' SYED SHABBAR RAZA RIZVI, J.----The learned counsel filed this writ petition on behalf of the petitioner, wherein three officers of Anti-Corruption Establishment were made respondents with prayer: that impugned notices Annex-I and J emanating from respondents Nos.1 to 3 be declared without lawful authority and till the final decision of the writ petition operation of the impugned notices be also stayed. The writ petition was fixed and heard by my learned brother Abdul Shakoor Paracha, J, on 23-4-2008. Respondent No,3 was directed to file report and parawise comments.
The case was adjourned for 14-5-2008 for further proceedings. It was also directed that in the meanwhile respondents shall not cause harassment to the petitioner and his family members. On 14-5-2008, it was submitted before his Lordship that F.I.R. No, 66 dated 23-4-2008 had already been registered at Police Station Anti Corruption, Lahore. In view of the above, the learned counsel for the petitioner was allowed to amend the writ petition. In C.M. No,4 of 2008, complainant of the F.I.R., namely, Ch. Niatnat Ali Nagra, Advocate was allowed to become a party. He was ordered to be arrayed as respondent No,4. My learned brother, Abdul Shakoor Paracha, J began holding his Court at Rawalpindi Bench, hence the office fixed the present writ petition before me.
2. The learned counsel for the petitioner vigorously contended that the impugned F.I.R. Was registered despite order of the Court dated 23-4-2008 and pendency of the instant writ petition.
This is a clear disobedience and disrespect to this Court. He also submitted that the impugned F.I.R.
Was registered on the basis of mala fide on part of the complainant as well as respondents ACE Officers. He also contended that in the facts and circumstances of the instant case, Anti- Corruption Establishment was not competent to register a case. The learned Law Officer was directed to seek a report from respondent No,1. The officer who had conducted the inquiry prior to registration of the F.I.R. Was also directed to appear with record. The operation of the impugned F.I.R. Was suspended and for further proceedings case was fixed for 11-6-2008.
3. On 11-6-2008, respondent No,1 failed to submit report. Likewise, the officer who had conducted the inquiry also failed to appear whereupon the office was directed to issue notices to the Director- General, ACE and other officers as to why contempt proceedings be not initiated against them under Article 204 of the Constitution of Islamic Republic of Pakistan, 1973. The other accused nominated in the impugned F.I.R. No,66 of 2008 were also issued notices. The respondents were again directed to file their reports/replies. On 18-6-2008, respondent No,4 requested for a short adjournment as his counsel was unwell. Amongst other accused, Rai Muhammad Ashraf was represented by Malik Ghulam Rasool, Advocate. The petitioner was represented by Mr. Hassan Nawaz, Advocate. However, the proceedings did not proceed in view of request of respondent No,4 as well as providing opportunity to the other accused who were not represented in the Court.
