' Through this Constitutional petition, Ghulam Hussain Khan Khizar and certain other Members of Municipal Corporation, Multan, seek the directions of this Court to the Additional Director, Anti- Corruption, Multan (respondent No,1), on for the registration of a case against respondents Nos.2 to 17 for the embezzlement of Government money and their prosecution in the Court of competent jurisdiction after the completion of investigation.
' The allegations against the respondents are that Government of the Punjab on 6-11-1991 transferred a sum of rupees one crore by way of special grant to Malik Salah-ud-Din Dogar, M.PA.
Who was the Mayor of Multan Corporation (respondent No,2), for the execution of development scheme under the programme known as `Tameer-e-Wattan' in his Constituency No,PP-160, Multan, which roughly coincides with the limits of Municipal Corporation, Multan, but he, without formulating and executing any scheme worth the name therein, embezzled and misappropriated the entire amount within a short period of less' than two months of its receipt, in collusion with the Officers, Staff and Contractors of Municipal Corporation (respondents Nos.3 to 17).
3. On 30-5-1992, when this writ petition was fixed, a copy thereof was directed to be sent to the Additional Director, Anti-Corruption (respondent No,1) for his parawise comments and he complied with the order. On 26-10-1992 the petitioners filed C.M. No,1011 of 1992 wherein it was, inter alia, complained that respondent No,1 was holding enquiry on the complaint of the Ghulam Hussain Khan Khizar, petitioner as it appeared from his parawise comments, but respondent No,2 who was a sitting M.PA. And his brother was presently the Mayor of the Corporation, were refusing to hand over the relevant record to him and there was apprehension that they might tamper with or destroy the record in order to cover up the embezzlement of huge public funds.
4. Due to the urgency of the matter, notice of the application was directed to be issued to respondents Nos.1 and 2 for today and both of them were directed to appear with record. The learned Assistant Advocate-General was also directed to ensure the service of notice. In response to the notice, respondent No,1 has put in appearance but neither respondent No,2, nor any one else on his behalf, has turned up, nor he has caused the production of record if he himself has not been able to appear for any good reason.
5. Mr. Shafiq Hussain Bokhari, Additional Director Anti-Corruption, Multan (respondent No,1) stated that Ghulam Hussain Khan Khizar petitioner had addressed the application, dated 23-4-1992, to the Chief Minister of the Punjab and had sent a copy thereof to him (respondent No,1) on 24-4-1992 and he, after recording his statement on 15-6-1992, had ordered the enquiry into the allegations of embezzlement of public funds made against the M.PA., the Mayor and others. He further states that for the purpose of conducting enquiry he had constituted an Enquiry Team consisting of Zafar Iqbal, Assistant Director, Anti-Corruption and Circle Officer, Multan, with whom Sub-Engineer of the Department was also subsequently associated. According to him, the Enquiry Committee has not been able to make any headway because the Chief Officer of the Municipal Corporation, Multan (respondent No,3) has sent a note, dated 30-6-1992, initiated by the Office Superintendent and approved by the Mayor, indicating their refusal to hand over the relevant record to the Enquiry Committee for inspection. With reference to the contents of the note, copy of which he has placed on the record of this Court, he submits that as per stand taken by the Corporation, the amount of rupees one crore and 25 lacs was neither the Municipal Funds, nor Government Grant, rather, this amount was provided to Malik Salah-ud-Din Dogar, M.PA. For the development schemes of his Constituency No,PP-160, Multan and the work was executed under his direction. He further explained that it was also stated in the note that so far as the record of this amount was concerned, the said M.PA. Should be contacted as the staff had his instruction not to provide the relevant record to any agency without his permission.
6. Elaborating certain allegations in the writ petition, the learned counsel for the petitioners submits that on 19-11-1991 respondent No,2 had issued five cheques with the aggregate amount of Rs,23 lacs to Muhammad Arshad, Contractor (respondent No,14); on the same day he had issued two cheques with the aggregate amount of Rs,1O lacs to Naveed Kausar, Contractor (respondent No,15); between 27-11-1991 up to 17-12-1991 he had issued 18 cheques with the aggregate amount of Rs,31 lacs to Noor Ahmed, Contractor (respondent No,16); and during the period from 27-11-1991 to 26-12-1991 he had issued nine cheques with the aggregate amount of Rs,34 lacs to Allah Bakhsh, Contractor (respondent No,17); and in this way he had squandered away and misappropriated a sum of Rs,98 lacs. According to him, respondent No,2 had received the public funds on 6-11-1991 and obviously he could not spend this amount within a period of less than two months on any development scheme as no such scheme could be executed so quickly and in doing so he did not even invite any tender nor did he follow the prescribed procedure for spending public money. He contends that the petitioner went on bringing the malpractices of respondent No,.2 and his associates to the notice of higher authorities, including President of Pakistan, Prime Minister of Pakistan and the Chief Minister of the Punjab, for taking legal action against him but no one took notice of it and even respondent No,1, to whom he made a written request for the registration of the case put him off and seeing no alternative, he (the petitioner) has ultimately invoked the Constitutional jurisdiction of this Court in public interest.
