This is a writ petition for quashment of Crime Case No,104 registered on 29-7-1998 at (Police Station) Anti-Corruption Establishment Multan Region, Multan under section 161, Pakistan Penal Code and under section 5 of the Prevention of Corruption Act, 1947 at the instance of Syed Irshad Hussain Shah complainant (respondent No,3) about an episode taking place during the year 1995.
2. The facts giving rise to this petition are that Dr.Abrar Hussain Baloch was posted as Assistant Professor/Head of Plastic Surgery Department, Nishtar Medical College, Multan from October, 1990 to May, 1997. He did his Fellowship (F.R.C.S.) in Surgery from the Royal College of Surgeons Edinburgh in 1986 where after he specialisedin Plastic Surgery from the British Association of Plastic Surgeons, U.K. And Royal College of Surgeons, England. On 25-4-1995 Irshad Hussain respondent No,3 posted as Clerk in Anti Corruption Establishment, Multan contacted the petitioner and told him abou some problem with his nasal bone. His nose being wide the desire of responde No,3 was that the same be trimmed and made thin so that beautiful look given. According to the petitioner, Irshad Hussain introduced himself Assistant Director, Anti-Corruption Establishment, Multan whose gener behaviour was rude. The case of the petitioner is that he offered Irshad Hussain respondent No,3 for his operation in Fatima Medical Centre, Khanewal Road, -Multan for better treatment which was accepted by him. His fee was settled at Rs,10,000. He performed the operation which was successful. The complainant did not take post-operative care and removed the nasal splint meant to control the swelling. He maintained that Irshad Hussain was dissatisfied who came to him accompanied by three persons in his clinic in Fatima Medical Centre, Multan, opened the same with his foot and trespassed therein without permission. He was wild, aggressive and abusive who issued threats to him whereby he was scared. The petitioner expressed that to save his life he issued a cheque in favour of respondent No,3 in the sum of Rs,15,000 which was dishonoured at his advice by the Bank. He maintained that even thereafter the respondent misbehaved with him and that he paid an amount of Rs,10.000 to get rid of him as he had got registered Crime Case No,104, dated 29-7-1998 at Police Station Anti-Corruption Establishment, Multan Region, under section 161, Pakistan Penal Code and under section 5 of the Prevention of Corruption Act, 1947 about the operation conducted during the year 1995. He maintained that private practice was allowed to him and that the operation of a patient in a private clinic has to be conducted in lieu of fee and that the Anti-Corruption Establishment has exceeded its jurisdiction by registering the aforesaid criminal case which is liable to be quashed.
3. At this stage it is proper to narrate about the recitals of the F.I.R recorded at the instance of Irshad Hussain complainant/respondent No,3 wherein it is contained that he (complainant) contacted Dr.Abrar Hussain Baloch Plastic Surgery Specialist Nishtar Hospital, Multan and expressed his desire for the operation of his nose, who advised him to get himself operated upon in Fatima Medical Centre, Multan as proper treatment would not be available in Nishtar Hospital, Multan to which he (complainant) consented. He alleged that he paid an amount of Rs,3,000 as consultation fee and Rs,10,000 as charges of operation. He maintained that the medicines were also purchased by him.
He alleged that he was not operated upon and Dr.Abrar Hussain Baloch deprived him of an amount of Rs,15,000 who sent him to his home by bandaging his nose. He stated that a cheque was issued by Dr.Abrar Hussain Baloch which was dishonored. He requested for the holding of an inquiry and for the return of the amount to him.
4. The comments were called from the Additional Director, Anti-Corruption Establishment, Multan Region, Multan which have been received. He has defended the registration of the case by expressing that the complainant was forced to get his nose operated upon in the private clinic known as Fatima Medical, Centre Multan who did not treat the complainant. He added that a cheque valuing Rs,15,000 was issued by Dr.Abrar Hussain Baloch which was sufficient to make out his liability in the matter as had the writ petitioner dealt with respondent No,3 purely on private basis he would have not returned the amount in question to him which fact was enough to make out that he obtained the amount with mala fide consideration. He prayed for the dismissal of the writ petition.
5. This petition stands admitted to regular hearing.
6. I have heard the learned counsel for the petitioner, the learned Additional Advocate-General and Irshad Hussain complainant/respondent No,3 as well as gone through the record before me.
