Through this petition under Article 199 of Constitution of the Islamic Republic of Pakistan, 1973, the grievance agitated by the petitioner Mst. Kainat was that she was a police constable and posted at Khidmat Markaz Police Station Illama Iqbal Town, Lahore. Respondent NO.4, who happened to be a property dealer, moved certain applications before different forum against her. In the pursuance of an application, moved to Anti-Corruption Establishment (respondents No.1 & 2), the impugned notice (without date) was served upon her asking to appear before the office of Deputy Director Anti-Corruption Establishment, Sheikhupura.
2. Reply procured from respondent No.3 (Assistant Director, Investigation, ACE, Sheikhupura) speaks that an inquiry No.193/2025-SKP dated 19.06.2025, having arisen out of an application moved by Muhammad Azeem (respondent No.4) was entrusted to him. In the said inquiry, respondent No.4 claimed that petitioner/lady constable received Rs.40,00,000/- from him for the recruitment of his niece and nephew in Punjab Police Department. Report further speaks that on scrutiny an amount of Rs.2.9 million was found to have been received in the bank account of petitioner, which was sent by respondent No.4 / Muhammad Azeem. Petitioner was directed to get her version recorded.
3. Stance taken by petitioner in response to the said allegation, as mentioned in the present petition, was that her husband was living at Saudia for gain, who paid certain amount to respondent No.4/ property dealer for the purchase of some plot, which could not be arranged, as such he / respondent No.4 returned the amount to the petitioner, which she received in her bank account.
4. Section 160 of Cr.P.C. deals with the powers of an investigation officer requiring the attendance of a person, which is being produced below for the facility of reference:- "Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise appears to be acquainted with the circumstances of the case; and such person shall attend as so required".
5. Said powers of the investigation officer were further supplemented by Rule 25.2 of Police Rules, 1934, Volume 3, which reads as under:- "25.2. Power to investigation officer:- (1) The power and privileges of a police officer making an investigation are detailed in Section 160 to 1752, Criminal Procedure Code.
Any officer so making an investigation shall invariably issue another in writing in Form 25.2(1) to any person summoned to attend such investigation and shall endorse on the copy of the order retained by the person so summoned the date and time of his arrival at, and date and time of his departure from, the place to which he is summoned. The duplicate of the order shall be attached to the case diary,
(2) No avoidable trouble shall be given to any person from whom enquires are made and no person shall be unnecessary detained.
(3) It is duty of an investigating officer to find out the truth of the mater under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders.
He shall not commit himself prematurely to any view of the facts for or against any person.
6. The word "any person" used in Section 160 of Cr.P.C. is of wider import. It covers all the persons who are acquainted with the circumstances of the case. It may include a witness, complainant, accused or even a suspect or any other person familiar with the facts of the case. Said persons can be summoned by the Investigating Officer in order to unearth the true facts, but the said power of the Investigating Officer is not unfatered and he cannot act arbitrarily or capriciously. This Court, while dealing with an identical matter in case titled 'Haji Dilshad Islam v. Punjab Province, etc'
(PLD 1975 Lahore 521), observed as under:- "When a police officer is investigating a case, he cannot act arbitrarily, capriciously and whimsically. He is as much bound by law as any other person and his actions are not warranted by law. They can be declared as without lawful authority. He takes his authority to investigate under the Code of Criminal Procedure, the Police Act and the Rules made there under. He cannot summon a witness just by verbal orders and ask him to be present before him or in the police station. The law has taken care of such a situation and has ensured that the persons may not be harassed by the police officers. A police officer has to observe the Police Rules strictly otherwise he becomes liable for damages to the person who may be subjected by him to any illegal act."