4. Today, all the parties are represented by their respective learned counsel. Mr. Azam Nazeer Tarar, Advocate opened his arguments on behalf of the petitioner. According to the learned counsel, registration of F.I.R. No,66 of 2008 is an outcome of a mala fide, etc., on behalf of the complainant; the respondents were not competent under the law to register the F.I.R. As section 5 of the Prevention of Corruption Act, 1947 is not attracted and inquiry was not conducted according to the rules; moreover, final findings of the Inquiry Officer observed that violation of the Punjab Private Site Development Schemes (Regulation) Rules, 2005 was committed by the petitioner and other accused and there was no mention in the inquiry report that any money or illegal gratification was received by the accused who are government officials. The learned counsel while giving the background of the registration of the F.I.R. Submitted that respondent No,4/complainant of the impugned F.I.R., had been working as a Legal Advisor of the petitioner but somehow some differences developed between them. According to him, one electricity transformer was installed in the housing scheme in front of respondent No,4's house which also annoyed respondent No,4; though the transformer was installed by the WAPDA officials and petitioner did not have anything to do.With the installation. He further submitted that civil suit is also pending filed by respondent No,4 before the civil Court wherein subject-matter is same as in impugned F.I.R. According to him, inquiry was not conducted as required under rules, 5, 6 and 7 of Rules, 1985. According to him, his Lordship Abdul Shakoor Paracha, J. Was seized with this case and also had directed respondents not to harass the petitioner and his family yet the impugned F.I.R., was registered by which the respondents caused disrespect to the authority and sanctity of this Court. According to him, the order dated 23-4-2008 was passed by his Lordship in the presence of learned A.A.-G. Who did inform the respondents about order of this Court yet F.I.R. Was registered in a haste. He also referred to contents of F.I.R., to argue that F.I.R. Was mala fide and incompetently registered. The learned counsel also drew attention of this Court to an inquiry report dated 14-2-2007, which also related to similar allegations against the petitioner but the Inquiry Officer had declared the allegations/ complaint without any substance and inquiry was dropped. The learned counsel has put a lot of emphasis that in any case if any irregularity has been committed by the accused persons including the petitioner, that may attract provisions of "The Punjab Private Site Development Schemes (Regulation) Rules, 2005" (hereinafter to be referred as Rules, 2005) and not of the P.C.A.
1947. In support of his contentions, the learned counsel has referred to 1994 SCMR 666, 2003 SCM R 1339.
5. The government officials/accused are represented by Malik Ghulam Rasool, Advocate.
According to the learned counsel, bald allegation of graft has been levelled against the accused which has no truth. While elaborating his point, he submitted that no witness is mentioned before whom the so-called amount was paid by petitioner or received by accused person. Even no date is mentioned and no place of occurrence is mentioned in the F.I.R. According to him, only L.D.A. Is competent to take notice of such complaints, if at all there are some complaints against the accused persons from any quarter including the complainant of the F.I.R. In this context, the learned counsel referred to section 13(2) of Rules, 2005.
6. The Deputy Director Legal on a question from Court stated payment of illegal gratification was not a subject-matter before the Inquiry Officer, therefore, no finding was given on this point. The question before the Inquiry Officer was redemption of 50% of the mortgaged plots within 20 days in violation of Rules, 2005. The learned Assistant Advocate-General, Punjab submitted that no proof was submitted before the Inquiry Officer regarding illegal gratification to shield violation of rule 13.
According to the Inquiry Officer present in the Court, no proof of illegal gratification was produced by the complainant, therefore, no finding was given on this point in the final findings of the inquiry.
7. The learned counsel for respondent No,4 complainant of the F.I.R. Submitted that respondent No,4 holding office of Law Officer of the petitioner does not reflect any mala fide. According to the learned counsel, regarding complaint of installation of transformer, respondent No,4 filed civil suit which is pending, wherein, petitioner made a statement that he would remove the transformer from the disputed place to install the same at the place recommended by respondent No,4. This statement, according to the learned counsel, was made by petitioner on 4-12-2007, whereas complaint to Anti-Corruption Establishment was made on 8-3-2008. According to him, in preliminary inquiry, all accused were summoned. The petitioner did not appear, however, his representative attended inquiry proceedings. The then Inquiry Officer, after conducting preliminary inquiry recommended for regular inquiry. Upon the above recommendation, a panel consisting of three officers held the regular inquiry, following which the impugned F.I.R. Was registered.
According to the learned counsel, respondent No,4/complainant of the F.I.R. Built his house in the society after payment of all expenses. In this regard, he referred to certificate dated 23-11-2004.
According to him, mutation was also sanctioned in his favour according to the rules including completion certificate. According to him, the earlier inquiry report was filed by a person who is not resident in the Green City Scheme and the grievance in the said complaint has no real nexus with the real issues raised in the instant F.I.R. The learned counsel for respondent No,4 also referred to rules 4 and 8(4)(iii) and submitted that Rules, 2005 were made to safeguard the legitimate interest of landowners, potential buyers and the general public. According to him, petitioner and other accused clearly violated the above rules. The learned Counsel referred to, in support of his contention 2005 YLR 1104, 2008 SCM R 76 and 1994 PCr.LJ 856.
