MIAN NAZIR AKHTAR, J.--- This judgment will dispose of Writ Petitions Nos.1636, 1795 and 1796 of 1999 in which common questions of law and facts are involved.
2. Briefly stated the facts giving rise to this petition are that on a written application by Gulzar Ahmad Mir (Excise and Taxation Officer, Sialkot) on 27-5-1998, a case was registered against the petitioner and his co---accused named Ch. Nazir Ahmad and Muhammad Iqbal vide F.I.R. No.34, dated 1-6-1998, for an offence under section 161 of the P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947, at the Directorate of Anti-Corruption Establishment, Lahore. Later, the offences under section 409 of the P.P.C. and section 5-C of the Prevention of Corruption Act, 1947 were added on 2-6-1998. At the time of registration of the case, Abdul Waheed Khan, petitioner was serving as Director-General, Excise and Taxation, Punjab, Lahore, while his co-accused Ch. Nazir Ahmad and Muhammad Iqbal were the Director, Excise and Taxation, Gujranwala, the Excise and Taxation Officer Headquarter, Lahore, respectively.
3. The complainant's version unfolded in the F.I.R. is that he was serving as E.T.O., Sialkot since February-, 1997, and prior to that remained E.T.O., Lahore since October, 1994; that his tax recoveries at Lahore and Sialkot had been more than satisfactory; that the petitioner was serving as Director- General, Excise and Taxation and had received a sum of Rs.2,00,000 from him to decide an inquiry in his favour a few months before registration of the case; that he had borrowed some money from his brother---in-law and mother-in-law to make payment to the Director-General; that Ch. Nazir Ahmad, Director, had written a D.O. letter to the Director-General for taking action against him for his absence from a meeting; that the D.G. called him at Lahore; that Muhammad Iqbal, E.T.O., told him that he must pay a sum of Rs.1,00,000 to the D.G. if he wished to remain in service; that he went back and arranged a sum of Rs.60,000 which was paid to the D.G. that he paid another sum of Rs.50,000 to Ch. Nazir Ahmad, Director, who promised not to write against him in future and that a sum of Rs.12,000 was also paid to Muhammad Iqbal, E.T.O. At the end, the complainant alleged that the D.G. had a number of bank accounts worth lacs of rupees.
4. It may be mentioned that the complainant had submitted the above--referred written application before the Minister for Labour and Manpower, Punjab, instead of a minister having control over the Excise and Taxation Department. The complainant as well as the Minister for Labour and Manpower belonged to Sialkot. It is the petitioner's claim that the application was submitted before the unconcerned minister collusively on 27-5-1998 who showed favour to the complainant and passed an order thereon for taking immediate necessary legal action. The application was promptly put up before the Director, Anti-Corruption Establishment Punjab, Lahore, who sought permission of the Chief Minister for initiating an inquiry and registration of a case against the accused persons. On the same date i.e. 27-5-1998, the Chief Minister, Punjab, allowed the request of Director, Anti-Corruption Establishment Punjab, Lahore. Accordingly inquiry No.250 of 1998 was entrusted to Rashid Ahmad Malik, Inspector Headquarter, D.A.C.E. Punjab, Lahore. He recorded the statements of Shahid Butt, resident of Daska and Muhammad Asif Mir resident of Dhil4m Balgon, Tehsil Daska, on 28-5-1998 and submitted the final inquiry on 30-5-1998. The inquiry file contains the statements of Ch. Nazir Ahmad and Muhammad Iqbal co-accused recorded on 2- 6-1998 after submission of the final inquiry report. It also contains the statement allegedly made by the petitioner but it does not bear his signatures. On the basis of final inquiry report the case was formally registered vide F.I.R. No.34 on 1-6-1998.
