KAZIM ALI MALIK, J. -- To start with, I am pained to say that case F.I.R. No. 25 of 2006 registered with Police Station Anti-Corruption Establishment, Lahore to the extent of Muhammad Akhtar, Superintending Engineer, Irrigation Department/petitioner, giving rise to this Constitutional petition at his instance, is a textbook example of perverted sense of authority which drove and persuaded the Circle Officer, Anti-Corruption Establishment, Lahore/Investigating Officer to challan the petitioner to Court for an offence which he did not commit.
2. The petitioner sought his acquittal under Section 249-A read with 265-K of the Code of Criminal Procedure, 1898 (hereinafter to be referred as Code) unsuccessfully. His contention that it was beyond the authority of the investigator to transpose a prosecution witness from the list of P.Ws, to the list of accused persons, did not find favour with the learned Trial Court.
3. The prosecution case, in brief, is that the Government acquired private lands for construction of Ladhe Ke Drain. The X.E.N. Drainage, Lahore/Drawing and Disbursing Officer (challaned accused), received, compensation amount for disbursement to the owners of above-said lands. The S.D.O.
Drainage and a few other lowly ranked officials of the department (challaned accused persons) disbursed the compensation amount to four persons; namely, Rehmat Ali, Akber Ali, Yaqoob Ali and Muhammad Aslam (proclaimed offenders), which was due for payment to 27 land owners.
Authority letters on the basis of which the compensation amount had been disbursed to the above-said four absconders were found fake, bogus and forged. On receipt of a complaint about embezzlement of public money, the Chief Engineer, Irrigation Department, Lahore Zone (Authority, on the administrative side) deputed the petitioner-superintending Engineer to dig of the facts and submit a comprehensive report, In compliance with the order of the Authority, the petitioner visited the spot, examined the land owners, collected other relevant material and submitted a detailed report to the following effect:--
(i) An amount of Rs. 28,59,000/- due for payment to 27 land owners had been disbursed to the four absconders on the basis of fake .And bogus authority letters.
(ii) Some compensation amount had been received by the above-said offenders in the name of those land owners whose land had not been used for construction of the drain.
(iii) 11 land owners had completely been deprived of their share in the compensation amount.
(iv) Three land owners were paid a meager amount much less than their entitlement.
(v) The revenue Patwari and the Girdawar prepared list of affecters against the record. Arshad Mahmood, Sub-Engineer River Survey Sub-Division, Lahore did not verify genuineness of the above- said list of owners. Apart from them, Kashif Hussain, Oath Commissioner, Saif Ullah Khan Khalid, Notary Public, Ch. Muhammad Younis Habib, Nazim Union Council and Ch. Akber Didar Sindhu, Member Distt. Council, Kasur contributed towards fabrication and Preparation of above- said bogus authority letters.
After coming to the above-said conclusions, the petitioner/Inquiry Officer proposed a thorough probe by a committee of three senior officers of Irrigation, Police and Revenue Departments.
4. On 18.6.2005 Muhammad Yousaf, X.E.N. Drainage, Lahore Division/Drawing and Disbursing Officer (challaned accused) got registered case F.I.R. No. 139 of 2005 with Police Station Mustafabad, Lahore with an allegation that he had learnt from Muhammad Sarwar, Accounts Clerk that his subordinates had withdrawn an amount of Rs. 50,46,637/- entrusted to him for payment to the land owners in lien of the lands used for construction of Ladhe Ke drain, with his forged signatures.
He further alleged that the cheques had been stolen away from the custody of Nawab Baig, Revenue clerk and got encashed in connivance with the officials of Irrigation Department and Treasury Office, Lahore. Under an order dated 6.3.2006 of this Court investigation of the said case was withdrawn from the local police and made over to the Anti-Corruption Establishment, Lahore.
Although there was no bar to investigate the case already registered with the local police, yet the Circles Officer, A.C.E. Lahore in his wisdom re-registered another case on 6.3.2006 at the instance of the X.E.N. Drainage with an allegation in line with the case F.I.R. No. 139/2005, Police Station Mustafabad, Lahore.
5. On 14.4.2006 Kh. Muhammad Naeem, a busy body, got registered case F.I.R. No. 25 of 2006 with Police Station Anti-Corruption "Establishment, Lahore with an allegation, in brief, that Muhammad Yousaf, X.E.N., Liaqat Ali, S.D.O., Naqi Hassan, S.D.C. And Arshad, Sub-Engineer had misappropriated compensation amount in lacs due for payment to the land owners on the basis of fake documents.
