MUHAMMAD SHAN GUL, J. Through this judgment the titled constitutional petition is sought to be decided.
2. The following two questions have been raised in this constitutional petition:- a). Whether there is any provision in the Anti-Corruption legal regime entitling the Director General to constitute a Joint Investigation Team for the purpos e of investigating a crime report registered under the Anti-Corruption Establishment legal regime? b). Whether before ordering change in investigation in a crime report it is necessa ry to hear the complainant or an accused?
3. Facts in brief are that the petitioner is complainant in case FIR No.13/22 P.S. Anti-Corruption Establishment, Rawalpindi under Sections 409, 420, 468 and 471 PPC and 5/2/47 Prevention of Corruption Act, 1947. On an application filed by respondents No.5 and 6 i.e. accused persons in the said crime report, the Director General, Anti-Corruption Establishment transferred the investigation of the instant crime report and entrusted the same apparently to a Joint Investigation Team comprising Deputy Director (General), Directorate of Anti-Corruption Establishment, Headquarters, Punjab, Deputy Director (Admn.), Directorate of Anti-Corruption Establishment, Headquarters, Punjab and Circle Officer, Anti-Corruption Establishment, Rawalpind i. This was done by means of an order dated 27.5.2022 which has been brought under challenge through the present constitutional petition.
4. Learned counsel for the petitioner submits that there is no provision for the constitution of a Joint Investigation Team in either the Punjab Anti-Corrupti on Establishment Ordinance, 1961 or for that matter the Punjab Anti- Corruption Establishment Rules, 2014 and that, therefore, the Director General has exceeded his jurisdiction in ordering for the constitution of a Joint Investigation Team. He also submits that the petitioner being the complainant in the instant crime report should have been heard in the matter before any chan ge in investigation was ordered and that since the petitioner has been condemned unheard the order dated 27.5.2022 should be declared to be of no legal ef fect.
5. M/s Barrister Bushra Saqib and Obaid Ullah, Advocates were asked to assist the Court as friends of the Court.
Both of them submit in unison that while the Anti-Corruption Establishment can court and follow the Police Rules, 1934 for the purpose of conduct of investi gation since there is no provision for transfer or change in investigation in the Anti-Corruption legal regime, constitution of a Joint Investigating Team is indeed questionable. They add that in so far as the contention of the petitioner about being heard in the matter is concerned the same is misconceived on account of the law laid down by the Indian Supreme Court in "Central Bureau of Investigation and another v.
Rajesh Gandhi and another" (1996) 11 SCC 253 at paragraph No.8 as also "Union of India and another v.
W.N. Chadha" 1993 Supplementary (4) SCC 260 at paragraph No.90.
6. Learned AAG is present alongwith Rana Abdul Jabbar , Director General, Anti-Corruption Establishment and submits that Rule 15(2) of Rules 2014 empowers the Director General, Anti-Corruption Establishment to issue directions to ensure fair investigation. Adds that while the Director General has employed Rule 15(2) for ordering change in investigation it is equally true that there is no provision for the constituti on of a Joint Investigation Team in the Rules of 2014.
7. The Director General, Anti-Corruption Establishment submits that vide order dated 27.5.2022 he has only constituted an investigation team comprising of three officers and he has not constituted a Joint Investigation Team as such. Submits that previously the investigation in the instant matter was being conducted by a team of two officers of Anti-Corruption Establishment, Rawalpindi and the only difference, this time round, is that instead of two officers three officers are now investigating the crime report in question and it is not as if a Joint Investigation Team, as envisaged by Section 19 of the Anti-T errorism Act, 1997, has been constituted.
8. The Director General, Anti-Corruption Establishment, however , fairly acknowledges that order dated 27.5.2022 is not a speaking order inasmuch as it does not contain any reasons and that on this count the said order is indefensible even though reasons did exist and which reasons have been noted in the paper work leading up to the passage of order dated 27.5.2022. Submits that he realizes that for an order to be sustained it has to be reasoned and speaking and that he would not hesitate to withdraw order dated 27.5.2022 and issue it afresh after recording reasons.
9. Learned counsel representing respondents No.5 and 6 (accused persons) has also been heard. He submits that reasons did exist for ordering change in investigation but which reasons have not been mentioned in the impugned order .
