' IJAZ AHMAD CHAIJDHRY, J.---By means of this single judgment, I intend to deal with the following five matters, all arising out of almost similar facts and carrying similar questions of law to be determined here before this Court, i,e,:--
(i) Writ Petition No, 22617/2009 "Brig. (R) Muhammad Farooq Maan v. Director General Anti- Corruption etc."
(ii) Writ Petition No,22894/2009 "Brig. (R) Muhammad Farooq Maan v. Director General Anti- Corruption, etc."
(iii) Writ Petition No,7102/2009. "Brig. (R) Muhammad Farooq Maan v. Director General Anti- Corruption, etc."
(iv) Writ Petition No,1622/2010. "Zain Ul Abedeen v. The State, etc.
(v) Writ Petition No,888/2010. "Lieutenant Col. (R.) Mansha Zahid v. Punjab Cooperative Board Liquidation, etc."
2. For better appreciation of the controversy, the facts of each case are being given in brief, as under:--
(i) Writ Petition No,22617/2009 "Brigadier (R) Muhammad Farooq Maan v. Director-General Anti- Corruption, etc"
' The petitioner Brigadier (R) Muhammad Farooq Maan had been acting as Chairman, Punjab Cooperative Board for Liquidation and while acting as such he took certain actions and passed orders. After him, the Chairmanship was taken over by Mr. Nazar Muhammad Chohanrespondent No,2 here in this writ petition. On such action of Brigadier (R) Muhammad Farooq Maan petitioner (issuing NOC with regard to land measuring 196-Kanal and 6 Marla situated at Mauza Sorra, Tehsil Cantt, District Lahore) came under consideration before respondent No,2 who vide order dated 20- 12-2008 while reviewing the earlier action of the petitioner, ordered cancellation of mutation and retrieve of the property. Pursuant to this order dated 20-12-2008 an F.I.R. No,20 of 2009 dated 17-2- 2009 has been registered against the petitioner and others under sections 109, 420, 468, 471, P.P.C.
Read with section 5 of the Prevention of Corruption (Act II of 1947) with DACE, Lahore. Initiation of criminal proceedings and registration of above F.I.R. No,20 of 2009 have been challenged through the instant writ petition.
(ii) Writ Petition No,22894/2009 "Brig. (R.) Muhammad Farooq Maan v. Director-General Anti- Corruption etc."
' This writ petition has been brought by the same petitioner (Brigadier (R.) Muhammad Farooq Maan), seeking quashment of F.I.R. No,173 of 2009 under sections 109, 420, 409, P.P.C. Read with section 5 of the Prevention of Corruption Act (Act-II of 1947) registered against him in almost similar circumstances as detailed above in the narration of facts of Writ Petition No,22617 of 2009.
(iii) W.P.No,7102/2009. "Brig. (R) Muhammad Farooq Maan v. Director-General Anti-Corruption, etc."
' Through this writ petition, the same petitioner namely Brigadier (R.) Muhammad Farooq Maan, has sought quashment of F,I.R. No,37 of 2009 registered against him under sections 420, 468, 471, 109, P.P.C. Read with section 5 of the Prevention of Corruption Act, precisely with the allegation that he while acting as Chairman of PCBL issued wrong and illegal NOC.
(iv) Writ Petition No,1622 of 2010. "Zain Ul Abedeen v. The State, etc."
' Zain ul Abedeen petitioner, who had acted as Deputy Secretary (Properties) in Punjab Cooperative Board for Liquidation and is co-accused with Brigadier (R.) Muhammad Farooq Maan, has sought quashment of F.I.R. Nos.20 of 2009 and 37 of 2009, the background of both the cases has been given above.
(v) Writ Petition. No,888 of 2010. "Lieutenant Col. (R.) Mansha Zahid v. Punjab Cooperative Board Liquidation etc."
' Lieutenant Colonel (R.) Mansha Zahid had at the relevant time acted as Additional Secretary (Properties) in the Punjab Cooperative Board for Liquidation and was Member of the Committee which passed the impugned orders, which were ultimately taken note off by the subsequent Chairman and as such the present petitioner being co-accused with Brigadier Muhammad Farooq Maan and Syed Zain-ul Abdeen in case F.I.Rs. Nos.20 and 37 of 2009, challenges the initiation of criminal proceedings against him pursuant to order dated 3-1-2009 passed by the Chairman holding that issuance of NOC was result of misrepresentation, fraud no collusiveness.
