' Muhammad Iqbal, A.S.-I. Posted in Police Station New Anarkali, Lahore under the administrative control of Mr. Khalid Javed, Deputy Superintendent of Police, New Anarkali Circle, Lahore has filed this writ petition for the quashment of F.I.R. No,49 registered on 10-4-2000 at Police Station New Anarkali, Lahore under section 161, Pakistan Penal Code and under section 5 of the Prevention of Corruption Act, 1947.
2. The aforesaid crime case stands registered at Police Station New Anarkali, Lahore at the instance of Mr. Khalid Javed, Deputy Superintendent of Police, New Anarkali Circle, Lahore wherein he alleged that the investigation of Crime Case No,103 registered on 29-2-2000 under sections 302, 452, 324 and 109, Pakistan Penal Code at Police Station Shandara Town, Lahore was entrusted to him. He handed over the file to Muhammad Iqbal, A.S.-I. (petitioner) so that both the parties were heard and the correct facts were brought before him. He alleged that Muhammad Iqbal, A.S.-I. Started bargaining and received an amount of Rs,2,000 from Muhammad Khurshid son of Ghulam Muhammad resident of House No,547-E, Pari Lal Shah Almi, Lahore and, thus, committed the offences under section 161, Pakistan Penal Code and under section 5 of the Prevention of Corruption Act, 1947.
3. Muhammad Iqbal, A.S.-I. Has been arrested whose physical remand has been obtained.
Muhammad Iqbal, A.S.-I. Has sought the quashment of the aforesaid F.I.R. On the ground that the Deputy Superintendent of Police, New Anarkali Circle, Lahore was not competent and authorised to get registered the criminal case and that the case against him could not be registered at the local police station i,e, Police Station New Anarkali, Lahore. According to the petitioner no preliminary inquiry in terms of the Punjab Anti-Corruption Rules, 1985 has been conducted and that the First Information Report could be registered at the Anti-Corruption Establishment, Lahore. He maintained that the local police has proceeded in the matter without any legal justification in violation of the rules and the law of the land. He claimed to be a law-abiding citizen serving in the Police Department for the last 20 years and claimed to have unblemished record. He maintained that the First Information Report was lodged by the Deputy Superintendent of Police, New Anarkali, Circle, Lahore who was not an aggrieved person and that no prosecution witness was mentioned in the F.I.R. In short due to the non-initiation of the inquiry, registration of the First Information Report at local police station and expressing that the investigation could not be conducted by the police of the local police station; Muhammad Iqbal, A.S-I. Petitioner prayed for the quashment of the F.I.R.
4. This petition has been resisted by the respondents who submitted the report and parawise comments wherein they contended that the F.I.R. Could be registered at the local police station and the case could be investigated by the local police station. In this regard reliance was placed on the judgment passed in Writ Petition No,18785 of 1999. They maintained that the registration of the criminal case against Muhammad Iqbal, A.S.-I. Is warranted by law and that due to the registration of the F.I.R. At the local police station the police of local police station was competent to investigate the case. They prayed for the dismissal of the writ petition.
5. This writ petition has been admitted for regular hearing. The comments and report are treated as the written statement.
6. I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate- General and gone through the record before me. Learned counsel for the petitioner referred to Rules 3 to 17 of the Punjab Anti-Corruption Establishment Rules, 1985 wherein the procedure for the initiation of preliminary inquiry against the public servants, registration of case, arrest of the accused, imparting of information to the Administrative Department regarding his arrest, obtaining sanction for prosecution, prosecution of the accused public-servant, traps, dropping of cases or recommending department action and the factum of Establishment of Police Station of Anti- Corruption Establishment have been incorporated. According to him the registration of the criminal case without any inquiry at the local police station at the instance of the Deputy Superintendent of Police, New Anarkali Circle, Lahore is illegal, void and without jurisdiction. He added that the things have not proceeded according to the procedure laid down in the Punjab Anti-Corruption Establishment Rules, 1985. On the contrary learned Assistant Advocate-General referred to section 5(2)/5-A of the Prevention of Corruption Act, 1947 as well as section 3 read with section 8 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 and argued that investigation of offences under section 5(2) of the Prevention of Corruption Act, 1947 could be conducted by the Deputy Superintendent of Police without obtaining the permission from the Magistrate of the 1st Class as required under section 5-A of the Prevention of Corruption Act, 1947 and thus, the contention of the learned counsel for the petitioner that the investigation was violative of law is misconceived. He maintained that the provisions of section 8 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 has made out that all the provisions of the aforesaid Ordinance, 1961 are in addition to and not in derogation of any other law for the time being in force. He added that the provisions of Code of Criminal Procedure are applicable to anti-corruption cases and for that matter local police can proceed under section 154 of the Code of Criminal Procedure with regard to the registration of the case at the respective local police station known as Police Station New Anarkali Circle, Lahore. He added that this is a case of corruption and on the basis of legal technicalities it is not proper and fair to quash the F.I.R.
7. I, however, agree with the learned counsel for the petitioner. In this regard it is proper to express that when law prescribes a particular manner and procedure in which things are required to be done, the same must be done in that way and not otherwise at all. In order to test the accuracy of the submissions made by the learned counsel for the petitioner and the learned Assistant Advocate-General it would be proper to reproduce the relevant sections and rules of the Prevention of Corruption Act, 1947, West Pakistan Anti-Corruption Establishment Ordinance, 1961 and the Punjab Anti-Corruption Establishment Rules, 1985 as under:-- "(A) Sections 5 and 5-A of Prevention of Corruption Act, 1947:
5. Criminal misconduct.--- (1) A public servant is said to commit the offence of criminal misconduct-- ' 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
(2) Any public servant who commits (or attempts to commit criminal misconduct) ... Shall be punished with imprisonment for a term which may extend to seven years or with fine or with both.
