' RIAZ KAYANI, J.--- Shafqat Hussain son of Muhammad Khan and Zulfiqar Ali son of Muhammad Yusuf have through this Intra-Court Appeal assailed the finding of the leained Judge in Chambers, dated 17-8-1999 who dismissed Writ Petition No,15161 of 1999 filed by the appellants for quashing F.I.R. No,2 registered on 24-5-1999 under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 with Anti-Corruption Establishment, Circle Hafizabad.
2. Munir Ahmad complainant lodged complaint with Anti-Corruption Establishment, Hafizabad that he runs a dry-cleaner shop and Zulfiqar Ali Police Constable alongwith Shafqat Hussain, Head Constable, C.I.A. Get their clothes dry-clean from his shop towards which they owe a sum of Rs,1,500 but failed to pay the dues and instead threatened him that he was a proclaimed offender in a case registered with Police Station Saddar, Chiniot and took him in custody for being identified in an identification parade. Muharrir, Police Station Saddar Chiniot refused to take the complainant in custody on the ground that he was not a proclaimed offender and as such was brought back to Pindi Bhattian. On the next day again Shafqat Hussain and Zulfiqar Ali came to his shop and demanded Rs,1,000 by way of illegal gratification, out of fear he handed over Rs,300 to Zulfiqar Ali and another Rs,300 to Shafqat Hussain in presence of the .Witnesses and promised to pay Rs,400 later on. On 24-5-1999 both Zulfiqar Ali and Shafqat Hussain again demanded the balance of Rs,400 which demand he temporarily put off on some pretext and got the complaint registered with the Anti-Corruption Establishment.
3. The main grounds canvassed before the learned single Judge in Chambers by the appellants were that Rule 6 of the Punjab Anti-Corruption Establishment Rules, 1985 envisages holding of a preliminary inquiry prior to the registration of case, being a mandate of law and since no such inquiry was conducted Rule 6 (ibid) stood violated, secondly'the point made out was that Rule 8(2)
(ibid) envisages prior permission from the Deputy Director for the registration of case, which was not obtained, therefore, the lodging of the complaint was a serious infraction of law rendering all subsequent proceedings nugatory, requiring intervention by Court in its Constitutional jurisdiction.
4. Learned Judge after full dress arguments came to the conclusion that the rules essentially regulate internal working of the establishment and in no manner abrogates or abridge the provisions of section 154, of the Code of Criminal Procedure under which the criminal cases are registered, therefore, concluded that grounds taken were inadequate to attract the attention of the Court for further probe and resultantly dismissed the same, which order has been impugned in this appeal.
5. Learned counsel before us repeated his arguments which he addressed before the learned single Judge in Chambers by stating that registration of F.I.R. No,2, dated 24-5-1999 by the Anti- Corruption Establishment, Hafizabad was in gross violation of Rules 6, 7 and 8 of the Punjab Anti- Corruption Establishment Rules, 1985 (hereinafter called the Rules) and, therefore, any further proceedings under the referred to F.I.R. Would be a nullity in the eyes of law requiring immediate attention of the Court to quash the said F.I.R. In support of his argument learned counsel relied on the case of Muhammad Sharif v. Station House Officer, Police Station City, Hafizabad reported in PLD 1997 Lah.
692. In this case a learned Judge of this Court relying upon the principle that when a law prescribes a particular manner and procedure in which things are required to be done, the same must be done in that way or not at all. Applying this principle to Rules 3 to 17 of the Rules it was held that the texture about initiation of the Anti-Corruption cases stands altered with the introduction of the Rules with respect to the scheduled offences requiring preliminary inquiries, prior permission from authorities about registration and arrest, submission of challan and holding of trial and since the provision of the Rules was a creation of special law it by necessary implication had an overriding effect upon the general law. When the attention of the learned counsel was drawn to the case of M.
