' M.A. ZAFAR, J.---Muhammad Saleem petitioner has filed this petition Under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 seeking direction to Additional Director Anti- Corruption Establishment, Faisalabad to register a criminal case against accused persons i.e, respondents Nos.5 to 10 on the basis of petitioner's application in accordance with law.
2. The facts giving rise to filing of this petition are that petitioner as well as his real sister are residents of Tehsil Karor, District Layya, they owned land situated in Chak No,235/RB Tehsil and District Faisalabad. They through general power of attorney, dated 7-4-2006 appointed their real brother Munir Alain/respondent No,7 as their general attorney. The said power of attorney was duly registered with-Sub-Registrar Urban-II, Faisalabad. It is also the petitioner's case that subsequently due to irresponsible attitude as well as due to number of other differences petitioner as well as his sister cancelled general power of attorney through Ibtal Namas dated 3-10-2006. Both the deeds of Ibtal Nama were duly entered with Sub-Registrar Urban-II but later on, respondent No,7 in connivance with Sub-Registrar Urban-II, Sub-Registrar City, Faisalabad/officials of office of Sub- Registrars as well as Rai Zaheer Alam Kharal/respondent No,8, Rai Rahmat Ali/respondent No,9 and Mian Sarfraz/respondent No,10 got prepared a . Bogus sale-deed, dated 24-2-2007 in favour of Rai Zaheer Alam Kharal while mentioning in the sale-deed that general power of attorney has not been cancelled, whereas, both the Sub-Registrar Urban-II and Sub-Registrar City, Faisalabad reported that general power of attorney is still valid and then passed sale-deed referred above in favour of Rai Zaheer Alam and in this way, the accused persons deprived petitioner and his sister from their land fraudulently and sold the same. It is asserted in the petition that accused persons with mala fide intention and in connivance with the officials of Sub-Registrars committed cognizable offence and deprived the petitioner and his sister from their land while passing the bogus sale-deed and while suppressing the true facts that general power of attorney had already been cancelled regarding which the Ibtal Nama was also got registered with the office of Sub- Registrar Urban-II, Faisalabad After knowing the above stated occurrence, petitioner approached respondent No,2 for registration of criminal case against the accused persons and on his refusal to do the needful petitioner moved an application to Deputy Inspector-General of Police (Operation)/City Police Officer, Faisalabad, whereas petitioner's application was marked to respondent/S.H.O. With a direction to verify the facts within seven days and do the needful but despite that S.H.O./respondent No, 2 failed to register criminal case against accused persons due to ulterior motives, which constrained the petitioner to file petition under section 22-A/22-B, Cr.P.C.
Before learned Addl." Sessions Judge/Ex-Officio Justice of Peace, Faisalabad. It is also the case of the petitioner that learned Addl. Sessions Judge/Ex-Officio Justice of Peace, Faisalabad firstly issued notice to S.H.O. And then after realizing the facts that since Sub-Registrar as well as officials of Sub-Registrar are involved in the case and prima facie offence committed by them involved scheduled offences, hence vide order, dated 22-3-2007 issued notice to Deputy Director Anti- Corruption Establishment, Faisalabad to hold an inquiry and to submit report on 31-3-2007 on the said date respondent No,4 sought more time for completion of inquiry proceedings whereas on 10- 4-2007 again sought time 4or completion of inquiry proceedings with mala fide intention, whereupon learned Addl. Sessions Judge/ Ex-Officio Justice of Peace, Faisalabad disposed of the petition vide order, dated 10-4-2007. The operative part of the said order is as under:--- ' "Riaz Ahmad, Deputy Director ACE has moved an application that time for completion of inquiry be further extended, which is opposed by the learned counsel for the petitioner. Enough time has already been given to Riaz Ahmad, Deputy Director. He is therefore, directed to conclude the inquiry within seven days and in case after inquiry, it is found that a cognizable offence is made out, an F.I.R. Shall be registered under the rule of ACE. This petition is disposed of with above said direction.