In this way three cases were registered; one with the local police and two with the Anti-Corruption Establishment regarding the same incident. The investigating officer dropped the proceedings in the cases registered at the instance of Muhammad Yousaf, X.E.N. After having disbelieved his above stance. During the course of investigation of the case in hand, the land owners whose land had been used for construction of the drain also blamed the X.E.N. Irrigation and his subordinates for misappropriation of compensation amount, It so happened that the investigating officer summoned Muhammad Akhtar, Superintending Engineer/Inquiry Officer/petitioner to the office of Deputy Director General, Anti-Corruption Punjab, Lahore on 2.6.2006 and recovered Rs. 5,00,000/- by means of a recovery memo, attested by two Constables of the Establishment. The investigating officer prepared a supplementary challan placed the petitioner in the column of accused persons and sent up to Court to stand trial alongwith the X.E.N. The S.D.O, and the other petty officials of the Irrigation Department, In this way the star prosecution witness had been made principal accused.
6. At the inception of trial, the learned Special Judge, Anti-Corruption, Lahore charge-sheeted the petitioner and the other accused persons under Sections 468/471/420/409 read with 109 of Pakistan Penal Code and under Section 5(2) of the Prevention of Corruption Act, 1947. The petitioner made an application under Section 249-A/265-K of the Cr.P.C, before the learned Trial Court for his acquittal as mentioned above, which was dismissed. Hence, the instant petition.
8. I am fully aware that scrutiny and analysis of the evidence/material with the yardstick of the Trial Court is neither permissible nor desirable while exercising Constitutional jurisdiction or inherent powers. I, therefore, find it advantageous to resolve and determine the points in issue in the light of the following facts of the case, which are not in dispute or disputable:-
(a) Compensation amount in question had been entrusted to Muhammad Yousaf, X.E.N. Drainage, Lahore/Drawing and Disbursing Officer (challaned accused).
(b) The S.D.O. Drainage and a few other lowly ranked officials of the department (challaned accused persons) disbursed the compensation amount partially to only four persons; namely, Rehmat Ali, Akber AM, Yaqoob Ali and Muhammad Aslam (proclaimed offenders), which was due for payment to 27 land owners whose land had been used for construction of the drain.
(c) The above-named accused officials made payment to the four absconders on the basis of fake forged and bogus authority letters.
(d) The petitioner Superintending Engineer had nothing to do with the entrustment or disbursement of the disputed money.
(e) Under an order of the Chief Engineer, Irrigation Department (Authority on administrative side); the petitioner-superintending Engineer conducted an inquiry at the spot, examined the land owners, collected relevant material and then submitted a comprehensive report (Annex-F) to the Authority with a recommendation for a detailed inquiry and thorough probe.
(f) The investigating officer collected, a copy of the inquiry report (Annex-F) but withheld the same while submitting challan in the Court, However, the same is available on the police file.
(g) The land owners did not utter a single word against the petitioner.
9. When confronted with the above-noticed state of record and undisputed facts, the learned Asstt.
Advocate General very rightly conceded that for successful prosecution of the officials of Irrigation Department to whom the compensation amount had been entrusted for disbursement, it was must for the investigating agency to cite the petitioner as prosecution witness enabling him to prove the comprehensive inquiry report by means of which he unearthed fraud, forgery and misappropriation of public' money on administrative side. He, however, tried to argue that after framing of charge, the petitioner was estopped to invoke Constitutional jurisdiction of this Court but could not point of any hard and fast rule in support of his contention. I would like to say at this very juncture that framing of charge does not stand in way of the petitioner to seek Constitutional interference by this Court because no such absolute or invariable rule of law exists, It depends upon the facts and circumstances of each case whether to allow the proceedings to continue or to drop the same.
10. Keeping in view the above discussed state of record, following three important legal questions have arisen in the case in hand, for determination:-
(i) Whether the Trial Court takes cognizance of the offence or of the offender?
(ii) Whether the Trial Court is required to frame the charge on the basis of collected material falling within the definition of evidence or in the light of result of investigation set up in the final report under Section 173, Cr.P.C.?
(iii) Whether framing of charge in a criminal case debars this Court to quash the proceedings initiated against the accused arbitrary and against the record?
11. The Court seized of trial in a criminal case on submission. Of challan initiates judicial proceedings under Section 190(1 )(b) of the Code which reads as under:- Section 190: Cognizance of offences by Magistrates. All Magistrates of the first class, or any other Magistrate specially empowered by the Provincial Government on the recommendation of the High Court may take cognizance of any offence:
(a) .........................
(b) upon a report in writing of such facts made by any police-officer;
(c) .............................