5. The petitioner's learned counsel strenuously urged that the complainant had shady character and was hostile to the honest officers in the Excise and Taxation Department including the petitioner and his co-accused who had been taken departmental action against him; that at a later stage, the complainant was himself arrested in a criminal case registered vide F.I.R. No.40 of 1998; that the complainant belonged to Sialkot and had access to the Minister for Labour and Manpower who also belonged to Sialkot and hatched a conspiracy to involve the petitioner and his co-accused maliciously; that even the Director, respondent No.2, hailed from Sialkot and, all the three joined hands to punish the petitioner and his co-accused who had ventured to take action against the complainant, a favourite of many high-ups; that for that reason the written report submitted by the complainant to an unconcerned minister was promptly processed and within a day file of the case moved from the office of the Minister for Labour and Manpower to the offices of the Director, A.C.E. Punjab, Lahore, the Chief Minister and then again the office of the Director, A.C.E., Punjab, Lahore; that the so--called preliminary inquiry was partially completed within a day; that the case was registered on 1-6-1998 and the police took prompt steps and arrested the petitioner and his co-accused on 2-6-1998; that the news of the action taken against the petitioner and his co-,accused was flashed in the national press with ulterior motives of harassing and humiliating them. That the preliminary inquiry was fake in which the petitioner and his co-accused were not associated; that after registering the case and satisfying the whims of the complainant and the other high-ups, the Investigating Officer recorded the statements of Ch. Nazir Ahmad and Muhammad Iqbal, co-accused on 2-6-1998; that so far as the petitioner is concerned, the police prepared his fake statement but it did not bear his signatures; that no sane Police Officer could have readily believed the statements of Shahid Butt and Muhammad Asif who had the cheek to say that on 4/5 occasions when money was allegedly paid to the petitioner or his co-accused they were present at five different places with the complainant; that in the F.I.R. the date, time of occurrence and names of the witnesses before whom bribe-money was allegedly paid were not mentioned and both the witnesses were set up later; that the alleged preliminary inquiry was a sheer mockery and nothing short of an apology for an inquiry; that the inquiry was not conducted in accordance with the provisions of Rules 6 and 7 of the Punjab Anti---Corruption Rules, 1985; that an inquiry was going on against the complainant who wielded influence with the higher officers and obtained an order from the Secretary Excise and Taxation whereupon the petitioner had passed an order on 27-9-1997 dropping the inquiry against him; that after the complainant had succeeded in his efforts to have the inquiry dropped in September, 1997, there was hardly any justification for him to pay a sum of Rs.2,00,000 to the petitioner in September, 1997; that even otherwise the report was lodged with a delay of more than eight months without any satisfactory explanation; that there is no material on the record. to make out an offence under section 409 of the P.P.C. or section 5(C) of the Act against the petitioner and his co-accused; that the alleged recovery of Rs.5,00,000 from the petitioner is a classic example of mala fide action; that the petitioner who is a heart patient was forced to write a cheque for Rs.5,00,000 which was got encashed from the bank and then the amount was secured by the Investigating Officer through the recovery memo., dated 2-6-1998; that the complainant had allegedly paid Rs.2,60,000 but the police obtained a cheque of Rs.5,00,000 from the petitioner through coercion in order to please the high-ups who had conspired to involve the petitioner in a false case; that after registration of the case the petitioner brought the true facts to the notice of the Investigating Officers who were convinced that the petitioner was innocent and wrongly involved in the case, therefore, the various Investigating Officers including the Assistant Director, Anti-Corruption, Assistant Director (Legal), Deputy Director (Legal) and the Additional Director, Anti-Corruption, found the petitioner and his co-accused to be innocent and recommended that the case be cancelled; that even the Investigating Officer, Mr. Muhammad Anser Khan, appointed by the Government under the Punjab Efficiency and Discipline Rules found that the case against the petitioner was false and that no action was called for against him; that in spite of the consistent views of the above-referred officers, the complainant who is a corrupt and influential person managed to obtain another order from the Director, Anti-Corruption respondent No.2 for re--investigation of the case; that the impugned order for re-investigation passed by respondent No.2 is illegal and smacks of mala fides; that the reasons for re-investigation have already been dealt with in the final inquiry report in which the petitioner has been found to be innocent; that the order for re--investigation is merely meant to prolong the petitioner's agony and to cause harassment and mental torture to him; that there is no possibility of the petitioner's conviction on the basis of the material on the record and that it would be in the interest of justice to quash the mala fide F.I.R. registered against the petitioner. In support of his contentions, the learned counsel placed reliance on the following judgments:-- (i)Riaz Hussain and others v. The State 1986 SCMR 1934, (ii)Sher Muhammad and 4 others v. Saeed Akhtar Tatla, Inspector (S.H.O.), Police Station Saddar Chiniot, District Jhang and others 1993 MLD 2064; (iii)Abdul Aziz v. S.P. (C.I.A.), Sargodha and 2 others PLD 1997 Lah. 24, (iv)Mian Hamza Shahbaz Sharif v. Federation of Pakistan and others 1999 PCr.LJ 1584, (v)Ch. Atta Mohayo-ud-Din v. State and 2 others 1999 MLD 1882.