5-A. Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), no officer below the rank of Inspector shall investigate any offence punishable under any of the sections of the Pakistan Penal Code (Act XLV of 1860), mentioned in section 3 of any offence punishable under section 5 without an order of a Magistrate of the first class or make an arrest therefor without a warrant:
(B) Sections 3, 6 and 8 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961.
3. Constitution and powers of Anti-Corruption Establishment.--- (1) Notwithstanding anything contained in any other law for the time being in force, Government may constitute an establishment to be known as Anti-Corruption Establishment for the investigation of offences set forth in the Schedule, and for holding preliminary inquiries for determining whether such offences shall .Be investigated or departmental inquiries into the conduct of any public servant concerned in such offences shall be held.
6. Power to make rules.--- (1) Government may make rules to carry out the purposes of this Ordinance.
(2) In particular and without prejudice to the generality of the foregoing power such rules may provide for the organization of the Establishment and for prescribing the authorities with whose permission investigation of any case or class of cases may be commenced or any person may be arrested.
8. Provisions not in derogation of any other law. --- The provisions of this Ordinance are in addition to and not in derogation of any other law for the time being in force.
(C) Rules 3 to 17 of the Punjab Anti-Corruption Establishment Rules, 1985.
3. Area of jurisdiction of ex-officio Deputy Director and Additional Director of. --- The area of jurisdiction of ex-officio Deputy Director shall be the district of his posting while that of ex-officio Additional Director shall be over his Department and attached Department in which he shall be assisted by the ex-officio Assistant Directors.
4. The ex-officio Additional Director and ex-officio Deputy Director shall only deal with the category of cases which may be assigned to them by the Government from time to time by notification.
5.--- (1) After the preliminary enquiry, if the ex-officio Additional Director or ex-officio Deputy Director finds that--
(a) there is no ground to proceed further in the matter, the proceeding shall be dropped after recording reasons, and the complainant if any, shall be informed;
(b) there are reasonable grounds to proceed further in the matter, he shall refer the case alongwith the relevant record to the appointing authority of the accused public servant for departmental proceedings under the Efficiency and Discipline Rules.
(2) If the ex-officio Additional Director or ex-officio Deputy Director receives a complaint or gets information through reliable source regarding a serious case which does not fall within the category of the notification issued under Rule 4, he shall refer the same to the Director.
(3) If a case is referred under sub-Rule (2), the Director after examining the same may return the same to the concerned ex-officio Additional Director, ex-officio Deputy Director who shall deal with the same under these rules.
6. Prelitninary enquiries and investigations against public servants.--- Preliminary enquiries and investigations shall be initiated by the Establishment against public servants on complaints received from the Government. Heads of Departments or other reliable sources.
7. Initiation of preliminary enquiries against public servants.--- A Deputy Director or an officer of or above his rank shall initiate preliminary enquiries in order to ascertain the identity of the complainant or informer and genuineness of the complaint/information: ' Provided that enquiry against the Commissioners of Divisions, Secretaries to the Provincial Government, Heads of attached Departments and other officers of BPS-20 and above, shall be initiated by the Director with the prior permission of the Governor: Provided further that, for those officers mentioned in the first proviso who are in BPS-19, such permission shall be accorded by the Chief Secretary.
8. Registration of cases.---(1) Criminal cases shall be registered by the Establishment under Prevention of Corruption Act, 1947 and under such sections of the Pakistan Penal Code, as have been set forth in the Schedule to the Ordinance.
(2) Criminal cases shall be registered against accused public servants under the written orders of officers of Establishment mentioned below:---
(a) Public servants in BPS 1 -- 16. Not below a Deputy Director.
(b) Public servants in BPS 17 Not below an Additional and 18. Director.
(c) Public servants in BPS 19 and Director:. above.
' Provided that no case shall, however, be registered by the Director Against public servants of the status of Commissioner, Secretary to Provincial Government, Heads of Attached Departments and, other officers of BPS-20 and above without the prior permission of the Governor: ' Provided further that for those public servants mentioned in the first proviso who are in BPS-19, such permission shall be accorded by the Chief Secretary: ' Provided further that no prior permission shall be required for registration of a case against a public servant caught as a result of trap arranged by the Establishment under the supervision of a Magistrate, in the act of committing an offence specified in the Schedule to the Ordinance. In such a case, a report shall immediately be made to the Chief Secretary, the Administrative Secretary and immediate superior of the public servant concerned if he is in BPS-16 and above and to the appointing authority and immediate superior if the public servant is in BPS-15 and below.
(3) If the competent authority under sub-rule (2) decides not to register a case, he shall record reasons therefor.
9. Arrest.--- The accused public servant may be arrested if his arrest becomes unavoidable during investigation, except in the following cases when permission will be accorded by the authority specified below:--
(a) Officers in BPS-18 and 19 Commissioner
(b) Commissioners and Secretaries Chief Secretary to Government Heads of Attached Departments and Officers in.BPS-20 and above: ' Provided that no such permission for arrest shall be required after sanction for prosecution has been accorded by the authority prescribed for the purpose under the Criminal Law Amendment Act, 1958: ' Provided further that no prior permission shall be necessary for the arrest of a public servant caught as a result of trap as mentioned in sub-Rule (2) of Rule 8.