10. Heard. Record perused.
CHANGE IN INVESTIGA TION:
11. Unlike the Police Order , 2002, neither the Punjab Anti-Corruption Establishment Ordinance, 1961 ("the Ord., 1961") nor the Punjab Anti-Corruption Establishment Rules, 2014 ("the Rules, 2014") contain any provision specifically prescribing any mode or procedure for transfer or change of investigation to an officer other than the one conducting investigation. Rule-15(2) of Rules 2014, however , empowers the Director General Anti-Corruption Establishment to peruse the record of any pending investigation and issue any direction to ensure fair and speedy investigation. Any such order passed by the Director General can be assailed before the Chief Secretary [Rule- 15(3)] or the Chief Minister [Rules-15(4)].
THE PUNJAB ANTI-CORRUPTION EST ABLISHMENT RULES, 2014 "15. Suo moto powers.- (1) The Director may, on his own motion or otherwise, call for the record of any case or enquiry , pending in any District of the Region, examine it and give such directions as may be necessary for the speedy , fair and just disposal of the case.
(2) The Director General may , on his own motion or otherwise:
(a) call for the record of any case or enquiry pending investigation with the Establishment, examine it and give such directions as may be necessary for speedy , fair and just disposal of the case;
(b) call for the record of any case or enquiry for purposes of satisfying himself as to the correctness or the propriety of any decision taken by Director , ex-officio Director or ex-officio Deputy Director under these rules, and may pass such orders as may be deemed fit.
(3) The Chief Secretary may, on his own motion or otherwise, call for the record of any case or enquiry , for purposes of satisfying himself as to the correctness or propriety of any decision taken by the Director General under these rules, and may pass such order as deemed fit.
(4) The Chief Minister may, on his own motion or otherwise, call for the record of any case or enquiry , pending or finalized, for purposes of satisfying himself as to the correctness or propriety of any decision taken by any authority under these rules and may pass such orders as deemed fit."
12. In "Liaquat Ali Vs. Director General Anti-corruption establishment Punjab, Lahore & 7 others" (2009 MLD 337 ), it has been held as follows:- "4. I have minutely gone through the Punjab Anti-Corruption Establishment Rules, 1985 in order to resolve the controversy . Rule 19 ibid deals with the point in issue and is, therefore, re-produced in verbatim for ready reference:-- It is manifest from a bare perusal of the above said Rule that the Governor , the Chief Secretary and the Director may suo motu or otherwise call for the record of any case pending investigation with the establishment and give such direction as may be necessary for the speedy , fair and just disposal of the same . In this case, the Governor has not passed any order or direction. The Chief Secretary also neither summoned nor examined the record. The Additional Chief Secretary also did not call for the record and simply sought a report from the Investigating Agency .
Now adverting to the order of the Director General, Anti-Corruption Establishment under challenge, I could not understand as to why he opened the chapter of investigation, which had already been closed by him with a direction to the investigation to submit challan in Court.
13. What this precedent case clearly implies is that short of legally recognized reasons warranting interference no order for change in investigation should be passed.
14. The order dated 27.5.2022 contains no reasons whatsoever! Hence, the order is bad on this count as well. An order without reasons is not a speaking order and cannot possibly withstand the test of judicial scrutiny . This also casts doubts on the soundness of the order because no reference whatsoever has been made as to how the members of the Investigation Team qualify as technical experts so as to attract Rule 25.14 of Police Rules, 1934.
15. It is trite that an order has to contain reasons so as to allow the reader to understand and comprehend the grounds prevailing with an authority in arriving at a conclusion. The reasons given for a decision explain the justification or logic for such a decision. Such reasons give satisfaction to the person against whom a decision has been given about the decision not being purely arbitrary or whimsical. Reasons take a matter out of the realm of subjectivity . The requirement of giving reasons, therefore, operates as an important check on abuse of powers.
16. Reasons can be said to be the heartbeat of every conclusion since reasons introduce clarity , regularity and rationality in a decision without which a decision is lifeless. It is equally established that a speaking order means an order that speaks for itself and order can only speak through the reasons rendered in support thereof. It is only when a decision reveals a rational nexus between facts considered and the conclusion drawn that such decision can be held to be just and reasonable. The chain between conclusion and fact in a decision is broken if there are no reasons provided to support the conclusion. In (1994) 1 ALL ER 651 Regina v. Higher Education Funding Council , ex parte Institute of Dental Surgery , it has been held, "The giving of reasons may among other things concentrate the decision maker 's mind on the right questions."
