1. This judgment is intended to dispose of the following two Writ Petitions as the identical questions of law and facts are involved therein:
(i) Writ Petition No,5809 of 1997 titled as Muhammad Sharif v. S.H.O., Police Station City, ,Hafizabad, District Hafizabad and 2 others.
(ii) Writ Petition No,5819 of 1997 namely Muhammad Sharif v. S.H.O., Police Station Sukheyki, District Hafizabad and 2 others.
2. 2.Crime Case No,15, dated 12-1-1997 stands registered at Police Station Hafizabad, District Hafizabad under section 161 Pakistan Penal Code and under section 5 of the Prevention of Corruption Act, 1947 at the instance of Mr. Sakindar Zulqarnain, Deputy Superintendent of Police/Sub-Divisional Police Officer, Saddar Circle, Hafizabad at the direction of the Superintendent of Police, Hafizabad after the report of inquiry was submitted to him by the aforesaid Deputy Superintendent of Police.
3. According to the recitals of the F.I.R. In connection with the theft of buffalo of Saif Ullah allegation of receipt of an amount of Rs,5,500 as illegal gratification was made against Muhammad Sharif, Head Constable No,8, C.I.A. (petitioner). An inquiry was held wherein the statements of Saifullah applicant, his brother Nasrullah as well as other witnesses were recorded. After the registration of the case the investigation has been started. Writ Petition No,5809 of 1997 has been filed for the quashment of the aforesaid F.I.R.
4. 3.Writ Petition No,5819 of 1997 has been filed for the quashment of F.I.R. No,22, dated 15-1-1997 registered at Police Station Sukheyki, District Hafizabad under section 161/452, Pakistan Penal Code and under section 5 of the Prevention of Corruption Act, 1947 at the instance of Mr. Sakindar Zulqarnain, Deputy Superintendent of Police/Sub-Divisional Police Officer, Saddar Circle, Hafizabad.
5. The allegation was made against Muhammad Sharif, Head Constable (petitioner) that during his posting in C.I.A. He trespassed the house of one Zulfiqar, took into possession his .12 bore gun and registered false criminal case against him and that he had to pay Rs,40,000 to Muhammad Sharif, Head Constable as illegal gratification. The inquiry was held when Mukhtar Ahmed, Commission Agent appeared and stated that he paid an amount of Rs,40,000 through Jahangir and the said Jahangir testified for the payment of Rs,40,000 to Muhammad Sharif petitioner as illegal gratification. After the holding of the inquiry the order for the registration of the aforesaid F.I.R. Was passed by the Superintendent of Police, Hafizabad.
6. 4.The aforesaid both the writ petitions have beer. Filed by Muhammad Sharif, Head Constable (petitioner) for the quashment of each F.I.R. On the grounds that the Deputy Superintendent of Police/Sub-Divisional Police Officer, Saddar Circle, Hafizabad was not competent to initiate and conduct inquiry against him and the Superintendent of Police, Hafizabad had no jurisdiction to pass the order for the registration of both the cases. According to the petitioner the preliminary inquiry could only be conducted at the direction of the Deputy Director, Anti-Corruption and that also by the Anti-Corruption Establishment and that the F.I.R. Could be registered at the relevant Anti-Corruption Establishment and not at the aforesaid Police Stations under the administrative control of the local police. It is maintained that the local police has proceeded in the matter without any legal justification in violation of the rules and that he has been involved due to personal enmity.