6. On the other hand, the learned A.A.-G. urged that the Director, Anti-Corruption, respondent No.2 was competent to order re-investigation; that he had assigned a number of reasons to justify re- investigation of the case; that he or for that matter the Chief Minister or Minister for Labour and Manpower had no motive or ill-will against the petitioner to falsely involve him in the case; that re- investigation has been ordered in the interest of justice and fairplay; that the petitioner can approach the Chief Secretary for dropping the proceedings against him under the rules and that this Court should not interfere in the police investigation at this stage.
7. There is considerable weight in the arguments raised by the petitioner's learned counsel. The manner in which the complainant's application was 'processed, the preliminary inquiry held and the case registered against the accused persons definitely smacks of mala fides. In the normal course the application ought to have been submitted before the minister having control over the Excise and Taxation Department. The complainant who hails from Sialkot submitted the application before the Minister for Labour and Manpower and then it was sent to the Director, Anti-Corruption.
Both, the Minister as well as the Director belonged to Sialkot. There was some community of interest. which is reflected in the promptitude with which the application submitted by the complainant was processed. As mentioned above, the application was submitted before the minister on 27-5-1998 and on the same day it was sent to the Director, Anti-Corruption who promptly approached the Chief Minister on the same day and obtained his permission to hold a preliminary inquiry and register a case. It is surprising that the permission to register a case was simultaneously granted alongwith that, of holding an inquiry, as if the registration of a case was a foregone conclusion even before holding of the inquiry. The inquiry was entrusted to the Inspector, Headquarter, on 28-5-1998 who recorded the statements of two witnesses on the said date and thereafter, submitted the final report on 30-5-1998 without associating the petitioner and his co--- accused with the inquiry proceedings. There is nothing on the record to show that any notice was given to the petitioner or his co-accused to join the preliminary inquiry. Had they been given such an opportunity they would have welcomed it in their own interest and brought relevant facts on the record to show their innocence (as was done by them during the investigation after registration of the case). The Investigating Officer noted in his report that he had twice called the accused persons but they did not appear before him. This appears to be a false report to justify the one- sided arbitrary inquiry report which was merely meant to have the criminal case registered and provide legal cover to the police to arrest the accused persons. It is surprising that in a case of this nature in which three public servants were involved a preliminary inquiry was conducted in a shabby and careless manner and practically concluded in a day. The complainant, who is also an Excise and Taxation Officer, alleged that he had paid a sum of Rs.2,60,000 to the petitioner, Rs.50,000 to Ch. Nazir Ahmad and Rs.12,000 to Muhammad Iqbal, co-accused and after obtaining the money from his brother-in-law and mother-in-law but the Inquiry Officer did not record their statements. Similarly, he did not consider that the names of Shahid Butt and Muhammad Asif Mir were not mentioned by the complainant in the F.I.R. Moreover, the claim made by the two witnesses that of five different occasions and at five different places during the period from September, 1997 and May, 1998, they were present with the complainant was per se highly improbable and could not be readily believed by any fair and independent person. By readily accepting the statements of these two witnesses who claimed to be present with the complainant like his pets, the Investigating Officer clearly exhibited that he had a prejudiced mind against the petitioner and his co-accused.