3. Mr. Navid Rasul Mirza, Advocate representing the petitioner in W.P. No,22617/09, 22894/09 and 7102/09 initiated the arguments by contending that on 10-4-2008 NOC was directed to be issued by the Verification Committee consisting of eleven Members, headed by Brigadier (R) Muhammad Farooq Maan as Chairman, Lt. Colonel (R.) Muhammad Mansha Zahid Additional Secretary (Properties) and Syed Zain ul Abdin Deputy Secretary (Properties) and others. This being a high profile Committee, its order or recommendations could not be setaside/reviewed by a single man acting as Chairman, as has been done in the case in hand. The learned counsel further argued that all the actions taken and orders passed by the petitioners were initiated with all bona fides, in good faith and in the best interest of the department with due care and attention, as such, no proceedings could be launched against the petitioners in terms of indemnity guaranteed by section 9 of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993. It was next argued that if at all there was something wrong, the application could only be filed before the Co- operative Judge and by no means the Chairman himself could initiate such proceedings. The learned counsel, therefore, concluded that initiation of criminal proceedings as also registration of F.I.Rs. Was mala fide act on the part of the Chairman, being inimical towards the petitioners, and consequently the F.I.Rs. Are liable to be quashed.
4. Mr. Hamid Khan, Advocate representing Lieutenant Colonel (R) Mansha Zahid (petitioner in Writ Petition No,888 of 2010) has adopted the above arguments, by adding that earlier order dated 3-1- 2009 whereby the NOC had been held to be result of fraud, etc. By the Chairman, was challenged before the learned Cooperative Judge in Petition No,16-C of 2009 and vide order dated 25-3-2009 it was directed that the above impugned order should not be implemented by the next date of hearing. According to the learned counsel for the petitioner, the said interim order was never recalled, and as such, initiation as well as continuation of criminal proceedings, as also registration of F.I.Rs. Was sheer violation of the said interim injunctive order. The learned counsel next argued that no NOC was required at all and the concerned parties had applied for obtaining NOC only as a precautionary measure. It is contended that even otherwise, application for obtaining NOC could only be filed before the Cooperative Judge and not before the Committee, as it was the learned Cooperative Judge who could condone the time and that on 10-4-2008 only a decision had been taken for issuance of NOC and it was not actual issuance of NOC. The learned counsel with reference to section 11 of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 has submitted that when the statute itself provided a forum, it was only the learned Cooperative Judge who could interfere in the matter in exercise of its exclusive jurisdiction under section 17 of the Act, ibid. The learned counsel finished his arguments by contending that no mala fide or ulterior motive could be attributed to the petitioners and they all acted in good faith, therefore, indemnity clause was fully applicable to them, whereas, the impugned action of respondent Chairman in reversing the earlier decisions of the Committee was result of mala fides on his part.
5. Mr. Ashtar Ausaf Ali, Advocate in addition to the above arguments, contended that petitioner (Zain ul Abdeen) was only performing ministerial functions and was never involved in main decision making and even otherwise, according to the learned counsel all actions were taken in good faith, therefore, petitioner and others were immune from any criminal proceedings.
6. The learned Advocate General Punjab (Mr. Muhammad Hanif Khutana) controverted the above arguments of learned counsel for the parties, and argued with vehemence that valuable land measuring 196 Kanals, 6-Marlas situated in Sorra Cantt. Areas of the Lahore (subject-matter of F.I.R.
No,20 of 2009) land measuring 23 Kanal, 7 Marlas situated in urban area of Hafizabad (subject- matter of case F.I.R. No,37 of 2009) and a big chunk of land measuring 329 Kanals, 57 Marlas situated in Defence area of the Lahore, were attempted to be usurped by the petitioners by their unlawful and4llegal actions, intending to cause colossal loss to the national exchequer. It is argued by the learned Advocate-General that once Abdul Rasheed (applicant in 16-C/09) had applied for obtaining NOC after seventeen years, whereas, he could move such an application within thirty days of the target date. It is therefore, urged that very entertaining of such an application by the Committee (petitioners) was an illegal and unwarranted act. It is next argued that mala fide of the petitioners is evident from the fact that impugned sale-deeds were shown to have been registered with Saddar Division Lahore where the original record had been burnt in the year 1998. In support of this contention it has been pointed out that even for the property situated in Hafizabad, the sale- deed was alleged to have been registered with same Saddar Division, Lahore where actual record could not be made available for having been burnt. The learned Advocate General with reference to case F.I.R. No,173 of 2009 has submitted that property of one Raja Sajid had been sold out merely on the basis of chit issued by one Qasim Abbas, who at that time was acting as Director NAB (Investigation), without adopting the legal procedure. It is further argued that indemnity clause of section 9 of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 could only be pressed into service where the act was done in good faith and with due care and attention, but, according to the learned Advocate-General, here the mala fide c the petitioners was apparent. It was added that under sections 7(j) and 7 (k) of the Act, ibid, sufficient powers were vested with the Board to have initiated enquiries and even criminal proceeding could be ordered, hence, nothing was illegal in the registration of F.I.Rs. Or the proceedings before and after such indictments. The learned Advocate-General with reference to the objection of learned counsel for the petitioners that earlier injunctive order was issued by this Court, submits that no injunction could be granted in criminal matters in terms of section 56 of the Specific Relief Act and furthermore, even the said injunctive order was specifically kept effect till the next date of hearing, and as the said interim order was never extended, no benefit could be derived therefrom. It is further argued that registration of F.I.Rs. Was not strictly the outcome of order dated 3-1-2009, rather, it was subsequent enquiry within the meaning of section 7(j) of the Act, ibid, therefore, even if there was anything wrong with the said order, on this ground alone F.I.Rs. Could not be said to be illegal.
