IJAZ ANW AR, J: Through this single judgment, this Court shall also dispose of WP No.1077-A/2017 , titled 'Shahnawaz Vs. The State etc ', as identical legal question is involved in both the writ petitions.
2. Nasir Khan son of Sultan Muhammad Khan, petitioner , in the instant petition seeks the constitutional jurisdiction of this Court, praying that; "It is respectfully prayed that on acceptance of the instant writ petition, the impugned order dated 07.04.2011 passed by respondent No.1 alongwith reports of respondents No.2 and 3 regarding dropping of case against respondents No.4 to 8 be set aside as unwarranted at law and facts and respondents No.1 to 3 be directed to proceed against respondents No.4 to 8 in accordance with law and submit complete challan before the Court after completion of all legal formalities. "
Petitioner , Shah Nawaz son of Jehandad, in the above referred connected writ petition also seeks constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following relief:- "On acceptance of this writ petition, impugned order No.8595 dated 23.05.2017 passed by respondent No.2 may graciously be set aside and criminal case bearing FIR No.02 under Section 161, 5(2) P.C Act dated 03.05.2017 of Police Station ACE, Abbottabad may kindly be restored and proceedings against accused/respondent No.5 be carried out in accordance with law. Any other relief which this honourable Court deem fit and proper in the circumstances of the case may also be granted."
3. The petitioners, in both the petitions, in essence, are seeking restoration of criminal cases and proceedings in accordance with law registered against the concerned respondents, which were earlier dropped by the Director Anti-Corruption Establishment, KPK, Peshawar .
4. Arguments of learned counsel for the parties heard and record perused.
5. Perusal of the record reveals that in the instant case after preliminary inquiry conducted by respondent No.3 an F.I.R was registered against respondents No.4 to 8 under sections 419/420/468/471/477-A PPC read with section 5(2) PC Act on 28.02.2011. The record further transpires that when the accused-defaulter deposited the amount vide letter dated 03.03.2011, approval of the authority was sought for withdrawal of the F.I.R by the District Officer Revenue / Collector, Haripur. The respondent No.1 while exercising his powers under Rule 8 of the Khyber Pakhtunkhwa Anti-Corruption Rules, 1999 (hereinafter to be referred as the Rules) vide his letter dated 07.04.2011 dropped the case against the accused and sent the file for completion of record.
6. Similarly , in the connected petition, a case vide F.I.R No.02 dated 03.05.2017 under section 161 PPC read with Section 5(2) PC Act, was registered against respondent No.5, in Police Station ACE, Abbottabad, which was subsequently , dropped by respondent No.2 vide letter dated 23.05.2017.
7. The moot question formulated during the course of argument is whether Director Anti-Corruption Establishment KPK Peshawar can drop the criminal case under the Rules without adverting to the mandatory provisions contained in the Criminal Procedure Code, 1897.
The then Government of West Pakistan for investigation of certain offences relating to Corruption by public servant and for holding preliminary inquiry against such servant, West Pakistan Anti-Corruption Establishment Ordinance (No.XX) of 1961 was promulgated on 8 September, 1961 (hereinafter to be referred as the Ordinance). Under section 3 of the Ordinance, the Anti-Corruption Establishment was established for the investigation of the offence set forth in the Schedule to the Ordinance. Under Section 3(4) of the Ordinance, Director, officer and members of the Establishment, for the purpose of any preliminary inquiry or investigation were given the powers of search, arrest of persons and seizure of property and all other powers, duties, privileges and liabilities which a police officer has or is exercising in connection with the investigation of the offence under the Code of Criminal Procedure, 1898. Under section 6 of the Ordinance the government has been empowered to make rules for the carrying out the purpose of the Ordinance. While exercising powers under section 6, the province of West Pakistan framed West Pakistan Anti-Corruption Establishment Rules, 1965. The name of West Pakistan was substituted to KPK through KPK Act No.IV of 2011. In these rules the procedure pertaining to initiation of preliminary inquiry and investigation is given.