8. I have heard the learned counsel for the parties at length. I have also heard the learned Assistant Advocate-General, Punjab. The accused persons in the Court where also provided ample opportunity to put across their point of view. I considered the submissions made by the above persons carefully. I have also examined the record and Rules, 2005 with assistance of the officers above-mentioned.
9. Final inquiry report discloses the following findings:-- ' "The version of the complainant embodied in his complaint as well as in his detailed statement, defence statements of respondent Public Servants namely, Muhammad Ashraf TO(P&C) and Muhammad Jahangir, Enforcement Inspector TMA, Aziz Bhatti Town, site inspection report of Technical Wing of this establishment and the record available on the file has been perused minutely. It has been established beyond any reasonable doubt that the total number of mortgaged plots were 30% of the total area of the Housing Scheme but 50% plots were redeemed only after 20 days without completing the development works, without any authority and contrary to mortgage deed. According to the Bye-Laws of the society at least 2% area was required to be reserved for the graveyard but no area was left for the graveyard despite the fact that the same was shown in the approved plan. Moreover, commercial plaza has been constructed upon the area shown as graveyard in the site plan without approval of building plan.
The record has further revealed that the partial redemption of plots was not the condition in the Bye-Laws of the society but the same has been got done by the functionaries of the society in collusion with the officers of TMA Aziz Bhatti Town, Lahore. The above are some examples of illegalities committed by the respondents and the same have been, prima facie, established from the perusal of the record and the site inspection. Several other circumstances of incriminating nature, will certainly be gleaned out if case is registered against the delinquents. So ROC is recommended against the following:-
(1) Muhammad Rizwan TMO Aziz Bhatti Town, Lahore.
(2) Rai Muhammad Ashraf TO(P&C) Aziz Bhatti Town:
(3) Javed Iqbal Bajwa, TO(R) Aziz Bhatti Town, Lahore.
(4) Muhammad Jahangir, Enforcement Inspector Aziz Bhatti Town, Lahore.
(5) Haji Muhammad Rafique Chairman of Housing Scheme.
' It may be noted that no allegation or finding is made in the above findings regarding payment of any money by any person to the Government Officials referred to above as accused persons. It may also be pointed out that 5 persons were mentioned to be nominated in the F.I.R. Including the present petitioner. However, the F.I.R., includes names of Mst. Fazeelat, wife of the petitioner, Sarfraz Rafiq, son of the petitioner, Ijaz Rafiq son of the petitioner, Usman Javed Saroopa as accused, whose names were never recommended by the Inquiry Officer/officials in the final report. It may also be pointed out that case was recommended to be registered against Muhammad Rizwan TMO, Javed Iqbal Bajwa TO(R), Muhammad Jehangir Enforcement Inspector but they are not nominated in the F.I.R. Muhammad Rizwan TMO though was recommended to be nominated in the F.I.R. But during the inquiry he was never summoned. The record does not show that he was ever summoned or any notice was issued to him. Respondents present in the Court when asked, could not offer any explanation to the above fact that smells a rat. i.e, mala fide.
10. According to the Deputy Director Legal, section 5(b) of Prevention of Corruption Act, 1947 is attracted in the light of the findings of the inquiry report. Section 5(1)(b) is reproduced as under:-- ' "If he (public servant) accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing. Without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned."
' The findings of the inquiry report have already been reproduced above which do not mention, at all, that officials/accused accepted or agreed to accept or attempted to obtain any valuable thing, instead according to the statement of Deputy Director Legal, it was not a subject-matter of the inquiry. According to the statement of learned A.A.-G., no proof was placed before the Inquiry Officers of any financial corruption. The Inquiry Officer himself stated before the Court that no such proof of illegal gratification was produced by the complainant, therefore, it was not mentioned in the findings of the inquiry. In the above circumstances, I wonder how section 5 is attracted in the facts and circumstances of the present case.
