' AHMED KHAN LASHARI, J.---Through this petition following relief was sought:-- ' "Following declarations are prayed for:--
(a) (i) To declare that direction of Chief Secretary to reactivate old F.I.R. No,6-Q of 1988 against petitioner or to register a new case against him for corruption as conveyed by Secretary S&GAD- cum-Director Anti-Corruption Establishment vide his letter dated 17-6-2000 to the Superintendent of Police Anti-Corruption Establishment was without lawful authority; And so was letter of Chairman B.D.A. To D.I.-G., Anti-Corruption Establishment dated 20-5-2000.
(ii) Issue of non-bailable warrants by learned Judicial Magistrate-III, Quetta, vide his order dated 6- 8-2000 was without lawful authority;
(b) (i) Hon'ble Court may be further pleased to issue appropriate direction to Anti-Corruption Establishment through Secretary S&GAD-cum-Director. Anti-Corruption Establishment and Superintendent of Police not to take any action on F.I.R. No,6-Q of 1988 independently or in pursance of direction of the Chief Secretary;
(ii) To strike down non-bailable warrants of arrest dated 5-8-2000 and to restrain Superintendent of Police Anti-Corruption Establishment Balochistan, Quetta through himself or through his subordinates from executing the aforesaid warrants of arrest or from taking any other steps for arrest of petitioner in connection with F.I.R. No,6-Q of 1988 or from registering any other case arising out of allegations which were subject-matter of F.I.R. No,6-Q of 1988 or show-cause notice dated 8- 3-2000.
(c) Costs of petition are also claimed."
2. Briefly stated facts of the case are that when petitioner was working as Project Engineer in Quetta Water Supply Project, he was charged with the allegations of embezzlement, corruption, misconduct and misuse -of powers etc. After approval of Chief Secretary, Government of Balochistan, F.I.R. Bearing No,6-Q of 1988 was got registered against the petitoner by the Anti- Corruption Authorities under sections 409/467/468/471/109, P.P.C. Read with section 5(2) Act-II of 1947, on 9-6-1988. After registration of FIR., the matter was placed before Provincial Anti-Corruption Council for opinion as stated to be provided under West Pakistan Anti-Corruption Ordinance, 1961 read with its Rules, 1965 in order to get the opinion of the council whether on basis of final investigation report either accused Officer should be prosecuted in Court or dealt with departmentally. The said Council decided that departmental action be taken against the petitioner under Balochistan Development Authority (E & D) Rules, 1987. The petitioner was served with a show-cause notice wherein he denied all the allegations and after completion of enquiry, petitioner was dismissed from Service and certain penalties were also imposed. The dismissal order was challenged by way of filing appeal which was rejected on 1-6-2000 by the Competent Authority. The Chairman B.D.A., through letter asked for revival of the F.I.R. Already lodged against the petitioner while Chief Secretary passed an order for registration of a new case and also re- opening of earlier F.I.R. No,6-Q of 1988. The Agencies got obtained N.B.W. From Judicial Magistrate- III, Quetta. The petitioner found himself dissatisfied and aggrieved from the above action of the Government functionaries as well as of Judicial Magistrate-III, Quetta, filed this Constitutional petition.
3. Mr. Muhammad Aslam Chishti Advocate, learned counsel for petitioner argued that Provincial Anti-Corruption Council unanimously decided for dropping of the criminal case registered against the petitioner and it was decided that petitioner be dealt with departmentally, and the order of Provincial Anti-Corruption Council could not be reviewed by the Chief Secretary or Chairman B.D.A.
The petitioner was served with a show-cause notice and on completion of enquiry he was dismissed from Service and punished with imposing of heavy penalties, therefore, no authority was left with Chief Secretary or Chairman B.D.A., to ask for reactivation/revival of the old F.I.R. No,6-Q of 1988 even order of Chief Secretary for registration of a new case is without lawful Authority and of no legal effect. It was next contended that allegations contained in F.I.R. No,6-Q of 1988 were made subject-matter of the show-cause notice and after enquiry petitioner was dismissed from service apart from imposition of heavy penalties. For such reasons further directions for activation of F.I.R.