7. It was further held by this Court in another case 'Maqbool Ahmad v. Station House Officer, etc'
(1999 P.Cr.LJ 1198) that an accused can be summoned by the Investigating Officer under Section 160 Cr.P.C. even if he was enjoying the concession of pre-arrest bail, because he was bound to do so under Rule 25.2 of Police Rules, 1934 (Volume III). I think it appropriate to reproduce the relevant portion of the judgment referred supra, as under:- "---Sc.160, 161 & 162---Police Rules, 1934, R.25.2---Investigation by police---Summoning of accused---Object-- Duty of Police Officer was to summon accused even if he was enjoying concessional pre-arrest bail and it was not liability of accused to go himself to police to join investigation-- Investigating Officer was also bound under R.25.2 of Police Rules, 1934, to summon witnesses and accused-- Wisdom behind that was to record version of accused so that Investigating Officer could give his final verdict after verifying divergent comments of parties and after discovering actual facts of case."
8. This Court in the judgment supra also commented upon the discrimination made by the Investigating Officer between the contesting parties and deprecated the same in the following words:- "---SS. 160, 161 & 162---Constitution of Pakistan (1973), Arts. 25(1) & 199---Constitution petition--- Investigation by police---Discrimination between contesting parties---Effect---No discrimination could be made between contesting parties during investigation and if it was made, petitions for transfer of investigation were not only made before superior Police Officers, but Constitutional jurisdiction of High Court could also be invoked when in some cases discretion was used in favour of accused for conclusion of investigation to a logical end---In case oral and documentary material being produced by complainant party was collected during investigation, it was also the right of accused to place his oral as well as written evidence to his version before Investigating Officer."
9. I have placed my reliance mainly on a recent judgment of this Court rendered by full Bench in case titled 'Ch. Fawad Ahmad and others v. Government of the Punjab through Chief Secretary and others' (2024 P.Cr.LJ 1903), wherein it was ruled in clear terms that notice issued under Section 160 of Cr.P.C. cannot be challenged under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, before High Court, unless it is patently illegal, malafide, without jurisdiction, or coram non judice.
10. Crux of the above said discussion and critical analysis of the precedent judgments supra was that the investigating officer, while issuing the notice under Section 160 of Cr.P.C. should exercise his powers reasonably, fairly, justly and for the advancement of the purpose of the enactment, as required by Section 24-A of General Clauses Act, 1897, which reads as under:- "24-A. Excise of power under enactments.--(1) Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment.
(2) The authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be, for issuing the direction and shall provide a copy of the order or, as the case may be the direction to the person affected prejudicially."
11. The Investigating Officer cannot be permitted to exercise his power under Section 160 Cr.P.C. arbitrarily, capriciously, whimsically or in violation of any law. He cannot summon a person, who happened to be not relevant with the matter in order to harass him/her otherwise than in due course of law. In case he commits any illegality, he may be made answerable before the law.
12. In the case in hand specific and clear cut allegation was leveled by respondent No.4 (Muhammad Azeem) against the petitioner, lady constable to the effect that she received Rs.40,00,000/- from him for the recruitment of his nephew and niece in police department and on scrutiny an amount of rupees 2.9 million was found to have been transferred in to the bank account of petitioner from respondent No.4. Joining of the petitioner in the inquiry was essential to dig out the true facts. Since the petitioner happened to be a person complained against, as such the inquiry officer was supposed, rather bound to issue impugned notice to petitioner to enable her to explain her position. Truthfulness or falsehood of the allegations leveled by respondent No.4 or malafide or ill will, if any, on his part cannot be ascertained without joining the petitioner and all the concerned in the inquiry and making through probe.
13. At this preliminary stage it cannot be considered that the impugned notice issued to petitioner by Anti-Corruption Establishment was illegal, unlawful, arbitrary, capricious or whimsical, or suffering from malice in law or malice in fact or barred by any law, as such the present petition cannot be allowed, hence dismissed.
14. While parting with this judgment, it is needless to observe that petitioner has came up with a specific plea, as such inquiry officer, whosoever may be, is required to bring on record her version providing her proper and complete opportunity of audience, receiving her oral as well as documentary evidence and then to disposed of the matter strictly in accordance with law at the earliest without making any discrimination between both the parties.
Copy of this order be also transmitted to respondent No.2 (Director Anti-Corruption Establishment, Sheikhupura), who shall supervise the matter and ensure the compliance in each and every respect.