7, At the very outset, Irshad Hussain complainant/respondent No,3 expressed that he has no objection if this writ petition is accepted and the F.I.R. Is quashed as an amount of Rs,10,000 was paid to him by Dr. Abrar Hussain Baloch about which he has submitted the writing which forms part of the file maintained by the Anti-Corruption Establishment. The aforesaid writing was gone through wherein it is specifically contained that he has received the amount and that his claim stands satisfied. Learned Additional Advocate-General expressed that in view of the premium granted by Irshad Hussain complainant/respondent No,3 he has also no objection if this writ petition is accepted. In this view of the matter I hold that this writ petition merits to be accepted.
8. I would, however, proceed to give my verdict as to whether Anti-Corruption Establishment, Multan Region had the jurisdiction to proceed against Dr. Abrar Hussain Baloch, Plastic Surgery Specialist in the matter. In this regard it shall have to be seen whether he obtained the amount of Rs,13,000 (Rs,3,000 + Rs,10,000) as illegal gratification especially when private practice is allowed in Pakistan to the Specialist Medical Practitioners including the Members of the Teaching Staff of the Medical Colleges.
9. At the very outset I would reproduce as under section 161, Pakistan Penal Code and section 5 of the Prevention of Corruption Act, 1947: Section 161, Pakistan Penal Code: "161. Public servant taking gratification other than legal remuneration in rennet of an official act.-- Whoever, being or expecting to be a public servant, accepts or obtains or agrees to accept, or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or for bearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or dis-service to any person, with the Central or any Provincial Government or Legislature or with any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to three years or with fine, or with both.
Explanation.--"Expecting to be a public servant".--If a person not expecting to be in office obtains - a gratification by deceiving others into belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.
"Gratification".--The word "gratification" is not restricted to culinary gratification, or to gratifications estimable in money.
"Legal remuneration".-The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the authority by which he is employed, to accept.
"A motive or reward for doing".--A person who receives a gratification as a motive for going what he does not intend to do, or as reward for doing what he has done, comes within these words.
Illustrations
(a) A, a munsif, obtains from Z, a banker, a situation in Z's bank for A's brother, as a reward to A for deciding a case in favour of Z, has committed the offence defined in this section.
(b) A, holding the office of Counsel at the Court of a foreign Power accepts a lalch of rupees from the Minister of that Power. It does not appear, that A accepted this sum as a motive or reward for doing or forbearing to do any particular official act, or for rendering or attempting to render any particular service to that power with the Government of Pakistan. But it does appear that A accepted the sum as a motive or reward for generally showing favour in the exercise of this official functions to that Power. A has committed the offence defined in this section.
(c) A, a public servant, induces Z erroneously to believe that A's influence with the Government has obtained a title for Z and thus induces Z to give A money as a reward for this service. A has committed the offence defined in this section."
Section 5, Prevention of Corruption Act, 1947: "5. Criminal misconduct.--(1) A public servant is said to commit the offence of criminal misconduct--
(a) if he accepts or obtains, agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the Pakistan Penal Code, or
(b) if he accepts or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be adequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceedings or business, transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, or
(c) If he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any person to do so, or
(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
(e) For Central Government employees only.--If he, or any of his dependents, is in possession, for which the public servant cannot reasonably account of pecuniary resources or of property disproportionate to his known sources of income.
Explanation.--In this clause, 'dependentin relation to a public servant, means his wife, children and step-children, parents, sisters and minor brothers residing with and wholly dependent on him.
(2) Any public servant who commits or attempts to commit criminal misconduct shall be punishable with imprisonment for a term which may extend to seven years or with fine or with both.
(3) In any trial of an offence punishable under subsection (2) the fact that the accused person or any other person on his behalf is in possession, for which the accused person cannot satisfactorily account, of pecuniary sources of income may be proved, and on such proof the Court shall presume, unless the contrary is proved, that the accused person is guilty of criminal misconduct and his conviction therefor shall not be invalid by reason only that it is based solely on such presumption.
(4) The provisions of this section shall be in addition to and not in derogation of, any other law for the time being in force, and nothing contained herein shall exempt any public servant from any proceedings which might, apart from this section, be instituted against him."