7. 5.I have heard the learned counsel for the 'petitioner as well as the learned Assistant Advocate- General and gone through the record before me. Learned counsel for the petitioner referred to Rules 3 to 17 of the Punjab Anti-Corruption Establishment Rules, 1985 wherein the procedure for the initiation of preliminary inquiry against the public servants, registration of cases, arrest of the accused, imparting of information to the Administrative Department regarding his arrest, obtaining sanction for prosecution, prosecution of the accused public servant, traps, dropping of cases or recommending departmental action and the factum of establishment of Police Stations of Anti- Corruption Establishment have been incorporated. According to him all the proceedings conducted by the Deputy Superintendent of Police/Sub-Divisional Police Officer on the respective application of each applicant of both the cases are without jurisdiction. He added that incorporation of section 452 of Pakistan Penal Code in F.I.R. No,22 of 1997 registered at Police Station Sukheyki, District Hafizabad is not justified as the aggrieved person whose house was allegedly trespassed is not the complainant of that F.I.R. On the contrary learned Assistant Advocate-General referred to section 5(2)/5-A of Prevention of Corruption Act, 1947 as well as section 3 read with section 8 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 and laid the emphasis that investigation of offences under section 5(2) of the Prevention of Corruption Act, 1947 could be conducted by the Deputy Superintendent of Police without obtaining the permission from the Magistrate of the First Class as required under section 5-A of Prevention of Corruption Act, 1947 and thus the contention of the learned counsel for the petitioner that the investigation was violative of law is misconceived. He maintained that the provision of section 8 of the West Pakistan Anti-Corruption Ordinance, 1961 has made out that all the provisions of the aforesaid Ordinance, 1961 are in addition to and not in derogation of any other law for the time being in force. He continued that the provisions of Code of Criminal Procedure are applicable to anti-corruption cases and for that matter local police can proceed under section 154 of the Code of Criminal Procedure with regard to the registration of the case at the respective local police station mentioned in the respective F.I.R. Required to be quashed. He added that these are the cases of corruption and on the basis of legal technicalities, it is not proper and fair to quash the F.I.Rs, 6.I, however, agree with the learned counsel for the petitioner. I would express that when law prescribes a particular manner and procedure in which things are required to be done, the same must be done in that way and not otherwise at all. Before proceeding further in the matter it would be proper to reproduce the relevant sections and Rules as under for the sake of convenience so that the controversy stands projected and disposed of in a proper, just and salubrious manner:-- "A Sections 5 and 5-A of Prevention of Corruption Act, 1947:
5. Criminal misconduct.--(1) A public servant is said to commit the offence of criminal misconduct: (a)
8. (b)
9. (c)
(d) if he, by corrupt or illegal means, or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage (or)
(2) Any public servant who commits (or attempts to commit criminal misconduct) shall be punished with imprisonment for a term which may extend to seven years or with fine or with both.
10. 5-A. Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), no officer below the rank of (Inspector) shall investigate any offence punishable under any of the sections of the Pakistan Penal Code (Act XLV of 1860), mentioned in section 3 of any offence punishable under section 5 without an order of a Magistrate of the first class or make an arrest therefor, without a warrant: B Sections 3 and 8 or the West Pakistan Anti-Corruption Establishment Ordinance, 1961: 3.Constitution and powers of Anti-Corruption Establishment.--(1) Notwithstanding anything contained in any other law for the time in force, Government may constitute an establishment to be known as Anti-Corruption Establishment for the investigation of offences set forth in the Schedule, and for holding preliminary inquiries for determining whether such offences shall be investigated or departmental inquiries into the conduct of any public servant concerned in such offences shall be held.
11. 8.Provisions not in derogation of any other law.--The provisions of this Ordinance are in addition to and not in derogation of any other law for the time being in force. C. Rules 3 to 17 of the Punjab Anti- Corruption Establishment Rules, 1985: 3.Area of jurisdiction of ex-officio Deputy Director and Additional Director of.--The area of jurisdiction of ex-officio Deputy Director shall be the district of his posting while that of ex-officio Additional Director shall be over his Department and attached Department in which he shall be assisted by the ex-officio Assistant Directors.
12. 4.The ex-officio Additional Director and ex-officio Deputy Director shall only deal with the category of cases which may be assigned to them by the Government from time to time by notification.
