Briefly, the facts of case are that Municipal Corporation, Faisalabad approved establishment of Primary School, Mohallah Muhammad Abad, Faisalabad and allocated sum of Rs,3,50,000 for the purpose to purchase a suitable land in the vicinity. The said Mohallah falls within territorial limits of M.C., from where the petitioner was elected Councillor of Ward. The land measuring 15 Marlas bearing Khasra No,12/11 and 12/18 was available for sale. Muhammad Ashiq son of Bagh Din, resident of People's Colony offered to sell the aforesaid land to the Municipal Committee for the said purpose. The petitioner filed an application before Mayor, Faisalabad on 27-7-1986 suggesting the purchase of aforesaid land. The report was sought from the Education and Land Officer who submitted report to Mayor. The Mayor constituted Committee consisting of Municipal Engineer North, Education Officer and Councillor from said Ward to purchase the aforesaid land vide order dated 28-7-1986. The aforesaid Committee visited the spot and submitted report that the land in question was suitable for the said purpose and recommended that Municipal Engineer with the help of Sub-Engineer assessed the value of land in question and submitted report on 31-7-1986.
The Sub-Engineer submitted his report after inquiry which reveals that the average land in question is Rs,3,20,000 @ Rs,15,000 per Maria. The report was considered by the Sub-Committee. The value of the construction existing on the aforesaid piece of land was also assessed at the rate of Rs,54 sq.
Ft. Being Rs,96.7868. The same was submitted before the general house for consideration on 7-8- 1986. The report of Sub-Committee was approved by the House; necessary steps were taken to finalize the sale of aforesaid plot; a public notice/proclamation was issued in the newspaper on 27- 10-1986. Muhammad Ramzan in response to the public notice offered to sell the same piece of land for consideration of Rs,3,20,000. The aforesaid Muhammad Ashiq executed an Agreement to sell with. Muhammad Ramzan and had paid sum of Rs,1 lac as earnest money to him: Muhammad Ashiq being property dealer adopted this device to sell the same land to Municipal Corporation, Faisalabad. The matter was placed before the House on 6-10-1986 and the House rectified the resolution earlier passed by Municipal Corporation which reveals that the said land measuring 14 Marlas 1 Sarsahi was property of Muhammad Ramzan son of Ismail therefore, House decided to purchase property from Muhammad Ramzan to avoid any complication. Aforesaid Muhammad Ashiq protested conduct of Muhammad Ramzan, that he would return earnest money to Muhammad Ashiq. Muhammad Raman executed Power-of-Attorney in favour of Abdul Sattar who received payment from Municipal Corporation, Faisalabad by means of a Cheque EAC 701273 drawn on H.B.L., Faisalabad Branch. Muhammad Ashiq being aggrieved filed complaint before the Mayor, Faisalabad. The matter was placed before the open public meeting and the Mayor directed Muhammad Ramzan and Abdul Sattar to return the said amount to Muhammad Ashiq in their own interest who promised to do so. Muhammad Hanif, Councillor who belonged to rival group of the petitioner, filed complaint before Commissioner on the. Ground that the sale-deed was got registered by Abdul Sattar in favour of Municipal Corporation as the contents of sale-deed reveal that Muhammad Ramzan had sold the land to Abdul Sattar for Rs,2,25,000 which was received by him who sold the land after 7 days to Municipal Corporation, Faisalabad by Rs,3,20,000. The complaint further reveals that Abdul Sattar got benefit of Rs,95,000 by means of fraud in connivance with the petitioner. The Commissioner forwarded the same to D.C. Who entrusted the same to Ch. Muhammad Anwar, Magistrate 1st Class, Faisalabad. The petitioner being aggrieved by the attitude of aforesaid Magistrate filed an application before the Commissioner for transfer of the inquiry from the aforesaid Magistrate on 25-2-1987. The Commissioner passed the following order:-- "Since the lack of confidence has been expressed against the Magistrate you may like to send it to any other Magistrate. Please epsure that no pressure is put by any M.N.A., MPA or Mayor and inquiry is fare." The aforesaid Magistrate completed the inquiry. Subsequently mentioned the date of completion mala fide as 24-2-1987. The learned Magistrate sent the inquiry report to the Commissioner through D.C., who initiated proceedings against the petitioner on the basis of inquiry. The petitioner being aggrieved filed this writ petition in which the impugned direction was suspended vide order dated 28-6-1987. During the pendency of writ petition the case was registered against the petitioner on 1-7-1987 at Police Station A,C.F., District- Faisalabad.