Similarly, under Rule 4 the authorities are designated under the written order of whom inquiry against public officer BPS-18 and below and Public Officer in BPS-19 and above were to be initiated. For the purpose of present controversy, Rule 8 being very relevant, it is reproduced:- "8.Permission for submission of challan, recommending departmental action and dropped of the case.- --(1) On completion of investigation, the authorities indicated below may accord permission for submission of challan to the Court:-
(a) Director in cases in which public servants upto BPS-17 are involved.
(b) Chief Secretary in cases in which of ficers in BPS-18 and above are involved.
(2) If, after, investigation, it is found that prosecution is not called for but sufficient material is available on record for departmental action, the Establishment shall move the departmental authorities for departmental proceedings under the Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 1973 or, as the case may be, the Khyber Pakhtunkhwa Removal from Service (Special Powers) Ordinance, 2000.
(3) On completion of investigation, if allegations are not established the case shall be dropped and an intimation to this effect shall be sent to the authorities mentioned in sub-rule (2) of Rule-4.
(4) The authorities mentioned in sub-rule (1) above shall decide dropping of cases or departmental action.
(5) After a decision to take departmental action has been made under the foregoing sub-rule, the competent authority shall initiate departmental proceedings against the accused public servant.
(6) Copies of final report and summaries of dropped cases shall not be supplied without permission of the Director .
(7) When a decision to hold departmental enquiry against a public servant is taken, the Establishment shall provide facts of the case, statement of allegations, list of witnesses and documents, if any, to the Authority/Authorized Officer prescribed under the Khyber Pakhtunkhwa Government Servants (Efficiency &Discipline) Rules, 1973 or, asth the case my, to the Competent Authority or Committee under the Khyber Pakhtunkhwa Removal from Service (Special Powers) Ordinance, 2000."
Under Rule 8 (3) on completion of investigation, if allegations are not established the case shall be dropped and an intimation to this effect shall be sent to the authorities referred to above applicable to the case of civil servant. Under sub rule 4 of the Rules, the Authority above mentioned to decide either to drop the case or to recommend for departmental action against the accused. In present cases while exercising powers under Rule 8 sub rule 4 of the ibid Rules vide letter dated 07.04.2011 and 23.05.2017, the subject criminal cases were dropped and the record was sent for completion.
8. During the course of hearing, we asked the learned Assistant Advocate General that after the impugned letters identify the procedure which was adopted, he after consulting the representative/Assistant Director, Anti- Corruption Establishment stated that under Rule 8 of the Rules, no further proceedings are required being a special law and the procedure as referred in S.173 Cr.P.C is not applicable. To elaborate this matter, it will be relevant to reproduce S.8 of the Ordinance: "8.Provisions not in derogation of any other law -The provisions of this Ordinance are in addition to and not in derogation of any other law for the time being in force."
Similarly, Rule 11 of the Rules is also relevant, it is also reproduced:- "11. Application of Police Rules .---The Establishment shall, as far as may be, follow the provisions of Police Rules 1934 in the investigation and enquiry of of fences specified in the Schedule to the Ordinance ."
The provisions of the Ordinance as well as the rules framed there under suggest that these are in addition to the Criminal Procedure Code and the Police Rules, 1934 and for all matters not expressly provided without recourse to the Criminal Procedure Code, 1898 neither the F.I.R can be cancelled nor the Criminal case can be closed. In the Rules, the decision made under Rule 8 (4) for dropping a case is considered final and no further procedure is provided, as such, there is either deficiency or lacuna left in the Rules. Whatever course the investigating officer adopts i.e. whether acts under section 169 or under section 170 Cr.P.C, it is incumbent upon him to submit a final report under section 173 Cr.P.C with regard to result of his investigation to a competent Magistrate. Reference can be made to the case of 'Habib Vs. The State' (1983 SCMR 370).
Section 173 Cr.P.C being relevant it is reproduced.
"173. Report of police officer._(1) Every investigation under this Chapte r shall be completed without unnecessary delay , and as soon as it is completed, the of ficer in charge of the police station shall, through the Public Prosecutor ,
(a) forward to a Magistrate empowered to take cognizance of the offence on a police report a report, in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and
(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any , by whom the information relating to the commission of the of fence was first given: Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under section 154, the officer in charge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor , an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence.