13. 5.--(1) After the preliminary enquiry, if the ex-officio Additional Director or ex-officio Deputy Director finds that---
(a) there is no ground to proceed further in the matter, the proceeding shall be dropped after recording reasons, and the complainant if any, shall be informed;
(b) there are reasonable grounds to proceed further in the matter, he shall refer the case along with the relevant record to the appointing authority of the accused public servant for departmental proceedings under the Efficiency and Discipline Rules.
(2) If the ex-officio Additional Director or ex-officio Deputy Director receives a complaint or gets information through reliable source regarding a serious case which does not fall within the category of the notification issued under rule 4, he shall refer the same to the Director.
(3) If a case is referred under sub-rule (2), the Director after examining the same may return the same to the concerned ex-officio Additional Director, ex-officio Deputy Director who shall deal with the same under these rules.
6. Preliminary enquiries and investigations against public servants.---Preliminary enquiries and investigations shall be initiated by the Establishment against public servants on complaints received from the Government, Heads of Departments or other reliable sources.
14. 7.Initiation of preliminary enquiries against public servants.---A Deputy Director or an officer of or above his rank shall initiate preliminary enquiries in order to ascertain the identity of the complainant or informer and genuineness of the complaint/information: Provided that enquiry against the Commissioners of Di' ions, Secretaries to the Provincial Government, Heads o. Attached Departments and other officers of BPS-20 and above, shall be initiated by the Director with the prior permission of the Governor: Provided further that, for those officers mentioned in the first proviso who are in BPS-19, such permission shall be accorded by the Chief Secretary.
15. 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 and 18.Not below an Additional Director
(c) Public servants in BPS-19 and above:Director 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 a 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 therefor.
16. 9.Arrest.---The accused public servant may be arrested if his arrest becomes unavoidable during investigation, except in the following cases when permission will be accorded by the authority specified below:-- (a)Officers in BPS-18 and 19. Commissioner (b)Commissioners and Secretaries to Government, Heads of Attached Chief Secretary Departments and Of ficers in BPS-20 and above: Provided that no such permission for arrest shall be required after sanction for prosecution has been accorded by the authority prescribed for the purpose under the Criminal Law Amendment Act, 1958; Provided further that no prior permission shall be necessary for the arrest of a public servant caught as a result of trap as mentioned in sub-rule (2) of rule 8.
17. 10.Informing Administrative Department, etc. Regarding registration of a case and arrest.---As soon as may be after registration of a case against a public servant, the Establishment shall inform the Administrative Secretary and immediate superior if the public servant involved is in BPS-16 or above and the appointing authority and immediate superior in case of a public servant in BPS-15 and below, giving gist of allegations upon which the case has been registered. The said authorities shall also be informed immediately after the arrest of the accused public servant.
18. 11.Obtaining sanction for prosecution.---After investigation in cases considered fit for prosecution, the following authorities shall be competent to move for sanction for prosecution required under subsection (5) of section 6 of the Criminal Law Amendment Act, 1958 (XL of 1958):--
(a) Director or Additional Director in cases against public servants up to BPS-18; and
(b) Director in cases against public servants in BPS-19 and above.
19. 12.Sanction for prosecution.--Sanction for prosecution shall be obtained from the authority specified under the Criminal Law Amendment Act, 1958 (Act XL of 1958).
20. 13.Prosecution of the accused public servant.-- On receipt of sanction the accused public servant shall be challaned to Court without any delay and the Authorities mentioned in rule 8 shall be intimated.
21. 14.Traps.-- In all cases of raids, the Deputy Commissioner or in his absence the Additional Deputy Commissioner (General) of the District shall be approached by the officers of the Establishment posted in the district to depute a Magistrate for supervising the raid.
22. 15.Dropping of cases or recommending departmental action.--(1) The following procedure shall be followed for dropping of a case or recommending departmental action:--
(a) On completion of investigation if allegations are not established, the case shall be dropped and intimation to the effect shall be sent to the authorities mentioned in rule 8.
