IHSAN-UL-HAQ CHAUDHRY, J.-- The relevant facts for the decision of this Constitutional petition are that the petitioner is one of the accused in FIR No. 7/97 registered on 25.4.1997 and FIR No. 8/97 registered on 26.4.T997 with the F.I.A, through Deputy Director, Crime Circle, Rawalpindi. The petitioner has challenged the registration of these criminal cases through this Constitutional petition.
2. It is argued that he petitioner, who is in Grade-18 and serving as XEN in Pak PWD, therefore, he is governed by the provisions of the Civil Servants Act, 1973 (hereinafter to be referred as Act of 1973) enacted in pursuance of Article 240 of the Constitution of Islamic Republic of Pakistan, 1973 read with the Government Servants (Efficiency and Discipline) Rules, 1973 (hereinafter to be called as Rules of 1973). It is added that no Court-or authority has any jurisdiction in the matters of terms and conditions in view of Article 212 of the Constitution of 1973, therefore, registration of cases by the F.I.A, is illegal and without jurisdiction. It is argued that under section 16 read with Rule 2(2) of Rules of 1973 the Authority of the petitioner is Prime Minister while Authorised Officer as per provisions of Rule 2(3), of Rules 1973 is the Secretary of the Department. These authorities have been notified vide notification dated 10.10.1973 while D.G. Does not appear either in the Act 1973 or in the Rules 1973, therefore, he had no jurisdiction or authority to deal with, the matters pertaining to the petitioner and get the cases registered. It is argued that the D.G. Brought the facts to the notice of the Secretary of the Department, who asked him for framing of the charge-sheet. But he illegally and mala fide got criminal cases registered, which act is without authority. It is-added that the D.G.
F.I.A, at one stage issued a letter to the effect that these are weak cases but under the influence of D.G., PWD this letter was subsequently withdrawn. It is argued that the whole affair is mala fide. This is clear from the fact that the D.G. Transferred him to Sahiwal vide order dated 27.11.1997 but the same was cancelled by the Secretary of the Department. The D.G. Was so much against the petitioner that he moved a review application. Thereafter the petitioner challenged the order through W.P. No. 35/97. The D.G. Filed CPSLA in the Hon'ble Supreme Court against the order of this Court. Thereafter he proceeded to send a list of officers of PWD, who according to him were living beyond means. The petitioner had to file Writ Petition No. 761/97. It is argued that there is a Constitutional guarantee that all Statutes should be inconformity with the. Constitution. In this behalf, reference-is made to the judgments in the cases of Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416), Miss Farhat Jaleel and others v. Province of Sindh and others (PLD 1990 Karachi 342), Muhammad Azim Jamali and 11 others v. Government of Pakistan and 33 others (PLJ 1992 Karachi 1), Union of Civil Aviation Employees, Lahore and another v. Civil Aviation Authority, Islamabad and 3 others (PLD 1993 Lahore 306), Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad and another (PLD 1995 SC 701) and Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees and another (PLD 1997 SC 781). It is added that all actions of all persons are to be inconformity with the Constitution. In this behalf, reference is made to the judgment in the case of Miss Farhat Jaleel and others (Supra).
3. On the other had, Ch. Afrasiab Khan, learned Standing Counsel argued that the petitioner was posted in IIIrd Division of PWD on 8.6.1991 and was transferred by the D.G. After more than five years on 27.11.1996. It is added that according to the policy as contained in OM the normal tenure is. Three years. It is argued that the petitioner was so influential that he got the order cancelled and ultimately after a month got himself re-transferred to Islamabad. It is explained that the D.G. Had to file CPSLA as this Court during the limine hearing passed certain adverse remarks against him. The same were ultimately expunged by the Hon'ble Supreme Court. It is argued that the action is not mala fide. The fact of the matter is that the accused have caused colossal loss to the exchequer. In this behalf, he referred to some of the alleged misdeeds of the accused in each case. The same are as under:-
(A) FIR NO. 7/97:
(i) Amount of Rs. 14,54,000/- was embezzled without any work on spot;
(ii) Accused had shown earth digging and disposal at a distance of 10 k.m. to the extent of 1,40,000 cubic feet at the expense of Rs. 8,52,000/- whereas the total digging and disposal was 40,000 cubic feet at a distance of a half K.M.;
(iii) Accused had made payment of Rs. 6,00.000/- for cutting 1,68,000 cubic feet earth whereas on spot only 65,000 cubic feet was cut;
(iv) Accused had drawn a cheque for Rs 4,13,000/- dated 20,8.1996 -without any bill and without any basis; and
(v) Accused gave the tenders to I.S. Enterprise, which is a dummy Contractor and the Investigation Officer could not contact with anybody in spite of repeated visits to its premises. The agreement was not signed by the contractor and contract worth Rs. 1,10,00,000/- was given through a fake notice in the Daily 'Juraat' Rawalpindi, it was explained that a copy of the paper was got printed privately otherwise the newspaper never printed this tender notice. This way the competition was eliminated and huge amount was defalcated.
