SYED SHAHBAZ ALI RIZVI, J.---Iftikhar Hussain, petitioner, through this petition, has sought the quashing of case FIR No,627 dated 27-6-2010, offences under sections 448, 395, 511, 109, 161 and 162, P.P.C. Read with section 5 of the Prevention of Corruption Act, 1947 (Act II of 1947) registered at Police Station Ferozewala and has also assailed the order dated 15-8-2014 passed by the learned Senior Special Judge, Anti-Corruption, Punjab, Lahore (respondent No,1) whereby, the learned Senior Special Judge declined the request of the police for cancellation of the same case and summoned all the accused persons including the petitioner to face the trial.
2. Brief facts of the case are that Mian Muhammad Rashid, respondent No,4 got registered the abovementioned FIR with the allegation that he is Director of Koh-i-Noor Mill and is in possession of the factory along with five other Directors. They have hired guards from Empire Security Company for the security of the factory and he had litigation with two Directors of the company. On 27-6- 2010 at 4-00 a.m., he along with Muhammad Aslam and Liaqat was present in the factory and had just offered their prayer when suddenly, 10/12 unknown police officials entered the factory from the side of Petrosin Gas Factory by scaling over the wall and over powered all their guards, took the key of main gate and opened it, whereupon, three police vehicles and motorcycles, total 23/24 police officials, came in. Amjad Malik was written on the name plate of uniform of one Sub-Inspector whereas, on the name plate of other Sub-Inspector Ameer Ali was written and he can identify the third Sub-Inspector if brought before him. Raja Amir Ayub was written on the name plate of one Hawaldar, all the police officials were armed with G-3, SMGs and .30 bore pistols along with 18/19 private persons armed with firearms who locked the complainant and his guards in one room and at gun point, 14 pump action .12 bore guns, 22 packs of cartridges .12 bore, one .30 bore pistol from the guards and from private servants of the complainant 8 Repeaters .12 bore, 16 packs of cartridges and one rifle Kuppay wall were snatched. They also snatched Rs,26,500 from Sobeydar Abdul Ghani, Rs,1,500 from Muhammad Aslam supervisor, Rs,2,000 from Afzal Shah guard, Rs,4,000 from Abdur Rehman, Rs,800 from Muhammad Ali, Rs,15,000 from Muhammad Ashraf foreman, mobile phone from Muhammad Aslam and a Certificate of FA was also snatched after breaking the almirah. They also took uniforms of 40 security guards. After this, the police officials after boarding their vehicles went towards Lahore whereas, the private persons remained there.
Meanwhile, the official vehicle of local police passed nearby the factory and on seeing them, the private accused fled away from the spot by scaling over the walls of the factory. They caught hold of one person who told his name as Khalid Javaid son of Abdul Haq. He further told that he committed the occurrence in connivance with Khalid Iqbal and Muhammad Anwar manager Amir Hotel Lahore after giving Rs,20,00,000 Raja Amir Ayub Hawaldar, after receiving Rs,20,00,000 made arrangements of police and vehicles. He further told the names of the persons who fled away from the spot.
After registration of the FIR and investigation by the local police, the matter was referred to Anti- Corruption Establishment upon the order dated 21-7-2010 passed by learned Special Judge, Anti- Corruption Court, Lahore and was investigated by Circle Officer, Anti-Corruption Establishment, Sheikhupura who agreed with the investigation of local police and recommended for judicial action against the accused. Thereafter, the accused persons moved an application to Director General, Anti-Corruption Establishment, Punjab for reinvestigation of the case and the investigation was entrusted to Circle Officer, Lahore who recommended the case for cancellation. Thereafter, the complainant moved to the Anti-Corruption Establishment for another investigation which was done and finally cancellation report was submitted before the learned trial court which was declined and accused were summoned to face trial through the impugned order. Hence, this Writ Petition.
3. Learned counsel for the petitioner, in support of this petition, contends that the order impugned in this petition is against the law and facts of the case; that since the police officials were involved in this case, therefore, the FIR was to be registered by Anti-Corruption Establishment after due inquiry which was not done in the instant case; that the learned Senior Special Judge while passing the impugned order did not examine the record and passed the order on the basis of recoveries allegedly effected by the local police; that the FIR is based on mala fide; that civil litigation between the parties is pending before this Court; that the complainant has tried to convert civil litigation into criminal case; that the order impugned through this petition is void, ab initio, without any lawful authority and liable to be set aside; that FIR being registered by the local police is illegal and liable to be quashed; that the order of summoning the petitioner and his co-accused is also not sustainable in the eyes of law.