Lastly, it is argued that scope of constitutional jurisdiction was limited enough to quash the F.I.Rs.
And the petitioners having failed to show that the F.I.Rs. Were of no evidence, the same cannot be quashed and the prosecution cannot be deprived of its function to collect the evidence by conducting the investigation, which is still at the initial stage.
7. Mr. Ali Tipu, Advocate appearing on behalf of the Punjab Cooperative Board for Liquidation in all these matters has argued that petitioners having been employees of the Board, the Anti- Corruption Rules are fully applicable to them. It is next argued that petitioners had been de-notified from their respective posts, and they had done the impugned actions thereafter on the same date, with mala fide intent and ulterior motives and that NOC had been granted without even deposit of the Liquidation charges and permission of the Registrar, as such, the petitioners having transgressed their powers, have been rightly hauled up in criminal cases. In support of his assertions, the learned counsel placed reliance on the case "Hamdard. Cooperative Society v.
Government of Sindh and others" (1990 M LD 1060) and "Mian Khan v. Ghulam Mustafa and 6 others"
1996 SCM R 654.,
8. I have heard the arguments of learned counsel for the parties at considerable length and perused the available record with their able assistance.
7. So far as the objection of learned counsel for the petitioner with regard to review/recall of earlier order of eleven Members Committee, by the Chairman alone, is concerned, suffice it to say that apart from the powers vested under the Cooperative Societies Act, 1925, he could verify the claims already filed with the Commission, unearth and proceed against any concealed or hidden property of an Undesirable Cooperative Society, cancel all agreements entered into by an Undesirable Cooperative Society which in the opinion of the Cooperative Board were mala fide, decide and settle objections and claims of third parties, call for any information, document, record or evidence from any person, initiate enquiries through police and other agencies for unearthing hidden or concealed properties and assets; and even could initiate criminal proceedings. In the absence of anything to the contrary, no embargo could be placed on the powers of the Chairman, so far as it was being exercised with all bona fides and in good faith, within the purview envisaged in section 7 of the Punjab Cooperative Societies (Dissolution) Act, 1993.
10. To deal with the argument of learned counsel for the petitioners with regard to indemnity clause, the provision of section 9 of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 is reproduced hereunder:-- "9. Indemnity---No suit, prosecution or other legal proceedings shall lie against the Registrar, Chairman, any member, officer, advisor or employee of the Co-operative Board in respect of anything done in good faith and with due care and attention under this Act."
' A bare reading of the above section makes it clear that said indemnity is qualified with the actions taken in "good faith" and "due care and attention", only. Without going deep into the merits of the case, only a passing reference may be made to some events highlighting mens rea on the part of the petitioners. There is material available on the record indicating that the petitioners in all the above writ petitions had been de-notified from their place of postings on 10-4-2008, and the impugned order for granting NOC in question in favour of Abdul Rasheed applicant in Application No,16-C of 2009, was also passed on the very same day when such an application was filed. It is no where the case of either of the petitioner that they had either not been de-seated or that their such de-notification was not in their knowledge, as already there is sufficient material available on the file to prove to the contrary that all the petitioners were very well aware that they had been de- notified. This action taken in such haste, by itself, speaks volume about the intentions of the petitioners. There is no denial to the fact that firstly NOC could not be issued without the permission of the Registrar and secondly deposit of liquidation charges was also an essential element for issuance of a valid NOC, which fact has also been oversighted while taking the impugned action by the petitioners. As reproduced above, indemnity of Clause (9) could only be sought by the petitioners, while showing that they had acted in good faith and also that their actions were result of due care and attention. The above circumstances, prima facie, show that neither the impugned actions were taken in good faith nor due care had been taken and attention given to the necessary and basic requirements for issuance of NOC. Therefore, this indemnity clause cannot be stretched to the benefit of the petitioners.