2. The petitioner's counsel submits that proceedings initiated against the petitioner on account of mala fide,, the F.I.R. Was lodged in presence of restraint order of this Court; that application of respondent No,2 was not maintainable before the Commissioner, Faisalabad by virtue of section 29 of Punjab Local Government Ordinance, 1979 read with Punjab Local Council (Removal of Chairman, Vice-Chairman or Members) Rules, 1982; that Commissioner has no authority to initiate proceedings against the petitioner as Government is competent authority to take action against the petitioner; that Secretary, Punjab Local Government by virtue of Rules of Business, 1974 is the competent authority to entertain application against the petitioner; that F.I.R. Cannot be registered against petitioner without preliminary inquiry under the provisions of Prevention of Corruption Act and Rules framed thereunder; that Commissioner having himself passed the order of transfer of inquiry from Magistrate, has acted without lawful authority while proceed to act on the report submitted by him; that when the basic order is without lawful authority the superstructure shall fall on the ground automatically. In support of his contention he relied upon PLD 1958 SC 104; Yousaf Ali's case that action of Commissioner is mala fide, therefore, F.I.R. May be quashed. In support of his contention he relied upon Ghulam Mustafa Khar's case PLD 1989 SC 26; that in similar circumstances the F.I.R. Was quashed by the superior Courts in the following judgments:-- (PLD 1997 Lah. 692) Muhammad Sharif's case. (2000 PCr.LJ 1644) Sh. Anwar-ul-Haq's case.
(PLD 1999 Peshawar 33) The Collector of Customs' case
3. The learned A.A.G. Submits that this Court has, no jurisdiction to quash the F.I.R.; that petitioner got rectify the resolution passed earlier by the Municipal Corporation sustained loss of Rs,95,000 which was on account of fraud committed by Abdul Sattar with Municipal Corporation in connivance with the petitioner; that Magistrate had completed inquiry on 24-2-1987 whereas the petitioner filed an application to the Commissioner for transfer of inquiry on 25-2-1987 a day after inquiry was finalised by respondent No,4. The possibility cannot be ruled out that petitioner perhaps knows that the inquiry report was against him, therefore, District Magistrate sent inquiry report to Commissioner who was justified to take action against the petitioner. The complaint was rightly filed by respondent No,2 before the Commissioner who has lawful authority to take the cognizance of the matter as the competent authority under section 158 of Punjab Local Government Ordinance, 1979 had already delegated its powers to the Commissioner vide Notification dated 6-2-1980. The petitioner has alternative remedy to file revision before the Secretary against the orders of Commissioner under the provisions of Punjab Local Government Ordinance, 1979. The Commissioner passed the order of transfer of inquiry on 25-2-1987 without knowing that the inquiry had already been completed by the Magistrate concerned. The Commissioner, District Magistrate and Magistrate were competent to get the case registered against the petitioner. The Commissioner has not passed final order against the petitioner under section 29 of the Punjab Local Government Ordinance as the case was sent to L.G.& R.D. Department for necessary action under section 29 of the aforesaid Ordinance against the petitioner which is still pending.
