' This judgment will dispose of Writ Petitions Nos.17900, 17901, 17902, 17903, 17904, 17905, 17906, 17907, 17908, 17909, 17910, 17911, 17912, 17913, 17914, 17998, 18785, 19161, 19194, 19195, 19196, 19197, 19198, 19199, 19364, 19365, 20401, 20460 and 20472 of 1998 as common question of law is involved.
2. All these petitions can be divided into two categories. In one category of these petitions, First Information Reports have already been registered against the petitioners. Their case is that they being civil servants and offences alleged being covered by Schedule of the Punjab Anti-Corruption Ordinance, 1961 (hereinafter referred to as the Ordinance), the registration of cases at ordinary police station under section 154 of the Criminal Procedure Code, 1898, is without lawful authority. In the other category of the petitions, the cases have, in fact, not been registered but it is apprehended that these will be registered in ordinary police stations and relief being sought is that the respondents be restrained from so registering the cases. Therefore, the common question involved in these cases is the correct legal position in respect of registration of cases keeping in view the provision of the Ordinance, the Punjab Anti-Corruption Rules, 1985 (hereinafter referred to as the Rules), the provisions of Criminal Procedure Code, 1898 and the Police Act, 1861. The main argument was addressed by Mr. Pervaiz Inayat Malik, Advocate, which was substantiated by Mr. Ali Muhammad Chaudhary, Advocate while on behalf of the respondents Mr. Ashtar Ausaf Ali, Advocate-General, Punjab, assisted by Mr. Muhammad Amin Lone, Assistant Advocate-General, Punjab, appeared and made submissions.
3. The main thrust of the argument of Mr Pervaiz Inayat Malik, Advocate, is that the petitioners being public servants and allegations pertain to the performance of their functions as such public servants and the alleged offences, therefore, being covered by Schedule to the Ordinance, the registration of cases at ordinary police stations established under the Criminal Procedure Code, 1898, under section 154 of the Criminal Procedure Code, 1898 is illegal. It is stressed that under the Scheme of the Ordinance read with Rules, the registration of cases can only take place after enquiry by the Establishment. Any contrary view will expose the public servants to the whims of ordinary police officer and will also destroy the protection given to the public servants under the Rules. Large number of cases including Packages Limited through its General Manager and others v. Muhammad Maqbool and others PLD 1991 SC 258; Messrs EFU General insurance Company Limited v. The Federation of Pakistan and others PLD 1997 SC 700; Messrs Bisvil Spinners Ltd. v.
Superintendent, Central Excise and Land Customs, Circle Sheikhupura and another PLD 1988 SC 370; Neimat Ali Goraya and 7 others v. Jaffar Abbas, Inspector/Sargeant Traffic through S.P., Traffic, Lahore and others 1996 SCMR 826. Golden Orphies (Pvt.) Ltd. And 12 others v. Director of Vigilance, Central Excise, Customs and Sales Tax and others 1993 SCMR 1635, Wukala Muhaz Barai Tahafaz Dastoor and another v. Federation of Pakistan and others PLD 1998 Supreme Court 1263; Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Messrs Tank Steel and Re: Rolling Mills (Pvt.) Ltd., Dera Ismail Khan and others v. Federation of Pakistan and others PLD 1996 SC 77; Muhammad Sadiq and others v.
University of Sindh and another PLD 1996 SC 182; The State v. Hanitho 1971 SCMR 686; Akhtar Muhammad v. Haji Faiz Muhammad and others 1986 PCr.LJ 2994 have been cited to make the point that the provisions of special law prevailed over the provisions of general law, in case both cannot be harmonized together. The judgments reported as Saleem Hussian v. State PLJ 1996 Cr.C.(Lah.)
916; Mahboob Ali v. State and 3 others PLD 1996 Lah. 454; Tariq Latif Butt and others v. State and 4 others 1996 MLD 1874; Muhammad Sharif v. S.H.O., P.S. City Hafizabad PLD 1997 Lah. 692 have been relied upon in support of the proposition that cases against public servants in respect of scheduled offences can only be registered with the Establishment and enquired into and tried by the Members of the Establishment constituted under section 3 of the Ordinance.
4. The learned Advocate-General, Punjab, on the other hand, has contended that the provisions of Ordinance do not displace/uproot any of the provisions of existing laws like Criminal Procedure Code, 1898 and Police Act, 1861 and for this purpose has relied on section 8 of the Ordinance which is to the effect that the provisions of the Ordinance are in addition to and not in derogation of any other law for the time being in force. In this connection he has further relied on the case reported as M. Abdul Latif v. G.M. Paracha and others (1981 SCMR 1101). Learned Advocate-General, Punjab, has emphasized that the issue involved in these cases stands clinched by the above judgment of the Supreme Court and this Court need not enter into fresh exercise. He has also elaborated that registration of a case at one or the other police station is not very material as it is in the interest of the Society as a whole that the report of the crimes be taken notice of and the allegations investigated. He has urged that the cases of this Court namely Saleem Hussain v. State (PLJ 1996 Cr.C. (Lahore) 916), Mahboob Ali v, State and 3 others (PLD 1996 Lah. 454), Tariq Latif Butt and others v. State and 4 others (1996 MLD 1874) and Muhammad Sharif v. S.H.O., P.S. City Hafizabad (PLD 1997 Lah. 692) relied upon by the learned counsel for the petitioners do not lay down correct law as these failed to take notice of the above Supreme Court Judgment. By relying on the case reported as Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari (PLD 1997 SC 351) at page 364 he has described these judgments as per incuriam. In reply Mr. Pervaiz Inayat Malik, Advocate, referred to the letter issued by Director, Public Instructions (EE), Punjab, Lahore which appeared at page No,23 of Writ Petition No,18785 of 1998 to the effect that Tehsil Implementation Committee has been asked to send the cases to appointing authorities for further orders/registration of cases.