(B) FIR NO. 8/97:
(i) The petitioner had spent Rs. 8,71,00,000/- for provision of amenities and up-keep of the Rest Houses located at Rawalpindi, Islamabad and Murree. The major part of this amount was embezzled because there was no scope for purchasing amenities. It is added that the total grant of Rs. 8,37,00,000/- was got released under this head but the total expenditure was shown at Rs.
12,70,00,000/-. Besides this the mounts received from the occupants of the Rest Houses as rent were not deposited in the account but also misappropriated;
(ii) An amount of Rs. 2,65,00,000/- was placed at his disposal for the construction of Court, Building at Islamabad but instead that amount was also shown as spent on amenities etc,
(iii) The Income Tax allegedly deducted from the Contractors, Suppliers of the Department was not deposited with the Income Tax Department and instead was, also, spent on amenities etc.
(iv) The petitioner had shown expenditure of Rs. 25,00,000/- for provision of amenities to the occupants of Gulshan-e-Jinnah, who were staying in these suits, have given affidavits to I.O. That m amenity was provided;
(v) There are six Federal Lodges in Murree Consisting of 34 rooms. The petitioner charged for replacing 8000 sq. Ft, of window-panes for the period from 1.7,1996 to 33.12.1996;
(vi) The accused awarded 543 works through tenders in the sum of Rs. 10,000/- to Rs. 25,000/- while invariably in all these contracts the payment ultimately made to the Contractor/Supplier was in the vicinity of Rs. 2,50,000/-/ It is explained that the amount of tender was kept under Rs.25,000/- in order to avoid publication of notice and thus to eliminates the competition and the financial limit of the petitioner is Rs. 2,50,000/-, therefore, the total payment on all these works was kept slightly below this figure. The learned Standing Counsel added that this continued in face of Audit observations that huge amount is being defalcated by underhand means;
(vii) The petitioner in the second half of 1996 has shown total expenditure of Rs. 70,00,000/- on the Ministers' residence while in the corresponding period the expenditure was slightly over Rs.1,00,000/-;
(viii) The petitioner has shown replacement of 36,000 Sq. Ft. Of window- panes etc. In 15 Federal Ministers' residences whereas the total area of the window-panes etc. Comes to 18.000 sq. Ft. It is explained that half of the residences were newly constructed and according to the investigation only 3000 Sq. Ft. Glass was utilised. The remaining amount has been embezzled; and
(ix) The tenders were given at higher rates because of precautions taken and underhand means adopted to eliminate competition. This way causing a loss of about 10 Million to the public exchequer and misappropriating this amount.
4. It is argued that the above allegations are by and large based on documents and works can be physical verified, therefore, to allege that the accused have been involved mala fide is without any merit. The real anxiety of the petitioner and others is to prolong the investigation as long as possible. It is added that it is not the object of law to kill investigation. In this behalf, the learned Standing Counsel has referred to Ahmad Saeed v. The State and another (199'6 SCMR 186) and Brig.
(Retd.) Imtiaz Ahmad v. Government of Pakistan and 2 others (1994 SCMR 2142). It is next argued that the Government officers are trustees of the public exchequer and there is no protection, whatsoever, available rather now the consensus is that the public servant indulging in fraud, forgery, embezzlement should be dealt more severely than the ordinary citizen. It is added that all rales giving civil servant any privilege position to that of other citizen is ultra vires of the Constitution of 1973 and. Cannot be countenanced in Islamic Republic of Pakistan in view of Article 25 read with Article 2-A of the Constitution of 1974. It is argued that nobody can be allowed to plunder the public exchequer and avoid legal consequences. In this behalf, reference is made to Imtiaz Ahmad and another r. The State (PLD 1997 SC 545).