(b) If after investigation it is found that prosecution is not called for but sufficient material is available on record for departmental action, the Establishment shall move the departmental authorities of departmental proceedings under Efficiency and Discipline Rules.
(2) The following Authorities shall decide dropping of cases or departmental action:--
(a) Additional Directors in cases in which public servants up to PBS-17 are involved.
(b) Director in cases in which public servants up to BPS-18 are involved.
(c) Chief Secretary in which officers in BPS-19 and 20 are involved except those mentioned in clause (d) below; and.
(d) Governor in cases involving Commissioners, Administrative Secretaries and officers in BPS-21 and above are involved.
(3) After a decision to take departmental action has been taken under foregoing sub-rule the competent Authority shall initiate departmental proceedings against the accused public servant.
(4) Copies of final reports and summaries of dropped cases shall not be supplied, without the permission of the Director.
(5) When decision to hold departmental enquiry against a public servant is taken, the Establishment shall forward facts of the case, statement of allegations, list of witnesses and documents, if any, to the Authority prescribed under the Efficiency and Discipline Rules.
(6) As soon as the enquiry has been completed and final orders have been passed the result of the same shall be intimated to the Establishment, along with a copy of Enquiry Officer's Report for completion of record.
16. Where Senior Public Servants are involved along with Junior Public Servants.---For the purpose of dropping the case after investigation, or referring it for departmental action or making a move to obtain sanction for prosecution, if more than one public servants are involved, the competent authority for these decisions shall be the one, which is in case of the public servant in the highest BPS.
23. 17.Police Stations of the Establishment.---Cases shall be registered by the Establishment at the Police Station of the Establishment having the jurisdiction."
24. 7.It is the admitted position that section 161 of the Pakistan Penal Code and section 5 of the Prevention of Corruption Act, 1947 are the scheduled offences. It is proper to refer to Article 4 of the Constitution of 1973 at this stage which says," to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen wherever he may be and every other person for the time being within Pakistan". Further, Article 25(1) of the Constitution, 1973 on the subject of equality of citizens provides that all citizens are equal before law and are entitled to equal protection of law. Legally and technically the term "law" given in these Articles means the General Law of the land, Special laws, Rules and Regulations vis-a-vis a citizen. I would glossing over an important aspect of the matter by making the observation which is that an enormous importance that General Law, Substantive or Procedural, is superseded by the Special Law of the same category. Thus, the provisions of the Special Laws towards the anti-corruption measures shall have the preference. The Punjab Anti-Corruption Establishment Rules, 1985, have been enforced later and rather the latest in time, the Rules 8 and 17 of which are relevant and significant/prominent and for that matter shall have the preference with regard to its applicability and attraction towards a matter of the instant nature. According to the said Rules, 1985 whole of the texture in the matter stands altered and changed. The Punjab Anti-Corruption Establishment Rules, 1985 were enforced on 23-5-1985 vide Notification No,SV-13-1-85, dated 23rd May, 1985 published in Gazette Extraordinary, dated 23-5-1985. Practically with the passage of time the provision of section 5-A of the Prevention of Corruption Act, 1947 has become obsolete which is not utilized by the present authorities at the helm of anti-corruption matters who act under the Punjab Anti-Corruption Establishment Rules, 1985. 'The Scheme for reorganization of Anti-Corruption Establishment Rules has been incorporated in clear terms in the Punjab Anti-Corruption Establishment Rules, 1985 wherein one of the salient feature of the Scheme as mentioned is that Deputy Commissioner is made the ex-officio Deputy Director of Anti-Corruption Establishment. The basic idea is to have the Deputy Commissioner dealing with corruption cases at the District level instead of the Circle Officer who is the Inspector of Police only. By making the Deputy Commissioner responsible for Anti-Corruption Establishment duties he has also been made an Officer with added enhanced prestige, respect and authority at the District level. Only the ex-officio Deputy Director of Anti-Corruption who, as expressed above, is non-else than the Deputy Commissioner/Magistrate