FORMA TION OF JOINT INVESTIGA TION TEAM
17. There is no mention of investigation to be conducted by a Joint Investigation Team in either Ordinance, 1961 or Rules, 2014. However , Rule-14 states that during investigation, Anti-Corruption Establishment shall follow the procedure laid down in Police Rules, 1934: "14. Application of the Punjab Police Rules.- The Establishment shall, as far as may be, follow the provisions of the Punjab Police Rules for the time being in force for purposes of inquiry and investigation of offences specified in the Schedule."
THE PUNJAB ANTI-CORRUPTION EST ABLISHMENT ORDINANCE, 1961.
"3. Constitution and powers of the Anti-Corruption Establishment.-
(4) Subject to any orders or rules which Government may make in this behalf, the Director General, officers and members of the Establishment shall, for the purpose of any preliminary enquiry or investigation under this Ordinance have throughout the province of the Punjab all 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 subject to in connection with the investigation of offences under the Code of Criminal Procedure, 1898."
Rule-25.14 falling in Chapter-25 (Investigations), Volume-3 of Police Rules, 1934 provides for the instances when an investigation of an of fence requires assistance of other experts.
"25.14. Technical assistance in investigation. - (1) Investigating officers are expected to take steps to secure expert technical assistance and advice, whenever such appears desirable in the course of an investigation for purposes of evidence or for demonstration in court.
(2) The Criminal Investigation Departmen t is able to obtain expert technical assista nce on many subjects and should be freely consulted in that connection by investigating officers through their Superintendents of Police.
When such assistance is required a full report shall be sent to the Assistant Inspector General, Crime and Criminal Tribes, so that he may be in a position to decide whether it is essential to send an expert to the scene of the crime or whether the material to be dealt with should be sent to the expert. In making such reports use should be made of telegraphic and telephonic facilities.
(3) The Criminal Investigation Department, in conjunction with the Finger Print Bureau, undertakes photographic and some other varieties of technical work. In addition it is in contact with technical experts on may subjects, whose services can frequently be obtained for work in connection with criminal investigation. In respect of the examination of handwriting, investigating officers can obtain the services of the Examiner of Questioned Documents with the Government of India, through the Criminal Investigation Department. That depa rtment is also the channel for obtaining the services of the Inspector of Explosives for Northern India who, as well as advising on explosives generally , can give expert opinion as to whether a weapon has been recently fired, whether certain matter is gunpowder or not, and all questions generally savouring of chemical analysis.
18. In "Human Rights Case No. 39216-G of 2018 (in the matter of Slackness in the progress of pending enquiries relating to fake bank accounts, etc." (2018 SCMR 1851 ), it has been held as follows:- "2. We have been informed by Director General, FIA that as investigation progresses more accounts and information is being discovered by the investigators. ......He, therefore, maintains that despite bona fide efforts on the part of FIA, progress is slow on account of huge quantity of electronic data that requires unravelling and interpretation. For this exercise FIA is facing lack of specialized investigators. In order to conduct effective, in-depth and incisive investigations to discover the truth, cut through multiple layers of transactions, fake accounts, movement of funds, and establish the real identity of persons who are actual but hidden beneficiaries, a broad based, multidimensional and technically skilled team of experts is required which at present is not available with ......
7. Learned counsel for some of the accused persons while making their submissions have frankly conceded that this Court has ample powers and jurisdiction in terms of Article 184(3) of the Cons titution to appoint and nominate such JITs. The concession by the learned counsel for the suspects that a JIT can be constituted by the investigating agency under the Anti-Money Laundering Act, 2010 renders their objection to such action by the Court to be academic. In fact an order passed by the Court in this behalf is a valid exercise of jurisdiction in aid of a lawful object. We are of the view that in appropriate cases, technical inability to undertake a complicated modern day investigation furnishes a reasonable basis and justification to constitute a JIT. We are in no manner of doubt that in the present case formation of a JIT is imperative and necessary ."