(2) Where a superior officer of police has been appointed under section 158, the report shall, in any cases in which the 1[Provincial Government] by general or special order so directs, be submitted throu gh that officer, and he may, pending the orders of the Magistrate, direct the of ficer in charge of the police station to make further investigation.
(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
(4) A copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial: Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to furnish it free of cost.
(5) Where the officer in charge of a police station forwards a report under subsection (1), he shall along with the report produce the witnesses in the case, except the public servants, and the Magistrate shall bind such witnesses for appearance before him or some other Court on the date fixed for trial."
In the case of 'Dr. Muhammad Salman Ashraf Ys. Director , Anti-Corruption Establishment, Punjab, Lahore '
(2004 YLR 2962 ), it is held that:- "It is noteworthy that after the inquiry under the provisions of the Punjab Anti-Corruption Establishment Rules, 1985 the cases are registered under section 154, Cr.P.C,, statements of the witnesses are recorded under section 161, Cr.P.C and after the investigation if the case is recommended for judicial action, final report is submitted under section 173,Cr .P.C. The crux of the provisions of sections 169, 170 and 173, Cr.P.C. is that whatever course the Investigating Officer adopts i.e. whether he acts under section 169 or under section 170,Cr .P.C. It is incumbent upon him to submit a final report under section 173, Cr.P.C. with regard to the result of his investigation to a competent Magistrate and the said Magistrate shall, thereupon, take such action as he may consider proper under subsection (3) of section 173, Cr.P.C or under section 190, Cr.P.C. as the case may be. In PLD 1999 Lahore 109 this Court after discussing certain rules of the Punjab Anti-Corruption Establishment Rules, 1985 held as under:- "..Rules have to remain within the parameters of the Act/Ordinance and the moment the same or some of them travel beyond the provisions of parent law the same are struck down as ultra vires..."
The droppage of cases after registratio n of the cases only at the level of the Officers of the Anti-Corruption Establishment is not only violation of the provisions of Cr.P.C. but also interference in the judicial functions of the Courts empowered to decide the cases finally . Moreover , the Anti-Corruption Establishment is an executive body and instances are there that its functionaries can be influenced by the political as well as influential personalities while exercising their authority . Hence the final action into cases of corruption, which is spreading over very badly and has to be dealt with iron hands in order to revive confidence of the people on the State Departments, cannot be left only at the option of the executive authority ."
For the purpose of investigation and inquiries, the Anti-Corruption Establishment is following the Police Rules, 1934, as such, Police Rules, 1934, Chapter 24.7 is relevant, it is also reproduced: "Cancellation of cases: -Unless the investigation of a case is transferred to another police station or district, no first information report can be cancelled without the orders of a Magistrate of the 1st Class.
When information or other intelligence is recorded under Section 154, Criminal Procedure Code, and, after investigation, is found to be maliciously false or false owing to mistake of law or fact or to be non-cognizable or matter for a civil suit, the Superintendent shall send the first information report and any other papers on record in the case with the final report to a Magistrate having jurisdiction, and being a magistrate of the first class, for orders of cancellation. On receipt of such an order the office in charge of the police station shall cancel the first information report cancelling the case with number and date of order. He shall then the original order to the Superintendent's office to be filed with the record of the case."
We have also gone through the recently amended Punjab Anti-Corruption Establishment Rules, 2014, the amended Rule 10 reads now as under: "10. Dropping of case or reference for departmental action: - (1) The following procedure shall be followed for dropping a case or , as the case maybe, recommending disciplinary action:
(a) On completion of investigation, if the allegations are not established, the case shall be dropped and intimation to that ef fect shall be sent to the concerned administrative department and the public servant; and
(b) If after investigation, it is found that judicial action is not warranted but reasonable evidence is available to initiate disciplinary action against the public servant, the Establishment shall, after the confirmation of the cancellation report by the concerned court, refer the matter to the competent authority for initiation of such action in accordance with law for the time being in force (2).........................
(3).........................
(4).........................
(5).........................
(6)...............
(under lines provided).