10. I am tempted to express that much fuss is emanating amongst the patients, their relatives, intelligentsia and other members of our society that the Medical Experts and Medical Specialists working in the big hospitals and Members of the teaching staff are not giving due time to the patients and that they are interested in the private practice. However, this is a matter to be considered by the Federal Government and by the Government of _the Punjab. The medical practice of the aforesaid category of Medical Experts has not been banned and Dr. Abrar Hussain Baloch writ petitioner is one of them. It is specifically mentioned in the F.I.R. That Dr. Abrar Hussain Baloch writ petitioner advised Irshad Hussain complainant to get his nose operated upon in Fatima Medical Centre, Multan and he consented to the same. The aforesaid consent on the part of Irshad Hussain complainant in the aforesaid circumstances that private practice is allowed to the Medical Experts has shattered the case of the complainant and it seems that the case was registered at Anti-Corruption Establishment, Multan due to the reason that Irshad Hussain is working as a clerk in the said Establishment and the device was coined and invented to get the amount back from the writ petitioner. I would express that Irshad Hussain complainant has succeeded thereof as he has received back an amount of Rs,10,000 and has expressed that his claim stands satisfied. The important aspect of the matter to be noted is that due to the permission for private practice to the petitioner, to which no objection has been raised, the ingredients of section 161, Pakistan Penal Code and section 5 of the Prevention of Corruption Act, 1947 are not attracted to the instant matter.
The Bill issued by Fatima Medical Centre, Chowk Rashidabad, Khanewal Road, Multan is reproduced as under:-- FATIMA MEDICAL CENTRE CERTIFICATE Certified that Mr. Syed Irshad Hussain was admitted in Fatima Medical Centre, Multan on 27-4-1995.
He underwent Rhinoplasty (Operation on his nose) on 27-4-1995. He was discharged on 28-4-1995.
His expenses were as follows:-- Surgeon Fee (Dr. Abrar Balouch)5,000 Anaesthesia Fee (Dr. Mehdi Hassan)1,700 Operation Theatre charges. 1,700 Room Rent. 500 Laboratory Test 110 Total: 9,010 Nine Thousand and Ten Rupees only.
(Sd.)
FATIMA MEDICAL CENTRE, Chowk Rashidabad, Khanewal Road, Multan."
11. A perusal of the aforesaid Certificate has made out that no illegal gratification or undue remuneration was received by Dr. Abrar Hussain Baloch writ petitioner from Irshad Hussain complainant. The production of this Certificate has proved that Irshad Hussain complainant underwent operation on his nose on 27-4-1995 and he was discharged on 28-4-1995. The registration of F.I.R. No,104 on 29-7-1998 against the writ petitioner with the aforesaid considerable delay of more than three years has made me to express that it is a case wherein Irshad Hussain complainant black mailed Dr. Abrar Hussian Baloch who was insulted and humiliated as well because there is no reason to disbelieve him in the matter keeping in view his status in life and the educational qualifications to his credit. There are water tight compartments of jurisdiction. If Irshad Hussain complainant was dissatisfied he could institute a civil suit for the recovery of the amount.
In the alternative he could institute a suit for damages. However, Dr. Abrar Hussain Baloch did not get any illegal gratification from him and it is a clear cut case of transgression of authority on the part of the Additional Director, Anti-Corruption Establishment on whose order the aforesaid F.I.R.
No1104, dated 29-7-1998 was registered. I must express that wisdom behind the registration of Anti- Corruption 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.
However, no inquiry in the matter for the purpose of the attraction of section 161, Pakistan Penal Code and section 5 of the Prevention of Corruption Act was made. Even if the inquiry was made it was a clear cut case of exoneration of Dr. Abrar Hussain Baloch writ petitioner. A perusal of rule 9 of the Prevention of Corruption Rules, 1985 has made out that some legal restraint has been made on the immediate and forthwith arrest of the public servant except those to be arrested as a result of trap. Dr. Abrar Hussain Baloch must thank his stars that he was not arrested and obviously due to the reason that he submitted to the desire of the complainant who was mainly interested in the return of the amount which was paid to him in the sum of Rs,10,000. The Anti-Corruption Laws are that of special nature which have 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. Rather the persons in authority have been made cautious. This type of sword hanging on the heads of the civil servants/public servants has to be removed and especially in a case of the instant nature wherein the Anti-Corruption Establishment has crossed the legal limits and transgressed its authority. Thug, .The very order of the registration of the case and its registration at F.I.R. No,104 dated 29-7-1998 under section 161, Pakistan Penal Code and under section 5, Prevention of Corruption Act not only offend the law of the land the same are also violative of the legal ethics and human rights. According to Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973 it is the inalienable right of every citizen wherever he may be to enjoy the protection of law and to be treated in accordance with law.
