YAHYA AFRIDI, C.J.--Abid Ali, the present petitioner, seeks the Constitutional jurisdiction of this Court, praying for; "On acceptance of this petition, it is most humbly prayed that the Anti-Corruption Laws including Anti-Corruption Establishment Rules, 1999 of the KPK Government are not extended to the FA TA under Article 247(3) of the Constitution of Islamic Republic of Pakistan, 1973 by the President of Pakistan and as such the Registration of the case against the petitioner and his arrest is without lawful authority and violation of Article 4, 25(1) and 247(1) & (3) of the Constitution of Islamic Republic of Pakistan, 1973 and consequently the said FIR may please be quashed.
It is further requested that any other proceedings initiated/originated in consequences of the above mentioned FIR in any Court may also be declared as illegal, ineffective and without lawful authority."
2. The brief and essential facts, as per the averments of the petition, leading to the instant writ petition are that the petitioner-accused, an employee of the C & W Department, was posted as SDO C&W FATA, F.R Kohat; that he had advanced a loan of Rs,30,000/- to respondent No,1/complainant, Ibrar Muhammad son of Ghulam Muhammad, who being a Government Contractor, was engaged in carrying out the scheme of solarization and provision of the security lights in Eagle Fort, FIR Kohat ("Works"); that respondent No,1/complainant was paid for the completion of the first phase of the Works, but he defaulted; that he was served with a notice for completing the Works: and that while the complainant was in the office of the petitioner. a raid was carried out and an amount of Rs,30,000/- was seized from the petitioner; and consequently an FIR No,06 of 2017 under Section 161 Pakistan Penal Code, 1860, and section 5(2) of Prevention of Corruption Act, 1947 ("Act of 1947") ("FIR") was registered, which has been challenged in the instant writ petition, being illegal, praying that the same may be quashed.
3. The worthy counsel for the petitioner/accused contended that FIR was registered against him by the Anti-Corruption Establishment of District Kohat, in Federally Administered Tribal Areas ("FATA"), without lawful authority, for Act of 1947 and rules framed there under had not been extended to FATA by the President of Pakistan, as required under Article 247 (3) of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution of 1973").
4. While assisting the Court, the learned AAG Qaiser' Ali Shah. representing the State, rebutted the contentions of the worthy counsel for the petitioner/accused, arguing that under Article 223(2) of the Constitution of Islamic Republic of Pakistan, 1962 ("Constitution of 1962"), the Governor of West Pakistan with the approval of the President had extended The West Pakistan Anti Corruption Establishment Ordinance, 1961 to F.R Kohat, FATA.
5. Valuable arguments of learned counsel for the parties heard and with their able assistance the record perused.
6. Before this Court proceeds to consider the submissions of the worthy counsel for the parties, it would be pertinent to note the relevant admitted facts and applicable law.
(i) Charge against the petitioner.
The petitioner is charged in the FIR for the offence of criminal misconduct, for accepting a bribe of Rs,30,000/-, as provided under section 5 of the Prevention of Corruption Act, 1947 ("Act of 1947").
(ii) Place of Occurrence.
'The offence of accepting the alleged bribe of Rs,30,000/-, as reported in the FIR, took place was in the office of the petitioner, which was situated in the settled area at Kohat, and not in F.R Kohat FATA.
(iii) Status of the petitioner.
The petitioner is admittedly a civil servant employed in C&W Department of Khyber Pakhtunkhwa, and was on deputation to the Federal Government, and posted as SDO C&W FATA F.R Kohat.
The issue relating to the status of employees serving in FATA has been dealt with in the Presidential Order No,13 of 1972 (Presidential Order No,13), wherein the status of employee in Centrally Administered Tribal Area, now Federally Administered Tribal Area, has been described in terms that; "3. Status of the employees of the Centrally Administered Tribal Areas:- Notwithstanding anything contained in their conditions of service, the employees shall, as from the appointed day, be the employees of the Provincial Government on deputation to the Central Government and shall work under the overall administrative control of the Provincial Government, on the same terms and conditions of service as respects remuneration, leave and pension and the same rights as respects disciplinary matters or tenure of office as were applicable to them immediately before that day."
With the promulgation of the Constitution of 1973, the status of Provincial Government employees, as provided in the Presidential Order No,13, was protected under Article-241 supra.
In order to properly manage and administer the affairs of Government in FATA, the President of Pakistan, while exercising his powers conferred upon him under Articles 241 and 145 of the Constitution of 1973, established the FATA Secretariat vide SRO No,1116 of 2007 dated 1.11.2007 published in the official Gazette of Pakistan on 16.11.2007. The administrative hierarchy of the FATA Secretariat, and the rules of governance were clearly stipulated therein. In brief, the Governor of Khyber Pakhtunkhwa was to act as an agent of the President, while exercising authority in governing areas in FATA. SAFRON was to provide all arrangements necessary for proper administration of FATA. In this regard, a guiding circular was issued vide letter No,F-2(8)-TA/2006 dated 1.11.2007 ("Circular of 2007"), which maintained the essential principles of governance and status of employees serving in FATA, as were initially envisaged in Presidential Order 13 of 1972.
To recapitulate the above, the petitioner is a Provincial Civil Servant on deputation to the Federal Government posted through FATA Secretariat in F.R Kohat FATA. However, his services are under the administrative control of the Provincial Government.
(iv) Applicability of Act of 1947 to FATA.
The Act of 1947 was extended to the whole of the Province of West Pakistan through the promulgation of the Prevention of Corruption Act (West Pakistan Extension) Ordinance, 1958 ("Ordinance of 1958"). F.R Kohat was by then made part of Dera Ismail Khan Division through the Establishment of West Pakistan (Administration) (Amendment) Order, 1955 ("Order of 1955").