of the District could pass the order for the registration of the case as he is empowered in the matter under Rules 8 of the Punjab Anti-Corruption Establishment Rules, 1985 reproduced supra. According to the aforesaid section 3 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 the inquiry or investigation of the case under scheduled offences can be conducted by the Anti- Corruption Establishment and not by the local police as rightly pointed out by the learned counsel for the petitioner. At this stage it is relevant to refer to this aspect of the matter that there are watertight compartments of jurisdiction. There are different branches of police, viz. Local police, Central Intelligence Agency, Legal Branch, Anti-Corruption Establishment/Department, Task Force, Highways Police, Motorway Police, Railway Police, Federal Investigation Agency, Traffic Police, Intelligence Police and Anti-Narcotics Force etc etc. If any branch starts working/meddling/interfering according to its whim or desire in the working of the other branch and their actions are approved, I must record and express that there would be administrative chaos in the society leading towards judicial anarchy which is not the intention of law. It would not be out of place to exemplify that if a hurt or theft case cannot be registered at Anti-Corruption Establishment how the cases of scheduled offence(s) mentioned in the Prevention of Corruption Act, 1947 and the Pakistan Criminal Law Amendment Act, 1958 against a public servant can be registered at the aforesaid Police Station City, Hafizabad and Police Station, Sukheyki under the administrative control of the Local Police being headed by Superintendent of Police, Hafizabad who has no concern with the Anti-Corruption Establishment so far as the administrative control is concerned. There is separate administration of the Anti-Corruption Establishment having the separate Provincial Head designated as Director, Anti-Corruption, Punjab, Lahore leading a force of subordinates of all levels incorporated in the Punjab Anti-Corruption Establishment Rules, 1985. The wisdom behind the registration of the anticorruption cases regarding scheduled offences directly at Anti-Corruption Establishment is that the provision of inquiry at the end of the said Establishment before the registration of the case has also been provided and it is simply to save the reputation and honour of the public servant. It may be that in the inquiry he stands exonerated before the registration of the cases and has not to go through the ordeal as the accused of any other case registered with local police which he has to face and against whom the case may be cancelled under section 169, Code of Criminal Procedure or who may be acquitted under section 249-A, Code of Criminal Procedure/265-K, Code of Criminal Procedure or after holding of a full- fledged trial. About the arrest of a public servant there is the aforesaid Rule 9 of the Punjab Anti- Corruption Establishment Rules, 1985. A perusal of the aforesaid rule has made out that some legal restraint has been made on the immediate and forthwith arrest of the public servant except those caught as a result of trap. It has been incorporated as an abundant caution to inculcate confidence in the public servants and to save them from autocratic working of any person in authority who may jump upon them for their arrest. Thus, the persons in authority have been made cautious. This sword hanging on the heads of the civil servants/public servants must be removed and it is the right time to take note of it and to take exception to such type of working of the said Deputy Superintendent of Police of local police. Thus, the very order of the registration of the case and its registration at the local police station not only offends the law of the land the same is also violative of the legal ethics and human rights. Thereafter, on the basis of the aforesaid reasoning and findings the investigation of the case by the local police is transgression of authority being without competence and jurisdiction.
25. 8.It is the proper stage to refer to the ruling Muhammad Afzal and 2 others v. Muhammad Siddique Girwa, Additional Sessions Judge, Gujranwala and 3 others (1992 M LD 311 (Lahore)) according to which the case got registered by an Additional Sessions Judge under section 409/420/466/468/ 218/471/104/167, Pakistan Penal Code and section 5 of the Prevention of Corruption Act, 1947 was quashed on the ground that the direction of the Additional Sessions Judge for registration of case against the accused persons (petitioners) and consequent registration of the said case was also illegal being superstructure raised on an illegal direction by the Additional Sessions Judge and the police was not authorised under the law to register the said case and investigate the same.
