The learned Assistant Advocate-General has no objection to the admission of this writ petition to regular hearing. Therefore, this writ petition is dismissed.
2. The learned counsel for the petitioner and learned Assistant Advocate-General request that this writ petition may be heard today as they are ready for arguments. Let the arguments be heard.
Khalid Maqsood petitioner has invoked the constitutional jurisdiction of this Court to assail the validity of the orders passed by the Assistant Commissioner, Jaranwala' District Judge, Faisalabad; respondent No, 1 on 13th of June, 1983 and 14th June, 1983 directing the City Magistrate, Jaranwala, respondent No, 2 to hold an inquiry into the complaints submitted against him containing allegations of commission of offences by him under section 5 of the Prevention of Corruption Act, 1947 and section 506, P. P. C.
2. In June, 1983, the petitioner was serving as Sub-Divisional Officer, Electricity, WAPDA, at Jaranwala. On 13th of June, 1983 one Nusrat Mahmood submitted a complaint to the Assistant Commissioner, Jaranwala respondent No, 1 alleging that the petitioner had demanded illegal gratification for restoring electric supply to his premises which had earlier been disconnected on account of non-payment of electricity bills and that when his servant resented to the illegal demand,. The petitioner threatened him with dire consequences. The Assistant Commissioner sent this complaint to the City Magistrate for a probe and necessary action. On 14th of June, 1983 another complaint was sent to the Assistant Commissioner, Jaranwala by the office-bearers of a housing society known as Abuzar Colony Society containing allegations against the petitioner that he had demanded illegal gratification for sanctioning a new electric connection and threatened that if anybody complained against him, he would have to bear consequences for the same. This complaint too was marked by the Assistant Commissioner to the City Magistrate for a judicial probe vide his order dated 14th of June, 1983.
3. In compliance with the above orders, the City Magistrate initiated an inquiry in the allegations levelled in the complaints. The petitioner has impugned the orders of the Assistant Commissioner and the inquiry by the City Magistrate, Jaranwala, on the ground that the allegations made in the complaints disclosed the commission of the offence which is covered by the Pakistan Criminal Law (Amendment) Act, 1958, and is exclusively triable by a Special Judge and, therefore, the jurisdiction assumed by the respondents is wholly without lawful authority.
4. I have heard the learned counsel for the petitioner and the learned Assistant Advocate-General on behalf of the respondents. The complaints submitted against the petitioner contained allegations of commission of two offences by him, one under section 5 of the Prevention of Corruption Act, 1947 and other under section 506, P. P. C. The learned Assistant Advocate-General has conceded that since the Offence under section 5 of the Prevention of Corruption Act, 1947, is exclusively cognizable by a Special Judge, Anti-Corruption, the A. C., Jaranwala, was not competent under section 202, Cr. P. C. To entertain the complaints and direct an inquiry into them by the Magistrate in respect of this offence and, therefore, the impugned orders of the Assistant Commissioner and the consequent inquiry by the Magistrate are without lawful authority and illegal to this extent. He, however, contends that on account of this partial illegality the whole of the proceedings being taken by the Magistrate cannot be declared unlawful as the offence under section 506, P. P. C. Is cognizable by the Assistant Commissioner and he can direct an inquiry into the complaints in respect thereof by the Magistrate. In support of his contention, he relies on Brig.
(Retd.) F. B. Ali and another v. The State , wherein it has been held that there can be no doubt that if a Tribunal, or a Court acts wholly without jurisdiction, its action would be a nullity but it does nOt necessarily follow from this that even what it does with jurisdiction will also be rendered void, because, the Tribunal or Court has at the same time done something which was without jurisdiction. If it is possible to separate what has been done with jurisdiction from that which has been done without jurisdiction without any prejudice to anyone, then what is done with jurisdiction cannot be invalidated or declared null and void, at least, in the writ jurisdiction. The above principle was followed in the subsequent authority reported as Muhammad Din and others v. The State .
5. So far as the offence under section 506, P. P. C. Is concerned, the learned counsel for the petitioner agrees that the same is cognizable by the Assistant Commissioner and he was competent to direct an inquiry into this offence by the Magistrate. However, his grievance is that the Magistrate is compelling the petitioner to associate with the Magistrate is illegal. This contention is unassailable. The association of a person complained against in a preliminary inquiry under section 202, Cr. P. C. Is not premissible by law. In this contention, reliance is placed on Abdul Haleem v. Baja A Qurban Hussain and others and Mst. Allah Bandi v. Dr. Arshad Malik, D. S. C., District Magistrate, Sargodha and another .
6. In view of the above, this writ petition is accepted partly and it is declared that the inquiry under section 202, Cr. P. C. In the complaints submitted against the petitioner to the extent of the allegations disclosing the commission of an offence under section 5 of the Prevention of Corruption Act, 1947, is without lawful authority and illegal. The City Magistrate respondent No, 2, may proceed with the inquiry into the complaints so far as the allegations disclosing the commission of the offence under section 506, P. P. C. Are concerned. However, he shall not compel the petitioner to associate with the inquiry. 1 2 3 4