M. TABASSUM AFTAB ALVI, C.J. --- The captioned writ petition has been addressed under Section 4 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby quashment of the impugned F.I.R. No. 180/2014, in respect of offences under Sections 109 and 409, A.P.C. registered at Police Station City Muzaffarabad, dated 30th August, 2014, against petitioners, has been solicited.
2. The grouse of petitioners is that they were serving in Electricity Department as Junior Clerks BS- 07, since long. It is alleged that a fake F.I.R. was registered against them on the ground that they were involved in misappropriation regarding depositing amount of electricity bills for month of June, 2014, who claimed that the scroll of the aforesaid month had not been prepared by them. It is further stated that the said papers were in fact prepared by the Revenue Officer Operation-I, Muzaffarabad. After disciplinary proceedings under the provisions of the Azad Jammu & Kashmir Civil Servants Removal from Service (Special Powers) Act, 2001, petitioners were dismissed from service and a sum of Rs. 32,86,400/- was also directed to be recovered from them vide order dated 5th September, 2014. Meanwhile, the impugned F.I.R. in respect of offences under Sections 109 and 409, A.P.C. was also registered against them on 30th August, 2014. It is averred that petitioners were public servants, therefore, S.H.O. Police Station City Muzaffarbad, was not authorized under law to take cognizance of the alleged offences against them. It is further stated that the impugned F.I.R. was registered, against true facts and record, therefore, same may be quashed.
3. The writ petition has been resisted by respondents through written statement, wherein it is stated that petitioners are not aggrieved persons, therefore, they have got no locus standi to file the instant writ petition. It is pleaded that petitioners have not invoked jurisdiction of this Court with clean hands, therefore, writ petition is not maintainable. The other contents of writ petition have also been refuted.
4. Raja Muhammad Mushtaq, the learned counsel, appearing on behalf of petitioners, strenuously argued that petitioners were public servants and in any case F.I.R. could be lodged against them at the concerned Police Station Anti-Corruption, therefore, the impugned F.I.R. was registered by S.H.O., Police Station, City Muzaffarabad, is against law, hence, submitted for quashment of the same.
5. Mr. Akhlaq Hussain Kiani, the learned AAG contended that he has no objection if F.I.R. is quashed because petitioners are Civil Servants, who are liable to be proceeded against under the Azad Jammu & Kashmir Anti-Corruption Act, 1993.
6. After hearing the learned counsel for petitioners, I have perused the contents of writ petition and examined the appended documents made available with utmost care.
7. The allegation against petitioners as per the impugned F.I.R. No. 180/2014, dated 30th August, 2014, is that while performing duties as Junior Clerks B-07, in Electricity Department, they misappropriated a sum of Rs. 32,86,440/-. The learned Additional Advocate General, frankly admitted at Bar that petitioners were public servants at the relevant time, therefore, the impugned F.I.R., could be registered against them at Anti-Corruption Police Station. As per Section 3(1) of the AJK Anti-Corruption Establishment Act, 1993, for investigation of offences set forth in the Schedule, and for holding preliminary inquiries for determining such offences the same shall be investigated, by Anti-Corruption Establishment, The aforesaid section speaks as follows:-- "3.Constitution and powers of the Anti-Corruption Establishment.--(1.) Notwithstanding anything contained in any other law for the time being in force, Government may constitute an establishment, to be known as the Anti-Corruption Establishment, for the investigation of offences set forth in the Schedule, and for holding preliminary inquiries for determining whether such offences shall be investigated or departmental inquiries into the conduct of any public servant concerned in such offences shall be held.
(2) .........
(3) ........
(4) ........
(5) ........
As per schedule appended alongwith the AJK Anti-Corruption Establishment Act, 1993. the offence of Section 409 is scheduled offence. The aforesaid Schedule is reproduced as under:-- Schedule (Section-3)
(a) ..............................
(b)Offences punishable under Sections 186, 188, 189, 210, 332, 353, 379 to 382, 403 to 409, 411, 417 to 420, 465 and 468, 471 and 477-A of the Pakistan Penal Code, and as attempts, abetments and conspiracies in relation thereto or connected therewith, when committed by any public servant as such, or by any person acting jointly with or abetting or attempting to abet or acting in conspiracy with any public servant as such and;
(c) ......................
8. As petitioners at the relevant time, were public servants, therefore, according to my considered view, the impugned F.I.R. could not be registered against them at local Police Station. An identical proposition came under consideration before the Lahore High Court, in case titled "Muhammad lqbal v. Station House Officer, Police Station New Anarkali, Lahore and 2 others" (2000 P.Cr.L.J. 1924).
The relevant extract is reproduced as under:--- "21. 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 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. I, therefore, hold that the aforesaid F.I.R. cannot remain in the field which is liable to be quashed as the same has to fall on the ground like a house of cards.
22.For what has been said above, I accept this writ petition and quash F. I. R. No. 49 registered on 10.04.2000, at Police Station New Anarkali, Lahore under Section 161, Pakistan Penal Code and under Section 5 of the Prevention of Corruption Act, 1947. However, the respondent shall be competent to move the Anti-Corruption Establishment afresh, if required and desired thereof and the matter shall be processed with in accordance with law as expressed above."
The same view was expressed by the Lahore High Court, in case titled "Mahboob Ali v. The State and 3 others" (PLD 1996 Lahore 454), wherein, at page 455 of the report, it was opined as follows: "5.The investigation is almost complete and the S.H.O., P.S. City Jalalpur Pirwala has prepared a report under Section 173, Cr.P.C. dated 12.10.1995, in order to submit the challan before the Court under Section 3 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961, the Government has been empowered to establish Anti-Corruption Establishment. The said sections of Pakistan Penal Code under which the impugned F.I.R. was got registered are undoubtedly scheduled offences. The said offences committed by a public servant jointly with other persons, are to be tried and investigated in accordance with the provisions of said Ordinance and the Rules made thereunder. 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 order of an Additional Director and against civil servants in BPS-19 and above, by a Director. Rule 15 provides that the case after registration could be dropped in the circumstances mentioned therein.
Admittedly the petitioner, a Revenue Patwari, is a public servant and close scrutiny of the relevant provision of law as discussed above, leaves no doubt then 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. In this view of the matter, the registration of case through F.I.R. No. 190/95, under Sections 420/467/468/470/471/161, P.P.C. and Section 5 of Act 11 of 1947 at P.S. City Jalalpur Pirwala, District MuItan was illegal and the S.H. 0. was not authorized under the law to register the said case and to investigate it."
9. The impugned F.I.R., therefore, registered by S.H.O. local Police Station City Muzaffarabad, against petitioners, is liable to be quashed as coram non judice.
10. The crux of above discussion is that by accepting the instant writ petition, the impugned F.I.R. No. 180/2014, dated 30th August, 2014, registered at Police Station City Muzaffarabad, against petitioners is hereby quashed as without lawful authority, hence, having no legal effect. However, the concerned Department will be at liberty to initiate proceedings against petitioners before Anti- Corruption Establishment as per law. The writ petition stands accepted in the manner as indicated hereinabove with no order as to the costs.