10. Informing Administrative Department, etc. Regarding registration of a case and arrest. --- As soon as may be after registration of a case against a public servant, the Establishment shall inform the Administrative Secretary and immediate superior if the public servant involved is in BPS-16 or above and the appointing authority and immediate superior in case of a public servant in BPS-15 and below, giving gist of allegations upon which the case has been registered. The said authorities shall also be informed immediately after the arrest of the accused public servant.
11. Obtaining sanction for prosecution.--- After investigation in cases considered fit for prosecution, the following authorities shall be competent to move for sanction for prosecution required under subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958):--
(a) Director or Additional Director in cases against public servants up to BPS-18; and
(b) Director in cases against public servants in BPS-19 and above.
12. Sanction for prosecution.--- Sanction for prosecution shall be obtained from the authority specified under the Pakistan Criminal Law Amendment Act, 1958 (Act XL of 1958).
13. Prosecution of the accused public servant. --- On receipt of sanction the accused public servant shall be challaned to Court without any delay and the Authorities mentioned in Rule 8 shall be intimated.
14. Traps.--- In all cases of raids, the Deputy Commissioner or in his absence the Additional Deputy Commissioner (General) of the District shall be approached by the officers of the Establishment posted in the district to depute a Magistrate for supervising the raid.
15. Dropping of cases or recommending departmental action.--- (1) The following procedure shall be followed for dropping of a case or recommending departmental action:--
(a) On completion of investigation if allegations are not established, the case shall be dropped and intimation to the effect shall be sent to the authorities mentioned in Rule 8.
(b) If after investigation it is found that prosecution is not called for but sufficient material is available on record for departmental action, the Establishment shall move the departmental authorities for departmental proceedings under Efficiency and Discipline Rules.
(2) The following Authorities shall decide dropping of cases or departmental action:--
(a) Additional Directors in cases in which public servants up to BPS-17 are involved.
(b) Director in cases in which public servants up to BPS-18 are involved.
(c) Chief Secretary in which officers in BPS-19 and 20 are involved except those mentioned in clause (d) below; and
(d) Governor in cases involving Commissioners, Administrative Secretaries and officers in BPS-21 and above are involved.
(3) After a decision to take departmental action has been taken under foregoing sub-rule the competent Authority shall initiate departmental proceedings against the accused public servant.
(4) Copies of final reports and summaries of dropped cases shall not be supplied, without the permission of the Director.
(5) When decision to hold departmental enquiry against a public servant is taken, the Establishment shall forward facts of the case, statement of allegations, list of witnesses and documents, if any, to the Authority prescribed under the Efficiency and Discipline Rules.
(6) As soon as the enquiry has been completed and final orders have been passed the result of the same shall be intimated to the Establishment, alongwith a copy of Enquiry Officer's Report for completion of record.
16. Where Senior Public Servants are involved alongwith Junior Public Servant.--- For the purpose of dropping the case after investigation, or referring it for departmental action or making a move to obtain sanction for prosecution, if more than one public servants are involved, the competent.
Authority for these decisions shall be the one, which is in case of the public servant in the highest BPS.
17. Police Stations of the Establishment. --- Cases shall be registered by the Establishment at the police station of the Establishment having the jurisdiction."
8. The Punjab Anti-Corruption Establishment Rules, 1985 have been enforced later and rather the latest in time, the Rules 8 and 17 of which are relevant and significant and for that matter shall have the preference with regard to its applicability and attraction towards a matter of the instant nature.
Legally the general law, substantive or procedural is superseded by the special law of the same category and thus, the special laws towards anticorruption measures shall have the preference.
According to the Punjab Anti-Corruption Establishment Rules, 1985 framed in pursuance of section 6 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961; whole of the texture in the matter stands changed. The Punjab Anti-Corruption Establishment Rules, 1985 were enforced on 23-5-1985 vide Notification No,SV-13-1-85, dated 23-5-1985 published in Gazette, Extraordinary, dated 23-5-1985. Practically with the passage of time the provisions of section 5-A of the Prevention of Corruption Act, 1947 have become obsolete which is not utilized by the present authorities at the helm of the Anti-Corruption matters who act under the Punjab Anti-Corruption Establishment Rules, 1985. The scheme for re-organization of Anti-Corruption Establishment Rules, 1985 has been incorporated in clear terms in Punjab Anti-Corruption Establishment Rules, 1985 wherein one of the salient features of the scheme as mentioned is that Deputy Commissioner is made the ex-officio Deputy Director of Anti-Corruption Establishment. The basic idea is to have the Deputy Commissioner dealing with the corruption cases at the district level instead of Circle Officer who is the Inspector of Police only and is sent on deputation to the Anti-Corruption Establishment.