26. Consequently the order of the Additional Session Judge for registration of the case under the scheduled offences and its registration by the police were declared to have been passed and registered without lawful authority and of no legal effect and the case was quashed. It would be convenient to reproduce para. 5 of the aforesaid case-law in toto as under:-- "I have examined the said rules along with the provisions of the said Ordinance. Under section 3 of the Ordinance the Government has been empowered to establish Anti-Corruption Establishment.
27. The said sections of the Pakistan Penal Code under which the said F.I.R. Was got registered are scheduled offences. The said offences committed by public servants jointly with other person are to be tried and investigated in accordance with the provisions of the said Ordinance and the rules made thereunder. Rule 6 of the Punjab Anti-Corruption Establishment Rules, 1985 provides that preliminary inquiries and investigations shall be initiated by the Establishment against public servants on complaints received from the Government, Heads of Departments or other reliable sources. Under Rule 7 a 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 said Rules deal with the registration of case against public servants and any other person who commits offences jointly with public servants. This rule provides that criminal cases 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. According to this rule a criminal case shall be registered against public servant under a written order of officer of Establishment mentioned in sub-clauses (a), (b) and (c) of sub-rule (2). The case against the public servant in PBS-1 to 16 according to this rule can be registered under the written orders of an officer not below a Deputy Director and against public servants in PBS-17 and 18 under the orders of an officer not below an Additional Director and against civil servants in BPS-19 and above by a Director. Rule 15 provides that the case after registration could be dropped in the circumstances mentioned therein.
28. Petitioners Nos.2 and 3 are undoubtedly public servants whereas petitioner No,1 is the person who was complainant in the said case in which respondents Nos. 2 and 3 were acquitted who were alleged to have committed scheduled offences jointly with petitioners Nos.2 and 3. A close scrutiny 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 as discussed above. In this view of the matter, the direction of the learned Additional Sessions Judge for registration of case against the petitioners and consequent registration of case through F.I.R. No,608 dated 20-T1989 at Police Station Model Town, Gujranwala was also illegal being superstructure raised on an illegal direction given by the learned Additional Sessions Judge.
29. The S.H.O., Police Station Model Town, Gujranwala was not authorised under the law to register the said case and investigate it."
30. 9.In Riaz Ahmed Tahir v. The State and others (PLJ 1996 (Criminal Cases) Lahore 80 (Multan Bench); F.I.R. Lodged with local police station under sections 409, 467, 468, Pakistan Penal Code against a Patwari was quashed as the same could only be registered with the Anti-Corruption Establishment and the State was allowed to proceed in accordance with law/rules afresh. In Saleem Hussain v.
31. The State (PLJ 1996 (Criminal Cases) Lahore 916 (Bahawalpur Bench), of which I am the author, the aforesaid reasons were adopted to hold that anti-corruption cases could only be registered at Anti-Corruption Establishment and not at the local police stations under the administrative control of the Superintendent of Police of the District and also not on the order passed by a Magistrate 1st Class.
10. The contention of the learned Assistant Advocate-General with reference to section 8 of the West Pakistan Anti-Corruption Ordinance, 1961 that the provisions of Ordinance are in addition to and not in derogation of any law for the time being in force and thus, the case could be registered in terms of section 154 of the Code of Criminal Procedure at the local police need not be given the weight. As expressed above the texture about initiation of the Anticorruption case(s) stands altered with the introduction of the Punjab Anti-Corruption Establishment Rules, 1985 whereby the substantive law towards the registration of the case has been changed as according to the relevant Rule 8 the criminal cases shall be registered by the Establishment at the Anti-Corruption Establishment under the Prevention of Corruption Act, 1947 and under such sections of Pakistan Penal Code as have been set forth in the Schedule of Ordinance. Under Rule 17 the case shall be registered by the Establishment at the Police Station of the Establishment having the jurisdiction. In view of the substantive change the case could not be registered at the aforesaid local police stations under the administrative control of the respective local police headed by the Superintendent of Police, Hafizabad. I would exemplify that under the Punjab Urban Rent Restriction Ordinance, 1959 the ejectment petition with valid grounds has to be moved before the Rent Controller and the appeal is maintainable before the Appellate Authority (District Court). This is the substantive law. However, for the disposal of the aforesaid type of dispute(s), the guidance is procured from the Code of Civil Procedure with respect to the applicability of the Procedure.
