' SHAH KHAWAR, .J.---The petitioners are aggrieved by the order dated 16.5.2013 passed by the learned Special Judge, Anti-Corruption, D.G. Khan Division at Muzaffargarh.
2. Brief facts of the case are that the petitioners are accused persons in case FIR No, 7 dated 19.10.2010 under Section 409k PPC and Section 5(2)/47, PCA registered at police station Anti- Corruption Establishment, Muzaffargarh on the complaint of respondent No, 10.
3. Without adverting to the contents of FIR report under Section 173, Cr.P.C. Was submitted by the Circle Officer, ACE, Muzaffargarh before the learned Special Judge Anti-Corruption, D.G. Khan at Muzaffargarh (respondent No, 1), for the cancellation of case registered against the petitioners.
4. The respondent No, 1 vide impugned order dated 16.5.2013 did not agree with the recommendations of cancellation of the case as suggested by the Investigating Officer.
5. Apart from disagreement with the cancellation report the respondent No, 1 held that there is sufficient material available to further proceed with this case and ordered the production of the petitioners through non-bailable warrants of arrest for facing trial under Sections 409, 468, 471, PPC and Section 5(2)/47, PCA. The respondent No, 1 further observed that the Investigating Officer has failed to mention the names of Contractors who executed twelve projects, who are equally responsible for causing loss to the public exchequer.
6. Finally the respondent No, 1 in the impugned order passed directions to the S.P. (Investigation), D.G. Khan to conduct investigation with regard to twelve projects, seek the assistance of Civil Engineers of any provincial department, take into possession all the relevant record through recovery memos., record statements of the witnesses under Section 161, Cr.P.C., fix liability against the responsibles, work out the total loss caused to the public exchequer and submit his report within ten days. It was observed that the respondent No, 1 issued these directions in view of Section 5(6) of the Pakistan Criminal Law (Amendment) Act, 1958. Moreover the Anti-Corruption Establishment, Muzaffargarh was directed to hand over the police file of the case to S.P.
(Investigation), D.G. Khan.
7. In the instant writ petition impugned order dated 16.5.2013 passed by respondent No, 1 has been prayed to be declared illegal and the cancellation report under Section 173, Cr.P.C. May be ordered to be agreed to meet the ends of justice.
8. Heard.
9. So for as the prayer of the petitioners that the cancellation report under Section 173, Cr.P.C. May be ordered to be agreed upon is not tenable in law. This is the prerogative of the learned Trial Court to disagree with the findings of cancellation of case as recommended by the Investigating Officer.
The respondent No, 1 in his discretion has passed the order while not agreeing with the report as the same cannot be called in question in the writ jurisdiction, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
10. So for as the other aspect of the case is concerned, i,e, direction to the S.P.(Investigation), D.G.
Khan to conduct investigation and to file report seems to be in excess of jurisdiction exercised by the respondent No, 1.
11. The impugned order reveals that the learned respondent No, 1 has exercised this power under Section 5(6) of the Pakistan Criminal Law (Amendment) Act, 1958. Same is being reproduced herein under:--- "5(6) for the purpose of trial before a Special Judge, the provisions of Chapter XVIII of the Code of Criminal Procedure, 1898 shall not be applicable, but a Special Judge may, in any case where he deems it necessary, order an investigation by any police officer in whose jurisdiction the offence was wholly or partly committed."
12. I am afraid that the said provision of law has been wrongly interpreted .By the respondent No, 1.
Section 5(6) of the Amendment Act 1958 provides that the Special Judge may order the investigation by any police officer in whose jurisdiction the offence was wholly or partly committed.
The object of the Legislature in respect of the said provision of law is very clear. In the instant case, since case FIR was got registered by the Anti-Corruption Establishment, D.G. Khan Division. At Muzaffargarh. The learned respondent No, 1 could have ordered an officer of the Anti-Corruption Establishment to inquire the case afresh and not the ordinary Punjab Police. The jurisdiction and powers of Punjab police have been contemplated in the Police Order, 2002. According to Article 18 of the Police Order, 2002 a mechanism has been provided for the transfer of investigation from one police officer to another and that too after the recommendations of a duly constituted Standing Board. Reliance is placed on the case of "Dr. Ishtiaq Hussain and another v. Special Judge, Anti- Corruption (Provincial), Rawalpindi Division, Rawalpindi and 3 others" (2004 YLR 716). The relevant part of the judgment is reproduced herein under:--- "It is important to mention that it is cordial principle of administration of justice that when law prescribes a particular manner and procedure in which things are required to be done the same must be done in that way and not otherwise at all. From the reading of provision of Anti-Corruption Ordinance, rules framed thereunder in 1985 of the survey of case-law, would clinch the issue that the local police has neither jurisdiction nor the powers to investigate the case in respect of the scheduled offences committed by the public servants."
13.
14. #TBS
15. A
16. B
17. E
18. D
19. #TBE
20. There is no cavil with the proposition that under the Pakistan Criminal Law (Amendment) Act, 1958 certain powers have been conferred upon the learned Special Judges in terms of Section 5(6) of the law ibid. The respondent No, 1 has failed to interpret the provisions of Section 5(6) of the Act 1958 and has wrongly ordered the S.P.(Investigation), D.G. Khan to investigate the case arising out of the provisions of the Punjab Anti-Corruption Establishment Rules, 1985 framed under Section 6 of the Anti-Corruption Ordinance, 1961.
21. As held in the above-said judgment, the local police neither has the jurisdiction nor the powers to investigate the case in respect of the scheduled offences punishable under the Anti-Corruption Ordinance, 1961.
22. Moreover, according to the provisions of the Police Order, 2002 an altogether different mechanism has been provided to conduct and regulate a criminal investigation. A police officer can only investigate a criminal case after resorting to the provisions of the said Order and not by any other law. The impugned order dated 16.5.2013 passed by the learned respondent No 1 is against the spirit of provision of Section 5(6) of the Pakistan Criminal Law (Amendment) Act, 1958, the Anti-Corruption Ordinance, 1961, the Punjab Anti-Corruption Rules. 1958 and the Police Order.
2002. In the wake of these provisions of law the impugned order cannot sustain.
23. For what has been discussed above, it is declared that the learned Special Judge Anti- Corruption, D.G. Khan Division at Muzaffargarh while invoking provision of Section 5(6) of the Pakistan Criminal Law (Amendment) Act. 1958 has wrongly exercised jurisdiction while ordering that investigation be conducted by the local/ordinary police, in a case which squarely falls within the ambit of Anti-Corruption Establishment. The impugned order dated 16.5.2013 is hereby set- aside to the extent of orders passed by respondent No, 1 to the Superintendent of Police (Investigation), D.G. Khan to conduct investigation .Into the crime arising out of FIR No 7, dated 19.10.2010 under Section 409, PPC and Section 5(2)/47. PCA registered at police station Anti- Corruption Establishment, Muzaffargarh.