By making the Deputy Commissioner responsible for Anti-Corruption Establishment duties he has also been made an Officer with added, enhanced prestige, respect and authority at the District level. Only the ex-officio Deputy Director of Anti-Corruption who, as expressed above, is none else than the Deputy Commissioner/Magistrate of the District could pass the order for the registration of the case as he is empowered in the matter under Rule 8 of the Punjab Anti-Corruption Establishment Rules, 1985 reproduced supra. At present the District Magistrate has not to act under section 156 of the Code of Criminal Procedure in anti-corruption cases which is departure towards addition of his powers. According to section 3 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 the inquiry or investigation of the case under the scheduled offences can be conducted by the Anti-Corruption Establishment and not by the local police as rightly pointed out by the learned counsel for the petitioner. I am tempted to express at this stage that there are water tight compartments of jurisdiction. There are different branches of police, viz. Local police, Central Intelligence Agency (C.I.A.), Legal Branch, Anti-Corruption Establishment, Task Force, Highways Police, Motorway Police, Railway Police, Federal Investigating Agency (F.I.A.), Traffic Police, Intelligence Police and Anti-Narcotics Force etc. Etc. If any branch starts working, meddling according to its whims or desire in the working of the other Branch and their actions are approved, I must record and express that there would be administrative chaos in the society leading towards judicial anarchy which is not the intention of law. I deem it proper to record that if a hurt or theft case cannot be registered at Anti-Corruption Establishment how the case(s) of scheduled offence(s) mentioned in the Prevention of Corruption Act, 1947 and the Pakistan Criminal Law Amendment Act, 1985 against a public servant can be registered at the local police station under the administrative control of the local police being headed by the Superintendent of Police who has no concern with Anti-Corruption Establishment so far as the administrative control is concerned. There is separate administration of the Anti-Corruption Establishment having the separate Provincial Head designated as Director Anti-Corruption, Punjab, Lahore leading a force of subordinates of all levels incorporated in the Punjab Anti-Corruption Establishment Rules, 1985. The wisdom behind the registration of the 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 servants. It may be that in the inquiry he stands exonerated before the registration of the case and has not to go through the ordeal as the accused of any other case registered at local police station which he has to face and against whom the case may be cancelled under section 169 of the Code of Criminal Procedure or who may be acquitted under section 249-A, Code of Criminal Procedure/265-K, Code of Criminal Procedure or after holding a full-fledged trial. About the arrest of a public servant there is the aforesaid Rule 9 of the Punjab Anti-Corruption Establishment Rules, 1985 and a perusal of the same has made out that some legal restraint has been made on the immediate and forthwith arrest of the public servants except those caught as a result of trap. It has 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 as in the instant case. Thus, the persons in authority have been made cautious. This sword hanging on the civil servants/public servants must be removed and it is the right time to take note of it and to take exception to such type of working of the Deputy Superintendent of Police (Circle Officer, New Anarkali, Lahore) of local police. My view is that the very order of the registration of the case in the manner adopted by the Deputy Superintendent of Police, New Anarkali Circle, Lahore and its registration at the local police station not only offends the law of the land the same is also violative of legal ethics and human rights. Therefore, on the basis of the aforesaid reasoning and findings the investigation of the case by the local police is transgression of authority being without competence and jurisdiction.
9. It is the proper stage to refer to the ruling printed as Muhammad Afzal and 2 others v.
Muhammad Siddique Girwa, Additional Sessions Judge, Gujranwala and 3 others 1992 MLD 311 (Lahore) according to which the case got registered by an Additional Sessions Judge under sections 409, 20, 466, 468, 218, 411, 104, 106, Pakistan Penal Code and under section 5 of the Prevention of Corruption Act was quashed on the ground that the direction of the Additional Sessions Judge for registration of case against the accused persons (petitioners of that case) and consequent registration of the said case was illegal being superstructure raised on an illegal direction by the Additional Sessions Judge and the police was not authorised under the law to register the said case and investigate the same. Consequently, the order of the Additional Sessions Judge for registration of the case under the scheduled offences and its registration by the police were declared to have been passed and registered without lawful authority and of no legal effect and the case was quashed. In Riaz Ahmad Tahir v. The State and others PLJ 1996 Criminal Cases Lahore 80 the F.I.R. Lodged with local police station under sections 409, 467 and 468, Pakistan Penal Code against a Patwari was quashed as the same could only be registered with the Anti- Corruption Establishment and the State was allowed to proceed in accordance with laws/rules afresh. In Saleem Hussain v. The State PLJ 1996 Criminal Cases Lahore 916, of which I am the author, the aforesaid reasoning was adopted to hold that the anti-corruption cases could only be registered at Anti-Corruption Establishment and not at the local police station under the administrative control of the Superintendent of Police of the District and also not on the order passed by a Magistrate 1st Class as he is not empowered under section 156 of the Code of Criminal Procedure because it is only the District Magistrate who can pass the order for registration of the case as the ex-officio Deputy Director, Anti-Corruption of the District.
