Through this Constitutional petition registration of case F.I.R. No.319 of 1993, dated 23-9-1993 under section 218/468/471, P.P.C. Read with section 5 of the Prevention of Corruption Act II of 1947 at Police Station Old Kotwali, Multan, has been challenged.
2. The facts forming the background of this case are that Muhammad Chiragh, S.I. On receipt of information that Zulfiqar son of Ghulam Muhammad was running working-still in his mango garden and was busy day and night in selling of the illicit liquor, sent a constable namely Gulzar Ahmad with a tainted currency of Rs.50 to purchase liquor from the said Zulfiqar. The constable purchased one bottle of illicit liquor and handed over the tainted money to Zulfiqar Ahmad.
Subsequently the raiding party conducted the raid and captured two accused Zulfiqar Ahmad son of Ghulam Muhammad and Muhammad Arif son of Khurshid Ali, who were busy in manufacturing the illicit liquor. The third person Munir Hussain made his escape good. On search, the tainted currency of Rs.50 was recovered from Zulfiqar Ahmad, accused. The case under Article 3/4 of the Prohibition (Enforcement of Hadd) Order (4 of 1979) was registered at the Police Station Alpa, Multan, on 22-7-1993. Ten ounces of liquor from the purchased bottle of illicit liquor was taken as sample and prepared a parcel. Similarly, a sample of 10 ounces of liquor from the silver pot recovered from the spot, was also taken and trade into a parcel. Both the parcels of samples were sent to the Chemical Examiner, Multan, for analysis. The Chemical Examiner, Multan reported as under:--- "Both the above bottles contained aqua anissi according to British formacopia used for medicines."
On receipt of the above negative report, the matter was taken up with the District Magistrate, Multan, who deputed a Magistrate for proceedings. The learned Magistrate under, his personal supervision completed the re-sampling proceedings and sent the parcels to the Chemical Examiner, Lahore. On receipt of the result from the Chemical Examiner, Lahore, the District Magistrate, vide his Letter No. 1941-GB/RDM, dated 13-9-1993, asked the Senior Superintendent of Police, Multan, .To initiate prosecution against the Chemical Examiner, Multan, for misuse of power, furnishing false information to the police and accepting illegal gratification. As a result, case F.I.R.
No..319, dated 23-9-1993 under section 218/468/471, P.P.C. Read with section 5 of the Prevention of Corruption Act (II of 1947) was registered on the report of Mulazam Hussain Inspector/S.H.O., Police Station Alpa, at Police Station Old Kotwali, which has been challenged through this Constitutional petition.
3. On 27-4-1994 a copy of the writ petition was handed over to Law Officer to assist the Court on the points involved after seeking instructions from respondents. On 31-5-1994 after receiving the parawise comments the writ petition was admitted for regular hearing. Rejoinder on behalf of the petitioners in reply to parawise comments of respondent No. 3. Is also available on the file.
4. 'It has been argued by the learned counsel for the petitioners that the Legislature has promulgated Prevention of Corruption Act and the Government of the Punjab has promulgated Punjab Anti-Corruption Establishment Rules, 1985 for carrying out the investigation and inquire into the offence mentioned in the Prevention of Corruption Act, 1947, and for this purpose West Pakistan Anti-Corruption Establishment Ordinance is promulgated to fulfil the requirements of Act and Rules framed there under, alongwith the Prevention of Corruption Act, a Schedule has been given wherein certain provisions of Pakistan Penal Code has been notified to be the scheduled offences.
These scheduled offences are to be investigated, inquired and tried by a special hierarchy mentioned in the Act; that under rule 8 of the Punjab Anti-Corruption Establishment Rules, 1985, registration of the criminal case under the provisions of Corruption Act or under such section which has been declared to be the scheduled offence, the case ought to be registered under the offences mentioned above, under the Anti-Corruption Act against the public servant only on the basis of a written order of the officer of Establishment not below the rank of Deputy Inspector Anti- Corruption. He further argued that the case in hand is not a raid case, therefore, there was no question of registration of case without any inquiry and could not be registered without the permission of competent officer mentioned in the Statute; that before registration of case under the scheduled offences, there is mandatory provisions about conducting preliminary inquiry by the Anti-Corruption Establishment, which in this case has ever not been conducted.
5. I have given my anxious consideration to the facts of the case and perused all the relevant provisions of the Ordinance. Under Order 3 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961, the Government has been empowered to establish Anti-Corruption Establishment.
The sections of the P.P.C. Under which the impugned P.I.R. Has been registered, are the scheduled offences. As- such, these are to be investigated and tried in accordance with the provisions of the said Ordinance and the Rules framed there under. Rule 6 of the Punjab Anti-Corruption Rules, 1985 provides that preliminary inquiries and investigations shall be initiated by the Establishment against the public servants on complaints received from Government, Head of Departments or other reliable sources. Under Rule 7, Deputy Director or an officer of or above his rank has been empowered to initiate preliminary inquiries in order to ascertain the identity of the complainant or informer and genuineness of the complaint/ information. Rule 8 of the Punjab Anti-Corruption Establishment Rules, 1985 deals with the registration of cases against public servants is intensively and expressively involved the points raised in this Constitutional petition is reproduced hereunder: "8. Registration of cases.---(1) Criminal cases shall be registered by the Establishment under Prevention of Corruption Act, 1947 and under such sections of the Pakistan Penal Code, as have been set forth in the Schedule to the Ordinance.
