SHAFIUR RAHMAN, J: --The petitioners seek leave to appeal against the judgment of the Intra- Court Appeal Bench of the Lahore High Court dated 23-12-1992 whereby two separate appeals filed by them on the same subject were dismissed.
2. The factual background leading to these petitions is that Malik Salahuddin Dogar (petitioner No.1 in C.P.L.A. 104-L/93 and petitioner No.2 in C.P.L.A., 103-L/93), ex-Mayor Municipal Corporation, Multan and Malik Shaukat Ali Dogar (petitioner No.1 in C.P.LA. No.103-L/93) who followed him as Mayor were entrusted and utilized substantial amounts allocated under Tameer-e-Wattan Programme.
Complaints from different quarters were received with regard to the utilization of funds by them which were being looked into by various authorities like the Additional Director, Anti--Corruption, Establishment, Multan, the Public Accounts Committee, the Executive Engineer, Local Government and Rural Development Department. Two Constitution Petitions were filed; one (W.P. No. 1655 of 1992) by Ghulam Qasim Khan Khakwani, Ghulam Hussain Khan Khizar, Muhammad Iqbal Khan Khakwani, Ghulam Yazdani Gilani, Abdul Mohsin Shaheen, Sheikh Muhammad 'Umar, Sheikh Yadullah, Sheikh Abdul Naeem, Bashir Ahmad Shujra, Syed Maqbool Hussain Bukhari, Muhammad Yasin Khan Tareen, Anis Ahmed Ansari, Malik Muhammad Jaffar Wadhak and Muhammad Zafarullah Babar, and the other (W.P. No.1656 of 1992) by only seven out of the above fourteen Councillors namely, Ghulam Hussain Khan Khizar, Sheikh Muhammad Umar, Syed Maqboo! Bukhari, Muhammad Yasin Khan Tareen, Anis Ahmed Ansari, Bashir Ahmed Shujra and Muhammad Zafarullah Babar, seeking registration of criminal cases against the petitioners for alleged embezzlement of funds amounting to Rs.1,25,00,000. Comments were called from the Anti- Corruption, Establishment and finally, a learned Judge of the High Court on 28-10-1992 disposed of the two Constitution Petitions giving the following directions:--- "Therefore, this Court directs the Additional Director, Anti --Corruption, Multan (respondent No.1) to register a case against respondents Nos.2, to 16 under section 409, P.P.C. Read with section 5 of the Prevention of Corruption Act, 1947, and, after sending a copy thereof 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 Hon'ble Senior Judge, Incharge of Multan Bench."
While concluding the judgment, the learned Judge made the following observations with regard to the affairs:--- "Before parting with this order, I would like to observe that despite the fact that 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 can they allow him to conduct investigation against them and their associates, especially when they allegedly have the support of the high-ups 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 mal practices. 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.
With the above directions/observations the writ petition is disposed of.
This judgment was consolidated one and disposed of both the Constitution Petitions.
3. The Appeal Bench dismissed the appeals observing as hereunder:--- "We hold a definite view, in the peculiar facts and circumstances of this case that a huge amount of Rs.25,00,000 and Rs.1,00,00,000 was admittedly given by the Government to Malik Shaukat Ali Dogar and Malik Salah-ud-Din Dogar, respectively, for the execution of Tameer-e-Watan Programme being public representatives. This. Being so, it is needless to observe that the public money was to be utilized for the welfare program in the constituencies of the appellants Nos.1 and 2 strictly according to law. The ;allegations in brief are that the amount in question was never spent but was totally embezzled by the appellants with the active connivance of the local contractors of the Corporation.-The allegations on the face of record are indeed very serious in nature. It was, therefore, their legal obligation to have given a complete account to the Government. It appears that they have still to do so."
With regard to the observations of the learned Judge in the concluding porn reproduced above in paragraph 2 of this judgment, the appeal Bench had the following observations to make:--- "The objection that the observations of the learned Single Judge in the end of ~ his judgment will prejudice the case of the appellants is not warranted in law because they are general is nature.
The Director, Anti-Corruption shall proceed strictly according to law in the matter of collection of evidence from both sides. With these remarks, there is no substance in the appeals which are hereby dismissed leaving the parties to bear their own costs."
Another learned Judge of the Appeal Bench with regard to these remarks observed as hereunder:- -- "As for observations in the order of the learned Single Judge, which the learned counsel termed "stigmatic invectives" and absence of moderation, suffice it to say that those observations were in the nature of tentative assessm ent and did not, nor, should deflect future course of fair investigation or finally attach a stigma to the persons proceeded against till a final verdict regarding them come from a competent forum."