4. I have given my anxious consideration to the contentions of learned counsel for the parties and perused the record. The petitioner has claimed two reliefs through this petition which are as follows:
(i) quashment of F.I.R. And quashment of
(ii) action of Commissioner on the complaint of respondent No,2. The contention of petitioner's counsel that F.I.R. Cannot be registered against petitioner without preliminary inquiry on the basis of the law laid down by this Court in Muhammad Sharif's case PLD 1997 Lah. 692, has no force as the judgment is per incuriam as Advocates appeared on behalf of parties in the cited case did not bring into notice the judgment of Hon'ble Supreme Court (1981 SCMR 1101) M. Abdul Latif's case. Subsequently cited case was considered alongwith other cases by my learned brother K.N. Bhandari, J., in Mirza Muhammad Iqbal's case PLD 1999 Lah.109 and laid the following principle:-- "To complete, I hold that the law declared by the Supreme Court of Pakistan in Abdul Latif's case which is applicable in all these cases. It is admitted by the learned counsel for the petitioner and Advocate-General that the Single Bench Judgment of this Court (noted above) did not notice the above Supreme Court Judgment and therefore, are per ancuriam." The Hon'ble Supreme Court has also considered the aforesaid proposition of law in Brig. Imtiaz's case 1994 SCMR 2142 and rejected the same plea. Similarly the other case cited by petitioner's counsel PLD 1993 Peshawar 33 has also no relevancy to decide the present case. The aforesaid contention of petitioner's counsel based on rules 8 and 9 framed under the Anti-Corruption law which were struck down by this Court as ultra vires in Mirza Muhammad Iqbal's case (supra), therefore, the judgment of Peshawar High Court has not supported the case of petitioner and is distinguished on facts and law. Similarly other case-law relied upon by the petitioner's counsel are also distinguished on facts and law. It is settled proposition of law since 1945, that this Court has no jurisdiction to quash the F.I.R. In Kh. Nazir Ahmad's case AIR 1945 PC 18. The judgment of Privy Council was considered and approved by the Hon'ble Supreme Court in Shahnaz Begum's case PLD 1971 SC 677; thereafter the Hon'ble Supreme Court has considered all the case-law and approved the same in Brig. Imtiaz's case 1994 SCMR 2142. I have also followed the same in Muhammad Ramzan's case 1998 PCr.LJ 828. Keeping in view the principle of consistency I cannot deviate from my own judgment as the law laid down in (PLD 1959 SC 9) Muhammad Muzafar Khan's case. In view of what has been discussed above, first relief claimed by the petitioner for quashment of F.I.R., the writ petition is not maintainable. The second relief for quashment of action taken by Commissioner, Faisalabad on the complaint of respondent No,2 is premature as the Commissioner forwarded the same to Secretary concerned Government of Punjab for necessary action which is still pending adjudication. The petitioner appeared before Magistrate 1st Class and participated in the proceedings; thereafter the petitioner filed application on 25-2-1987 before Commissioner for transfer of inquiry from respondent No,4; whereas the respondents had taken stand in their parawise comments that respondent No,4 had completed inquiry on 24-2-1987. This fact brings the case of petitioner in the area of disputed questions of fact and this Court has no jurisdiction to resolve the disputed question of fact in Constitutional jurisdiction as per principle laid down in Muhammad Younas's case 1993 SCMR 618. The petitioner has alternate remedy to agitate the matter before the concerned Secretary under the provisions of Local Government Ordinance, 1979, therefore, writ petition is not maintainable as per principle laid down in Muhammad Ismail's case PLD 1996 SC 246. According to petitioner's counsel the only competent authority qua the petitioner is Secretary, Government of Punjab Local Government. Rural Development Department whereas according to learned A.A.-G., the powers were delegated to the Commissioner by the competent authority vide notification dated 6-2-1980 under section 158 of Punjab Local Government Ordinance, 1979. In view of what has been discussed above, the petitioner if so advised to file appeal before appellate authority who shall decide the same in accordance with law without being influenced by observation of this Court. However, in the interest of justice and fairplay, let a copy of writ petition be sent to D.I.-G. Faisalabad, who is directed to look into the matter personally and pass an appropriate order strictly in accordance with law qua the F . I . R .
With the above observation, the writ petition is disposed of.