32. Likewise in the field of Anti-Corruption Laws the relevant substantive law in force is provided in Punjab Anti-Corruption Establishment Rules, 1985 with respect to the scheduled offences mentioned in all the relevant laws while the guidance with respect to the procedure to be adopted in holding of the investigation, submission of challan and procedure for trial has to be obtained from the Code of Criminal Procedure and no derogation thereto can be made.
33. 11.The upshot and final conclusion of the aforesaid discussion and analysis of the Anti-Corruption Laws is that there is gradual evolution therein. There is the Director Anti-Corruption, Punjab with his subordinates designated as Additional Directors, Deputy Directors and Assistant Directors with paraphernalia of the members of police force who are sent on deputation having no concern with other aforesaid type of branches of the Police Department and have to work whole time and wholeheartedly in the Anti-Corruption Establishment. For urgent day-to-day affairs, as expressed above, Deputy Commissioner of each District has been designated as ex officio Deputy Director, Anti-Corruption within the territorial limits of his District of posting. The inquiry on an application containing the complaint has to be conducted by any officer/official under the administrative control of the Director, Anti-Corruption, Punjab having the command on the Additional Directors and others. If during the inquiry no case is made out the matter is dropped. In case of existence of any material thereof the Departmental Inquiry can be initiated in trifle/certain matters. It is done on the idea that due regards are to be shown to the reputation and prestige of the public servants. In cases of alarming nature criminal cases can be got registered obviously at the Anti-Corruption Establishment (Thana) established under Rule 17 of the Punjab Anti-Corruption Establishment Rules, 1985 and that the investigation can be and is conducted. In the Anti-Corruption Department/Establishment the members of the Provincial Civil Service/Extra-Assistant Commissioners having sound knowledge of Revenue Law or other technical hands like Canal/Building S.D.Os. Or XENs are also sent on deputation to meet the situation and requirement of the allegations to be probed during the investigation. The Superintendent of Police. The Deputy Inspector-General of Police and the Inspector-General of Police having control on the local police have no administrative control on the Anti-Corruption Establishment. In short at present in the Anti- Corruption Establishment the lodal police does not figure anywhere and the inquiry and investigation has to revolve around the fountain of the Anti-Corruption Establishment in matters of allegation of corruption against public servants.
34. 12.Even though it is a dispute about the absence of the jurisdiction of the local police to register a corruption case, it is the proper stage to express and observe that the Anti-Corruption Establishment of the Province of the Punjab only and only has to proceed with an inquiry or investigation against all the officers/officials of all the Departments directly with or without obtaining any permission from the competent Authority of the concerned Department, subject to the jurisdiction of the officers of the Establishment vis-a-vis the grade of the civil servant. However, with regard to the Judicial Officer(s) prior permission of the Lahore High Court, Lahore has to be obtained by the Anti-Corruption Establishment before it proceeds with an inquiry or investigation against a Judicial Officer. In this regard following relevant policy letter dated 7-3-1975 issued by the Registrar, Lahore High Court, Lahore is reproduced for guidance:-- "Copy of D.O. Letter No,268/RHC, dated the 7th March, 1975 received from the Registrar, Lahore High Court, addressed to District and Sessions Judge, Lahore.
