Brief facts giving rise to the filing of this Writ Petition are that one Ghulam Murtaza (complainant of case FIR No. 414/2010 under Section 496-A PPC, Police Station Noor Shah District Sahiwal) reported to the SHO of Police Station Noor Shah that Naib Moharrar namely Bakht Bedar (present petitioner) demanded Rs. 500/- from him for providing copy of the said FIR and he handed over currency note of Rs. 500/- to the petitioner, upon which the SHO searched pocket of the petitioner and recovered the above said currency note, hence case FIR No. 416/2010 dated 30.08.2010 under Section 161 PPC read with Section 5(2)47 of Prevention of Corruption Act, 1947 was registered against the petitioner, for the quashment whereof the instant Writ Petition has been filed.
2. Thereafter, SP (Investigation) Sahiwal issued a show-cause notice dated 31.08.2010 to the petitioner containing above said allegations; then a charge sheet dated 26.10.2010 was also issued and DSP/Legal Sahiwal was appointed as Inquiry Officer. After an enquiry, the DSP/Legal held the petitioner guilty for the charges vide his report dated 05.01.2011 and on this, the SP (Investigation) referred the matter to the District Police Officer, Sahiwal to proceed further being the competent authority.
3. It is pertinent to mention here that the petitioner also moved an application (C.M.No. 4773 of 2010) praying that the proceedings initiated against the petitioner in the shape of show-cause notice and charge sheet by appointing an Inquiry Officer be quashed. It is submitted that the SP (Investigation) issued show-cause notice and charge sheet as well as appointed the Inquiry Officer in the case under the Punjab Employees Efficiency, Discipline & Accountability Act, 2006 ("PEEDA Act, 2006"), whereas he is not competent authority oran authority under the PEEDA Act, 2006; in this context, learned counsel has referred to Section 2(f)(ii) and Section 2(m) of PEEDA Act, 2006. It is further submitted that according to Section 5(1) of PEEDA Act, 2006 only the competent authority can initiate proceedings against an employee under this Act and can appoint an Inquiry Officer for conducting any enquiry, whereas according to Section 5(2) of the Act ibid, the orders of inquiry or the show-cause notice, as the case may be, shall be signed by the Competent authority.
4. Learned counsel for the petitioner has argued that a false and baseless case has been registered against the petitioner without any justification and due to malafides and ulterior motives, because the petitioner never accepted any illegal gratification; that as per Rule 8 of Punjab Anti-Corruption Establishment Rules, 1985, the local police had got no jurisdiction to register a case, hence the FIR registered by the local police is totally in violation of the Anti-Corruption Rules and Act. Further submitted that the SHO illegally arrested the petitioner and detained him in the police lockup for a couple of days which was also illegal detention of the petitioner; that the District Police Officer/ Respondent No. 1 wrongly reported against the petitioner to higher authorities, who suspended and transferred the petitioner and issued him a show-cause notice, which is a clear cut violation of the Punjab Anti-Corruption Establishment Rules, 1985.
5. In compliance of the order passed by this Court, the report and parawise comments to this petition have been filed by the District Police Officer, Sahiwal wherein it has been submitted that the provisions of Criminal Procedure Code are applicable in Anti-Corruption cases and for that reason the local police can proceed under Section 154 Cr.P.0 with regard to the registration of the case at the respective police station; that after registration of the case, copy of FIR No. 416/2010 was sent to the Director Anti-Corruption Establishment, Multan vide officer letter dated 31.08.2010 for further necessary action under the law and that the case is under investigation with the Deputy Director, ACE, Sahiwal.
6. Heard. Record perused.
7. For the purpose of the proposition involved in this case, Sections 2(b), (c) & 2(f)(ii) of PEEDA Act, 2006 and Sections 6, 7 & 8 of Punjab Anti-Corruption Establishment Rules, 1985 are reproduced below: Sections 2(b), (c) & 2(f)(ii) of PEEDA Act, 2006.
Section 2(b): "Appellate authority" means the authority next above the competent authority to which an appeal lies against the orders of the competent authority.