No,6-Q of 1988 and registration of new case is in excess of jurisdiction. Apart from the contention made hereinabove, learned counsel also contended that the petitioner was entitled to notice, without hearing petitioner, action taken by the respondents is arbitrary and in violation of principle of natural justice. The Judicial Magistrate even did not examine the record before issuance of N.B.W. Of petitioner in F.I.R. No,6-Q of 1988.
4. Learned Advocate-General argued that Chief Secretary is the Competent Authority and has got the powers to ask for registration of criminal case against the petitioner. He added to his argument that the petitioner has not surrendered himself before the Law Enforcing Agencies in consequence of non-bailable warrants issued against him, hence discretion in writ petition may not be exercised and extended in favour of petitioner.
5. We have heard arguments of learned counsel for the parties and perused the available record.
The basic issue which needs consideration is whether after departmental enquiry if certain allegations were found correct an could be registered against the concerned persons? The petitioner was initially charged with the offences 409/467/468/471/109, P.P.C. Read with section 5(2)
Act H of 1947, however, the case of petitioner was placed before the Provincial Anti-Corruption Council for its opinion whether on the basis of investigation report either accused officer should be prosecuted in Court or dealt with departmentally. The petitioner succeeded to move his case to the Department, where enquiry was held under Balochistan Development Authority (E&D) Rules, 1987, resultantly petitioner was served with a show-cause notice containing the allegations as mentioned in F.I.R. Petitioner denied the same, eventually after conclusion of enquiry the petitioner was dismissed from Service, the departmental appeal of petitioner was also rejected. As a result of Enquiry Chairman B.D.A., through letter asked for revival of the F.I.R., while Chief Secretary ordered for registration of new case and also re-opening of old Case No,6-Q of 1988 on 5-8-2000 as the petitioner was found causing financial loss to the Government and guilty of gross misconduct, corruption, defrauding and making money. The petitioner was dismissed from Service on 20-12- 2000 the order is reproduced hereinbelow for ready reference:--
' "No,BDA/HQs/I-II (Per)/322.--Sardar Muhammad Amjad Durrani son of Sardar Abdul Majeed Durrani resident of Quetta, General Manager (D&R) (under suspension) of Balochistan Development Authority, Quetta, has been found guilty of corruption, defrauding Government causing financial loss to Government inefficiency and misconduct in the implementation of Quetta Water Supply Project while posted as Project Engineer B-WASA, and is accordingly dismissed from B.D.A. Service under the Provisions of Rule 5 (c) of Balochistan Development Authority (E&D) Rules, 1987, with immediate effect.
(Sd.) Ameer Ali Buro, Chairman."
6. Under the Efficiency and Discipline Rules, Departmental Enquiry is to be held against the Government Servant, who was found negligent, inefficient by means of his conduct and remains irregular towards his services. While performance of his duties any act is done falling in the definition of inefficiency or indiscipline, the matter is to be referred for departmental enquiry, if after impartial enquiry it was proved that the Government Servant remained inefficient and in disciplined in performance of his duties/services, the Authority is competent to impose certain penalties as deemed fit and proper while it was found that the petitioner apart from inefficiency and undiscipline also defrauded the Government and made corruption during performance of his duties. The action of department to the extent of his misconduct or any illegality, irregularity is stated to be lawful under Efficiency and Discipline Rules, 1987, while for defrauding and corruption, the matter is to be referred to the Law-Enforcing Agencies for initiating criminal proceedings against the Government Servant. After departmental enquiry the charges were stated to be proved against the petitioner and accordingly he was dismissed from service having been found inefficient, negligent and guilty of indiscipline while for defrauding, corruption and embezzlement, matter was rightly referred to the Authorities concerned for trial of the petitioner by the Competent Court of law under relevant laws. The respondent/Judicial Magistrate in exercise of his powers issued non-bailable warrants of the petitioner for prosecuting him through Court for the alleged offence. However, registration of second F.I.R. Is not correct as F.I.R. On the same allegations has already been registered. We have also noted that petitioner did not appear before us and also failed to surrender himself before the Authorities in consequence of non-bailable warrants issued against him, therefore, he is not entitled to any discretionary relief in exercising of writ jurisdiction.
' In the light of what has been discussed hereinabove, we are, not inclined to admit this petition for regular hearing, which is accordingly dismissed with no orders as to costs.