5. The learned counsel for the petitioner while summing up the arguments submitted that the case of Ahmad Saeed (Supra) relied by the learned'Standing Counsel is not relevant because it was a petition under section 561-A Cr.P.C, while in the case of Brig. (Retd.) Imtiaz Ahmad (Supra) one of the points for consideration was public office and not the terms and conditions of civil servant.
Moreover, there is no provision in the law to take .The matter to the Committee of Parliament. It is added that no law was relied in the said case while petitioner is relying on the Act of 1973. Moreover, that was a political case which is not the matter here. It is argued that the High Court in the facts of the present case can legally interfere in the investigation. The learned counsel in this behalf has relied on the judgments in the cases of Mst. Dilshad Akhtar and another v. The State and another (PLD 1996 Lahore 145), Muhammad Anwar v. Muhammad Younas Butt, Inspector/S.H.O, and 11 others (PLD 1997 Lahore 15), Abdul Aziz v. S.P. (C.I.A.), Sargodha and 2 others (PLD 1997 Lahore 24) and Muhammad Yousaf. Inspector-General of Police and 4 others (PLD 1997 Lahore 135). It is argued that the Secretary as per Rule 4(2) of the Rules of Business. 1973. Is the official head of the Department and not the D.G. It is added that the D.G. Was so inimical that he proceeded to tile W P No. 152/90 against the Minister etc. It is argued that as per provisions of O.M. Period of three years is the normal period of posting and after w Which one can remain on the post for another to years with the concurrence of the competant authority. It is added that this part of the O.M. Is not applicable to the technical/professional post. It is maintained that the petitioner is covered by the technical post. It is explained that the tender for Murree subject-matter of FIR No. 7/97 was accepted by the Chief Engineer vide order dated 15.4.1996 on the recommendation of S.E. It is added that I.S. Builders is registered with Pak. PWD as A-Class Contractor and tender was purchased by the said company from the office of the Chief Engineer. It is argued that the provisions of Articles 25 and 2A are not relevant because the Constitution is to be read as whole and Article 2A is not to be given precedent over the provisions of the Constitution. In this behalf, reference is made to Messrs Tank Steel and Re-Rolling Mills (Pvt.) Ltd., Dera Ismail Khan and others v. Federation of Pakistan and others (PLD 1996 SC 77) and Farough Ahmad Siddiqi v. The Province of Sindh and 4 others (PLD 1996 Karachi 267). It is argued that Murree work was running contract and the payments were made subject to adjustment. It is submitted that the learned Standing Counsel while detailing alleged criminal acts of the petitioner travelled beyond the FIR. It is argued with reference to FIR No. 7/97 that the earth work to the extent of 1,65,000 cubic feet was as per "plan prepared by D.G. While carriage was approved by the Chief Engineer. It is argued that the price of steel, quality and quantity was approved by the S.E., therefore, petitioner cannot be blamed for the misappropriation of any amount in this behalf.
6. The learned counsel for the petitioner with reference to FIR No. 8/97 submitted that the staff was permanently employed for the upkeep and maintenance of the Federal Lodges and Rest House.
The rooms ere. Have to be cleaned and maintained even if nobody was staying therein. It is added that monthly statement of expenditure was regularly submitted to the D.G. There is no allegation of embezzlement in the letter written by the Chief Engineer to the D.G. On 17.2.1997 while D.G. Sent a letter to S.E. To fix the responsibility and assess the losses but nothing has been done so far. It is argued that even the learned Special Judge in his order dated 12.6.1997 asked the I.O. To make physical verification but without any result. It is submitted that the glass purchased and used at Islamabad was for 53 Banglows and not 17 as urged by the learned Standing Counsel while the glass purchased for Murree included in the premises of Survey of Pakistan, Intelligence Bureau besides Holiday Home II. It is argued that the allegations are figment of imagination, therefore, liable to be quashed.
7. The Investigation Officer is present in Court. He explained that the investigation could not be completed due to the lack of cooperation on the part of the accused-petitioner and because for sometime investigation was not with him.