It may be mentioned that the original record appears to have been tampered with because at the end of the statements of the abovenamed two witnesses some additions/alterations have been made apparently with a view to giving a serious colour to the case against the accused persons. At the end of the statement of Shahid Butt, the following lines have been added in the different ink/handwriting:-- At the end ofthe statement made by Muhammad Asif Mir the words were written and then cut off.
Thereafter, the following words were added in different ink/handwriting:-- Similarly in the statement made by the complainant before the Investigating Officer on 28-5-1998 placed on the investigation file vide Zimni No. l para. 2, dated 1-6-1998, the words:-- were added in different ink and handwriting on the first page and at the end, the following words were added in different ink and handwriting:-- Thus, it is evident that the above addition and alterations were, subsequently, made in a crude and mala fide manner to add to the gravity of the case. However, even an iota of evidence was not collected to substantiate the above-referred wild allegations. If the Director, Anti-Corruption, respondent No.2 is now minded to hold re-investigation to probe into the said allegations he ought to have proceeded with caution at the earlier stage and told the Investigating Officer to hold further probe before readily ordering registration of a case and flashing a news in the national press against the accused persons. After all. the rules regarding the preliminary inquiry are meant to protect the public servants from undue harassment and humiliation at the hands of other persons including their subordinate, opponents and other citizens, who, at times, feel unhappy or dissatisfied with their orders Under Rule 7 of the Punjab Anti-Corruption Establishment Rules, 1985, the object of preliminary inquiry is stated It is meant to ascertain the identity of the complainant or informer and "genuineness" of the complaint, information. For this purpose a serious effort has to be made at the initial stage to ascertain genuineness of the complaint/information. The public servants likely to be affected adversely must be associated with the inquiry because they being directly connected with the matter can best assist the Investigating Officer to arrive at the truth and, thus, secure the object of the law embodied in Rule 7. Unfortunately, in the present case, the preliminary inquiry started and finished in a day like a one-day Cricket match. In this game the complainant and his supporters achieved victory but the object of law was defeated. After achieving the coveted goal of registration of the case, the complainant had to face strak realities during the course of investigation. The petitioner and his co-accused laid bare the truth whereupon the Investigating Officer (the Assistant Director, Anti-Corruption) found the petitioner and his co-accused to be innocent and recommended that the case against them be cancelled.
His view was concurred with by the Assistant Director (Legal), Deputy Director (Legal) and the Additional Director Anti-Corruption. Mr. Haq Nawaz Baluch, D. S. P. /Assistant Director (Investigation) the Investigating Officer, carefully perused and scrutinized the material on the record and wrote a detailed report running into about 22 pages. He noted that the complainant neither gave the time, day and date of occurrence in the F.I.R. nor in his statement during the investigation; that the departmental inquiry against the complainant had already been filed on 27-9-1997, therefore, there was no justification for him to pay a huge amount as bribe to the Director-General; that during the inquiry, Shahid Butt and Muhammad Asif Mir witnesses had stated that they were present outside the house of the Director-General and had seen the complainant paying money to him from near the wall but during the investigation they changed their version and stated that they were present in the courtyard of the house and saw the occurrence; that the complainant had stated in the F.I.R. that he had borrowed money from his mother-in-law and brother-in-law but during the investigation he did not say so; that he merely stated that he had taken the amount from his house and then paid it to the accused persons; that the statements of the witnesses are inconsistent and not believable. The relevant part from the report reads as under:-- The investigating Officer also probed into the allegation whether the petitioner had amassed wealth through the registration of smu ggled vehicles and bribery and deposited money in his bank accounts or the bank accounts of his wife and children. He gave the following bank accounts of the petitioner, his wife and children and the amount available in the accounts:-- (i)SSA0035880009 Union Bank, Empress Road, LahoreRs.148.74 paisa
(ii) SSA0065340007 Union Bank, Empress Road, Lahore.Rs.85,806
(iii) PLS-0129940006 Union Bank, Emperess Road, Lahore.Rs.7,937.50 paisa
(iv) PLS0129930000Rs.7,937.50 paisa In this connection, he gave the following opinion:-- After carefully analysing the material on the record, he reached the following conclusion:-- All the independent officers in the hierarchy including the Assistant Director (Legal), Deputy Director (Legal) and the Additional Director, Anti --Corruption agreed with the well-considered opinion of the Investigating Officer. However, the Director, Anti-Corruption, respondent No.2 who from the very beginning had shown favourable leanings towards the complainant again exhibited his hostile mind by passing an order for re--investigation on wholly untenable grounds. Before adverting to the said grounds, I may mention here that a departmental inquiry was held against the petitioner by Muhammad Ansar Khan on five charges including his involvement in the present case. After thorough probe and inquiry, the Investigating Officer found that none of the charges was proved.