5. Extensive review of the Ordinance, the Rules as well as other Statute like Criminal Procedure Code, 1898 and Police Act will not be required if the judgment of the Supreme Court in Abdul Latif's case (supra) is held to be applicable. To begin with, therefore, it is the aforesaid judgment which should be deeply examined. The facts in the reported judgment were that on a complaint of embezzlement/misappropriation to the tune of Rs,30 lacs a raid was conducted at Ration Depot No, P/10, Multan as a result thereof case was registered against officials of the Food Department including Abdul Latif. The case was entrusted for investigation to police officers attached to the Anti Smuggling (Rice and Paddy) Mobile Team, Multan including Muhammad Sadiq, Assistant Sub- Inspector and Muhammad Ashraf Bajwa, Sub-Inspector. Abdul Latif filed a writ petition in this Court challenging the competency to investigate the case against him. This Court found that the above said police officers were competent to carry out the investigation and dismissed the petition. Abdul Latif applied for leave to appeal and canvassed the proposition which had been repelled by the High Court. Reliance in the Supreme Court Judgment was inter alia placed on section 3 of the Ordinance to show that the investigation could only be conducted by the Anti-Corruption Establishment. The argument was noted by the Court in Para. No,7 of the Order and answered as under:-- "He submitted that such an Establishment had, in fact, been created and it being a special law, only members of this Establishment could investigate the offences of corruption, and that, therefore, Police officers attached to the Anti-Smuggling (Rice and Paddy) Mobile Team could not investigate such a case. The contention overlooks the provision of section 8 of the said Ordinance which provides:-- 'The provisions of this Ordinance are in addition to and not in derogation of any other law for the time being in force.'
' In view of the above discussion we find that the petition has no merit and is, therefore, dismissed."
6. It will be seen that the cited case does support the proposition canvassed by the learned Advocate-General, Punjab inasmuch as in these cases the investigation of the cases registered against some of the petitioners will be conducted by the police officers of the respective police station and not by the Members of the Anti-Corruption Establishment. The above findings conclude the controversy in this Court but the learned counsel for the petitioners have stressed for adjudication of number of other points which according to the learned counsel were not raised before the Honourable Supreme Court at the relevant time. He has, therefore, solicited that notwithstanding the judgment of the Supreme Court this Court should proceed to determine those questions.
7. I am of the view that in so far as this Court is concerned, the above judgment of the Supreme Court concludes the issue. However, it would not be entirely irrelevant to take notice of some of the facts of the controversy as emerging from the arguments on the both sides.
8. Scrutiny of the provisions of the Ordinance shows that it does not contain any non obstante clause. On the contrary, section 8 clearly provides that the provisions of the Ordinance are in addition to and not in derogation of any other law for the time being in force. In other words, the application of all the provisions of Criminal Procedure Code, 1898 including section 154 of the Criminal Procedure Code, 1898 has not been ruled out, rather it has been clearly kept intact.
Similarly, section 3 and section 6(2) of the Ordinance in terms do not talk of registration of a case but investigation of case or offences. However, Rule 8 of the Rules does talk of registration of cases and in fact lays down that criminal cases shall be registered by the Establishment under the written orders of officers of the Establishment mentioned in sub-rule (2). Similarly, Rule 9 lays down that if the arrest of a public servant becomes unavoidable during investigation, he may be arrested afterward. However, in the excepted cases permission of Commissioner/Chief Secretary will be required. Similarly, Rule 15 talks of dropping of cases or recommending departmental action.
Some of the Rules deal with the Constitution of the District Anti Corruption Committees and Provincial Anti-Corruption Committees and so on. Prima facie some of the provisions of the Rules, 1985 travel beyond the provisions of the Ordinance. In particular, Rule 8(2) placing embargo on registration of cases is not covered by any provision of the Ordinance. The rule-making authority, therefore, seems to have taken upon itself the function of Legislature. It is well settled that rules are made by Executive Authorities and it is not the act of legislation. Rules have to remain within the parameters of the Act/Ordinance and the moment the same or some of them travel beyond the provisions of parent law, the same are struck down as ultra vires. Rules 8 and 9, in particular, and some other rules can be dubbed as an exercise of legislation and an act of usurpation by the rule- making authority. If the objective was to describe the public servants as a different class of offenders and to afford them some protection against indiscriminate arrest etc., the provisions ought to have been inserted in the Ordinance itself. This object cannot be legally achieved by exercising the power of rule-making by executive authority. I may clarify that the above are some of the facts of the controversy which will have to be examined in an appropriate case in the light of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973.
9. To conclude, I hold that the law declared by the Supreme Court of Pakistan in Abdul Latif's case is applicable in all these cases. It is admitted by the learned counsel and the Advocate-General, Punjab, that the Single Bench judgments of this Court (noted above) do not notice the above Supreme Court Judgment and, therefore, are per incuriam. Resultantly, all these petitions are dismissed without any order as to costs.