Section 2(c): "Appointing authority" in relation to an employee or class of employees means an appointing authority declared or notified as such by an order of the Government or: Section 2(f)(ii): "Competent authority" means:--
(ii) in relation to any employee or class of employees, any officer or authority authorized by the Chief Minister to exercise the powers of competent authority under this Act; provided that such officer or authority shall not be inferior in rank to the appointing authority prescribed for the post held by the employee against whom action is to be taken; or (sic) {{TABLE}}
(a) Public Servants in BPS 1- 16Not below a Deputy Director
(b) Public Servants in BPS 17 and 18Not below a Additional Director
(c) Public Servants in BPS-19 and aboveDirector {{TABLE}} Provided that no case shall however be registered by the Director against public servants of the status of Commissioner, Secretary to Provincial Government, Heads of Attached Departments and, other officers of BPS-20 and above without the prior permission of the Governor: Provided further that for those public servants, mentioned in the first proviso who are in BPS-10, such permission shall be accorded by the Chief Secretary: Provided further that no prior permission shall be required for registration of a case against a public servant caught as a result of trap arranged by the Establishment under the supervision of a Magistrate, in the act of committing an offence specified in the Schedule to the Ordinance. In such a case, a report shall immediately be made to the Chief Secretary, the Administrative Secretary and immediate superior of the public servant concerned if he is in BPS-16 and above and to the appointing authority and immediate superior if the public servant is in BPS-15 and below.
8. Under Section 3 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961, the Government has been empowered to establish Anti-Corruption Establishment. Rule 6 of the Punjab Anti-Corruption Establishment Rules, 1985 provides that preliminary inquiries and investigation shall be initiated by the Establishment against public servants on a complaint received from the Government, Head of the Department or other reliable sources. Under Rule 7, a Deputy Director or an officer of or above his rank has been empowered to initiate preliminary inquiries in order to ascertain the identity of the complainant or informer and genuineness of complaint/information.
Rule 8 of the said Rules deals with the registration of case against public servants, and any other person who commits offences jointly with public servants. This Rule provides that criminal cases shall be registered by the Establishment under Prevention of Corruption Act, 1947 and under such sections of Pakistan Penal Code, as have been set forth in the Schedule to the Ordinance.
According to this Rule a criminal case shall be registered against public servant under a written order of officer of the Establishment mentioned in sub-clauses (a), (b) and (c) of sub-rule (2). The case against the public servant in BPS-1 to 16 according to this rule can be registered under written orders of an officer not below the rank of a Deputy Director and against public servants in BPS-17 and 18 under the orders of an Additional Director and against civil servants in BPS-19 and above, by a Director.
9. The only irresistible conclusion which can be drawn from the aforesaid legal provisions, analysis of the same and discussion would be that the cases with respect to the alleged anti-corruption offences can be registered against the public servants by the Establishment under the written orders of the officers mentioned in Rule 8 of the Punjab Anti-Corruption Establishment Rules, 1985 at the Anti-Corruption Establishment 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 Punjab Anti-Corruption Establishment Rules, 1985. Admittedly the petitioner, a Naib Moharrar of Police Department, is a public servant and close scrutiny of the relevant provisions of law as discussed above, leaves no doubt that the case against the petitioner could not have been registered except under the orders of the officer mentioned in Rule 8 after holding preliminary investigation. Therefore, I hold that registration of the case through the impugned FIR No. 416/2010 dated 30.08.2010 under Section 161 PPC read with Section 5(2)47 of Prevention of Corruption Act, 1947 at Police Station Noor Shah District Sahiwal was illegal and the SHO was not authorized under the law to register the said case. Resultantly, the registration of impugned FIR No. 416/2010 is declared to be without lawful authority and of no legal effect and the same is hereby quashed.
10.As far as the initiation of consequent proceedings by the SP (Investigation) is concerned, it is held that in the light of the provisions of PEEDA Act, 2006 and the Punjab Anti-Corruption Establishment Rules, 1985, discussed above, the same was without any authority. Learned counsel for the petitioner has also placed reliance on a judgmer. , passed by the Punjab Service Tribunal, Lahore in Appeal No. 1128 of 2009 wherein the rights and obligations of respective police officials have been finally determined and the AIG/Legal in compliance of the said order has already issued directions to the concerned officials. As per the said judgment, the Punjab Service Tribunal, Lahore observed that the DPO was not competent to pass suspension order on the ground that competent authority awarding punishment is not of equal rank of appointing authority as provided in Section 2(f)(i)(ii) of PEEDA Act, 2006. The case of the present petitioner is fully covered under the above mentioned judgment, therefore, the proceedings initiated by the SP (Investigation) of issuing show- cause notice dated 31.08.2010 to the petitioner containing the allegations of taking illegal gratification, then issuing the charge sheet dated 26.10.2010 and thereafter appointing the DSP/Legal as Inquiry Officer are also declared without legal authority and are hereby quashed being not sustainable under the law. However, the competent authority of Bakht Bedar Naib Moharrar (present petitioner) may proceed in accordance with law before the Anti-Corruption Establishment afresh, if required and desired thereof. Accordingly, this Writ Petition stands allowed.