11. The Rules, 2005 provide at the very outset that these Rules are enacted for facilitating development of private housing schemes while safeguard the legitimate interests of land owner, potential buyers and the general public. The said Rules were framed in exercise of powers conferred upon the competent authority under section 191 of the Punjab Local Government Ordinance, 2001. These Rules are applicable to the entire Province of the Punjab except the areas notified as Cantonments. Rule 4 provides prerequisites of housing schemes which are required to be submitted to the development authority or scrutiny committee, as the case may be. After fulfilling the pre-requisites, objections shall be invited to the proposed scheme which shall be communicated to the developers within three days. Required sanction is to be issued under rule 8.
If the development authority or Tehsil Municipal Administration, as the case may be, proceed to sanction the scheme, then prior to issuance of such sanction it shall require Developer to fulfil within 15 days the following requirements:-- (i)
(ii)
(iii) mortgage 20% of the saleable area of the Scheme or furnish Bank guarantee of National Bank of Pakistan or The Bank of Punjab equivalent to the total cost of development works as security for due completion of development works in the name of Development Authority or Tehsil Municipal Administration, as the case may be."
' According to rule 11, the mortgaged plots shall be released by the Development Authority or Tehsil Municipal Administration, as the case may be, on obtaining field reports from the concerned departments and authorities about the satisfactory completion of development works in the following order and proportion, respectively:
(i) water supply, sewerage and drainage system 30%.
(ii) roads 30%
(iii) electricity 30%
(iv) street light and horticulture 10% ' According to rule 13, no person shall develop a Scheme except in conformity with these rules.
According to sub-rule (2) of rule 13, if the scheme is not developed within stipulated period or if the development is not in conformity with terms of sanction, the Development Authority or the Tehsil Municipal Administration, as the case may, may take over the development of the scheme and execute necessary works from the proceeds of sale of mortgaged plots or encashment of Bank guarantee. In case of difference, the same may be recovered from the Developer as arrears of land revenue. Rule 14 provides that any person aggrieved by an order of Development Authority or Tehsil Municipal Administration, as the case may be, may prefer an appeal before the Secretary, Government of the Punjab, Local Government and Rural Development Department. Rule 15 provides that the Provincial Government may call for and examine the record of any proceedings for the purpose of satisfying itself to the correctness, legality or propriety of sanction of Scheme, recommendations, observations, penalty or order recorded or passed and as to the regularity of any proceedings. Sub-rule (2) of rule 15, reads that on examining the record, the Government may pass such order as it deems fit, but before cancelling or recalling sanction of the Scheme, the Government shall afford the Developer an opportunity of being heard.
12. The reading of the above rules of Rules, 2005 clearly shows that even if the findings of the inquiry report are totally believed, the petitioner and other accused nominated in the F.I.R. Could be held as violators of the above-mentioned Rules and not section 5 P.C.A.
1947. Rule 13, reads as under:-- ' "No person shall develop a Scheme except in conformity with these rules."
' According to rule 11, the mortgaged plots shall be released by the Development Authority or Tehsil Municipal Administration, as the case may, on obtaining field reports from the concerned department and authorities about the satisfactory completion of development works. The 20% of plots of the saleable area are already mentioned with reference to rule 8(4)(iii). At this point of time, allegation in the impugned F.I.R. May also be mentioned. According to the F.I.R., accused (petitioner) Haji Muhammad Rafiq executed a mortgaged deed vide No,4210, Bahi No,1, Book No,570, dated 27-4-2005 in favour of TMA Aziz Bhatti Town as a security for the provisions of services of development work, but only after one month mortgaged plots were redeemed without completing development works vide dr ument No,5532, Bahi No,596, dated 30-5-2005. According to the F.I.R., the plan was approved without observing codal formalities by the TMA Officials. The graveyard of Mauza Calass was shown as graveyard of the Scheme. According to the inquiry report, a commercial plaza was built on the land of the graveyard. Against all these grievances, the respondent No,4 could avail remedy provided under rule 14, which, for convenience, is reproduced as under:-- ' "Any person aggrieved by an order of Development Authority or Tehsil Municipal Administration, as the case may be, may prefer an appeal before the Secretary, Government of the Punjab, Local Government and Rural Development Department."