12. A passing remark must be given to the comments sent by the Additional Director, Anti- Corruption Establishment, Multan Region. The issuance of cheque in the sum of Rs,15,000 by a Medical Practitioner to the dissatisfied patient as well as the payment of Rs,10,000 afterwards cannot be said to be the demand on the part of the Medical Practitioner to have received the illegal remuneration. The important aspect of the matter is that Irshad Hussain complainant has not produced any Medical Expert during the inquiry that he was not operated upon. The issuance of Certificate by Fatima Medical Centre, Multan, a private hospital of high repute, is enough to falsify the allegation and contention of Irshad Hussain that he paid the amount to Dr.Abrar Hussain Baloch as illegal gratification. This being the position, Article 4 of .The Constitution of the Islamic Republic of Pakistan, 1973 stands attracted which means that the petitioner has not committed the offence under section 161, Pakistan Penal Code and under section 5, Prevention of Corruption Act, 1947. It is proper to repeat that Irshad Hussain complainant succeeded in getting back the amount of Rs,10,000 from Dr.Abrar Hussain Baloch and I would term his enterprise as blackmailing especially when high-ups of the Anti-Corruption Establishment, Multan Region also helped and abetted him. I, therefore, hold that F.I.R. No,104, dated 29-7-1998 was registered at Police Station Anti-Corruption Establishment, Multan Region, Multan with mala fides and without any legal and factual justification which is liable to be quashed and I pass an order accordingly.
13. At this stage I must issue a Note of Warning to the Anti-Corruption Establishment, Punjab, Lahore not to register cases without jurisdiction which is becoming a common feature these days. The public servants have their respect. The registration of without jurisdiction, unauthorised and illegal instant case under the Anti-Corruption provisions is a sort of character assassination of the public servant(s) and I make bold in expressing that the character assassination of a person is worse than his assassination especially at an advanced age when he has to head a family comprising his wife and young children and whose other close nears and dears have also to sail with him in the same boat. The Anti-Corruption Establishment should avoid the registration of . Cases without jurisdiction failing which this Court under its Constitutional jurisdiction can burden the persons transgressing the authority with compensation to be awarded to the affectee/exonerated public servant(s) as in the instant case. I have refrained myself for the reason that Dr.Abrar Hussain Baloch writ petitioner was not desirous in the matter when I put the query to him and I was simply shocked to listen that he has left his job in Nishtar Medical College, Multan and gone to a foreign country due to this episode as he was being humiliated and insulted by rshad Hussain complainant now and then. I would simply express that such type f treatment of character assassination of the public servant(s) does not break the ones but the same definitely breaks the heart and if the heart is broken it is Imply immaterial that the bones are intact. The Medical Experts working in hospitals and Educational Institutions have been allowed the private medical practice and unless there is a ban imposed thereof by the competent Authority such type of F.I.Rs, cannot be registered. The charging of fees by the Physicians and Surgeons during private practice cannot be termed as remuneration in respect of official act(s). If any ban is to be imposed on the private practice of the Specialist Medical Experts working in the Educational Institutions or Hospitals the law shall have to be enacted by the Federal Government through Parliament/Provincial Government through Assembly keeping in view its respective supremacy, intention(s) and wisdom. Without that the authority and power cannot be exercised by the Director, Anti-Corruption Establishment, Punjab and his subordinates as in the instant case on the basis of their own whimsical hypothesis who must avoid thereof in their own interest especially when Pakistan is a Democratic Country being governed by the Constitution of the Islamic Republic of Pakistan, 1973. This type of violation of law cannot be approved by this Constitutional Court. An operation may be unsuccessful. The patient may survive or die. The crux is that the Anti-Corruption Laws are not applicable towards the private practice of the Doctors. I must give vent to my feelings that the Anti-Corruption Establishment should not open the wider net in such manner and no free hand can be given to the concerned officers. The competent and experienced Medical Experts are also leaving the country and for their safe and respectable stay in the country it is proper that without jurisdiction and legal justification no case is registered against them and more particularly with a delay of more than three years.
13-A. For what has been said above, I accept this writ petition with costs and quash F.I.R. No, 104 registered on 29-7-1998 at Police Station Anti-Corruption Establishment, Multan Region, Multan under section 161, Pakistan Penal Code and under section 5 of the Prevention of Corruption Act, 1947.
14. A copy of this judgment shall be sent by the Registrar, Lahore High Court, Lahore to the Chief Secretary to the Government of the Punjab, Lahore to avoid the repetition of same type of transgression of authority by the Anti-Corruption Establishment, Punjab, Lahore.