' Brief facts of the case are that on 12-7-1995 one Akram Khan son of Shahzad Gul was attacked by unknown culprits, on coming to know about this incident, Muhammad Yousuf, brother of deceased Akram Khan, Wazir Gul uncle of deceased and Islamuddin relative of Haji Jannat Gul (applicant/ complainant) alongwith the complainant immediately reached at Police Station Gulzar-i-Hijri where S.H.O. Was not present. Consequently the complainant and P.Ws. Went to the office of Mazhar Farooq (accused/respondent) where other two accused were also present outside the office of Mazhar Farooq. As soon as Haji Jannat Gul entered in the office of Mazhar Farooq alongwith the witnesses and informed the facts to him for taking legal action about the murder of the deceased, Mazhar Farooq called A.S.-I., Kashif Rabbani, A.S.-I. Ghulam Abbas alongwith three unknown constables for teaching lesson to him for entering in his office. It is alleged that on the order of Mazhar Farooq, respondent No,2 and other accused (respondents) abused Haji Jannat Gul and dragged him and the P.Ws. By catching him from his beard and started beating with kicks and fists saying that he had sent application to the Chief Secretary against Mazhar Farooq and thereafter all the three accused (respondents) confined the complainant alongwith P.W.
Islamuddin in police lock-up at Police Station Gulzar-i-Hijri, where they remained in illegal confinement of the abovenamed three accused (respondents) for an hour and thereafter the accused (respondents Nos.2, 3, and 4) obtained illegal gratification of Rs,21,600, wrist-watch make, "Rolex" valuing Rs,80,000 from the complainant, thus. All the three accused alongwith three unknown constables obtained gratification as a public servant, Mazhar Farooq is working as A.S.P.
Whereas accused Kashif Rabbani and Ghulam Abbas are serving as A.S.-I., posted at Police Station Gulzar-i-Hijri. Haji Jannat Gul as a complainant had filed a complaint stating the above facts for an offence under section 161/163/165/ 342/34, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947 with the prayer that action in accordance with law may be taken against the accused/respondents.
2. After receipt of the complaint the learned Special Judge, Anti- Corruption Provincial), Karachi, after recording statement of Haji Jannat Gul under section 200, Cr.P.C. Passed the following order on 20-7-1995:- "Statement of complainant is recorded on oath. Let preliminary enquiry be held in order to ascertain truth or falsehood of the complaint. Let P.E. Be conducted by Deputy Director, Anti- Corruption Establishment, Karachi under section 202, Cr.P.C. And papers be sent to him. He should furnish his report as early as possible."
' The Deputy Director, Anti-Corruption, Karachi forwarded the enquiry to his subordinate Inspector, Circle Office who submitted the report of preliminary enquiry to the Court, and the learned Special Judge passed the order, dated 29th November, 1995 in the following terms:- "Perused the complaint and the report of the enquiry under section 202, Cr.P.C. Which has been conducted by Inspector, Anti-Corruption Abdul Latif Khan. Prima facie a case for an offence punishable under sections 161, 220 read with section 34, P.P.C. Read with 5(2) of Prevention of Corruption Act, 1947.
' Register a case and issue summons against all the accused, for their appearance on 5-12-1995.
The complainant is further directed to supply of complaint for supplying to the accused persons."
' After this application an application under section 249-A, Cr.P.C. Was moved on behalf of accused Mazhar Farooq mainly on the ground that in this matter this Court had ordered for holding of preliminary enquiry to be conducted by Deputy Director, Anti-Corruption Establishment, Karachi himself under section 202, Cr.P.C. But the Deputy Director, Anti-Corruption, Karachi, forwarded the same to his subordinates Inspector, Circle Officer. Hence the preliminary enquiry submitted to the Court was not from the Enquiry Officer, who was legally authorised to submit the report and the enquiry submitted by the said Inspector, who is junior in rank to Mazhar Farooq, who was directed to submit report, was against the Public Servants (Enquiries) Act, 1850 and also against the Anti- Corruption Rules. In this background the learned Special Judge, Anti-Corruption (Provincial), Karachi passed the order, dated 6-8-1996, relevant portion of which is as follows:-- "There is no denial of the fact that this Court has referred the matter to Deputy Director, Anti- Corruption for holding criminal enquiry but the enquiry has been held by the police official not authorised by the Court to conduct the P.E. Besides this the said police official was junior in rank from the accused against whom the P.E. Was being conducted as per directions of the Deputy Director who was not supposed to entrust the P.E. To the police official without permission of the Court and to an official junior in rank from the official against whom the enquiry was being conducted ' In view of the abovementioned circumstances and the case-laws referred to above, I deem it proper to recall the order of issuance of process against the accused and further direct that the P.E.
In this matter to be conducted by the Deputy Director, Anti-Corruption Establishment, Karachi himself to whom this matter was already forwarded with specific directions not to entrust the enquiry to any of his subordinate and to submit his report as early as possible."
3. Mazhar Farooq, respondent (accused) was present on bail before the Special Judge, Anti- Corruption (Provincial), Karachi, and for the time being he was discharged from attending the Court till receipt of the enquiry by the Court from Deputy Director, Anti-Corruption Establishment, Karachi. The order of issuance of the process was recalled by the learned trial Court on technical ground and not on merits, and the application under section 249-A, Cr.P.C. Stood disposed of with the above order.