' The Secretary, Government of the Punjab/Government has been vested with vast powers under rule 15, but the same has not been done.
13. The Punjab Private Site Development Schemes (Regulation) Rules, 2005 have been enacted as a special law, under authority of section 191 of the Punjab Local Government Ordinance, 2001. It is a known principle of the law that in presence B of a special law, general law is not applied. In the facts and circumstances of the present case, special law has been totally ignored by the respondents, it has not even been discussed by the respondents. Even for this reason, the registration of the impugned F.I.R. Is untenable. As discussed in para. 10, section 5 of the Prevention of Corruption Act, 1947 is not attracted in the facts and circumstances of this case. The respondents, according to the findings of the inquiry report, have violated, as discussed above in detail, the provisions of Rules, 2005. The findings of inquiry clearly omitted to refer acceptance of any valuable thing or illegal gratification, etc. By the TMA Officials. Accused Fazeelat Bibi, Sarfraz Rafiq, Ijaz Rafiq and Usman Javed Saroopa were never recommended to be nominated in the F.I.R.
But surprisingly they have also been nominated in the impugned F.I.R. Muhammad Rizwan TMO, Javed Iqbal Bajwa TO(R) and Muhammad Jehangir Enforcement Inspector were recommended but their names do no figure in the F.I.R. In the above circumstances, it is held that element of mala fide cannot be ruled out. Moreover, the respondents were not legally competent to register the impugned F.I.R. At the most, they could recommend action under Rules, 2005 to the Competent Authority. The learned counsel for respondent No,4 himself stated that accused and petitioner violated provisions of Rules, 2005, as already noted in para. 7.
14. According to the Honourable Supreme Court of Pakistan High Court in exercise of its constitutional jurisdiction, is competent to pass appropriate orders where investigation is mala fide or without jurisdiction, reference may be made to Muhammad Latif A.S.-I. v. Sharifan Bibi 1998 SCM R
666. Article 4 read with Article 9 of the Constitution provides full protection of law and treatment in accordance with law. According to Article 4, no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. As discussed above, the petitioner and other accused have not been dealt with in this case in accordance with law/rules. According to the Honourable Supreme Court of Pakistan, High Court must step into to investigate such facts under the constitutional jurisdiction conferred on it D under Article 199 of the Constitution and pass such order as may be found just, legal and equitable taking into consideration of the facts and circumstances of each case. Government of Sindh v. Raeesa Farooq and others 1994 SCM R 1283. The cases referred to by the learned counsel for respondent No,4 i.e, 2002 YLR 1104 and 2005 YLR 1329 relate to Anti-Corruption Establishment Rules, 1985 only, and do not cover the facts and circumstances of the present case, therefore, not applicable. The case reported as 2008 SCM R 76 itself says that in exceptional circumstances the F.I.R. Can be quashed.
Exceptional circumstances include mala fide registration of F.I.R. As well as when F.I.R. Is registered incompetently or without jurisdiction and in violation of law and rules.
15. For reasons noted above, this writ petition is allowed. Resultantly, F. I R. No,66 of 2008, dated 23- 4-2008. Registered under sections 420, 468, 470 and section 5(2) of Prevention of Corruption E Act, 1947, at Police Station Anti Corruption, Lahore is declared, without lawful authority and quashed. It is also declared and held that violation of any rule/rules of the Punjab Private Site Development Schemes (Regulations) Rules, 2005, can be challenged and a violator may be penalized under rules 14 and 15 of the said Rules.