It is manifest from a bare perusal of the above-quoted provision of law. That the Trial Court takes cognizance of the offence and not of the challaned accused. The expression of taking cognizance of the offence has not been defined in the Code. However, in broad and literal sense coupled with case-law on the subject, taking cognizance of an offence means taking notice of the offence which does not include intention of the Court to initiate judicial proceedings against those challaned accused against whom there is no material which could have been made the basis of charge- sheet, In the case Waqar Ilyas and another v. The State through Federal Investigating Agency Commercial Banking Cell, Quetta (PLD 1993 Quetta 49) it has been ruled that the Trial Court takes cognizance of the offence and not of the offender, It is settled proposition of law that the Trial Judge before whom a final report under Section 113 read with Section 170 or 169 of the Code has been laid, is not bound to follow opinion of the investigating officer in order to' determine as to whether or not there are sufficient grounds to proceed against the accused. While taking cognizance of the offence the Trial Court is required to form an independent opinion on the basis of record without being influenced by an opinion of the Investigator because the same is neither relevant nor admissible in evidence. Under this very absolute legal principle which is subject to no exception, the learned Trial Court is competent to take cognizance of the offence in a case in which the investigator submits a negative/cancellation report in terms of Section 173 read with Section 169, Cr.P.C. Here I would say without fear of contradiction that the case in hand qua the role of the petitioner does not qualify the above-said legal test. The learned Trial Judge charge-sheeted the petitioner mechanically and without application of judicial and legal mind probably under the wrong impression that he was bound to charge-sheet the petitioner as he had been challenged by the investigator..
12. The charge-sheet in question does not disclose as to how and in what manner the petitioner committed the offence of fraud, cheating, forgery and corruption. The learned Trial Court drafted the charge-sheet in vague terms in utter disregard of the statutory provisions governing the subject contained in Chapter XX of the Code. This is a matter of record that not a single penny of of the misappropriated amount had been entrusted to the petitioner. The documents collected by the investigator clearly indicate that the amount in question had been entrusted to the X.E.N, and the same had been disbursed dishonestly by his subordinates. I have already observed in the preceding paragraphs that before registration of the case in hand the accused X.E.N. Got registered two cases; one with the local police and the other with the Anti-Corruption Establishment with an allegation that his subordinates with the active support of the treasury office had withdrawn the amount in question with his forged signatures. Admittedly, the petitioner is/was not a party to the unholy transactions. The learned A.A.G, half-heartedly attempted to argue that rupees five lacs had admittedly been recovered from the petitioner, which had been treated as tainted money while framing the charge under Section 409, P.P.C, against the petitioner. I could not persuade myself to attach any importance to the argument for the simple reason that the compensation amount in question was neither entrusted to the petitioner nor disbursed by him to the land owners rightly or wrongly. The petitioner was an inquiry officer, who unearthed fraud, forgery, cheating and embezzlement of public money by means of his report, referred above, In this background it is not difficult to say that that the investigating officer extorted rupees five lacs from the petitioner through harassm ent or blackmailing. Extortion of Rs. 5,00,000/- from the petitioner must have featured on the investigator's performance sheet as a crime dealt with successfully and worthy of place in the category of job well done. Showing fake and artificial performance to the superiors by hook or crook is a traditional police officer's perspective, which .Annot be and should not be endorsed or approved of. The learned Law Officer has not pointed of an iota of direct or indirect evident which may provide a basis to infer that the amount recovered or extorted from the petitioner was tainted money. Had the learned Trial Court examined the entire record while taking cognizance of the offence, the petitioner would not have been charge-sheeted in vague terms. I, therefore, conclude that the learned Trial Court disregarded and violated the basic legal principle that the Court takes cognizance of the offence and not of the challenged accused.
12. A combined examined of Sections 190(1)(b) and 265-D of the Criminal Procedure Code, 1898 would show that not only the report under Section 173 or the F.I.R, but also all the documents end statements are to be taken into consideration in order to form an opinion as to whether there are sufficient grounds for proceeding with the trial of the accused. The object of framing the charge is to make the accused aware of the material on the basis of which allegations are made against him. In fact the petitioner accused remained ignorant about the basis of allegation as the learned Trial Court framed a vague charge-sheet, In the light of above discussed admitted and undisputed facts, the petitioner is C.I.F prosecution witness, who unearthed the mischief by means of his above-said report. I fail to understand as to why the learned Trial Court attached so much importance to the opinion of the investigating officer while framing the charge against the petitioner.