11. On the contrary, the action taken by the Chairman by way of initiating enquiry/proceedings or even getting the F.I.Rs. Registered against the petitioners, is very well protected by this indemnity clause, (if at all some-procedural defect it had ever carried, as according to the learned counsel for the petitioners such an application could only lie before the Co-operative Judge), as apparently no malice or mala fide is attributable to such an action by the Chairman in reviewing/upsetting the earlier decision of the petitioners, which on the face of it did not stand the test of an order passed in good faith.
12. As regards the contention of learned counsel for the petitioners to the effect that earlier the learned Cooperative Judge while dealing with Petition No,16-C of 2009 vide order dated 25-3-2009 had stayed further implementation of the order dated 3-1-2009 and as such continuation of proceedings and registration of F.I.Rs. Was a contemptuous act, suffice it to say that section 56 of the Specific Relief Act in clear terms provides that criminal proceedings cannot be stayed and furthermore, even the tenor of the said order, dated 25-3-2009 would show that same was made and kept operative only till the next date of hearing. Thus, the said injunctive order lost its efficacy on the very next date, when the case (Petition No,16-C of 2009) was adjourned and there was no specific order extending the operation of the said injunctive order. This Court as a Cooperative Judge was very much cognizant of the above situation and that is why the words "till next date of hearing" were used. If there was no need to pass a specific order extending the said injunctive order, there was no purpose for having used the above specific phrase. Therefore, this argument of the learned counsel for the petitioners is overruled.
13. Learned counsel appearing on behalf of Lieutenant Colonel (R.) Mansha Zahid has tried to argue that there was no need to have applied for NOC and that application had been moved by Abdul Rasheed only out of abundant precaution and that such an application could only be filed before the Cooperative Judge. I am of the considered view that this argument is nothing but fallacious. If there was no requirement for obtaining an NOC, there was no fun in moving an application for the said purpose. Even otherwise, filing of an incorrect application or to an improper forum, is not sufficient enough to hold that petitioners stood absolved of their lawful duty. If NOC was not at all required or that the said application had to be moved for that purpose to the Cooperative Judge, even then the petitioners should have either returned the application, refused grant of NOC or would have made over the same application to the Cooperative Judge for appropriate action thereon. Taking cognizance of such application and further by allowing the same ordering issuance of NOC by the petitioners on the very same day by ignoring the basic and foremost requirements, is prima facie an act, exposing the petitioners to criminal consequences. Even otherwise, the allegations which the F.I.Rs in question carry, prima facie are sufficient to highlight certain serious questions, requiring thorough investigation by the concerned agency, therefore, at this stage it would not be just to guillotine the investigation process. So far as the contention of learned counsel that only the Cooperative Judge could entertain such application C is concerned, this argument has already been answered above by holding that whatever action was taken by the Chairman, having been taken in good faith, is protected by section 9 of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993. Even otherwise, this Court is to ensure protection of substantial cause of justice and on mere technicalities this Court cannot deviate from its sacred duty. Further, the Honourable Supreme Court of Pakistan in the case "Mst. Hameeda Begum v. Mazhar Hussain" PLD 2009 SC (Azad Kashmir) 1 has held as under:--##TE# "All the rules of procedure were meant for the sake of administration of justice and they have to serve that very purpose---Technicalities of procedure should not be considered for thwarting the intention of law---Basic purpose of procedure in the system of administration of justice was to keep and not to thwart the grant of rights to the people-Technicalities should be avoided as far as possible---All rules of procedure were indeed to aid and assist the main cause of justice--- Provisions of procedure were meant for the sake of administration of justice and such provisions should be subservient to cause of justice---Such provisions did not restrict the powers of Court from passing an order necessary for doing full justice in a case."##TE#
14. As regards the contention of learned counsel for Zain ul Abdeen petitioner with regard to his alleged ministerial functions, it is pertinent to say that said petitioner was also member of the Committee as Deputy Secretary (Properties) and as such, he should not have been a silent spectator, rather he being the person dealing with property affairs, prima facie was the person pointing out the properties subject-matter of these F.I.Rs, When apparent illegalities were being committed, he should have recorded his separate objections, if at all he was not party to the deeds of other members. His silence alone is sufficient to hold that he had shared the common intention and thus he cannot be singled out at this stage. Since F.I.Rs, have already been registered, whatever status at that time the present petitioner had is a question to be determined and evaluated by means of investigation, which is already in progress and of course it is open for the present petitioner to plead his case, whatever it is, before the Investigating Officer. At this stage, this Court cannot hold that petitioner had nothing to do with the affairs of the earlier Committee.
