This Criminal Miscellaneous Petition has been filed by Muhammad Iqbal and Munir Muhammad petitioners for quashment of proceedings on the basis of a complaint lodged by Umar Daraz, respondent No.2 before the learned Special Judge, Anti-Corruption, N.-W.F.P., Peshawar under section 409/420/ 468/471/34, P.P.C. Read ;with section 5(2) of the Prevention of Corruption Act, 1947.
2. The Prosecution Agency of the Anti-Corruption Establishment was set in motion when a report was lodged by Umar Daraz complainant, respondent No.2, in Anti-Corruption Establishment, D.I.
Khan vide F.I.R. No.3 dated 15-5-1989 under section 409/420/468/471, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, wherein it was stated that the complainant was serving in Wood Working Centre, D.I. Khan as a Machine Operator for the last about 8 years and he was also President of. Mazdoor' Union of the said Centre. He came to know that Muhammad Iqbal, Assistant Accounts Manager of the said Centre had received an advance loan of Rs.3,000 in consequence of a fake and bogus application on behalf of the complainant in February, 1989. The relevant record was taken into custody by the Anti-Corruption Establishment and specimen signatures of the complainant instead of accused petitioner were also taken and sent to Forensic Science Laboratory, Peshawar for opinion, but the report in this connection was received in negative. The Handwriting Expert requested the local Anti-- Corruption staff to submit more handwriting specimens of the complainant to reach a correct conclusion but they did not do so due to unknown reasons and the Anti-Corruption staff on its own dropped the investigation of the case and submitted a complaint under section 182, P.P.C. Against the complainant Umer Daraz. On 1-4- 1991 the complainant submitted another complaint to the Sessions Judge, with the powers of Judge, Anti-Corruption, D.I. Khan, who observed: "Complainant in person present, heard and complaint perused. The same reveals that complainant has filed complaint under section 409/420/468/471/34, P.P.C. Read with section 5(2), P.C. Act which offence is in the exclusive jurisdiction of Special Judge; Anti-Corruption, N.-W.F.P., Peshawar, therefore, the complaint be returned to complainant for presentation before the proper forum."
3. Thereafter the complaint was filed before the learned Special Judge, Anti-Corruption, N: W.F.P. , Peshawar on 25-4-1991, who sent the same for inquiry to the learned AC/SDM, D.I. Khan vide Letter No.44/JAC (Provl.) dated 23-9-1991.
4. Vide registered A.D. Letter No.236/ACD dated 20-5-1992, the learned S.D.M., D.I. Khan submitted his inquiry report, stating therein that Munir Muhammad petitioner No.2 is the Project Manager and Muhammad Iqbal, petitioner No. 1 is the Assistant Manager (Accounts) of the Wood Working Centre, D.I. Khan. Respondent No. 2 Umar Daraz is working in the Centre as Machine Operator and had been a President of the `Mazdoor' Union of the Centre and at present he is the General Secretary of the said Union. The petitioners in connivance with each other had planned to remove respondent No.2 Umar Daraz from the Centre and concocted a false and fabricated case for withdrawal of a sum of Rs.3,000 as advance from Centre as loan and when asked to refund this amount, respondent No.2 refused to refund it. The Inquiry Officer has stated in his report that the fact is that no amount was taken as an advance by respondent No. 2 and he was right enough to refuse the refund of an amount which he had never taken. The local Anti-Corruption staff on his own dropped the investigation of the case without any proper orders from the competent authority and submitted a complaint under section 182, P.P.C. Against respondent No. 2 to the Court of Illaqa Magistrate for trial. He reported that according to his information, accused Muhammad Iqbal, petitioner No. 1, has already withdrawn a huge amount from the Centre without any prior permission and time and again he has been warned departmentally in this behalf but he has made the Centre his own State at the risk of accused Munir Muhammad, petitioner No.2. Due to malpractices of petitioner No. 1 a huge amount of the Centre had been misappropriated and now he has resigned from the Centre.
Despite the fact that the complaint of respondent No. 2 pending decision in a competent Court of law, the Centre has recovered the so-called advance of Rs.3,000 from respondent No.2 Umar Daraz under the orders of the petitioners through instalments from his monthly salary, but the petitioners are still insisting to make respondent No.2 a scapegoat and are teasing him through different means. In the end of his report, the Inquiry Officer has suggested that: "That from the material put forth so far and discussed above, I am of the view that prima facie a case of the offence mentioned in the headings of the complaint has been made out against the accused who may be tried according to law."
5. After submitting the report of the Inquiry Officer, the petitioners were bound down by the Special Judge, Anti-Corruption, N.-W.F.P., Peshawar and directed them to furnish bail bonds in the sum of Rs.50,000 with two sureties to his satisfaction, vide his order dated 19-10-1992. Thereafter the petitioners have come up to this Court on 1-12-1992 for quashment of the proceedings against them pending decision in the Court of learned Special Judge, Anti --Corruption, N.-W.F.P., Peshawar, with the Quashment Petition in hand.