19. However , while the Apex Court is empowered in terms of Article 184(3) read with Article 187 to constitute a Joint Investigation Team, the jurisdiction and judicial power of this Court is controlled by Article 199 of the Constitution!
20. Although no specific mechanism is provided under Anti-Corruption Establishment Ordinance, 1961 or Rules, 2014, it seems that if the facts of the case require assistance of a team in addition to the investigation officer, the Director General can, by using the powers under Rule-15(2), order the investigation to be conducted by a team of experts, equipped with the relevant expertise to evaluate the facts and allegations in a matter .
21. However , in the matter in issue no technical experts have been co-opted and rather an investigation team of regular officers of Anti-Corruption Establishment has been constituted. This is not the same as constituting a team of technical experts and hence Rule 25.14 of the Police Rules, 1934 does not aid the Director General.
22. At the same time since the Director General, Anti-Corruption Establishment has volunteered that he has not constituted a Joint Investigation Team of experts but has rather only transferred the investigation from a team of two officers to a team of three officers the objection about a Joint Investigation Team loses its meat. In fact, the statement of the Director General puts to rest the misgivings of the petitioner about executive authority having been exercised in a vacuum. Previously , the crime report in question was being investigated by a team of two officers and now the same is being sought to be investigated by a team of three officers. There is no bar in the governing law in this respect and the statement of the Director General, Anti-Corruption Establishment has in any case put the fears of the petitioner to rest.
OPPORTUNITY OF HEARING
23. In "Mst. Uzma Bibi Vs. Additional Session s Judge/Justice of Peace, Vehari & 7 others" (2005 MLD 1618 ), it has been held as follows: "2. Learned counsel for the petitioner submits that the impugned order has been passed without summoning the accused persons so they have been condemned unheard and the impugned order is violative of principle of natural justice...Further submits that the impugned order is not sustainable in the eye of law and is violative of provisions of Police Order , 2002.
3. .......A bare perusal of impugned order shows that respondent No.3 namely Shahzad Maseh filed petition before the learned Sessions Judge, Vehari for, transfer of investigation alleging therein that Shaukat Ali A.S.-I. was biased against him prior to the registration of case and he had submitted false report and that such type of occurrence had not taken place whereupon the learned Additional Sessions Judge, Vehari changed the investigation of the case and entrusted the same to D.S.P . (Investigation), observing that it was proper for. Shaukat Ali A.S.-I. that investigation of this case should not be conducted by him as the Court disagreeing with his enquiry report had ordered for registration of case yet even then he himself investigated the matter and recommended for cancellation of case.
4. Findings of fact have been recorded by the learned Additional Sessions Judge and he has passed a speaking order and no interference is needed in the impugned order ."
24. In "Union of India and another v. W.N. Chadha" 1993 Supplementary (4) SCC 260 it has been held as follows:- "90. In State of Haryana v. Bhajan Lal [1992] Supp. 1 SCC 335 at 359, this Court to which both of us (Ratnavel Pandian and K. Jayachandra Reddy , JJ.) were parties after making reference to the decision of the Privy Council in Emperor v. Khwaja Nazir Ahmad and the decision of this Court in State of Bihar v. J.A.C. Saldanha has pointed out that"...the field of investigation of any cognizable offence is exclusively within the domain of the investigating agencies over which the courts cannot have control and have no power to stifle or impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the provisions relating to investigation....".......
25. In "Central Bureau of Investigation and another v. Rajesh Gandhi and another" (1996) 11 SCC 253 it has been held as follows: "There is no merit in the pleas raised by the first respondent either . The decision to investigate or the decision of the agency which should investigate, does not attract principles of natural justice. The accused cannot have a say in who should inves tigate the offences he is charged with. The notification dated 2.6.1994 is issued by the Government of Bihar (Police Department) by which in exercise of powers under Section 6 of the Delhi Special Police Establishment Act, 1946, Governor of Bihar was pleased to consent and extend the powers and Jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar in connection with investigation of the concerned Police Station, on case No.159 of 9.3.1993 in the District of Dhanbad, under Sections 457, 436, 427, 201 and 120-B, Indian Penal Code and conspiracy arising out of the same and any other offence committed in course of the same. The notification of 26.10.1994 is issued by the Government of India, Ministry of Personnel in exercise of the powers conferred by sub-section (l) of Section 5 read with Section 6 of the Delhi Special Police Establishment Act, 1946 whereby the Central Government with the consent of the State Government of Bihar in their notification dated 2.6.1994 extended the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar for investigation of offences under Section 457, 436, 427/120 -8 and 201 I.P.C. and Section 4 of the Prevention Of Damages to Public Property Act, 1984 registered at Dhanbad Police Station, Dhansar , Bihar in their case No.159 dated 9.3.1933 and any other offences, attempts, abetment and conspiracy in relation to or in connection with the said offence committed in the course of the same transactions or arising out of the same fact or facts in relation to the said case.