As regards charge (e) regarding registration of the Anti-Corruption case, the Investigating Officer doubted the allegations of payment of bribe-money to the petitioner and his co-accused and noted that further action against the complainant op the report of the Audit Officer had been dropped by the Director-General on 27-9-1997 under the verbal orders of the Secretary (E&T); that the complainant alleged to have paid the amount of Rs.2,00,000 about two weeks earlier for the purposes of getting the case of under--assessment dropped; that why a delay of eight months had occurred in lodging the complaint; that the story of payment of another sum of Rs.60,000 on 15-5-1998 had been cooked up to cover the earlier delay of eight months. He also observed that the conduct of the complainant as depicted in the evidence of D.W.1 Ch. Nazir Ahmad, Ex-Director, Gujranwala, is hopeless and that he seemed to be irresponsible and arrogant thriving on political links.
8. It is significant to mention that there was no material on the record to show that any movable or immovable property was ever entrusted to the petitioner or his co-accused in their capacity as public servants which was dishonestly or fraudulently misappropriated by them or converted it to their own use. Despite that the offences under section 409 of the P.P.C. and section 5-C of the Prevention of Corruption Act were illegally and arbitrarily added although the F.I.R. was originally registered under section 161 of the P.P.C. and section 5(2) of the Prevention of Corruption Act.
9. Now I may advert to the reasons given for the investigation. The first reason is that Abdul Waheed Khan, petitioner, had pleaded that the motive for acceptance of illegal gratification was false because departmental inquiry (against Gulzar Ahmad Mir, complainant) was dropped under the verbal orders of Secretary (E&T) Government of the Punjab, hence further investigation should have been conducted by associating the then Secretary to verify the plea of the accused. It was hardly necessary because the petitioner had brought on the record order, dated 27-9-1997, which ended up with the words, "Explanation is, accepted. File the case". In the earlier part of the order the petitioner had mentioned that he had been instructed by the Secretary twice that the cases be dropped. The order had been passed in the normal course of performance of his official duties by the petitioner and a presumption of truth is attached to it. It was not the complainant's case that the Secretary had not instructed the petitioner to drop the cases against him.
Therefore, the first reason assigned for re-investigation is baseless. The second reason is that as per the complainant's version he had obtained the heavy amounts (paid as bribe) from his brother-in-law and mother-in-law, hence the statements of the said persons should have been recorded to verify the complainant's version. The Director has now become wiser and alive to the necessity of recording the statements of the brother-in-law and mother-in---law. I wish his judicial conscience had been alive at the time when the hopeless preliminary inquiry report was put up before him. At that time he would have been justified to postpone registration of the case and have the statements of the said persons recorded. It is surprising that the poor and shabby inquiry .report at once impressed the Director but the detailed and well-reasoned investigation report failed to appeal to him and he ordered re--investigation on laboured pretexts. He failed to consider that during the course of investigation the complainant had changed his version and did not state before the Investigating Officer that he had borrowed money from his brother-in-law and mother- in-law. He simply stated that he had brought the money from his house, therefore, recording of statements of the brother-in---law and mother-in-law had become irrelevant at the later stage.