Abdul Latif v. G.M. Piracha and others 1981 SCMR 1101 followed by this Court in the case of Mirza Muhammad Iqbal and others v. Government of Punjab PLD 1999 Lah. 109 he sought time to study the aforesaid cases. On the adjourned date of hearing learned. Counsel for the appellants felt content by stating that the rule laid down by the apex Court in Latif's case cannot be applied to the facts which emerge in his case for the reason that at the time when the case of Abdul Latif was decided the present rules were not in field, therefore, on this ground G.M. Piracha's case stood distinguished. As far as the case of Mirza Muhammad Iqbal and others v. Government of Punjab PLD 1999 Lah. 109 was concerned it was submitted that it followed the rule postulated in Muhammad Abdul Latif v. G.M. Piracha and others 1981 SCMR 1101, therefore, parameteria subsequent ruling of this Court did not exegetically examine the impact of the rules which have now been brought to the notice of this Division Bench in the under consideration appeal.
6. We called upon the Additional Advocate-General to assist us as to the interpretation of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 (hereinafter called the Ordinance) and the Rules framed thereunder came under close scrutiny being a question of public importance affecting large number of cases. The Law Officer opposed the arguments.
7. We had no other alternative but to apply ourselves to the research in the limited time which we have.
8. Section 6 of the Ordinance empowers the Government to make rules to carry out the purpose of the Ordinance. Section 8 which is important in its application to the facts of the case is reproduced for facility of reference:- "The provisions of this Ordinance are in addition to and not in derogation of any other law for the time being in force."
' This provision of law was taken into consideration by the apex Court in M. Abdul Latif v. G.M.
Piracha 1981 SCMR 1101. The point canvassed in the said case was that the complaint against a public servant was registered with the police station and was investigated by Sub-Inspector and Assistant Sub-Inspector which was contrary to the provisions of section 3 of the Ordinance which provided establishment of Anti-Corruption Establishments for the investigation and holding of preliminary inquiry for determining whether such offence shall be investigated or departmental inquiry into the conduct of any public servant concerned in such offences shall be held. It was further submitted that such establishment, in fact, had been created and being a special law, only members of the establishment could investigate offences of corruption. The argument was repelled by making reference to section 8 of the Ordinance reproduced above and the petition was dismissed.
9. In the case of Mirza Muhammad Iqbal v. Government of Punjab PLD 1999 Lah. 109 the learned single Judge of this Court while discussing the law noted per-incurium (due to inadvertence) subsequent cases on the subject did not take into consideration the rule elaborated by the apex Court in M. Abdul Latif's case.
10. The point now made out by the learned counsel for the appellant is that at the time when Abdul Latif's case saw the light of the day the rules were not framed, therefore, distinguishing the judgment from this angle it was submitted that the same would not apply because in totality the impact of the Rules of 1985 could not have been considered as they were not in field. Learned counsel loses sight of the fact that the judgment reported as Mirza Muhammad Iqbal v.
Government of Punjab PLD 1999 Lah. 109 Rules of 1985 were not only taken into consideration but a detailed and careful-examination was undertaken and it was, observed that rule making power having been delegated to the executive, it could in no manner be deemed to be a non-obstante clause to travel beyond the purpose and object envisaged by its parent statute. As regards the prior permission to be obtained, for registration of case and arrest of a public servant accused of scheduled offences, from categorized officers named therein, although no detailed finding was given, as the point was not canvassed, yet by no means, the observation that such sweeping transient immunity could very well-offend Article 25 of the Constitution, was certainly not be considered as obiter dicta.
11. Dealing with the submissions made by the learned counsel in detail it is necessary to reproduce the' provisions of the Ordinance and thereafter to examine whether the rules are in consonance or in derogation of the said provisions. Section 3 of the Ordinance underlines the constitution and powers of the Anti-Corruption Establishment and is reproduced below:--
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 offence shall be investigated or departmental inquiries into the conduct of any public servant concerned in such offences shall be held.
12. Section 6 empowers the Government to make rules to carry out the purposes of this Ordinance and subsection (2) is relevant which is reproduced:-
(1) .......................................................................................................................
(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.
13. The commutative effect of reading the provisions of section 3 and subsection (2) of section 6 by keeping them in juxtaposition is:--
(a) Constitution of an Establishment to be known as Anti-Corruption Establishment.
(b) For the offences set forth in the Schedule;
(c) For holding preliminary inquiries for determining whether such offence shall be investigated or departmental inquiries into the conduct of any public servant concerned in such offences shall be held;
(d) Making Rules that may provide for the organization of the Establishment.