8. I have given my anxious consideration to the arguments advanced on behalf of the parties, gone through the record, precedent cases and provisions of. Constitution as well as Law and Rules. The first question for decision is whether the FIRs could legally be quashed while the investigation is still in progress? The learned counsel for the petitioner with reference to cases of Mst. Dilshad Akhtar and another Muhammad Anwar and Abdul Aziz. (Supra) argued that the writ can be issued. These cases are not relevant because in the case of Mst. Dilshad Akhtar and another (Supra) the petitioners were accused in case under section 11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) registered on 26.8.1995 while the petitioners had already contracted Nikah on 13.8.1995. It was held that no offence is made out from the FIR. The other to cases pertained to the interference in the investigation and not quashment.
9. I am conscious of the rule that there should be no interference or judicial scrutiny of the investigation, which were laid in Emperor v. Khawaja Nazir Ahmad (AIR 1945 PC 18). The same was followed in the cases of Brig. (Retd.) Imtiaz Ahmad (Supra), Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another (PLD 1971 SC 677) md Malik Shoukat Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others (PLD 1994 SC 281). The rule has its origin from the colonial era when the bureaucracy controlling the police would not interfere in the functions of the police unless the imperial interest demanded. The police by and large was also disciplined and treated citizens alike and the police force was conscious of the fact that its main purpose was to maintain law and order but strictness of this rule has been diluted in view of the general tendency of the policeman to overstep its authority and general deterioration in the Society. The rule has been departed especially in the family matters more particularly, marriages and civil dispute. Reference can be made to Muhammad Imtiaz and another v. The State (PLD 1981 PSC 308), Muhammad Banaras v. S.HO. And others (1995 P.Cr.L.J. 9A), Abdul Haque v. The State and another (PLD 1996 SC 1), Muhammad Tariq Mahmood and others v. Station House Officer, P.S. Millat Park, Lahore (1997 P.Cr.L.J. 758),. Muhammad Arshad v. Station House Officer and others (1997 P.Cr.L.J 928), Mst. Zarina v. The State (1997 P.Cr.LJ 1271) and Muhammad Sharif and 8 others v. The State and another (1997 SGMR 304). The rule thus modified makes limited interference possible against violation of fundamental rights, criminal injury, prosecution of citizen by abusing the statutory powers or machinery of criminal law being used mala fide or for ulterior purpose. The High Court in such case looked into the facts and passed order as were found just, legal and equitable. However, the High Court cannot undertake investigation and make sweeping inquiry.
Reference, in this behalf, can also be made to Muhammad Khalid Mukhtar v. The State (PLD 1997 SC 275). The relevant portion reads as under:- "As observed in the case of Asif Ali Zardari (1994 SCMR 798) the powers under section 561-A, Cr.P.C, can be exercised to prevent abuse of the process of any Court or to secure the ends of justice.
Stich powers cannot be exercised in mechanically or in every case where there is allegation of false implication or of the evidence being false. Exercise of such powers cannot further the ends of justice, if an exercise is. Undertaken at' pre-trial stage to determine whether the prosecution evidence likely to come on record is true or false "
In other words, interference does not mean stifling investigation or creating hurdles in the way of the investigator. The golden rule remained that the High Court could quash criminal, proceedings if no criminal case is made out from the allegations contained in the FIR. But in such a case it has to be assumed that whatever is stated in the FIR is correct. This is- the rule which have come into existence as result of chains of precedents starting from Khawaja Nazir Ahmad (Supra). Therefore, it is held that even the FIR could be quashed in exercise of writ jurisdiction in exceptional cases.
10. Now coming to the case in had. The learned Standing Counsel, with reference to the details of the acts of embezzlement as given in to FIRs, submitted that the total amount embezzled would be about 150 Millions. On the other had, the trend of arguments advanced on behalf of the petitioner was that the tender given and payment were made with the approval of either S.E. Or Chief Engineer or the Secretary, Pak. PWD. It is made clear that this argument was only in respect of some of the 'allegations enumerated in the to FIRs.- The others remained uncontroverted. There was not even slightest attempt on behalf of the petitioner to show that actually no embezzlement has taken place. This argument taken' on its face value would tantamount to acceptance of allegations to a great extent but raised the question that who and to what extent is responsible for this loss to exchequer? The same was position in the case of M. S. Khawaja v. The State (PLD 1965 SC 287), wherein the quashment petition of the Engineer was dismissed. The scope of expressions, 'abuse of process of Court' and 'ends of justice' was considered while the leave was refused by the Hon'ble Supreme Court.
11. I have noted some of the main acts of embezzlement attributed to the petitioner. Neither it is possible nor it is scope of the writ jurisdiction hold that the allegations of embezzlement have been proved or not proved as held in the case of Muhammad Khalid Mukhtar (Supra).
