ABDUL HAMEED DOGAR, J.- By a common order I propose to dispose of the Criminal Miscellaneous Nos. 472, 521 and 532 of 1994, find by applicants Uzair Ahmed, Shakeel Ahmed and Syed Zafar Hussain and Manzoor Ali respectively, as they arise out of common order dated 15.9.1994, whereby application under Section 249-A, CrPC was dismissed.
2. Briefly the facts leading to the filing of these applications are that complainant Rafat Zaman Kiyani, Secretary Architects and Engineers' Co-operative Housing Society, lodged FIR as Crime No. 320/1990 at PS Liaquatabad, Karachi, under Sections 409, 420, 465, 468, 47l and 34, PPC against Uzair Ahmed Siddiqui, Syed Zafar Hussain, Manzoor Ali, Shakeel Ahmed, Ibn-e-Umar and Ismail Kassarn, out of them Uzair Ahmed was Sub-Registrar, -Syed Zafar Hussain was Chairman, Shakeel Ahmed was Legal Adviser, whereas the others were members of the Society. According to the complainant, he was authorised by Registrar, Co-operative Societies to lease out the land allotted to the Society in Jauharabad, KDA Scheme No. 36, but the applicant and other accused in collusion with each other in furtherance of their common intention cheated people and sold the land of the society on the basis of bogus, duplicate and forged documents registered by Mr. Uzair Ahmed Siddiqui, Sub-Registrar of Co-operative Societies. After registration of the above-mentioned case applicants Syed Zafar Hussain and Uzair Ahmed Siddiqui were arrested, whereas others were allowed pre-arrest bail. Liaquatabad Police after usual investigation challaned them before the Court of the learned Special Judge Anti-Corruption (Central), Karachi, where applicants moved application under Section 249-A, CrPC which was dismissed hence this application.
3. I have heard Mr. Faizuddin, ;he learned counsel for applicant Uzair Ahmed Siddiqui, Mr. Jawed Musarrat, the learned counsel for applicant Shakeel Ahmed, Mr. Gul Zaman Khan the learned counsel for applicants Syed Zafar Hussain and Manzoor Ali and Mr. Muhammad Saad Qureshi the learned counsel appearing on behalf of the Advocate-General, Sindh, for the State, at length and have gone through the impugned order and other relevant documents.
4. At the very outset the learned counsel for the applicants agitated legal pleas and contended that the learned trial Court has no jurisdiction to try the offence. According to Mr. Gul Zaman Khan, offences under Sections 468 and 471, PPC were non-cognizible, as such were covered under Section 155(2), CrPC. He further argued that in the cases of such natured no police officer shall investigate a non-cognizible case without the orders of Magistrate of First or Second Class, having powers to try such case, which, admittedly, has not been done in this case, as such the entire exercise of making investigation into this case and submission of challan becomes illegal. In support of his contention he has relied upon the case-law reported in 1968, PCrU 97 and PLJ 1997 Lahore (Crl. Cases) 1466.
5. The learned counsel next argued that local Police, viz. SHO of PS Liaquatabad, has no jurisdiction to register case in the offences falling within the Schedule of Prevention of Corruption Act, 1947.
Section 409 read with Section 5(2) of Prevention of Corruption Act, 1947 falls within such Schedule therefore, the persons facing trial under this provision of law cases are to be registered with Anti- Corruption Establishment and not at Local Police Station under the Administrative Control of Superintendent of Police of the District. Moreover, applicants Uzair Ahmed Siddiqui was Sub- Registrar, Co-operative Societies, Syed Zafar Hussain was Chairman whereas Manzoor Ali, Ibn-e- Umar and Ismail Kassam were the members of the said Society, as such they were public servants in view of Section 21 of PPC case should have been registered, investigated and challaned by Anti- Corruption Establishment, as such Local Police had no jurisdiction and the entire exercise is illegal.
Since admittedly no sanction for prosecution against them was being obtained as public servants, as such the trial Court had no jurisdiction to try the case against them. He further contended that complainant Rafat Zaman Kiyani, ex-Secre:ary/Member of the Society had himself indulged in the fraud, forgery and cheating. In fact the dispute between the complainant and the applicants was a dispute touching the business and Management of the Society, could only be referred to the Registrar, Co-operative Societies under Section 54 of the Co-operative Societies' Act, thus local Police had no jurisdiction to take cognizance of in such cases. In support he has relied upon case- law reported in 1985 PCrlj 2871 and an unreported citation of this Court in Crl. Misc. No. 1371/1985. He lastly contended that the learned Special Judge, Anti- Corruption had no jurisdiction to try the case against the applicants. Where a mandatory and elementary principle of law is set down for the proceedings by the Court, Tribunal or any other authority, then it is to be followed strictly in accordance with that. The Courts, Tribunals or authorities in such circumstances will have to see their jurisdiction first and then proceed with the same, having not been done so, they are legally barred by the law to proceed with such matters. Reliance in support of the contentions has been placed by the learned counsel on PLD 1971 SC 127(C), PLD 1972 SC 271 and NLR 1991 Crl. 644.
