that ,controversy; relates to F.I.R. Under Article 189, of the Constitution, any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon, or enunciate a principle of law, be binding upon all other Courts in Pakistan. In view of the above provisions of Article 189 of the Constitution and irrespective of a decision of a learned Division Bench, above referred 2001 PCr.LJ 146, we accordingly dismiss this I.-C.A. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.