The result of the inquiry shall be communicated to this Court at the earliest."
3. It is contended by learned counsel for the petitioner that the order passed by learned Addl.
Sessions Judge/Ex-Officio Justice of Peace, Faisalabad for registering the criminal case after holding an inquiry is contrary to provisions of section 154, Cr.P.C. In inquiry report respondent No,3 recommended for departmental action against both the Sub-Registrars and Registry Moharar, He also recommended that inquiry to the extent of Munir Alam/respondent No,7, who acting as general attorney executed the sale-deed on 24-2-2007 despite cancellation of general power of attorney, be dropped.
4. In pursuance of order passed by this Court respondents Nos.3 and 4 appeared before this Court on 14-3-2008 and their stance was that in view of provision of Punjab Anti-Corruption Rules, 1985, before registering a case an inquiry is mandatory. They instead of registering a case at the first instance held an inquiry and due to the finding given in the inquiry criminal case has not been registered. Today Deputy Director Anti-Corruption Establishment, Faisalabad also appeared and he has been heard at length, who reiterated the stance taken by the department in their comments.
5. The first question, which needs consideration, is whether it is a requirement of law or natural justice to hear the respondents before issuing direction prayed for. A learned Division Bench of this Court in case. Titled Saeed Ahmad and others v. Naseer Ahmad and others PLD 2000 Lah. 208 has dealt with the aforesaid proposition. The operative part is as under:--- ' " If there is an information relating to the commission of cognizable offence, it falls under section 154 of the Code of Criminal Procedure, and a police officer is under a statutory obligation to enter it in the prescribed register. The condition precedent is simply twofold, it must be an information and secondly, it must relate to a cognizable offence on the face of it and not merely in the light of subsequent events. A police officer is bound to receive a complaint when it is preferred to him or where the commission of an offence is reported to him orally, he is bound to take down the complaint. If he does not incorporate in the register a complaint so made, he fails to perform a statutory duty as a public servant and, therefore, renders himself to be dealt with by his superior officers for neglect of duty. Thus it does not depend on the sweet will of a police officer who may or may not record it.
' It was not a requirement of law or natural justice to hear the respondents, even if they were present at the time of hearing of the writ petition, to the limited extent of directing the authorities to register a case."
6. This view was followed by the learned Single Judge of this Court in case titled as Sana Ullah v.
S.H.O. Police Station Civil Lines, Gujrat PLD 2003 Lah.
228.
7. Following the aforesaid dictum it is concluded that before passing an order for the registration of case it is not necessary to hear the person, who has been made accused in the case. Moreover, learned Addl. Sessions Judge/Ex-Officio Justice of Peace also issued direction without hearing the respondent/accused.
8. Second question involved in this case is whether Punjab Anti-Corruption Rules, 1985 has overridden the provisions of Criminal Procedure Code. There is no cavil with the proposition that rules having been made by Executive Authorities, have to remain within the parameters of the statute and the moment the same or some of them travel beyond the provisions of the parent law, the same are liable to strike down as ultra vires. Reliance is placed on case Mirza Muhammad Iqbal and others v. Government of Punjab PLD 1999 Lah.
109. Prior permission for registration of case against a public servant is not a statutory requirement, seeking permission of the authorities before the registration of the case against public servants is beyond the scope of section 3 of Rule making power E given to the Government under section 6 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 as neither of these two provisions authorises the executive to frame rules seeking prior permission for the registration of case.