There is no provision in law under which, while granting consent or extending the powers and jurisdiction of the Delhi Special Police Establishment to the specified State and to any specified case any reasons are required to be recorded on the face of the notification. The learned Single Judge of the Patna High Court was clearly in error in holding so. If investigation by the local police is not satisfactory , a further investigation is not precluded. In the present case the material on record shows that the investigation by the local police was not satisfactory . In fact the local police had filed a final report before the Chief Judicial Magistrate Dhanbad. The report, however , was pending and had not been accepted when the Central Government with the consent of the State Government issued the impugned notification. As a result, the C.B.I. has been directed to further investigate the offences registered under the said F.I.R. with the consent of the State Government and in accordance with law. Under Section 173 (8) of the Cr.P.C. 1973 also, there is an analogous provision for further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate."
26. As held by the Gujrat High Court in Diyvesh vs. State Cr. M 13950/12 decided on 09.8.2012, an accused has no right of hearing at the stage of investigation as regards the aspects related to or arising from the process of investigation, including the issue as to the agency which would conduct the investigation or the manner of conducting the investigation. The accused does not come in the picture and he has no right to claim that he is a necessary party at the stage of investigation and that he should be impleaded as a necessary party and should be joined as respondent and/or to claim a right of being heard: "It is only the investigation agency which can explain by placing relevant and sufficient material on record, as to how the process and progress of investigation is proceeding. The accused cannot explain the said aspects and he would not be able to render any assistance in determining as to whether the investigation is being carried out in unbiased, impartial, fair and satisfactory manner and in accordance with prescribed procedure or not. The relevant material also would be available only with the investigation agency . Assuming that for any reason such request (either by the complainant or by any other person) is to be opposed, then also, that can be done by investigation agency since it is only the said agency which would possess relevant material and details. For the said and such other reasons, the accused person/s is not and cannot be considered necessary party in petition seeking transfer of investigation.
Therefore, the accused cannot claim that they may be impleaded in such proceedings as necessary party and/or that they should be joined in the proceedings as party respondent. Consequently , the accused also cannot claim, at the stage of investigation and/or in the matters related to investigation i.e. manner and method of investigation, right of being heard. At the stage of investigation, the principle of audi alteram partem is not applicable, to and the said principle cannot be invoked, for claiming right of hearing at the stage of, investigation process.
27. The facts of the case and the discussion would show that whether investigat ion should be transferred or not and whether investigation should be carried out by a particular agency or not are issues between the Court and an investigating agency and the complainant or an accused is not and/or cannot be considered a necessary party in such proceedings.
28. Besides what has been noted above it is also equally true that findings recorded during the course of an investigative process are not binding on any court. These do not qualify as adverse action so as to attract principles of natural justice.
29. In this view of the matter , it is not necessary for the Director General, Anti-Corruption Establishment to hear either the complainant or the accused in a crime report registered under the Anti-Corruption legal regime before ordering a change in investigation. The only sine qua non being that an order for change in investigation has to be based on cogent reasons and should be a speaking order .
30. With the Director General, Anti-Corruption Establishment having volunteered that no Joint Investigation Team has been constituted and also he having himself admitted lack of reasons in the impugned order , the order dated 27.5.2022 is hereby set aside and declared to be of no legal effect. The application filed by respondents No.5 and 6 shall be deemed to be pending before the Director General, Anti-Corruption Establishment and shall be decided afresh by means of a fresh order that contains clear and rational reasons.
31. Allowed in the above terms.