(e) Naming the designated authorities with whose permission investigation of any case or class of cases may be commenced or any person may be arrested.
14. Dilating upon the rules to examine whether they are in consonance with the provisions of the Ordinance, Rules 6, 7 and 8 which are under scrutiny is reproduced:--
6. Preliminary 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 to 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 be registered by the Director against public servants of the Status of Commissioner, Secretary to Provincial Government, Heads of Attached Departments and, other officers in 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:
(3) If the competent Authority under sub-rule (2) decides not to register a case, he shall record reasons therefor.
15. As the very outset prior permission for registration of case against public servants under the written orders of the officers of Establishment mentioned in sub-rule (2) of Rule 8 is neither provided in the scheme of section 3 or permissible under the rule-making power of the Government bestowed upon them under section 6 (ibid).
16. It has to be kept in mind that rule-making power is delegated to the Executive unless expressly provided. The authority to make rules and regulations in order to carry out an express legislative purpose or to effect the operation and enforcement of law is not a power exclusively legislative in character but is rather administrative in its nature. A rule or bye-law made under a statute cannot unless there are express indications under the statutes itself, override the provisions of other statutes or the general law, nor can a rule militate against the provisions of an Act under which it has been framed and must be treated for all purposes of construction or obligation exactly as if they were in the Act and or to be of the same effect as if contained in the Act and are to be generally, noticed for all purposes of construction and obligation.
17. Bindra's Interpretation of Statute, at p.828 of 7th Edition underlines the tests to apply in considering whether the rules are within the powers of the rule-making authority under a statute in the following manner:--
(i) Whether the rules are reasonable and convenient for carrying the Act into full effect.
(ii) Whether the rules relate to matters arising under the provisions of the Act;
(iii) Whether they related to matters not in the Act otherwise provided for, and
(iv) Whether they are consistent with the provisions of the Act.
18. In the case of Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423, it was held that the Rules and Regulations are subordinate and delegated legislation deriving authority and legal cover from the provisions of the Ordinance.
19. In the case of Messrs Neelam Textile Mills Ltd. v. State Bank of Pakistan and 2 others PLD 1999 Kar.
433, it was held that the rule could not be read in isolation divorced from the parent statute or the scheme proposed therein.
20. Similarly Mst. Fatima Bai Suleman and others v. Pakistan State Oil Company Ltd., Dawood Centre, M.T. Road, Karachi 1997 MLD 2155, expounded that the rules framed under a statute cannot go beyond and overreach the statute itself.
21. In the case of Messrs Pak Army Furnishing Stores v. Syed Ali Akbar Rizvi and others PLD 1985 Kar.
201, wherein the proposition postulated was that the rules and regulations being creation of a statute, is to be framed within the limits and conditions prescribed by parent statute. Any rule repugnant to parent statute will be void and illegal.
22. The citation submitted by the learned counsel for the appellants namely Khan Ajun Khan v. The Government of West Pakistan and others PLD 1958 (W.P.) Pesh. 191, that rules framed under an enactment have same force as provisions of enactment does not present any cavil and expound a sound principle of interpretation of statute.
23. Similarly a Division Bench judgment of this Court Fazal Elahi Ejaz etc. v. Government of the Punjab etc. PLD 1977 Lah. 549 that executive orders or instructions issued by the appropriate Government expressed with precision and possessing generality so as to be capable of application to a large number of persons can be regarded as being in nature of statutory rules is to say the least not at all apt or applicable to the facts of the present case, and it does not promote the case of the appellants in any manner whatsoever.
24. The proposition before us in this appeal is whether seeking prior permission to get a case registered against a public servant for committing a scheduled offence from the authorities named in sub-rule (2) of Rule 8 is within the scope of the Ordinance or is oblique and tangentially placed to the provisions of the Ordinance. Having reproduced the relevant provisions of the Ordinance and Rule 8(2) of the Rules for comparison our conclusion is that seeking permission of the authorities before registration of the case against public servants is beyond the scope of section 3 of rule-making powers given to the Government under section 6 as neither of the two quoted provisions authorises the executive to frame rules seeking prior permission for the registration of cases.