13. When the Court takes cognizance of the offence, it becomes seized of the entire case, In other words, the Court is possessed with jurisdiction overall the persons involved in the commission of offence whether challaned or hot. Under this legal principle the Court while taking cognizance of the offence is empowered under Section 190(1)(c) of the Code to summon all those persons against whom there is material in support of the allegation, irrespective of the fact whether or not their names are mentioned in the list of accused persons. The above-said provisions of Code required that facts constituting an offence and not opinion of the investigator should be taken into consideration while framing the charge. This view of mine gets support from the law laid down in Sardar Ali and others v. The State (PLD 1966 (W.P.) Lahore 790).
14. Now, I proceed to determine the scope of inherent powers and Constitutional jurisdiction of this Court in such-like cases. The investigator transposed the petitioner from the list of PWs to the list of accused persons. Legal and factual state of record escaped notice of the Trial Court, which charge-sheeted the petitioner. Despite all this, how can this Court allow the investigator and prosecutor to blind fold the Criminal Justice System. By doing, so, this Court has not floated philosophical idea. The point in issue is very simple. The petitioner is an important prosecution witness. The investigating officer was obliged to cite the petitioner as prosecution witness enabling him to prove the inquiry report. The investigator stepped over the legal authority when he treated the petitioner as an accused, It is painful to note that the authority approved judicial action against the petitioner. This is an extreme example of misuse Of official position. The investigator was posed himself to be stickler for rule of law and eradication of corruption, slaughtered legal rights of the petitioner with the sword of his authority. The need of this hours is to nip the evil in the bud. This is high time of dispel common impression amongst the masses that police is not amenable to law of the land or that fundamental rights are not available to the lay man. Supremacy of law cannot be achieved without elimination of the police-whim-factor in the administration of criminal justice.
The Police Order, 2002 has not attended to the deficiencies in the legal framework of the police.
Without unqualified allegiance to rule of law, whimsy investigation tainted with mala fide is not going to be a much help for improvement of the system. Defective, dishonest, poor and motivated investigation of criminal cases is like a festering sore, which may prove fatal to the whole system, In exercise of Constitutional jurisdiction, this Court is supposed to take effective steps to safeguard legal rights of the people and the system. Without building checks on arbitrary exercise of powers by the investigating agency, no improvement in the system can be expected. Fortunately, the opportunity to make good on lost prospects still exists. The Trial Court needs to distance itself from the prosecution. General tendency to assume the role of prosecutor while holding trial is an alarming threat to the System. The cast- iron provisions of law either escape notice of the Trial Court or the same are not pressed into service on account of expediency. Resultantly, the distance between the Trial Court and the prosecutor is drastically minimized adverse to the cause of defence. Keeping in view the above-said ground realities, parameters for the Trial Court and the scope of its powers need to be re-defined in order to avoid police autocracy.
15. The System is standing on three pillars i.e. Investigation; Prosecution and Trial. For smooth functioning of the System these three pillars should be appropriately balanced within their respective allotted sphere. Powers of police to investigate cognizable or non-cognizable offence have been given in Chapter XIV of the Code, In the light of these provisions, it can be said that investigation consists of inspection of spot; ascertainment of facts and circumstances and collection of evident coupled with apprehension of accused. Opinion of the investigating officer qua guilt or innocence of the accused is alien to his allotted sphere. Prosecution means to bring on record material falling within the definition of evidence in support of the charge. Trial means judicial determination of guilt or innocence of the accused, In the case in hand the investigator did not remain within his allotted sphere. Instead of collecting evidence, he close to force an important prosecution witness (the. Petitioner) to stand in the dock. The prosecution did not render proper assistance to the learned Trial Court. The prosecutor should have fairly conceded that there was no legal and factual justification to charge-sheet the petitioner, who ought to have been cited as witness to prove the charge against the other challaned accused persons, In the circumstances, I have been left with no other option but to say that the learned Trial Court also failed to discharge the duty cast on it by the law. The sacred judicial function should not have been mortgaged to the investigator on the prosecutor."
16. For what has been stated above, l am of the calculated and considered opinion that a serious legal error of omission and commission had accrued in the investigation and commencement of trial against the petitioner, It is, therefore, fully justified to exercise Constitutional jurisdiction and inherent powers to enforce law of the land and stop further violation of absolute, accepted and recognized legal principles, which had been disregarded in this case with impudence. Such an action by the Court does not amount to interference in the domain of investigating agency or the Trial Court. Resultantly, I accept this petition and quash the proceedings initiated by the learned Trial Court against the petitioner under the impugned F.I.R. The extorted amount of Rs. 5,00,000/- is directed to be returned to the petitioner forthwith against proper receipt.
17. The observations and remarks by this Court would not adversely affect the case and cause of other accused persons. The petitioner would be at liberty to prosecute the investigating officer on account of malicious prosecution, if he feels so advised.