15. It has very rightly been argued by learned counsel appearing for Punjab Undesirable Cooperative Board for Liquidation and not seriously controverted by learned counsel for the petitioners, that by virtue of section 8 of the Punjab Undesirable Cooperative Societies (Dissolution)
Act, 1993, the Chairman, every member, advisor, officer and employee of the Cooperative Boards shall be deemed to be public servants within the meaning of section 21 of the Pakistan Penal Code.
As such, there remains no doubt in declaring that Anti-Corruption Establishment Rules are fully applicable to the case of the petitioners, as held in the above citation, referred by learned counsel for the respondent-Board.
16. Apart from the above, this Court has intentionally refrained itself from making any further elaboration on the factual aspects of the case, as pointed out by learned Advocate-General, because F.I.Rs have already been registered and investigation is in progress hence further discussion on merits would be inapt in the circumstances of the case, and intricate questions of facts have been kept open for the Investigating Officer to resolve and ultimately to be thrashed by the learned trial Court. At the same time, as an abundant precaution this Court would hold that whatever and whichever of the above observations touching upon the merits of the case, is only a tentative assessm ent and would not affect the case of their side at any stage.
17. While reaching to the above conclusions, this Court is also conscious of the fact that the Courts have not only to protect the innocent citizens, but also to ensure that the persons (wherever and whosoever) are found indulged in white collar crimes or at least are alleged to be involved in such like offences causing huge losses to national exchequer, must be taken to task, of course, by protecting their fundamental rights. Here in these cases, the petitioners have not been able to make out a case whereby their any of the fundamental right was endangered by registration of the F.I.Rs, justifying exercise of constitutional jurisdiction by this Court.##TE# The petitioners would have every opportunity to present their defence before the Investigating Officer and even they will have full opportunity of defending themselves before the Courts of law. The Honourable Supreme Court of Pakistan while dealing with the urisdiction of the Court in the matter of quashment of F.I.Rs, has settled the issue once for all, in the case "Col. Subah Sadiq v. M. Ashiq and others" 2006 SCM R 276 holding that:--
(b) Art.199---Criminal Procedure Code (V of 1898), Ss.173,265-K, 249-A, 551, 561-A, 190 & 484--- Police Rules, 1934, R.24.7---Penal Code, Ss.420,468 & 471---Quashing of F.I.R.---Required circumstances---Constitutional jurisdiction of High Court---'
Scope---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--- High Court had no jurisdiction to quash the F.I.R. By appreciation of documents produced by the parties without providing chance to cross-examine or confronting the documents in question--- High Court would err in law to short circuit the normal procedure of law as provided in Criminal Procedure Code, .1898---Party seeking the quashing of F.I.R. Had alternative remedy to raise objection at the time of framing the charge against them by the Trial Court or at the time of final disposal of the trial after recording the evidence. Said party had more than one alternative remedies before the Trial Court under Ss.265-K and 249-A, Cr.P.C. Or to approach the concerned Magistrate for cancellation of the case under the provisions of Cr.P.C.---Alternative remedies available to the party enlisted---Principles.##TE#
(d) Trichotomy of powers which is delicately balanced in the circumstances cannot be disturbed as it granted powers to each organ to decide the matters in its allotted sphere.
' Further in another case "Bashir Ahmad v. Zafar ul Islam" PLD 2004 Supreme Court 298, the Honourable Supreme Court has disapproved the method of approaching High Court seeking quashment of proceedings in a summary manner. Even otherwise, this Court in writ jurisdiction cannot resolve the factual controversies, as recording of evidence is not permissible and in view of the dictum laid down by the august Supreme Court of Pakistan in Brig. (R.) Imtiaz Ahmad's case (1994 SCM R 2142), this Court cannot assume the role of Investigating Officer. At the same time, this Court is conscious of the fact that by ordering quashment of F.I.Rs, it may be acting beyond its jurisdiction in hampering the investigation process which as a matter of fact would result in guillotining a lawful process being carried by the concerned agency at the relpvant forum, and interference by this Court at this stage would also upset the distribution of powers delicately balanced by the Constitution of Islamic Republic of Pakistan, 1973.##TE#
18. For what has been discussed, I find no substance in these five Writ Petitions bearing Nos.22617 of 2009, 22894 of 2009, 7102 of 2009, 1622 of 2010 and 888 of 2010, as such, are dismissed. 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.