The petitioners, namely, Zahid Mahmood Malik, District Engineer, Abdul Qayyum Khan, Khalid Hayat, S.D.Os., Malik Ghulam Muhammad and Waqar Ahmad Qureshi, Sub-Engineers, Zila Council, Sargodha, by filing this Constitutional petition have sought quashing of F.I.R. No, 3, dated 27.2.1999, with Police Station Anti-Corruption Establishment, Sargodha for offences under Sections 168, 409,420,471 P.P.C.
2. Precisely the fads giving rise to the instant petition were that the petitioners had been performing their duties as aforementioned, however, during the visit of the Chief Minister's Inspection Team certain irregularities allegedly committed by them had been detected in the development works, for which an inquiry had been conducted resulting in submission of report dated 25.2.1999 by the Chairman of the Team to the Chief Minister, on the basis whereof, Director, Anti-Corruption Punjab, Lahore (Respondent No, 1) had ordered registration of the case. Resultantly, the instant F.I.R. had been recorded on 27.2.1999.
3. The petitioners instead of joining the investigation had invoked the Constitutional jurisdiction of this Court by filing this petition, which had come up for hearing on 12.3.1999 and to consider the contentions of the petitioners that the registration of the F.I.R. had not been regulated by the provisions of Rule 7 of the Punjab Anti-Corruption Establishment Rules, 1985, which provided initiation of preliminary inquiry against a public servant by a Deputy Director or an officer above his rank; that the petitioners had been condemned unheard as they had not been associated in the inquiry conducted by the Chairman, Chief Minister's Inspection Team (Respondent No, 4) and that the aforesaid case had been registered without lawful authority and that the whole proceedings conducted by Respondent No, 4 were politically motivated, this Court had directed the respondents to appear at limine stage on 12.4.1999 and further proceedings had been stayed.
4. Today Mr. Muhammad Saleem Chaudhry, the learned counsel for Abdul Qayyum (Petitioner No, 2) by placing on record order dated 11.4.2002 passed by the Secretary, LG & RD Department/ Chairman, Punjab Local Government Board, Lahore has pointed out that as he has been exonerated of the charge during the departmental inquiry, the criminal proceedings against him be quashed.
5. Circle Officer (respondent 3) has appeared and apprised this Court that investigation into the crime has not been concluded so far due to the restraint order of this Court passed as far back as on 12.3.1999.
6. I have heard the learned counsel for the parties at considerable length and have also gone through the record. There is no merit in the contention of the learned counsel for the petitioners that the instant F.I.R. could only be registered after holding a preliminary inquiry as contemplated by the Punjab Anti-Corruption Establishment Rules, 1985. In this connection, reference may be made to the cases of Mirza Muhammad Iqbal and others v. Government of Punjab (P.L.D. 1999 'Lahore 109), Shafqat Hussain and another v. Malik Sarfraz and another (2000 P.Cr.L.J.1995) and Muhammad Aslam, Project Manager, Punjab Mineral Development Corporation Sargodha Road, Khushab v. Special Judge, Anti- Corruption, Sargodha etc. (2001 P.Cr.L.J 69). In the case of Shafqat Hussain (supra), a Division Bench of this Court had inter-alia held as under: "Prior permission for registration of case against a public servant was not a statutory requirement- -Seeking permission of the Authorities before registration of the case against public servants is beyond the scope of S. 3 of rule-making powers given to the Government under S. 6 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961, as neither of these two provisions authorizes the Executive to frame Rules seeking prior permission for the registration of cases."
The said learned Bench had further proceeded to observe as under:-- "Law embodied in S. 154, Cr.P.C. under which criminal cases are registered and after detailed, investigation guilt or innocence of accused is determined, had stood rigours of time for more than a century which could not be allowed to become subservient to be governed by subordinate legislation contained in the Rules as S.8 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 had itself provided that the provisions were in addition to and not in derogation to any other law - Accused could not claim by way of right that contrary to the provisions of S. 154, Cr.P.C, Rr.6 & 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."
7. The other contention of the learned counsel for Petitioner No, 2 that since he stands exonerated in the departmental inquiry, criminal case ought to be quashed is also devoid of any substance.
Departmental action and criminal action against civil servants can go side by side and may even end in varying results. Reference may advantageously be made to the cases of The Deputy Inspector-General of Police, Lahore and others v. Anis-ur-Rehman Khan (P.L.D. 1985 S.C. 134), Amir Abdullah v. Superintendent of Police, and others (1989 S.C.M.R. 333) and Talib Hussain v. Anar Gul Khan and 4 others (1993 S.C.M.R. 2177).
8. It has been observed that the investigation in this case remained stalled on account of interim order of this Court dated 12.3.1999. This petition was not heard for almost eight and a half years. No case for quashing the F.I.R. has been made out.
9. Even otherwise, it has time and again been held by the Hon'ble Supreme Court of Pakistan that the disputed questions of fact could not be resolved by this Court in its Constitutional jurisdiction.
Reference in this regard may be made to a recent pronouncement made by the Hon'ble Apex Court in the case of Col. Shah Sadia v. Muhammad Ashiq and others (2006 S.C.M.R. 276), wherein it was held that High Court, has no jurisdiction to resolve disputed questions of fact in its Constitutional jurisdiction. It was further observed by their lordships that if prima-facie an offence had been committed, ordinary course of trial before the Court should not be allowed to be deflected by resorting to Constitutional jurisdiction of High Court; that High Court had no jurisdiction to quash F.I.R. by appreciation of documents produced by the parties without providing chance to cross-examine or confronting the documents in question. Likewise, in the case of Rafique Bibi v. Muhammad Sharif and others (2006 S.C.M.R. 512), it had been held that 'disputed questions of fact could not be gone into in proceedings under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
10.For what has been discussed above, no occasion has been found by this Court for interference in the matter at this stage. There being no merit in this petition, the same is dismissed in limine.
11.The Investigating Officer is directed to proceed with the investigation forthwith and submit report under Section 173 Cr.P.C.