4. This order of the learned Judge has been assailed by Mr. Gul Zaman Khan, Advocate for applicant/complainant through this revision application. Mr. Gul Zaman Khan has contended that discharging of Mazhar Farooq by the Court and recalling previous order is against the law and requires interference by this Court; that once process issued by the trial Court, it cannot be recalled for preliminary enquiry under section 202, Cr.P.C.; and that the applicant is President of Anjuman Bahbood Aslah Aka Khel Pakhtoon and a well-known "A" Class Contractor and had remained Councillor of Local Bodies and he has been enjoying respect, reputation amongst the peoples, particularly in his community, where a colony known as "Junnat Gul Town" Sohrab Goth, Super Highway, has been established.
5. Mr. Gul Zaman Khan has cited following authorities:--
(1) Case of Azizur Rahman v. The State PLD 1960 Dacca 631 ' In this case a complaint was filed before a Magistrate of the 1st Class at Chittagong by one Tamju Meah alleging various offences including those of rioting with deadly weapons, murder, grievous hurts etc. On the complaint the learned Magistrate forthwith examined the complainant on solemn affirmation but postponed the issue of process and made the following order:-- "Exceeding the complaint on S.A. This is the Patiya incident which took place on 6-2-1958, which is being investigated into by the police. Send this case also to Mr. M. Hague, D.S.P., D.I.B., for investigation and report. On 15-2-1958, another petition of complaint was filed by one Nur Ahmad and the learned Magistrate passed the following order:-- 'Exceeding the complaint on S.A., S.P., Chittagong will hold the investigation or get the case investigated by any responsible officer and take necessary action after registering a case' ."
(2) Case of Abdul Haleem v. Raja Qurban Hussain and others PLD 1965 Lah.
570.
' In this matter it was held "a person complained against does not become an accused until it has been decided to issue process against him under section 204, Cr.P.C".
(3) Case of Ajab Khan v. Masai and others PLD 1967 Pesh.
184.
' In this authority the dictum laid down is that "an order under section 202 is one by virtue of which the Magistrate decides to postpone the issue of process for compelling the attendance of the accused person, where, for any reason that he thinks fit, he wishes to hold an inquiry or direct any inquiry or investigation into the complaint."
(4) Case of Muhammad Nawaz v. The State 1970 PCr.LJ 1240.
' The learned Judge in this case has held that "even if there was any illegality attaching to the investigation, or to the arrest of the petitioner, the proceedings before the Court will still be competent. The Court is not divested of its jurisdiction because of the fact that an illegality attaches to the investigation."
(5) Case of Mst. Shameem v. The State 1974 PCr.LJ Note 8 at p.5. ' in this note it was held "a mere perusal of section 436, Cr.P.C. Would show that the High Court, Sessions Judge and a District Magistrate have been given by that section concurrent powers of revision and in exercise of their revisional power to order that which they are authorised to do in this connection."
(6) Case of Aziz Masceh v. The State PLD 1976 Lah.
53.
' In this case the learned Judge was of the opinion that "investigation by Muhammad Latif Shah, Sub-Inspector Police, without obtaining specific order from a Magistrate of 1st Class in this case has not vitiated the trial of the appellant but the failure in that behalf is only an irregularity curable under section 537, Cr.P.C."
6. Mr. Zawar Hussain Jafry, learned A.A.-G.. Sindh has continued that initially the inquiry was forwarded by the learned trial Court to the Deputy Director, Anti-Corruption Establishment. Karachi for enquiry and report but the same was not conducted by him and forwarded to the Inspector, Circle Officer, Anti-Corruption, who submitted the report direct to the Court; that a delegatee cannot delegate his powers; that the order of the learned Special Judge, Anti-Corruption (Provincial), Karachi, is tentative in nature and has not taken finality as yet as for the time being attendance of respondent Mazhar Farooq has been dispensed with and the Deputy Director, Anti- Corruption Establishment has been directed to submit the enquiry report; that there is no illegality or irregularity in the order of the learned Judge, which is within the parameter of the law; that order of the learned trial Court does not call for any interference by this Court in this revision application.
7. Mr. Zawar Hussain Jafry, learned A.A.-G. Has referred the following authorities:--
(1) Case of Ghullam Hussain v. The State 1996 PCr.LJ 514.
' In this case it has been held that "where the law provides a particular procedure for doing a thing in a particular manner then that thing should be done in prescribed manner and not in any other way".
(2) Case of Iftikhar Baig v. Muhammad Azam and others 1996 SCM R 762.
' In this authority the Honourable Supreme Court has held that "the law is firmly settled that no act or omission of the Court should be allowed to prejudice the rights of the parties and the Court was bound to rectify the error once it was brought to its notice".
8. I have heard both the learned counsel for the parties and perused the material placed with this application. Admittedly the learned Judge had forwarded the complaint to the Deputy Director, Anti-Corruption for inquiry and report, who forwarded the same to the Circle Officer, Anti- Corruption Establishment, Karachi and the report without being placed before the Deputy Director was directly submitted in the Court. The Inspector, Circle Officer is subordinate in rank to the A.S.P.
But the order is tentative in nature and has not reached the stage of finality at all; by the order of the learned trial Court the interest of the complainant, in any case, is not prejudiced. The case-law cited by Mr. Gul Zaman Khan is not relevant and is quite distinguishable and as such is not helpful to the case of the applicant/complainant. Whereas the case-law referred by Mr. Zawar Hussain Jafry, A.A.-G. Is applicable to the facts of the present case and the learned trial Judge has very rightly rectified the order and for the time being he has very rightly discharged the attendance of the accused/ respondent Mazhar Farooq, till final report is received from the Deputy Director, Anti- Corruption. The orders of the learned trial Court are within the legal ambit and do not call for any interference by this Court. Consequently I dismiss the revision application, in limine.
' On 9-9-1996 after hearing the parties the revision application was dismissed, in limine. These are the reasons for the same.