12. The golden rule, as noted above, is that to assume that the allegations as incorporated in the FIRs are correct and then to find out whether a criminal case is made out or not. When this rule is applied to the present case then petitioner has no case for quashment. It is needless to add here that the allegations by and large can be either checked from the record or verified by spot inspection. The petitioner claims to be innocent and in respect of some payments and tenders have taken up the position that it was .Lone under the orders of his superiors. This plea of the accused is yet to be verified by the I.O. But if looked from this angle then it is even in the interest of the petitioner that the investigation should reach its logical conclusion rather it should be side tracked or stifled or hurdles are created in the smooth progress of the investigation. It may be recorded here that the investigator clearly stated that the petitioner is not cooperating and joining the investigation. The petitioner was unable to show at least prima facie that there 'was no probability of his conviction in these to cases for any offence or that quashing of case could secure the ends of justice.
13. The legal objection to the registration of the case is that the petitioner being civil servant is governed by Act of 1973. No Court or Authority has jurisdiction in the matter of terms and conditions of a civil servant in view of the provisions of Article 212 of Constitution of 1973. The argument is utterly misconceived. It is true that the civil servants for matter of terms and conditions of service are governed by Act of 1973 but fore their criminal acts they would be liable to be proceeded under the provisions of Pakistan Penal Code as well as the Prevention of Corruption Act. The argument advanced on behalf of the petitioner if accepted would tantamount to holding that a civil servant has no criminal liability or in other words, he cannot be proceeded under the PPC, Prevention of Corruption Act-and Ehtesab Act, etc. The argument is without any merit suffice it is to refer here to the judgment in the case of Muhammad Azim Jamali, and 11 others (supra).
14. The other amount is that the D.G. Referred the matter to Secretary, Pak. PWD, who asked him to frame the charge. The Secretary never ruled out registration of criminal case. He only kept silent on this point for the reasons best known to him. May be it was embarrassing for him. It is interesting to note here that as per arguments advanced on behalf of the petitioner the Authorised Officer of the petitioner is Secretary, therefore, it was his duty to formulate the charge-sheet and serve the same on the petitioner but he Conveniently hoodwinked his statutory duty as Authorised Officer. This cannot be appreciated. The other argument in the same sequence was that D.G. Could not have reported. The criminal cases. The argument is misconceived for the reason that according to Chapter IV Para 4.01 of Pak. PWD Manual the administrative control of entire PWD rests with the D.G.
And incidentally he has the powers to transfer the officers of the Department except Chief Engineer.
The FIR could not be legally quashed on the ground of mala fide suffice it is to refer here to the judgment of the Hon'ble Supreme Court in the case of. Muhammad Khalid Mukhtar (Supra).
15. There is a recent trend of filing quashment petitions both under Constitution and Cr.P.C, immediately after the registration of the case. This is neither desirable nor in the. Interest of justice.
On the other had, it gives impression that the accused is endeavouring to side track the- investigation in order to avoid the consequence of his criminal act. And on top of it these matters are argued like regular appeals. The result is that in spite of all precautions some observations are made about the merits. This results in prejudicing the case of either side. This practice was noted in the judgment of Muhammad Khalid Mukhtar (Supra) and was depreciated. The relevant portion reads as under:- ' "...... In the case of Raja Haq Nawaz v. Muhammad Afzal and others (PLD 1967 SC 354), it was held that quashment of proceedings at an early stage gives an unfortunate impression of stifling of criminal prosecutions, by exercise of .An extraordinary power which is given for the dispensation of complete justice, in the forms provided by law. Similar view was taken in the case of Gian Chand v.
State (1968 SCMR 380) where it was observed that determination of the guilt or innocence of an accused, depends on totality of facts and circumstances revealed during the trial, and when such a stage had not been reached, the application for quashment of the proceedings in the trial Court, was rightly rejected by the High Court."
16. A copy of the judgment be sent to Regional Commissioner, Income Tax Rawalpindi, to submit a report to Addl. Registrar as to the position of the recovery of Income Tax in respect of the payments made to the contractors, suppliers, etc. by the PWD Rawalpindi Office.
17. The upshot of the above discussion is that this petition is dismissed with costs. The Investigating Officer is present. He is directed to conclude the investigation within to months positively.