Thus, what emerges from the above is that the Act of 1947 had been extended to the whole of West Pakistan, which then included the territory of F.R Kohat, being part of Dera Ismail Khan Division.
(v) Anti-Corruption Establishment.
A special agency was constituted for investigating certain offences relating to corruption by public servants and for holding preliminary inquiries against such public servant in West Pakistan by promulgation of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 ("Ordinance of 1961"). To further regulate the working of the Anti-Corruption Establishment, the Government of Khyber Pakhtunkhwa exercising powers under section-6 of the Ordinance of 1961, superseded the West Pakistan Anti-Corruption Establishment Rules, 1965, by framing Khyber Pakhtunkhwa, Anti- Corruption Establishment Rules, 1999, which are presently in the field.
(vi)Protection to the Anti-Corruption Law.
The Act of 1947, Order of 1955, Ordinance of 1958, and Ordinance of 1961, were first rendered protection under Article 224 of the Constitution of 1956, and Article 225 of the Constitution of 1962.
Thereafter, with the dissolution of the West Pakistan, vide Article-19 of the Province of West Pakistan (Dissolution) Order, 1970, and finally this protection was further extended under Article 268 of the Constitution of 1973.
(vii) Applicability of Act of 1947 to the petitioner.
Let us now review the provisions of Act of 1947. The preamble whereof clearly states the same as; "An Act for the more effective prevention of bribery and corruption. Whereas it is expedient to make effective provision for the prevention of bribery and corruption."
The legislature in its wisdom has rendered the Act of 1947, to be person specific in terms of section- 1(2), which reads; "Section-1(2). It extends to the whole of Pakistan and applies to all citizens of Pakistan and persons in the service of Government wherever they may be." (emphasis provided)
In view of the above provision, the Act of 1947 would apply to any person in service of the Government, irrespective of where he is serving.
7. Let us now move on to consider the contention of the worthy counsel for the petitioner in the light of the relevant law discussed hereinabove. The main thrust of the worthy counsel for the petitioner was that the petitioner serving in F.R Kohat FATA, could not he proceeded under the Act of 1947, as the same had not been extended to FATA within the contemplation of Article-247 of the Constitution of 1973.
8. This Court is not in consonance with the above contention of the worthy counsel for various reasons; firstly, the alleged offence of taking a bribe, as report in the FIR, did not take place within the territorial limits of FATA. In fact, the said alleged offence took place in the office of the petitioner, which admittedly is situated in the settled area of Kohat, where the Act of 1947 was surely extended and applied.
Secondly, the Act of 1947 and the Ordinance of 1961 were extended to West Pakistan, which at that time included F.R Kohat. And more importantly, these extensions were constitutionally protected under the enabling provisions of Articles-225 and 268 of the Constitution of 1962, and Constitution of 1973, respectively. It is by now settled that once a law has been extended to the Tribal Area, the same did not require any further extension thereof. The matter was for the first time examined by the apex Court in Zewar Khan's case (PLD 1969 SC 485), where the issue related to the extension of the Customs Act 1969 to FATA came up for deliberation, the apex Court decided the said issue in terms that; "The result therefore, of the above analysis of the various Constitutional provisions relating to the tribal area is that the tribal areas became legally parts of the territories of Pakistan from 15.8.1947, the date mentioned in the Notification of the 27th June, 1950 and all laws which applied to those territories before the 15th August, 1947 were continued in force until altered or amended, and from 1955 the tribal area of the North-West Frontier became parts of the Province of West Pakistan having a representation even in the Legislature of the said Province. There could be no manner of doubt, therefore, that the Sea Customs Act, the Land Customs Act and section 5 had been made applicable to the tribal areas by the Notifications of the 22nd September, 1926 and the 24th January, 1938 continued to apply in those areas and never lapsed. "Torkham was declared a Land Customs Station by the Notification of the 28th January, 1938 and Afghanistan was declared a foreign territory under section 5 of the Tariff Act, 1934 by the Notification of 10th January, 1939, in respect of the tribal areas of the Khyber Agency.
Subsequently, on the 29th March, 1941, another Notification was issued prohibiting under section 19 of the Sea Customs Act the importation of dutiable goods into Pakistan from Afghanistan. By another notification issued on the 12th June, 1951 under subsection (1) of Section-3 of the Imports and Exports "Control Act, the importation of fabrics into Pakistan save under a licence issued for the purpose was prohibited and on the 28th July, 1959, another Notification No, S.R.O. 349 was issued under section-5 of the Tariff Act, 1934 again declaring Afghanistan to be a foreign territory for the purposes of the said section and directing that a duty of customs at the rate prescribed by or under the Tariff Act shall be leviable on any of the articles mentioned in the Schedule to the said Notification, which included fabrics containing silk, artificial silk, cotton or gold and silver thread, when imported by land from any of the notified foreign territories." (emphasis provided)
The ratio-decidendi of the aforementioned case has been consistently followed by the Superior Courts in Abdul Jabbar's case (PLD 2005 SC 246), and Abdul Haq Khan's case (PLD 2017 SC 105).
Thirdly, the Act of 1947 is a person specific enactment. Under section 1(2) of the Act of 1947, the conditions precedent to the applicability of the charging penal provisions under the Act of 1947 are that it applies;
(I) To all citizens of Pakistan, and
(II) Persons in the service of Government wherever they may be.
The petitioner being a citizen of Pakistan and also in service of the Provincial Government fulfills both the conditions precedent to be proceeded under the Act of 1947.
9. Viewed from every angle, the petitioner cannot, in the circumstances of the present case, absolve himself of the charge of criminal misconduct under section 5(2) of the Act of 1947 on the mere ground that the said law has not been extended to FATA, where he was then serving.
Accordingly, for the reasons stated hereinabove, the present petition, being bereft of merit, is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.