10. The learned Assistant Advocate-General relied on Mirza Muhammad Iqbal and others v.
Government of the Punjab PLD 1999 Lah. 109 whereby Writ Petition No,18785 of 1998 was heard and decided on 8-10-1998 wherein relying on M. Abdul Latif v. G.M. Piracha and others 1981 SCMR 1101 it was held that the relevant case of scheduled offence could be investigated by the local police instead of the Anti-Corruption Establishment on the ground , that section 8 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 provides that "the provisions of this Ordinance are in addition to and not in derogation of any other law for the time being in force". On the contrary learned counsel for the petitioner laid the emphasis that the aforesaid decision in Writ Petition No,18785 of 1998 heard and decided on 8th October, 1998 printed as Mirza Muhammad Iqbal and others v. The Government of the Punjab PLD 1999 Lah. 109 was challenged in Civil Petition No,1757(L) of 1998 before the Supreme Court of Pakistan wherein the learned Advocate-General, Punjab made the statement at the Bar that investigation against the petitioner shall be conducted by the Anti- Corruption Department in accordance with law and the learned counsel for the petitioner did not press the petition which was disposed of as having borne fruit. He added that the competent authority could not control the investigation if the case was not registered at Anti-Corruption Establishment and that the ultimate power of investigation being with the Anti-Corruption Establishment the case could not be registered by the local police. The facts of the aforesaid case printed as M. Abdul Latif v. G.M. Piracha and others 1981 SCMR 1101 were that on 'a complaint of embezzlement/ misappropriation to the tune of Rs,30,00,000 a raid was conducted at Ration Depot in Multan as a result of which a case was registered against the officials of Food Department including M. 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. M. Abdul Latif filed a writ petition in this Court challenging the competence of the police to investigate the case of scheduled offence against him. This Court found that the abovesaid Police Officers were competent to carry out the investigation and dismissed the petition. M. 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. 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, therefore, Police Officers attached to the Anti-Smuggling (Rice and Paddy) Mobile Team could not investigate such a case. The contention overlooks the provisions 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."
11. At this stage I would like to reproduce in toto as under the judgment, dated 3-12-1998 passed in the case of Mirza Muhammad Iqbal v. Government of the Punjab through the Secretary, Elementary Education and others passed by the Supreme Court of Pakistan:- "In the Supreme Court of Pakistan Appellate Jurisdiction ' Present: Mr. Justice Irshad Hasan Khan Mr. Justice Sh. Ijaz Nisar Mr. Justice Ch. Muhammad Arif Civil Petition No,1757(L) of 1998 (On appeal from the order, dated 8-10-1998 passed by Lahore High Court, Lahore in Writ Petition No,18785 of 1998).
' Mirza Muhammad Iqbal --- Petitioner versus ' Government of the Punjab through Secretary, Elementary Education and others --- Respondents ' For the Petitioner: Mr. Pervez Malik, Advocate Supreme Court with Mr. Tanvir Ahmad, Advocate-on- record.
' For the Respondents Mr. Ashtar Ausaf Ali, Advocate General, Punjab.
' Date of hearing: 3-12-1998.
' Learned Advocate-General, Punjab has made a statement at the Bar that the investigation against the petitioner shall be conducted by the Anti-Corruption Department in accordance with law. In view of the above statement, learned counsel for the petitioner does not press the petition, which is disposed of as having borne fruit.
(Sd.) Mr. Justice Irshad Hasan Khan Lahore, 3-12-1998. (Sd.) Mr. Justice Sh. Ijaz Nisar (Sd.) Mr. Justice Ch. Muhammad Arif."
12. My view is that the aforesaid judgment, dated 3-12-1998 has changed the dictum enunciated in Abdul Latif's case 1981 SCMR 1101 because in the light of judgment, dated 3-12-1998 the investigation was directed to be conducted by the Anti-Corruption Department in accordance with law about the case of Mirza Muhammad Iqbal who was involved in a case of scheduled offence. By the concession, dated 4-12-1998 of the Chief Law Officer/Advocate-General, Punjab, Lahore it would be deemed that the concession is regarding the interpretation of Ordinance, 1961 as to the registration and investigation by the Anti-Corruption Establishment about the scheduled offence to the exclusion of the other Agency i,e, local police. It is necessary to mention that Abdul Latif's case was decided in limine by two Honourable Judges of the Supreme Court of Pakistan on 8-4-1981 while the aforesaid decision, dated 4-12-1998 has been passed by the three Honourable Judges of the Supreme Court. According to Usman v. Sindh Labour Appellate Tribunal and Karachi Port Trust 1984 CLC 2782 Karachi High Court "normally the rule is that where the law laid down is differently in two decisions of the Supreme Court by Benches of different strength the different decision of the larger Bench shall be followed as the binding decision on the subject". I would be glossing over an aspect of the matter by expressing that the appeal of Mirza Muhammad Iqbal was disposed of as having borne fruit who, thus, got the relief while even obiter of the Supreme Court is also binding on all under Article 189 of the Constitution (1973) and for that reason the dictum enunciated on 4-12- 1998 has to take the preference according to which the investigation of a scheduled offence was directed to be conducted by the Anti-Corruption Establishment instead of the local police. The latest judgment, dated 3-12-1998 is operative which is to be utilized by all in view of Article 25 of the Constitution (1973) which provides that all citizens are equal before law and are entitled to equal protection of law. This is one aspect of Article 25 keeping in view judgment, dated 4-12-1998. The other aspect of Article 25 of the Constitution (1973) is that all the public servants/civil servants are to be treated equally before law and are entitled to equal protection of law. It means that at the time of the registration of the case and during the investigation of the case the public servants/civil servants are to be treated alike in such-like matters and registration of the cases at local police station in respect of some public servants while against others at the Anti-Corruption Establishment would be negation of the aforesaid Article. It would also be true with respect to the holding of the investigation by the local police and the Anti-Corruption Establishment pertaining to different public servants. The dichotomy going is that in some cases the inquiry is held in terms of the Punjab Anti-Corruption Establishment Rules, 1985 on the basis of which either the case is dropped or the departmental inquiry is held or the case is registered, while in some other cases of the instant nature the case is got registered at the local police station and the accused is immediately got arrested against whom the investigation is also conducted by the local police.