While the Khyber Pakhtunkhwa Anti-Corruption Establishment Rules, 1999, provide the decision of authority as final for dropping the case/F.I.R. The august Supreme Court of Pakistan in the case of "M. Abdul Latif. Y. G.M Paracha and others ' (1981 SCMR 1 101) in Para-7 held as under: "He submitted that such an Establishment had, in fact, been created and it being a special law, only members of this Establishment could investigate the offences of corruption, and that, therefore, Police officers attached to the Anti Smuggling (Rice & Paddy) Mobile Team could not investigate such a case.
This contention overlooks the provision of section 8 of the said Ordinance which provides: "The provisions of this Ordinance are in addition to and not in derogation of any other law for the time being in force. "
In the case of 'Mirza Muhammad Iqbal v. Government of Punjab (PLD 1999 Lahore 109), registration of cases against public servant at ordinary police stations under section 154 Cr.P.C was held to be maintainable. Para 8 of the judgment is relevant, it is reproduced:- "Scrutiny of the provisions of the Ordinance shows that it does not contain any non obstante clause.
On the contrary, section 8 clearly provides that the provisions of the Ordinance are in addition to and not in derogation of any other law for the time being in force. In other words, the application of all the provisions of Criminal Procedure Code, 1898 including section 154 of the Criminal Procedure Code, 1898 has not been ruled out, rather it has been clearly kept intact. Similarly, section 3 and section 6(2) .of the Ordinance in terms do not talk of registration of a case but investigation of case or offences.
However, Rule 8 of the Rules does talk of registration of cases and in fact lays down that criminal cases shall be registered by the Establishment under the written orders of officers of the Establishment mentioned in sub-rule (2). Similarly, Rule 9 lays down that if the arrest of a public servant becomes unavoidable during investigation, he may be arrested afterward. However, in the excepted cases permission of Commissioner/Chief Secretary will be required. Similarly, Rule 15 talks of dropping of cases or recommending departmental action. Some of the Rules deal with the Constitution of the District Anti Corruption Committees and Provincial Anti-Corruption Committees and so on. Prima facie some of the provisions of the Rules, 1985 travel beyond the provisions of the Ordinance. In particular, Rule 8(2) placing embargo on registration of cases is not covered by any provision of the Ordinance.
The rule-making authority, therefore, seems to have taken upon itself the function of Legislature. It is well settled that rules are made by Executive Authorities and it is not the act of legislation. Rules have to remain within the parameters of the Act/Ordinance and the moment the same or some of them travel beyond the provisions of parent law, the same are struck down as ultra vires. Rules 8 and 9, in particular, and 8 some other rules can be dubbed as an exercise of legislation and an act of usurpation by the rule-making authority. If the objective was to describe the public servants as a different class of offenders and to afford them some protection against indiscriminate arrest etc., the provisions ought to have been inserted in the Ordinance itself. This object cannot be legally achieved by exercising the power of rule-making by executive authority . I may clarify that the above are some of the facts of the controversy which will have to be examined in an appropriate case in the light of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973." (under line provided)
9. The provisions of Ordinance No.XX of 1961 and of the Rules are in addition to the ordinary law and not in its derogation as contained in section 8 of the Ordinance, as such, Rule 8 of the Khyber Pakhtunkhwa Anti- Corruption Ordinance, 1999 is violative of the statute and to that extent it requires amendment. Accordingly, it is directed that after completion of the investigation, if the competent authority reaches to the conclusion that the case is liable to be dropped or required to be recommended for departmental action, the final report as required under section 173 Cr.P.C shall be submitted before the Special Judge, Anti-Corruption concerned and the procedure provided under section 173 Cr.P.C will the applicable and it is up to the learned Special Court either to agree or disagree with the same after considering the evidence collected during investigation of the case.
10. For the reasons stated above, while, allowing both the writ petitions, the orders of the official respondents dropping the cases against the accused/r espondents is struck down. The compete nt Authority within the meaning of Rules, would be at liberty to proceed further in the matter after their decision to drop the case, in the light of observation made hereinabove. Copy of this judgment be sent to the Secretary Establishment, Government of Khyber Pakhtunkhwa, Peshawar for its circulation and further action.