MUHAMMAD SHERAZ KIANI, J.---The supra titled writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby following prayer is sought by petitioners: "In view of .above fact and circumstances, it is, therefore, the respondent No.1, may kindly be directed to initiate the legal inquiry/action against the respondents Nos.4 to 9, on the basis of investigating report dated 22.01.2015, and registered FIR.
It is, further prayed that the official respon dents may kindly be directed to remove the respondents Nos.4 to 9, from service and punished the respondents Nos.4 to 9, according to sharia and law of land. Any other relief which this Hon'ble Court deems fit may also be granted to meet the ends of justice."
2. Precise facts of the case are that petitioners are 1st class State Subject who hail from District Muzaf farabad. It is stated that an FIR No.4/14 dated 21.02.2014, has been lodged against the petitioners on the instigation of respondent No.4, under the offences of 14 EHA and 457 PC with mala fide intention against the facts and records.
It is further stated that respondent No.4, ASI performing his duties at Police Station Brarkot, who with mala fide intention started investigation in the aforesaid FIR, whereas, he is complainant in the said FIR, hence, he could not investigate the matter under law. It is alleged that the respondent No.4 along with respondents Nos.5 to 9, got Rs.30,000/- as bribery along with house hold articles (Crockery) during the investigation from petitioners. It is further alleged that the respondents on the basis of baseless FIR entered into the house of petitioners at night time, abused and maltreated to the petitioners and their families (womenfolk), therefore, the act of respondent No.4, was illegal and cognizable and respondents Nos.4 to 9 are liable to be punished under law. Thereafter , an application moved by the petitioners before the respondent No.1 to initiate inquiry proceedings against them under law on 07.04.2014, and the same was forward ed to respondent No.2, who after conducting inquiry and investigation submitted his detailed report to respondent No.1 with the recommendations that to initiate inquiry against the respondents Nos.4 to 9, under Section 5(2) of the Prevention of Anti. Corruption Act, 1950 on 22.01.2015, which is still pending and no legal action has been taken against them due to their political influence, hence, the petitioners are constrained to file the instant constitutional petition.
3. The writ petition has been resisted through answering respondent No.10 by filing written statement, wherein, it is stated that on receiving a letter from the office of Assistant Inspector General Crime Branch, Azad Jammu and Kashmir along with complaint/ application of petitioners against Zia-ul-Islam, ASI, Police Station Sadar , Muzaf farabad and Naveed-ul-Hassan, Investigating Officer/ASI as well as against constables namely; Aftab Shoukat and others in the Anti-Corruption Department for initiation of inquiry as per law. It is further stated that the petitioners have taken stance in the application that he is resident of Chikar , whereas, Zia-ul-Islam, I.O./ASI and other police officials by involving his nephew Basharat in a baseless case, beaten him and at the time of arrest also demanded gratification from him of Rs.25,000/-. It is further stated in the application that petitioners moved an application against the police officers but in vain. It is contended that the statements of petitioners have been recorded during initial proceedings in the inquiry wherein, they deposed that the gratification of Rs.25,000/- has been received from his cousin namely; Raja Gulfam and statements of Raja Manshad Khan and Yaqoob Khan, resident of Raheem Kot and Shahzad Khan, Raja Zahid Umer , S.H.O./SI, Police Station Sadar have also been recorded. It is further contended that petitioners allegedly gave money through Raja Gulfam Khan, who had died and his statement was also not available on record, therefore, the stance of petitioners could not be proved, hence, the inquiry was consigned to record, therefore, submitted for dismissal of writ petition
4. Khawaja Shoukat Hussain Ganai, Advocate, the learned counsel for the petitioners filed written arguments on behalf of petitioners Nos.1 and 2, wheren, it is stated that non-petitioner No.4 (complainant, made an FIR No.04/14 under section 14/EHA, 457/APC, against unknown thieves at Police Station Chika r on 21.02.2014. After that with mala fide of complainant and police, petitioners were taken into police custody and beaten ruthlessly , hence, the petitioners moved an application to IGP of AJ&K on 07.04.2014, and prayed legal action against nominated police personnel (non-petitioners Nos.4 to 9), which was duly forwarded to DIG Police after that AIG (Crimes) in view of letter dated 07.04.2014, resultantly (AIG Crimes) made inquiry report on 22.01.201 5 and observed that under rules 6/7 of AJ&K Anti Corruption Establishment Rules, 1997, inquiry be made under section 5(2) of Prevention of Anti Corruption Act, 1950, however , the same is pending since long, hence, craved for acceptance of the instant writ petition.