6. I have heard the learned counsel for the parties and sifted the record of the case thoroughly with their assistance.
7. The learned counsel for the petitioners raised two-fold objections with regard to the complaint filed by respondent No. 2. Firstly, he contended that the recourse had by the trial Court i.e. By the Special Judge, Anti-Corruption by taking cognizance of the complaint and sending it to the S.D.M./Magistrate for inquiry is not warranted under the law and by further elaborating this point contended that there is a special agency for the investigation of such like cases i.e. The Anti- Corruption establishment constituted under the West Pakistan Anti-Corruption Establishment Ordinance and the investigation should be done by it, and secondly, he submitted that in such like cases the sanction of the proper authority for the trial of the accused is required which is lacking in the instant case. I do feel that his both objections are untenable and if a recourse is made to the relevant provisions of law, then one can see that the course adopted by the Special Judge, Anti- Corruption on taking cognizance of the complaint is correct acid in consonance with the provisions of the relevant A law. According to section 4 of the Pakistan Criminal Law (Amendment) Act, 1958 (hereinafter called as the Act), empowering the Special Judge to take cognizance of the offence and upon receiving a complaint of fact which constitute such an offence or upon a report and writing of such fact by any police officer. According to section 6 of the Act which prescribes the procedure in trial of cases and powers of Special Judges and in subsection (1) providing therein that the provisions of the Cr.P.C. 1898 except those of Chapter XXXVIII of the Cr.P.C. (relating to the Public Prosecutor with regard to their appointments, function and powers) shall in so far as they are not inconsistent with this Act apply to the proceedings of the Court of a Special Judge for the purposes of the said provisions the Court of a Special Judge shall be deemed to be a Court of Session; .. ...According to subsection (3) of the Act ibid the provisions of Chapter XX of the Cr.P.C., 1898 (relating to the trial of cases by the Magistrates) shall apply to trial of cases under this Act in so far as they are not inconsistent with the provisions of this Act. The cumulative effect of the provisions mentioned above of the Act is that the Special Judge can take cognizance on the complaint filed before it with respect to an offence mentioned therein and its sending to the S.D.M.
For inquiry and submitting his report is not inconsistent with any provisions of the law applicable thereto and e even such an inquiry is not a ground by itself to vitiate the trial if otherwise that (trial) is in accordance with law. The Magistrate acting under the Cr.P.C. Can for the purpose of ascertaining the truth or falsity of the contents of a complaint hold inquiry into the case himself or direct the same to be held by any other Magistrate or police officer and thus the provisions of the Cr.P.C. Would automatically be available and by doing so no procedural inconsistency would take place with what is provided under the Pakistan Criminal Law (Amendment) Act, 1958. As regards his second contention that unless the sanction of the competent authority has been obtained the trial of the accused cannot be conducted also does not hold the field. According to section 6(5) the sanction of the authority of the prosecution is necessary and according to first proviso to the said subsection if the complaint or the report is not accompanied by such sanction, then the Court will ask the concerned authority for according sanction and if the sanction neither received nor refused within 60 days of the receipt of the letter, then such sanction shall be deemed to have been duly accorded and this provision of law along with section 197 of the Cr.P.C. On the same point was declared repugnant to Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) by the Federal Shariat Court and it was desired that the steps shall be taken for the amendment of the above laws before the Ist of January, 1990 failing which the provisions requiring the previous sanction of the authority shall cease to have effect. (PLD 1989 FSC 84). This view was re-affirmed by the Shariat Appellate Bench of the Supreme Court with the only modification of extending the abovementioned period up to 30-6-92 and it was held that failing which these provisions of law will cease to have effect from 30-6-1992 (PLD 1992 SC 72). Though the sanction provision will have cease to effect from 30-6-1992, had not been the position, as stated above, even then the previous sanction is not a condition precedent for initiating proceeding in the Court in which case the Court will ask for the sanction and if the sanction was not accorded or not refused within 60 days, then it will be deemed that the sanction has been accorded and which stage in the present case has not still reached.
8. Now having the case with the abovementioned background and the scope and intent of section 561-A, Cr.P.C. For quashment of criminal proceedings will have to be seen and for this it will not be out of place to reproduce section 561-A, Cr.P.C which reads: "561-A. Saving of inherent power of High Court.--Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
Section 561-A has been interpreted in Mst. Altaf Bibi---s case (PLD 1972 Lahore 121), that: "It is not the intention of the law that in exercise of power under section 561-A, Cr.P.C. The normal course of trial in subordinate Courts established by law should be diverted. If the allegations made against the persons are kept in mind, the test laid down by the Supreme Court from time to time do not permit any interference at this stage by the High Court under section 561-A, Cr.P.C."
The august Supreme Court observed in Ghulam Muhammad v. Muzammal Khan (PLD 1967 SC 317, citation (c)): "High Court should be extremely reluctant to interfere where charge of a prima facie case has been framed on evidence or accused summoned."
At page 319 of the same authority it has been observed: "Held, that the reasons given by the High Court were by no means, cogent. If, in fact, an offence had been committed justice required that it should be enquired into and tried. If the respondents are not guilty they have a right to be declared as honourably acquitted by a competent Court. On the other hand, if the evidence against the respondents discloses a prima case then justice clearly requires that the trial should proceed according to law."
For what has been discussed above, this Quashment Petition fails which is hereby dismissed and the proceedings before the learned Special Judge, Anti-Corruption shall continue.