7. Though for the registration of a criminal case it is' not necessary to afford the accused a prior opportunity of being heard, yet, in view of the respresentative character of respondent No,2 it was considered proper to afford him an opportunity of explaining his position, but neither he has come forward nor he has sent anyone on his behalf. The present Mayor of the Corporation is said to be his real brother and he is one of the respondents in the connected writ petition of similar nature. He too has not turned up nor he has arranged the production of relevant record despite specific direction of this Court. Mirza Aziz Baig, Advocate who is Standing Counsel for the Corporation, has put in appearance but only to inform this Court in a casual manner the Mayor has left for Lahore.
He says that he has no other instructions. Being a counsel of the Corporation, intimately connected with its affairs, he has been asked to cause the production of relevant record in the Court through the Chief Officer of the Corporation, who is presumably available outside the Court on a watching mission, to enable the Anti-Corruption Department to inspect it but he has failed to do so. His attitude is reprehensible. In these circumstances the complaint of Additional Director, Anti- Corruption, Multan (respondent No,1) does not appear to be incorrect that Malik Salah-ud-Din Dogar, M.PA./formerly Mayor of Multan Corporation, respondent No,2 and his brother Malik Shaukat All Dogar, who is presently Mayor of Multan Corporation (respondent No,1), in the connected writ petition are purposely withholding the record regarding the expenditure of the aforesaid amount, obviously to avoid a probe into the allegations of embezzlement or misappropriation against them and other functionaries of the Corporation, including certain contractors. The funds made available to them by the Provincial Government are public money which they, their associates and subordinates, are bound to account for but they are avoiding to do so and even the senior Government functionaries are expressing their helplessness to raise a little finger against them.
8. During the hearing, Ghulam Hussain Khan Khizar petitioner, addressing the Court himself, has stated that he alongwith a group of the Members of Municipal Corporation, Multan, had requested the Commissioner, Multan Division, who is the Controlling Authority of the Corporation and administrative head of the Division, for taking legal action against the M.PA. And the Mayor for the misappropriation of the said amount but he, with reference to certain instructions of the Government, expressed his inability to take any action against them. If the assertion of the petitioner is correct, I feel constrained to say that the learned Commissioner should not have shifted his responsibility to the Government, of which he is an integral part, and whatever he had allegedly told them could only be a ruse. Being a very senior officer of the Government in the Division, representing it for all intents and purposes within his jurisdiction and wielding immense authority to set things right, it was his duty to effectively intervene in the matter and to impress upon the M.PA. And the Mayor to spend public money in the prescribed and reasonable manner to the satisfaction of all concerned and to account for its expenditure or face the consequences. I am sure, had he adopted this course, they would not have defied him outright or at least the things would not have come to such a pass that a group of agitating Councillors has come to this Court for the redress of their grievances. Despite all this, if they had chosen to defy him, call of his duties demanded that, whatever the risk, he should have firmly dealt with them, irrespective of the pressure, if any, of the highups who too are accountable in the long run for their acts to those who have elected them and also to the Almighty.
9. In the prevailing conditions in the country when there is hue and cry in the rank and file against jobbery, corruption and similar other crimes in every walk of life, especially in official circles, and neither the senior Government functionaries nor the high-ups in the Government are taking any serious notice of such malpractices, and persons like respondent No,2 and his Mayor brother wielding political power in the peculiar administrative and political set up, are openly defying to subject themselves to the process of accountability by refusing even to hand over the record to, the Anti-Corruption Department and have virtually paralysed the enquiry being conducted against them on the complaint of the. Petitioners, this Court has to intervene in the discharge of its Constitutional obligations in public interest. Therefore, in the exercise of its Constitutional jurisdiction, this Court directs the Additional Director, Anti-Corruption, Multan (respondent No,1) to register a case against respondents Nos.2 to 17 under section 409, P.P.C. Read with section 5 of the Prevention of Corruption Act, 1947, and after sending a copy of the F.I.R. To the Deputy Registrar of Multan Bench, take up its investigation personally. He is also directed to send a weekly progress report about the investigation of the case through the Deputy Registrar to this Bench so long as it is on circuit here and thereafter to the Honourable Senior Judge, Incharge of Multan Bench.
10. Before parting with this order, I would like to observe that despite the fact that the Additional Director, Anti-Corruption, Multan (respondent No,1), the senior most officer of the Anti-Corruption Department in this region, has been directed to take up investigation of the case himself, I do not carry high hopes about his effective handling of the investigation and its ultimate outcome, especially in view of the status of the accused and the intransigence that they have already displayed in not allowing him access to the relevant record. If Dogar Brothers can' flagrantly refuse to hand over the record to him, how they can allow him to conduct investigation against them and their associates all especially when they allegedly have the support of the highups in the Government? This is not the problem only in this case, rather, this difficult situation has been arising and shall continue to arise whenever influential persons, having political backing and bureaucratic support, are to be proceeded against for their malpractices. Therefore, either the officers of the status of respondent No,1 and of lower ranks charged with the duty of holding enquiries and conducting investigations against influential persons should be given adequate support and due protection, or some more powerful and independent organisation like Election Commission, both at the Federal and Provincial level, should be set up to tackle with this problem effectively. As a necessary corollary thereto, the status of the Judicial Officers, who are ultimately to try the influential persons charged with the allegations of corruption, shall also have to be raised. Since corruption and jobbery in the services and political circles is the root cause of all ills in the society, it is high time for those.Charged with the duty of running the affairs of the State at the higher level, to devise ways and means to effectively tackle this knotty problem.
11. With the above directions/observations the writ petition is disposed of.