5. Director General Anti Corruption Establishment, respondent No.10 has filed written arguments, wherein, it is stated that an inquiry has been initiated on receiving a letter from the office of Assistant Inspector General Crime Branch, Azad Jammu and Kashmir along with complaint/ application of petitioners against Zia-ul-Islam, ASI, Police Station Sadar , Muzaf farabad and Naveed-ul-Hassan, Investigating Officer/ASI as well as against constables namely; Aftab. Shoukat and others by the Anti-Corruption Department as per law. It is contended that the petitioners have taken stance in the application that Zia-ul-Islam, I.O./ASI and other police officials by involving his nephew Basharat in a baseless case, beaten him and at the time of arrest also demanded gratification from him of Rs.25,000/-. It is further stated in the application that petitioners moved an application against the police officers but in vain. It is contended that the statements of petitioners have been recorded during initial proceedings in the inquiry wherein, they deposed that the gratification of Rs.25,000/- has been received from his cousin namely; Raja Gulfam and statements of Raja Manshad Khan-and Yaqoob Khan, resident of Raheem Kot and Shahzad Khan, Raja Zahid Umer , S.H.O./SI, Police Station Sadar have also been recorded. It is further contended that petitioners gave gratification through Raja Gulfam Khan, who had died and his statement was also not available on record, therefore, the stance of petitioners could not be proved, hence, the inquiry was rightly consigned to record, therefore, prayed for dismissal of instant writ petition.
6. After hearing the learned counsel for parties, I have perused the contents of writ petition and examined the appended documents made available.
7. A contemplate perusal of record reveals that respondent No.4, complainant, got lodged an FIR bearing No.04/14 under Sections 14/ EHA and 457/APC, against unknown thieves at Police Station Chikar on 21.02.2014. It further reflects from record that the petitioners were taken into police custody and allegedly were abused and tortured, whereupon, they moved an application to IGP of AJ&K on 07.04.2014, and prayed for legal action against the nominated police personnel (respondents Nos.4 to 9), which was duly forwarded to DIG Police and after that to the AIG (Crimes) vide letter dated 07.04.2 014, resultantly (AIG Crimes) made inquiry and submitted report on 22.01.2015 and observed that under rules 6/7 of AJ&K Anti Corruption Establishment Rules, 1997, inquiry be made and an FIR. could be registered in offences under section 5(2) of Prevention of Anti Corruption Act, 1950.
Consequently the inquiry was started by the Director Anti Corruption and after recording the statement of the concerned, the inquiry on the recommendation of DDA was consigned to record without any further proceedings on the ground that Gulfam who statedly gave gratification had died.
8. The ground on which respondent No.10, Director Anti Corruption consigned the inquiry to record room is not sustainable in the eye of law. Mere death of a witness does not vitiate the whole proceedings neither death of one witness exonerates an offender from the liability , provided the other sufficient evide nce is available on the record.
In the present case enough evidence was available before the respondent No.10, and the Deputy Director in spite of that did not convert the inquiry into FIR and investigation was not conducted against the accused.
9.. Muhammad Shahzad Khan stated before the DDA as under:- {{URDU TEXT}} Manshad Khan the other witness stated 'before the inquiry of ficer as under:- {{URDU TEXT}} The complainant also stated that total Rs.30,000/- gratification was D received by Naveed, ASI, Aftab DFC, Matloob FC and Shoukat Shah, IHC. In presence of such evidence the respondent No.10, was not justified to refuse to register the case rather he was duty bound to register the case against the accused. Prima-facie, it constitutes the offence under Section 5(2) of the Prevention of Anti Corruption Act, 1950. Mere denial of the accused in absence of any supportive evidence is not sufficient to dismiss the allegations. It is to be observed here that it is for the Court to make appraisal and deep scrutiny of the evidence. In my view the respondent No.10 just to save the concerned police officials, E put the whole implicating material in the bin which is not warranted by law.
The petitioners have been seeking justic e for last 06 years. Justice must be done to all and sundry without any discrimination. All the state subjects are equal before the law and nobody is above the law .
9(sic). Therefore, in the light of what has been stated above by accepting this writ petition the respondent No.10, is directed to register the FIR in the light of the complaint-application of the petitioner No.1, herein, and after due investigation the challan/report be submitted to the competent Court in accordance with law .