35. Subject: ANTI-CORRUPTION INQU IRY AGAINST JUDICIAL OFFICER.
36. I am directed by his Lordship the Chief Justice to say that on a representation that the Anti- Corruption Establishment cannot inquire into any allegation against the Judicial Officer unless first reference is made to the High Court, a decision has been taken by the Government which reads as under:-- 'The matter has been considered at length and in keeping with the concept of the independence of the judiciary, it has been decided that the prior permission of the High Court would be obtained before the Anti-Corruption Establishment proceeds with an enquiry or investigation against a Judicial Officer. If a complaint is received by the Anti-Corruption Establishment directly the Chief Secretary would consider forwarding it to the High Court for such action as may be deemed appropriate. If the High Court decides to utilize the services of the Anti-Corruption Establishment, Anti-Corruption Committee will take further action accordingly. In other cases, the Anti-Corruption Establishment will not proceed with the matter without prior clearance of the High Court'.
37. I am further desired to request you to bring the above decision to the notice of the Additional District and Sessions Judges and Civil Judges working in your district for their information.
38. With regards.
39. (Sd.)
40. Registrar."
41. The aforesaid policy letter is printed at page 245 of the Manual of Instructions and Forms compiled by the Author of this judgment and published by the Lahore High Court, Lahore during the year 1989.
13. Since the controversy in hand is being taken up and disposed of with all the pros and cons it would not be irrelevant if the filing of the complaint by a person from the public against a public servant is also touched in this judgment. In this regard the aforesaid type of complainant can file the private complaint in terms of section 190 of the Code of Criminal Procedure before the learned Special Judge (Anti-Corruption) competent to hear the same keeping in view his territorial jurisdiction. On the alternative the complainant can move the Director, Anti-Corruption or any of other officer under his command keeping in view the pay grade of the public servant complained against who obviously shall proceed as expressed supra in detail. Even the Circle Officer of the Anti-Corruption Establishment (Thana) can be moved who shall have to bring the complaint to the notice of competent officer (Additional Director/Deputy Director) and thereafter, shall proceed to hold the inquiry if directed so or to register the case at the Anti-Corruption Establishment under his control. However, the investigation shall be conducted by the Anti-Corruption Establishment including the Assistant Director/Police Officer on deputation etc. And not by local police. The discipline and jurisdiction has to steal the eminence and play the vital legal role. Without prejudice I am tempted to express that the local police of the District under the administrative control of the Superintendent of Police who has no administrative control on the Anti-Corruption Establishment should wholeheartedly devote whole of its time towards the betterment of the law and order situation which is worsening with the passage of time and must absolutely refrain from interfering in the legally allocated jurisdiction of the Anti-Corruption Establishment which has to travel within its own sphere.
42. 14.The only irresistible conclusion which can be drawn from the aforesaid legal provisions, analysis of the same and discussion would be that cases with respect to the alleged anti-corruption offences can be registered against public servants by the Establishment under the written orders of the officers mentioned in Rule 8 of the Punjab Anti-Corruption Establishment Rules, 1985 at the Anti-Corruption Establishment and not of/by the inferior Police Officers or Superior Police Officers at the local police stations and obviously after adopting the distinct method as provided in the Punjab Anti-Corruption Establishment Rules, 1985. About the F.I.R. Registered at Police Station Sukheky with respect to alleged trespass of house falling under section 452, Pakistan Penal Code, suffice it to express that aggrieved person whose house was trespassed is not the complainant. I, therefore, hold that both the aforesaid F.I.Rs, cannot remain in the field which are liable to be quashed.
43. 15.For what has been said above, I accept both these petitions and quash both the aforesaid F.I.Rs, However, the person whose house has been trespassed regarding which F.I.R. No,22 of 1997 has been registered at Police Station Sukheky, District Hafizabad as well as the competent Authority of Muhammad Sharif, Head Constable (petitioner) may proceed in accordance with law before Anti- Corruption Establishment afresh, if required and desired thereof.
44. 16.In view of the legal complexity involved in the matter, I leave the parties to bear their own costs of both the writ petitions.