ZIA-UD-DIN KHATTAK, J.---This criminal appeal is directed against the judgment passed by the learned Senior Special Judge, Anti-Corruption N.-W.F.P., Peshawar dated 22-5-2008 whereby appellant Mazhar Illahi involved in case F.I.R. No,33 dated 22-1-1998 Police Station, East Cantt.
Peshawar was convicted under section 409, P.P.C. And sentenced to one year's R.I. With a fine of Rs,10,000 or in default thereof to undergo further S.I. For three months. The appellant was further convicted and sentenced under section 5(2) of the Prevention of Corruption Act, 1947 to imprisonment for six monthsR.I. With a fine of Rs,5,000 or in default thereof to undergo further two monthsS.I. All the sentences were directed to run concurrently. The benefit of section 382-B, Cr.P.C.
Was, however, extended to the appellant.
2. Briefly, facts of the case relevant for the disposal of this appeal are that the appellant while posted as incharge police clothing godown D.I. Khan received certain articles from Central Police Office, Peshawar for D.I. Khan police. These articles included 100 Polo sticks worth Rs,4700. The articles were deposited in the store at D.I.Khan on 29-10-1996 except 100 Polo sticks. The prosecution case is that these 100 sticks were misappropriated by the appellant. F.I.R. No,33 was registered in Police Station, East-Cantt. Peshawar at the instance of Malik Saad, the then A.I.G., Police C.P.O., Peshawar against the appellant under section 409, P.P.C. On 22-1-1998.
3. The appellant challenged his conviction and sentence through the instant appeal under section 10 of the Pakistan Criminal Law (Amendment) Act, 1958 on the grounds that the A.I.G. Of police was not competent and authorised to directly lodge any case or become complainant and could at best refer the matter to the Director Anti-Corruption Establishment and that the F.I.R. Against appellant could not be registered at the local Police Station i,e, East -Cantt., Peshawar. According to the appellant no preliminary inquiry in terms of N.-W.F.P. Anti-Corruption Establishment Rules, 1999 has been conducted and if at all needed the F.I.R. Could be registered at the Anti-Corruption Establishment Circle Office, Peshawar. He maintained that the local police had proceeded in the matter without any legal justification of the rules and the law of the land. In short, due to non- initiation of the preliminary inquiry, registration of the F.I.R. At the police station and expressing that the investigation could not be conducted by the police, the appellant virtually prayed for the quashment of the proceedings.
4. I have heard learned counsel for the appellant as well as State counsel and gone through the record.
5. The learned counsel for the appellant referred to rules 3, 4, 7, 8 and 10 of the N.-W.F.P. Anti- Corruption Establishment Rules, 1999 where the procedure for the initiation of preliminary inquiry against public servants, registration of cases, arrest of the accused, obtaining sanction for prosecution, prosecution of the accused public servant, traps, dropping of cases or recommending departmental action and the factum of establishment of Police Stations of Anti-Corruption A Establishment has been incorporated. According to him the registration of criminal case without any inquiry at the local police station at the instance of A.I.G. Police C.P.O., Peshawar is illegal and without jurisdiction. He added that the things were not processed according to the procedure laid down in N-W.F.P. Anti-Corruption Establishment . Rules, 1999. On the contrary the learned State counsel referred to section 8 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 and maintained that the provisions of the Ordinance are in addition to and not in derogation of any other law for the time being in force. He added that the provisions of Criminal Procedure Code are applicable in Anti-Corruption cases and for that matter local police can proceed under section 154, Cr.P.C. With regard to the registration of the case at the respective police station.
6. It is well-settled that when law prescribes a particular manner and procedure in which things are required to be done, the same must be done in that manner and not otherwise at all. Under the scheme of N.-W.F.P. Anti-Corruption Establishment Rules, 1999, there is a separate administration of the Anti-Corruption Establishment which is under obligation to conduct preliminary inquiry before registration of the case. The wisdom behind is simply to save the reputation and honour of the public servant. It may be that after preliminary inquiry he stands exonerated before the registration of the case and has not to go through the ordeal as in the case with the accused of any other case registered at local police station which such public servant had to face.
Under rule 4 of the Rules (ibid) criminal cases are registered by the establishment under the written orders of the following officers:--
(a) Public servants in BPS-18 and belowDirector Anti- Corruption Establishment.
(b)Public servants in BPS-19 and above.Chief Secretary.
According to the provisions of the West Pakistan Anti-Corruption Establishment Ordinance, 1961, an offence under section 409, P.P.C. When committed by a public servant becomes a scheduled offence and any inquiry or investigation of the case under the scheduled offences can be conducted by the Anti-Corruption Establishment and not by the local police as rightly pointed out by the learned counsel for the appellant. In short, at present in the Anti-Corruption Establishment the local police does not figure anywhere and the inquiry and investigation has to revolve around the fountain of Anti-Corruption Establishment in the matters of allegations of corruption against public servants. Consequently, the only conclusion which can be drawn from the aforesaid legal provisions, analysis of the same and discussion would be that the case with respect to the alleged Anti-Corruption cases can be registered against public servants by the establishment underwritten orders of the Officers mentioned in rule 4 of the N.-W.F.P. Anti-Corruption Establishment Rules, 1999 at the Anti-Corruption Establishment Circle Office and not of/by the inferior police officers or superior Police Officers at the local police stations and obviously after adopting the distinct method as provided in the rules (ibid). I, therefore, hold that the F.I.R. In this case along with investigation followed by judicial proceedings in the case cannot remain in the field which are liable to be set aside for want of jurisdiction.
7. For what has been said above, I accept this appeal, set aside the conviction and sentence recorded by the learned Senior Special Judge (Anti-Corruption) N.-W.F.P. Vide impugned judgment dated 22-5-2008 and acquit the appellant of the charge. He be set at liberty forthwith, if not required in any other.
8. The above are the reasons of my short order announced on 4-8-2008.