25. The next question for determination is whether the right conferred under Rules 6 and 7 upon the public servants indicted for scheduled offences, to get in the first instance, determination through preliminary inquiries is in accord with the provisions of section 154, Code of Criminal Procedure or not.
26. It is well-known that information relating to the commission of a cognizable offence is to be given to an officer incharge of the police station, who after getting a case registered proceeds to investigate and if he collects prima facie evidence connecting the accused with the commission of the offences takes him in custody and after completion of the investigation, challan is submitted in Court whereafter trial commences.
27. Section 154, Cr.P.C. Is part of codified law. It, therefore, becomes essential to determine the statutory nomenclature of such law. Maxwell on "The interpretation of Statutes" 12th Edition, page 25 states that a codifying statute is one which purports to state exhaustively the whole of the law upon a particular subject. Bindra's Interpretation of Statutes, 7th Edition at page 704, in his commentary has observed that these acts are passed to codify the existing law. That is not merely to declare the law upon some particular point, but to declare in the form of a Code the whole of the law upon some particular subject. Lord Davey observed in Gokul Madan v. Pudanund Singh ILR 29 Cal. 707 that in the essence of a Code is to be exhaustive on the matters in respect of which it declares the law, and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction. Illbert, Legislation Methods and Forms at page 128, states "Codification" is sometimes employed loosely, so as to include consolidation of statutes. But in its stricter and narrower sense it means an orderly and authoritative statement of the leading rules of law on a given subject whether those rules are to be found in a statute law or in a common law. A code is a text book enacted by the Legislature. Crawford's "Statutory Construction" at page 187 has commented that the enactment or adoption of a code or revision by the Legislature has the same effect as if all the matters, both new and altered, therein contained, had been enacted as one general statute or Act. In other words, the provision of a code enacted as a statute have the force of statute law. Bennion in his "Statutory Interpretation" at page 319, is also of the same view according to him a Codifying statute is to be construed in the same way as any other Act.
28. Having discussed in detail that codified law is just like an act of the Legislature, we now proceed to examine whether Rules 6 and 7 of the Rules are, in consonance with the provisions of section 154, Cr.P.C. Or create dents in the said provision of law and if so to what extent the same is justified.
While arguing the appeal learned counsel has not in so many words stated that special law has overriding effect over the general law but this is a proposition well-known in legal parlance, which we concede. Section 8 of the Ordinance which has been reproduced earlier specifically demonstrates that the provisions of the Ordinance are in addition to and not in derogation of any other law for the time being in force. The cumulative effect of the discussion is that cases are registered under section 154, Code of Criminal Procedure wherein after detailed investigation the guilt or innocence is c determined and this law which has stood rigours of time, for more than a century cannot be allowed to become subservient to be governed by subordinate Legislature contained in the rules as section 8 of the Ordinance itself provides that the provisions are in addition to and not in derogation to any other law. We would not like to touch the powers of the establishment to determine whether a case of a public servant is fit to be sent for trial or departmental inquiry would meet the ends of justice, because this aspect pertains to their internal management and no adjudication is called for. However, the appellants cannot claim by way of right that contrary to the D provisions of section 154, Cr.P.C. Rules 6 and 7 conferred upon them a right to be subjected to a preliminary inquiry first and thereafter permission to register a case be obtained.
29. We now take up the oft-repeated and much trumpeted argument that the case of M. Abdul Latif v. G.M. Piracha and others 1981 SCMR 1001 was decided when Rules of 1985 were not in field, and therefore, the dictum of the Supreme Court is distinguishable due to which its effect has mellowed.
Admittedly the rules were framed in the year 1985, but their absence, when the dictum referred to above was pronounced would hardly make any difference. We have endeavoured to demonstrate that rules are subservient to the statute and if that is accepted position then section 8 of the Ordinance that the provisions of the Ordinance are in addition to and not in derogation of any other law for the time being in force, clinches the issue once for all. The argument on the face of it is illusory and devoid of force. Under Article 189 of the Constitution decision of the Supreme Court to the extent that it decides a question of law is binding on all Courts in Pakistan.
30. Upshot of the discussion is that the Intra-Court Appeal is without merit and the same is dismissed, upholding the decision of the learned single Judge in Chambers, dated 17-8-1999.