4. Heard. Record perused.
5. Through the instant petition, the petitioner has prayed as under:- "(a) That the registration of the FIR No,627/10 dated 27-6-2010 Police Station Ferozewala under sections 448, 395, 511, 109, 161, 162, P.P.C. And section 5 of P.C.A. Be declared without lawful authority and of no legal effect, and the same may be quashed.
(b) That order dated 15-8-2014 passed by Senior special Judge Anti-Corruption Lahore be declared to have been passed without lawful authority and of no legal effect.
(c) .................................................................................................."
Firstly, I would like to take up the first part of the prayer of the petitioner. So far as the contention of learned counsel for the petitioner that under rule 8 of the Punjab Anti-Corruption Establishment Rules, 1985, registration of FIR against the government servant in respect of a scheduled offence, exclusively falls within the jurisdiction of Anti-Corruption Establishment is concerned, I have noticed that initially when the FIR was registered, it was not registered under the scheduled offences but subsequently, when the order for transfer of the same case was issued by the learned Special Judge, Anti-Corruption Court, Lahore on 21-7-2010, the case was transferred to the Anti-Corruption Establishment, Punjab, Lahore and the same was investigated by three different Investigating Officers of the Anti-Corruption Establishment. So far as the legal position in this regard is concerned, I have observed that the provision of section 154 of Code of Criminal Procedure, 1898 authorizes an officer in-charge of Police Station to record FIR if information is conveyed to him which discloses commission of a cognizable offence while the narration of the instant FIR clearly reveals the commission of cognizable offence. Similarly, the provision of Section 8 of the Anti- Corruption Establishment Ordinance, 1961 provides that the provisions of the Ordinance are in addition and not in derogation to any other law for the time being in force: This clearly shows that the provisions of Code of Criminal Procedure, 1898 are kept intact and this being the situation, Rules 6, 7 and 8 of the, Anti-Corruption Establishment Rules, 1985, cannot be said to have overriding effect on provision of section 154 of the Code of Criminal Procedure, 1898. Moreover, it is also established proposition of law that a rule is A not to override the statute or general law unless there is an express indication under the statute itself hence, the provisions of Rules 6, 7 and 8 of the Anti- Corruption Establishment Rules, 1985, being subordinate legislation, cannot control or override section 8 of the West Pakistan Anti-Corruption Establishment Ordinance or section 154 of the Code of Criminal Procedure, 1898. Even if it is presumed, for the sake of arguments, that the FIR in the present case could be registered only by the Anti-Corruption Establishment even then the FIR in question is protected through law declared by the Hon'ble Supreme Court of Pakistan in the case of State through Advocate-General, Sindh v. Bashir and others (PLD 1997 Supreme Court 408).
Seeking light also from the cases of M. Abdul Latif v. G. M. Paracha and others (1981 SCMR 1101) and Mirza Muhammad lqbal and others v. Government of Punjab (PLD 1999 Lahore 109), I find that the contentions made by learned counsel for the petitioner seeking quashing of FIR are misconceived.
Moreover, there is no denial to the fact that challan is pending before the learned trial Court and in this view of the matter, an appropriate alternate remedy is available to the petitioner before the learned trial court under section 249-A of the Code of Criminal Procedure, 1898. In this regard, guidance is sought from the cases of Zulqar Hussain v. Tanvir Ahmad Gill, Admin Officer, SNGP and another (2014 PCr.LJ 779), Col. Shah Sadiq v. Muhammad Ashiq and others (2006 SCMR 276) and Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others (PLD 2010 Supreme Court 969).
6. Similarly, coming to the second part of the prayer, it is observed that it is established proposition of law that the order passed by a Magistrate regarding the cancellation of case or not concurring with the request for cancellation of case made by the police are administrative in nature and said order can be challenged through a writ petition by invoking constitutional jurisdiction of this Court as is held by the august Supreme Court of Pakistan in case of Bahadur and another v. The State and another (PLD 1985 Supreme Court 62) but when the Magistrate being seized with the same report while dissenting with the cancellation report summons the accused persons to face the trial by the same order, then first part of his order would merge in his order regarding summoning of the accused which is passed under section 204 of Code of Criminal Procedure, 1898 which is definitely a judicial order hence, when it becomes judicial order, it can be assailed through a criminal revision only and constitutional jurisdiction of this Court cannot be invoked. In this regard, reliance is placed on the cases of Ahsan Ullah v. Illaqa Magistrate and 5 others (2014 YLR 113 Lahore), Manzoor Ahmad v. Ahmad Yar and 3 others (1996 MLD 1867 Lahore) and Haji Jamil Hussain v.
Illaqa Magistrate Section 30, Multan and 7 others (2012 PCr.LJ 159 Lahore).
For what has been discussed above, this Writ Petition stands dismissed in limine being misconceived.