9. The third question is whether the provisions of Anti-Corruption Establishment Ordinance, 1961 had effect of overriding the statute or general law. The aforesaid Ordinance itself provided that the provisions are in addition to and not in derogation to any other law. Accused could note claim by way of right that contrary to the provisions of section 154, Cr.P.C. Rules 6 and 7 of the Punjab Anti- Corruption Establishment Rules, 1985 had conferred upon them a right to be subjected to a preliminary inquiry first and thereafter, permission to register the case be obtained. Reliance is placed on a judgment of the learned Division Bench of this Court in a case titled as Shafqat Hussain and another v. Malik Sarfraz and another 2000 PCr.LJ 1995. The operative part is as under:-- - ' "It has to be kept in mind that rule- making power is delegated to the Executive unless expressly provided. The authority to make rules and regulations in order to carry out an express legislative purpose or to effect the operation and enforcement of law is not a power exclusively legislative in character but is rather administrative in its nature. A rule or bye-law made under a statute cannot unless there are express indications under the statutes itself, override the provisions of other statutes or the general law, nor can a rule militate against the provisions of an Act under which it has been framed and must be treated for all purpose of construction or obligation exactly as if they were in the Act and or to be of the same effect as if contained in the Act and are to be generally, noticed for all purposes of construction and obligation."
' The provisions of this Ordinance are in addition to and not in derogation of any other law for the time being in force. Reliance is placed on a case decided by Honourable Supreme Court of Pakistan titled as Abdul Latif v. G.M. Paracha other 1981 SCM R 1101.
10. The fourth, question whether an inquiry can be held before registering the case. This proposition has been dealt with by the Honourable Supreme Court in its judgment titled as Muhammad Bashir v. S.H.O. Okara and others PLD 2007 SC 539. The operative part is as under:--- ' " For the purposes of this petition, we are concerned, primarily, with clause (i) of the above quoted provisions of subsection (6) of the section 22-A of the Cr.P.C. These provisions create a new forum to rectify a wrong done by an Officer Incharge of a Police. Station by refusing to registei a criminal case i.e, not recording an F.I.R. We have held above that the provisions of section 154, Cr.P.C.
Command a S.H.O. To lodge an F.I.R. If the information conveyed to him disclosed the commission of a cognizable offence irrespective of the information being correct or H incorrect. Undoing this wrong on non-registration of a criminal case would mean only an order to the S.H.O. To register the case. The provisions of the said, subsection (6) of section 22-A, Cr . P. C . Confer no additional powers on an Ex-Officio Justice of the Peace to hold any enquiry to assess the credibility of such an information communicated for the purpose in question nor do the said provisions given any extra authority to the said Ex-Officio Justice of the Peace to refuse registration or order non-registration of an F.I.R. In violation of or beyond the mandatory requirements of section 154, Cr.P.C.
' From the above, it is manifest that the learned Ex-Officio Justice of Peace has no option except to order registration of a criminal case if commission of a cognizable offence is made out from the contents of the petition as in the instant case. The order of the learned Addl. Sessions Judge/Ex- Officio Justice of Peace impugned in the petition is bad in law, he had not properly exercised the jurisdiction vested with him."
11. It has been noticed that the petition filed under sections 22-A and 22-B Cr.P.C. Disclosed commission of cognizable offence and in such-like situation, the learned Ex-Officio Justice of Peace has no option but to order registration of a criminal case.
12. The inquiry conducted and thereafter, submitting report, dated 19-4-2007 by Additional Director Anti-Corruption Establishment, Faisalabad before registration of case recommending for departmental action/dropping inquiry against certain persons being private persons is declared to be without lawful authority as the same offends the provisions of section 154, Cr.P.C. Private persons involved with the Government officials or vice versa can also be tried with them by the learned Special Judge under the Pakistan Criminal Law Amendment Act, 1958 for offences mentioned in the schedule of the Act.
13. There is already an order by the learned Addl. Sessions Judge/Ex-Officio Justice of Peace, dated 10-7-2007 directing Deputy Director Anti-Corruption Establishment, Faisalabad to register an F.I.R.
The application moved by the petitioner to Deputy Director Anti-Corruption, Faisalabad prima facie disclose a commission of cognizable offence; therefore, respondents Nos.3 and 4 are directed to register a case against the K persons mentioned in the application to be submitted afresh by the petitioner before them, who will investigate into the matter fairly, honestly and without being influenced by "previous inquiry conducted by them. With the above directions this petition is disposed of.