This type of working is violative of Article 25 of the Constitution (1973) and cannot be approved only on the ground that according to section 8 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 the provisions of this Ordinance are in addition to and not in derogation to any other law for the time being in force especially in the light of the aforesaid judgment, dated 4-12- 1998. A question can rightly be posed which is to the effect that why dichotomy should be the choice of the complainant, State and prosecution. Further, how, can the competent Authority (Anti- Corruption Establishment) control the investigation if the case is not registered at Anti-Corruption Establishment. The complainant is just an informant who has no control on the investigation after the registration of the cases. It can safely be expressed that only that authority which can register a case can investigate the same. Keeping in view this aspect in the light of the aforesaid judgment, dated 3-12-1998 in the case of Mirza Muhammad Iqbal this is by implication and admission of the Chief Law Officer, Government of the Punjab, Lahore that the case should have been registered at Anti-Corruption Establishment as well as investigated by it and the local police cannot deal in the working of the Anti-Corruption Establishment which should investigate the case. The public servant cannot be proceeded against departmentally and the case can be registered and this right under section 3 of West Pakistan Anti-Corruption Establishment Ordinance, 1961 is taken away if local police registers the case. Even a Government servant cannot be tried unless sanction is granted by the competent Authority which has appointed him. The idea of investigation has got direct nexus with registration of a case and unless the case is registered, no investigation can take place. As to who will investigate the case means as to where the case shall be registered. Within its fold the rule-making body has given the power to register the case and investigate the same which is none else than the Anti-Corruption Establishment. Section 6(2) of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 shall become redundant if the case is registered in local police station as in that case the investigation shall go out of the power and control of the Anti-Corruption Establishment. Under Rule 19(3) of the Punjab Anti-Corruption Establishment Rules, 1985 Chief Secretary may suo motu call for the record of any case or inquiry for the purposes of satisfying himself as to the correctness or propriety of decision taken by the Director under the foregoing sub-rules and under clause (b) of sub-rule (2) of Rule 15 and may pass such order as deemed fit in each case. Thus, the investigation can be controlled by the Chief Secretary who is not competent if the case is registered by the local police and investigated by it. As a last resort learned A.A.-G.
Argued that prima facie some of the provisions of the Punjab Anti-Corruption Establishment Rules, 1985 travel beyond the provisions of West Pakistan Anti-Corruption Establishment Ordinance, 1961 and in particular Rule 8(2) placing embargo on registration of cases is not covered by any provision of the Ordinance. She added that the moment rule or some of them travel beyond the provision of parent law the same are struck down as ultra vires. I do not agree with her. As rightly pointed out by the learned counsel for the petitioner the vires of the Punjab Anti-Corruption Establishment Rules, 1985 cannot be challenged or objected to by the State or the complainant having been issued by the Governor of the Punjab in view of his competence under section 6(2) of the West Pakistan Anti-Corruption Establishment Ordinance, 1961. The exception in the matter can be taken by the citizens i,e, accused to challenge the same and get it analysed and dissected who (accused) in the instant matter is rather relying on the same. As such this argument has no force.
13. It shall not be out of place to express that while enacting the delegated legislation the principle is that the authority enacting the delegated legislation will follow the policy of the law-makers. It is very much clear that the policy of the law-makers was to have a separate forum for the public servants for corruption cases and to lay down the procedure for that. Therefore, the aforesaid objection from the State side will not be enough. It will have to be argued that a particular provision of rules is against the policy of the law-makers which is missing in the instant matter so far the objection raised by the learned Assistant Advocate-General is concerned. A law after laying down the broad principles of the policy of the State is then handed over to the Executive to implement that policy in a way best applicable to the facts, situation and circumstances of that particular matter and that sphere of its power it can formulate rules or settle other guidelines to regulate its conduct and it is within its sphere it performs quasi-legislative function. Where rule-making power is conferred upon the Executive whether by the Constitution or by an Act of the Legislature the executing power can well be exercised in a given field in simplicitor is, thus, confined to the execution of implementation of a policy formulated or likely to be formulated in a law. As such the policy of the law-makers was to provide a different forum and different procedure for proceeding against the public servants who are guilty of commission of certain scheduled offences.
14. At this stage it is proper to refer to Notification No,47(3)-II-85 Volume IV, dated 23-5-1985 which reads as under:-- "In exercise of the powers conferred on him by clause (s) of subsection (I) of section 4 of the Code of Criminal Procedure, 1898 and in suppression of all previous Notifications issued in this behalf, the Governor of the Punjab is pleased to declare the offices of the Anti-Corruption Establishment mentioned in column 2 of the Schedule annexed hereto to be police stations for the purposes of the offences specified in the Schedule to the Pakistan Criminal Law Amendment Act, 1958 (Act XL of 1958) for the areas mentioned against each in column 3 thereof.
Sr.
No.Name of the Office Area attached therto 1Directorate of Anti-Corruption stablishment, Punjab, Lahore.Whole of the Punjab 2Additional Director of Anti Corruption Establishment, Lahore.Thewhole of Civil Division of Lahore.
3Additional Director ofAnti-- Corruption Establishment, Faisalabad.The whole of Civil Division of Faisalabad and Sargodha.
4Additional Director ofAnti Corruption Establishment, Rawalpindi.The whole of Civil Division of Rawalpindi and Gujranwala.