6. Mr. Faizuddin, the learned counsel for applicant Uzair Ahmed Siddiqui, contended that the applicant in fact has not committed any offence as he while performing duties as Sub-Registrar-1 Division Karachi, registered documents after making prescribed inquiry under Section 34 and observing of legal formalities under Sections 52 to 59 of the Registration Act, 1908 and rule 39 of Sindh Registration Act, 1940. In support he referred an unreported- decision of the Hon'ble Supreme Court in Civil Appeal No. 140-K/1982.
7. Mr. Jawed Musarrat, the learned counsel for applicant Shakeel Ahmed, adopted the arguments of the other counsel but simply added that the applicant was a Practicing Advocate and Legal Adviser of the Society and had only identified the applicant Zafar Hussain before applicant Uzair Ahmed Siddiqui, Sub-Registrar of Co-operative Societies.
8. Mr. Muhammad Saad Qureshi, the learned counsel appearing on behalf of the Advocate- General, Sindh for the State, conceded to the arguments of the learned counsel for the applicants and stated that the case of the applicants on legal points is fully covered by the law referred above and has raised no objection to the quashment of the proceedings.
9: Since so many legal pleas with regard to jurisdiction have been raised, as such it would be appropriate to discuss them individually. The first legal objection that offences under Sections 465, 468 and 471, PPC are non-cognizible, hence the provisions of Section 155(2), CrPC would apply.
Admittedly in such cases the information given to officer incharge of Police Station is to be entered in daily diary maintained at Police Station and the substance of such information and the informant are to be referred to the Magistrate having jurisdiction, Police Officers are not competent to investigate such cases without having prior permission from the concerned First or Second Class Magistrate. Having not done so, the very registration of FIR under the above provisions of law and subsequent investigation by the Police would be without legal authority and of no legal effect, In the referred case of Mst. Mumtaz Begum cmd 4 others v. The Stare, reported in 1968 PCrL.1 97. It has been held that it is a well-settled proposition of law that where a power is given to do a certain thing in certain way, the thing must be done in that way or not at all. Other methods of performance of that act are necessarily forbidden. The entire investigation done by Sub-Inspector where he had not obtained permission of the Magistrate was nullity and could not be basis of report.
10. The same view has been followed in the case of Mst. Razia Shaheen v. The State, reported in NLR 1998 Cr. 26 and in paragraph 15 it has been held that on relying the dictum enunciated in Ghulam Qasim @ Muhammad Qasim v. The State, reported in 1991 PCrLJ 2418, the offences under Sections 468 and 471, PPC being non-cognizible and police had not obtained any warrants of permission from the Area Magistrate to register or investigate the case, the entire exercise would be illegal and without lawful authority.
11. To elaborate a rule for exercise of jurisdiction, it has been held in the case of Mansab Ali v.' Amir and 3 others, reported in PLD 1971 SC 124, relevant page 127(C) as under: "It is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, Tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction. The learned Advocate- General fully supported this view and asked for dismissal of the appeal."
12. The above view was reiterated in the case of Rashid Ahmad v. The Slate, reported in PLD 1972 SC
271. On another legal issue that sanction for prosecution was not obtained in this particular case, it has been held in the above citation by the Hon'ble Supreme Court that in such cases all proceedings become illegal and without jurisdiction.
13. The contention that a case under Provincial Anti-Corruption Act. 1947 against a public servant can only be registered at Anti-Corruption Establishment and not at Police Station under the administrative control of Superintendent of Police of a District has sufficient force. Alongwith other Sections of PPC, the applicants, being public servants within the meaning of Section 21, PPC, have also been challaned under Section 5(2) of Prevention of Corruption Act, 1947.
14. In the case of Muhammad Sharif v. SHO Police Station City Hafizabad, etc., reported in NLR 1998 Cr. 10, it has been held that in anti- corruption cases under Prevention of Corruption Act, 1947 registered against public servants can only be registered at Anti-Corruption Establishment and registration of Anti-Corruption cases against public servants at Local Police Stations or under the orders of Magistrate First Class would be without lawful authority. Reference of a number of cases has been made in paragraph 9 of-the reported case and it has been held that in such cases the ultimate result was quashment of such proceedings.
15. Irrespective of the above dispute between the complainant and the applicant, the Chairman and the members of Society touches the business of internal management of their society and under Section 54 of the Co-operative Societies Act, 1925 any such dispute touching the business of society can only be referred to the Registrar for decision by him or of his nominee, if either of the parties so desire, to arbitration of three arbitrators. Where Registrar finds that certain members of Managing Committee or office bearers of the society have cheated the society or committed forger or embezzled or misappropriated its funds, he can initiate an inquiry under Section 43 and can exercise powers to initiate criminal prosecution against them under Section 50-A of the Act. This aspect of the matter has been decided in the case of Khanzada Hadayat Ali Khan v. Mazhar Ali Khan and others, reported in 1985 PCrLJ 2871, wherein about 9 petitions against acquittal of respondents were dismissed, wherein the allegations against the respondents, the members of managing Committee of Model Town Co-operative Society were that of cheating, forgery and embezzlement committed in the course of their duties as the members. It has been held by the Lahore High Court that the dispute touches the business of the society, as such the matter could only be referred to the Registrar of the Societies under Section 54 of the Co-operative Societies Act and Registrar can initiate inquiry under Section 43 and also under Section 44-B of the Act, can exercise any of the powers given to him under Section 50-A of the Act.
16. The culminative effect of the above discussion is that these applications succeed and the proceedings pending against the applicants stand quashed in the interest of justice.