(2) Criminal cases shall be registered against accused public servants under the written orders of officers of Establishment mentioned below:---
(a) Public servants in BPS 1---16 Not below a Deputy Director.
(b)Public servants in BPS 17 not below an Additional and 18 Director.
(c)Public servants in BPS 19 and Director. above: Provided that no case shall however be registered by the Director against public servants of the status of Commissioner, Secretary to Provincial Government, Heads of Attached Departments and, other officers of BPS-20 and above without the prior permission of the Governor: Provided further that for those public servants mentioned in the first proviso who are in BPS-19, such permission shall be accorded by the Chief Secretary: Provided further that no prior permission shall be required for registration of a case against a public servant caught as a result of trap arranged by the Establishment under the supervision of a Magistrate, in the act of committing an offence specified in the Schedule to the Ordinance. In such case, a report shall immediately be made to the Chief Secretary, the Administrative Secretary and immediate superior of the public servant concerned if he is in BPS-16 and above and to the appointing authority and immediate superior if the public servant is in BPS-15 and below.
(3) If the competent Authority under sub-rule (2) decides not to register a case, he shall record reasons therefore.
As mentioned supra the Rule also provides that a criminal case shall be registered by the Establishment under the Prevention of Corruption Act, 1947 and under such sections of the Pakistan Penal Code as have been set forth in the Schedule to the Ordinance. The petitioners are undoubtedly public servants. A close study of the relevant provisions of law, as discussed above, leaves no doubt that the case against the petitioners could not have been registered except under the orders of the officers mentioned in Rule 8(2). Apart from the above rule, it reveals from the plain reading of the impugned F.I.R. That the case against the petitioners was registered merely on presumptions and suspicions. The direction of the District Magistrate, Multan, for registration of the case against the petitioners was illegal, unlawful and nullity in the eyes of law and subsequent registration of case through F.I.R. No.319 of 1993 at P.S. Old Kotwali, Multan, was also illegal being superstructure raised on an illegal direction. S.H.O., Police Station Old Kotwali, Multan. Was absolutely not authorized under the law to register the abovesaid case and investigate the same.
6. Learned Additional Advocate-General, Punjab, has submitted that registration of case F.I.R. No.319 of 1993 under section 218/468/471, P.P.C. Read with section 5 of the Prevention of Corruption Act II of 1947 is in accordance with the provisions of section 154 of Cr.P.C. He has added that it is not binding for the local police to refer the matter to Anti-Corruption Establishment because according to section 8 of Anti-Corruption Establishment Rules, 1985, the Anti-Corruption laws are in addition to and in derogation of the existing/general laws and only restriction in cases against public servants triable by the Special Judges Central or Provincial is that such cases cannot be investigated by an officer less than the rank of the Inspector without the permission of the Magistrate and sanction for prosecution must be obtained before the trial Court takes its cognizance. He has further added that the special enactments have not prohibited the local police from taking cognizance of the offence committed by any public servant. I do not agree with the contentions of the learned Assistant Advocate-General which appears to be a colourful exercise of interpretation of the Anti- Corruption Establishment Rules, 1985 and section 154 of the Cr.P.C. On the basis that one the sections under which the, impugned F.I.R. Is registered have been declared and notified to be the Scheduled offences then special enactments and the Rules will prevail upon the general Rules..
Moreover, there is hell of distinction between section 154, Cr.P.C. And registration of case regarding- commission of scheduled offences. In the former case the police authorities are statutorily bound to register a case on receipt of information or written application disclosing commission of cognizable offence while in the later case the registration of criminal case is directed after conducting a thorough probe and inquiry into the allegations. I am of the view that on the promulgation of Prevention of Corruption Act, the local/general police is absolutely prohibited to register a criminal case under the C scheduled offences at the ordinary police station. Therefore, whole of the proceedings conducted under the direction of District Magistrate, Multan, are contradictory with the cardinal principles of audi alterm partem and also against the mandatory provisions of the Punjab Anti-Corruption Establishment Rules, 1985.
7. For what has been discussed above, writ petition is accepted and the order of the learned District Magistrate, Multan, dated 13-9-1993 for registration of case and registration of case through F.I.R.
No.319/93 P.S. Old Kotwali, Multan, dated 23-9-1993 are hereby declared to have been passed and registered without lawful authority and of no legal effect and quashed :with no order as to costs.
However, the respondents Nos. 3 and 5 are at liberty to approach Anti-Corruption Establishment Authorities for registration of the case against the petitioners, if they so desire. The Anti-Corruption Establishment Authorities are directed to proceed strictly in accordance with the law, if they are approached for registration of the case against the petitioners. This petition stands disposed accordingly.