5Additional Director of Anti- Corruption Establishment, Multan.The whole of Civil Divisions of Multan, Bahawalpur and D.G. Khan.
6Circle Office, Anti-Corruption Establishment, Lahore.District Lahore 7Circle Office, Anti-Corruption Establishment, Sheikhupura.Distrct Sheikhupura 8Circle Office, Anti-Corruption Establishment, KasurDistrict Kasur 9Circle Office, Anti-Corruption Establishment, Okara.District Okara 10Circle Office, Anti-Corruption Establishment, Gujranwala.District Gujranwala 11Circle Office, Anti-Corruption Establishment, SialkotDistrict Sialkot 12Circle Office, Anti-Corruption Establishment, Gujrat.District Gujrat 13Circle Office, Anti-Corruption Establishment, Rawalpindi.District Rawalpindi.
14Circle Office, Anti-Corruption Establishment, Jhelum.District Jhelum 15Circle Office, Anti-Corruption Establishment, Attock.District Attock 16Circle Office, Anti-Corruption Establishment, Sargodha.District Sargodha 17Circle Office, Anti-Corruption Establishment, Khushab.District Khushab 18Circle Office, Anti-Corruption Establishment, Bhakkar.District Bhakkar.
19Circle Office, Anti-Corruption Establishment, Mianwali.District Mianwali.
20Circle Office, Anti-Corruption Establishment, Faisalabad.District Faisalabad 21Circle Office, Anti-Corruption Establishment, Jhang.District Jhang.
22Circle Office, Anti-Corruption Establishment, Toba Tek Singh.District Toba Tek Singh 23Circle Office, Anti-Corruption Establishment, Multan.District Multan.
24Circle Office, Anti-Corruption Establishment, Vehari.District Vehari.
25Circle Office, Anti-Corruption Establishment, Sahiwal.District Sahiwal.
26Circle Office; Anti-Corruption Establishment, D.G. Khan.District D.G. Khan.
27Circle Office, Anti-Corruption Establishment, Muzaffargarh.District Muzaffargarh 28Circle Office, Anti-Corruption Establishment, Leiah.District Leiah 29Circle Office, Anti-Corruption Establishment, RajanpurDistrict Rajanpur.
30.Circle Office, Anti-Corruption Establishment, Bahawalpur.District Bahawalpur 31.Circle Office, Anti-Corruption Establishment, BahawalnagarDistrict Bahawalnagar.
32.Circle Office, Anti-Corruption Establishment, R.Y. KhanDistrict R. Y. Khan.
15. The Directorate of Anti-Corruption Establishment, the Additional Directorates of Anti-Corruption Establishment and the Circle Offices in all the Districts of Punjab which are the police stations have been established.
16. This being the position the Police Station of Anti-Corruption Establishment is available in every District of Punjab and the matter can be taken there avoiding the dichotomy.
17. u> It is known fact that a Police Officer of the rank of Inspector is the Station House Officer of the Anti-Corruption Establishment in each District in the Punjab. According to Notification No,HP-H/5- 29/88, dated 13-8-1995 issued by the Government of the Punjab, Home Department, Lahore the Police Station Anti-Narcotic Force have been established under clause (s) of subsection (1) of section 4 of the Code of Criminal Procedure. According to Notification No,HP-II/3-1/2000 issued by the Government of the Punjab on 29-1-2000 Police Station National Accountability Bureau, Attock Fort (complete Barrack No,1 and Rodms Nos.2, 3 and 4 of Barrack No,4, Attock) having jurisdiction in whole of the Punjab has been established under clause (s) of subsection (1) of section 4 of the Code of Criminal Procedure, 1898 read with section 18(e) of the National Accountability Bureau Ordinance, 1999. Further, likewise vide Notification No,HP-II/3-1/2000 Police Station National Accountability Bureau, 2nd Floor of Block 4 and entire Block 5 of Chamba House, Lahore has been constituted by the Governor of the Punjab having jurisdiction in whole of Punjab under clause (s) of subsection (1) of section 4 of the Code of Criminal Procedure, 1898 read with section 18(e) of the National Accountability Bureau Ordinance, 1999. The aforesaid police station under the special laws have been constituted and obviously the First Information Report shall be recorded under section 154 of the Code of Criminal Procedure by the Officers-in-Charge posted there. It means that the Station House Officer of the local police station need not be contacted for the registration of the cases under the Special Acts/Ordinances in the police stations constituted under the relevant Act(s). The Incharge of these police stations also act under section 154 of the Code of Criminal Procedure with respect to the registration of the First Information Reports regarding offences to be investigated by them.
17. The legal aspect of the matter is that the appeal preferred by Mirza Muhammad Iqbal has been disposed of by the Honourable Supreme Court having borne fruit vide order, dated 3-12-1998 and my view is that the contentions raised by the said appellant have been admitted and given weight by the State through the Chief Law Officer i,e, Advocate-General, Punjab. As such the dictum enunciated in the ruling printed as M. Abdul Latif v. G.M. Piracha and others 1981 SCMR 1101 is not applicable at present. On the basis of the aforesaid judgment, dated 3-12-1998 I deem it proper to reiterate that the contention raised by the learned counsel for Muhammad Iqbal petitioner that the case could not be registered at local police station i,e, Police Station New Anarkali, Lahore and could not be investigated by the local police i,e, the S.H.O./Inspector, Police Station Lower Mall, Lahore has the legal weight. The matter could be reported to the Circle Officer, Anti-Corruption Establishment, Lahore who could proceed further as expressed above especially when it is not a trap case.