The third reason is that the second part of the occurrence pertained to acceptance of illegal gratification of Rs.60,000 for filing of D.O. letter and that the relevant file and documents in this respect had not been collected. This was hardly necessary because as per the complainant's own version, the D.O. letter was written by Ch. Nazir Ahmad, Director E&T, Gujranwala, co---accused regarding the conduct of the complainant and his absence from the meeting. He claimed that in order to hush up the report against him he had paid a sum of Rs.60,000 to the Director-General in May, 1998. The Investigating Officer has doubted the very story of payment of Rs.60,000 to the petitioner/D.G. for sound reasons. Therefore, collection/ possession of the relevant file containing the D.O. letter and other orders in relation thereto would be an exercise in futility. The fourth reason is that the allegation of acquiring properties beyond means have not been properly investigated by the Investigating Officer. This aspect of the matter was duly considered by the Investigating Officer. He checked up the bank accounts and did not find huge amounts in the accounts of the petitioner, his wife and children. He also noted that the complainant had not mentioned any property acquired by the petitioner through the wealth amassed by him by illegal sources.
Therefore, the above-noted four reasons given by respondent No.2 for re-investigation of the case are not valid. The impugned order smacks of mala fides and calculated to prolong the agony of the petitioner and his co---accused. Hence, the impugned order as well as the F.I.R. deserve to be struck down in order to give effect to the findings of innocence in favour of the petitioner, recorded by the above-noted three officers in the hierarchy of the Anti-Corruption Establishment.
10 The argument raised by the learned A.A.-G. that the petitioner may approach the Chief Secretary for dropping the cases against him under the provisions of Rule 15 of the Rules, has no force. Once the investigation was completed, it was for the concerned authorities to pass the necessary orders in accordance with the Rules, drop further proceedings and send intimation to the concerned persons/authorities in compliance with the provisions of the Rules. If they did not perform their duty, the petitioner is well within his rights to approach this Court for redressal of his grievance.
11. Petitioner's learned counsel has placed reliance on the judgment in the case of Riaz Hussain and others (mentioned in para. 5 above). In this judgment the very system of re-investigation has been totally disapproved by the Honourable Supreme Court of Pakistan. The relevant part from the judgment is reproduced below for ready reference:-- "The system of re-investigation in criminal cases is a recent innovation which is always taken up at the instance of influential people and favourable reports obtained. This is no way assist the Courts in coming to a correct conclusion, it rather creates more complications to the Court administering justice. We, therefore, disapprove this system altogether."
It is true that the case before the Honourable Supreme Court was not one under the Anti- Corruption Laws but the salutary rule laid down by the Court about the system of re-investigation is applicable to all criminal cases including those registered under the Anti-Corruption Laws. In the case of Abdul Aziz (relied upon by the petitioner's learned counsel) it was held:-- "Law permits the carrying out of further investigation if the circumstances so warrant but this does not mean that police has unfettered powers in this respect. Re-investigation may be carried out if some further material relevant to the case is required but not to cause harassment to the parties or to oblige one party to the detriment of the other for some ulterior motive. It may cause hardship to the parties to appear before every Investigating Officer alongwith their witnesses in support of their respective versions. It would be appropriate that instead of re-opening the investigation under political pressure fate of the case is left to the decision of the Courts of law where the parties are afforded full opportunity to examine evidence in support of their versions."
The Court also gave guidelines to the Police Officers having the authority to order re-investigation.
It was emphasized that before ordering re--investigation the concerned officers should record reasons justifying re--opening of the investigation. It was further observed that they should not mechanically exercise the power vesting in them but should do so after a careful application of mind only to advance the cause of justice. In the present case, as discussed above, there was no valid reason to justify re, opening of the investigation and that the order had not been passed to advance the interest of justice but merely to prolong the agony of the accused persons with ulterior motives. The judgments in the cases of Sher Muhammad and 4 others, Mian Hamza Shahbaz Sharif and Ch. Atta Mohayo-ud-Din support the contention of the petitioner's learned counsel that in appropriate- cases this Court is competent to quash an F.I.R.
12. For the foregoing discussion, I accept this petition and declare the impugned order for re- investigation as well as the registration of the criminal case against the petitioner and his co- accused through F.I.R. No.34 of 1998 to be mala fide/without jurisdiction., without lawful authority and of no legal effect.