4 .When these Petitions came up for hearing before us on 21-7-1993, following the law laid down in Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad v. Zafar Awan, Advocate, High Covet PLD 1992 SC 72 we held that the directions to register the case where the allegations showed the commission of cognizable offence even by public servant were unexceptionable and were within competence of A the High Covet in Constitutional jurisdiction. As regards the abiding control over the investigation which was sought to be exercised by mandating periodical reports to be submitted on the progress of investigation, we were in doubt in view of the precedent law laid down by this Court. To that limited extent, we had directed notice to issue to the respondents "whether such supervision and control over investigation and directions pertaining to it is permissible in view of the observations made by this Court in Shahnaz Begum v. The Hon'ble Judges of the High Covet of Sindh and Balochistan and another PLD 1971 SC 677".
5. In response to owner notice, Syed Niaz Ali Shah, Additional Advocate --General has appeared and submitted that though the registration of the case on the directions of the High Court could not be seriously objected to, the continued control over investigation before challan was submitted was something which the law and the precedent of this Court do not permit. We have converted these petitions into appeals.
6. So far as the question of registration of the case without prior sanction of the competent authority is concerned, in the case of Emperor v. Khawaja Nazir Ahmad (AIR 1955 Privy Council 18) the law laid own was that the prohibition contained in Section 197, Cr.P.C. Against a prosecution without the necessary sanction is against the action of taking of cognizance by the Court. It does not prevent, preclude or otherwise interfere with the power of the police in the matter of registration of the case and the investigation thereof. The sanction required under section 197, Cr.P.C. Is even otherwise not required in view of ow decision in the case of Zafar Awan PLD 1992 SC 72.
7. As regards the nature of the continued control exercised by the Covet over the investigation, it is apparent from the orders passed on 16-6-1993 and 13-7-1993. On 16-6-1993, the learned Judge passed the following order:--- "Mr. Zafar Iqbal, Additional Director, And-Corruption says that he is investigating the case earnestly and is likely to finalize it within the shortest possible time. He is directed to finalize the investigation by the end of this month and inform this Court on 4-7-1993."
On 4-7-1993 the case was ordered to be fixed before the learned judge who had already dealt with the matter on 13-7-1993. On 13-7-1993, the following order was passed:--- The D.S.P. States that out of 21 accused, only 2 have been arrested so far and 6 accused have obtained interim pre-arrest bail from the learned Special Judge, Anti-Corruption and the rest have not so far been arrested. He adds that the challan is going to be submitted and the requisite sanction has been accorded by the concerned authority for prosecution.
When the most of the accused have not been arrested, what is the use of submitting challan to the Covet concerned. I am not satisfied with the performance of the Anti-Corruption Department in this case. Notice be issued to the Additional Director, Anti-Corruption, Multan to appear on 26-9-1993.
And show cause as to why the adverse observations about his efficiency and performance should not be passed by this Court and the same should be placed on his personal file."
8. In the case of the Khawaja Nazir Ahmad (AIR 1945 Privy Council page 18) a word of caution to the Covets in the matter of interfering with the police investigation before submission of the challan was put in the following words:-__ .
"In their Lordships' opinion, however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, a their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always of course, subject to the right of the Court to intervene in an appropriate case when moved under S.491, Criminal Procedure Code, to give directions in the nature of habeas corpus. In such a case as the present, however the Court's functions begin when a charge is preferred before it and not until then."
9.W e consider that the continued control over the investigation exercised by the Court as in this case was prejudicial to the accused and detrimental to the fairness of the procedure apart from being without jurisdiction.
10. The learned Judge seized of the case IS ordinarily free to form his own t views about the prevailing evils in the country and to suggest his own remedies but it is of utmost importance that in the process widespread, general, non--specific condemnation of the established institutions should not take place, nor ~ should individuals be targetted or a feeling. Of despondency or helplessness aggravated from such a level and such a quarter which is looked upon for its balance, restraint, wisdom, ability to guide and control.
11 . In the circumstances, we find that the concluding para. Of the impugned judgment of the High Court, which has been reproduced above in paragraph 2 of this judgment, should not have been recorded and should be exercised from the judgment. We order accordingly. The result is that the appeals are partly allowed, the order passed by the High Court calling for periodical reports about the progress of the investigation is set aside and the portion reproduced in para 2 of hid jugement is exercised from the judgement of High Court.