18. At this stage it is also proper to refer to section 5 of the Code of Criminal Procedure, the subsection (1) of which provides that all offences, under the Pakistan Penal Code shall be investigated, enquired into, tried and otherwise dealt with according to the provisions hereinafter contained while subsection (2) provides that all offences, under any other law shall be investigated, enquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment, for the time being in force regulating the manner or place of investigating, enquiring into, trying or otherwise dealing with such offences. In this view of the matter sections 3 and 6 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 read with the Punjab Anti-Corruption Establishment Rules, 1985 shall have to be followed especially after the aforesaid judgment, dated 3-12-1998 in the appeal preferred by Mirza Muhammad lqbal.
19. Since the controversy in, hand is being taken up and disposed of with all the pros and cons it would not be irrelevant if the filing of the complaint by a person from the public against a public servant is also touched in this judgment. In this regard the aforesaid type of complainant can file the private complaint in terms of section 190 of the Code of Criminal Procedure before the learned Special Judge (Anti-Corruption) competent to hear the same keeping in view his territorial jurisdiction. In the alternative the complainant can move the Director, Anti-Corruption or any of other Officer under his command keeping in view the pay grade of the public servant complained against who obviously shall proceed as expressed supra in detail. Even the Circle Officer of the Anti-Corruption Establishment (Thana) can be moved who shall have to bring the complaint to the notice of competent officer (Additional Director/Deputy Director) and thereafter, shall proceed to hold the inquiry if directed so or to register the case at the Anti-Corruption Establishment under his control. However, the investigation shall be conducted by the Anti-Corruption Establishment including the Assistant Director/Police Officer on deputation etc. And not by local police. The discipline and jurisdiction has to steal the eminence and play the vital legal role. Without prejudice I am tempted to express that the local police of the District under the administrative control of the Superintendent of Police who has no administrative control on the Anti-Corruption Establishment should wholeheartedly devote whole of its time towards the betterment of the law and order situation which is worsening with the passage of time and must absolutely refrain from interfering in the legally allocated jurisdiction of the Anti-Corruption Establishment which has to travel within its own sphere.
20. The upshot and final conclusion of the aforesaid discussion and dissection of the Anti- Corruption Laws is that there is gradual evolution therein. There is the Director, Anti-Corruption, Punjab with his subordinates designated as Additional Directors, Deputy Directors and Assistant Directors with paraphernalia of the members of police force who are sent on deputation having no concern with other aforesaid type of branches of the Police Department and have to work whole- time and whole-heartedly in the Anti-Corruption Establishment. For urgent day-to-day affairs, as expressed' above, Deputy Commissioner of each District has been designated as ex-officio Deputy Director, Anti-Corruption within the territorial limits of his District of posting. The inquiry on an application containing the complaint has to be conducted by any officer/official under the administrative control of the Director, Anti-Corruption, Punjab having the command on the Additional Directors and others. If during the inquiry no case is made out the matter is dropped. In case of existence of any material thereof the departmental inquiry can be initiated in trifle/certain matters. It is done on the idea that due regards are to be shown to the reputation and prestige of the public servants. In cases of alarming nature criminal cases can be got registered obviously at the Anti-Corruption Establishment (Thana) established under Rule 17 of the Punjab Anti-Corruption Establishment Rules, 1985 where the investigation can be and is to be conducted. In the Anti- Corruption Department/Establishment the member of the Provincial Civil Service/ExtraAssistant Commissioners having sound knowledge of Revenue Law or other technical hands like Canal/Building S.D.Os. Or XENs are also sent on deputation to meet the situation and requirement of the allegations to be probed during the investigation. The Superintendent of Police, the Deputy Inspector-General of Police and the Inspector-General of Police having control on the local police have no administrative control on the Anti-Corruption Establishment. In short at present in the Anti- Corruption Establishment the local police does not figure anywhere and the inquiry and the investigation has to revolve around the fountain of Anti-Corruption Establishment in matters of allegations of corruption against public servants.
21. The only irresistible conclusion which can be drawn from the aforesaid legal provisions, analysis of the same.And discussion would be that the cases with respect to the alleged anti-corruption offences can be registered against public servants by the Establishment under the written orders of the officers mentioned in Rule 8 of the Punjab Anti-Corruption Establishment Rules, 1985 at the Anti-Corruption Establishment and not of/by the inferior Police Officers or Superior Police Officers at the local police stations and obviously after adopting the distinct method as provided in the Punjab Anti-Corruption Establishment Rules, 1985. I, therefore, hold that the aforesaid F.I.R. Cannot remain in the field which is liable to be quashed as the same has to fall on the ground like a house of cards.
22. For what has been said above, I accept this writ petition and quash F.I.R. No,49 registered on 10- 4-2000 at Police Station New Anarkali, Lahore under section 161, Pakistan Penal Code and under section 5 of the Prevention of Corruption Act, 1947. However, the respondent shall be competent to move the Anti-Corruption Establishment afresh, if required and desired thereof and the matter shall be processed with in accordance with law as expressed above.
23. In case Muhammad Iqbal, A.S.-I. Writ petitioner is under arrest either on physical remand or judicial remand, he shall be set at liberty forthwith, if not required in any other case.
24. In view of the complexity involved in this writ petition, there shall be no order as to costs.