1. ' This Constitutional petition has been filed by the petitioner, through his counsel, praying therein as under:--
(1) To direct the respondent to register the F.I.R. Of the petitioner annexed with the petition as Annexure "D", dated 16-8-2001 and to hold the investigation of the case in accordance with law and to report the result of the investigation to this Honourable Court within the shortest possible time.
(2) Any other, further additional relief which this Honourable Court may deem fit and proper under the fair dispensation of justice.
2. ' Notices were issued to the respondents and in response thereto all the respondents have filed their parawise comments which are almost identical.
3. ' The brief facts giving rise to the filing of the present petition, as stated by the petitioner, are that through a Public Notice, dated 7-10-2000, published in daily Urdu "Jang" the petitioner came to know that a Plot No,C-6, Block 13, measuring 600 Sq. Yards situated in F.B. Area Karachi was going to be auctioned under the supervision of the Banking Court No,II, Central, Karachi on 9-10-2000. The petitioner participated in the above auction and was declared to be the higher bidder for the total sale price of the abovesaid plot for Rs,36,00,000 and soon after the bid two Estate Agents namely Syed Wajid Ali and Mubeen Qureshi, approached the petitioner and informed him that they have been sent by the Nazir of the Banking Court, namely Azeem A. Riaz and induced the petitioner to pay them Rs,2,00,000 alongwith Pay Order of Rs,9,00,000 towards the 25% sale price of the above plot as earnest money for obtaining the sale certificate of the abovesaid plot as well as completion of all the formalities of the sale/auction. According to the petitioner, said Azeem, Nazir of the Banking Court also indicated the same to him, therefore, the petitioner parted with his valuable amount at the behest of the abovesaid persons. Consequently, said Azeem A. Riaz issued receipt for the amount of Rs,9,00,000 and the sale was confirmed and sale certificate was given to the petitioner by Muhammad Mobin Qureshi, Muhammad Idrees Qureshi and Syed Wajid Ali and Azeem A. Riaz with the promise that he would deposit Rs,27 lacs by 10th January, 2001 and after that vacant possession of the plot would be delivered to the petitioner. It is further stated by the petitioner that during the above period apart from the payment of Rs,2,00,000, which, was paid to the abovesaid persons, an amount of Rs,4 lacs illegal gratification was also being demanded by them as a reward for getting the plot to the petitioner in their official act, in exercise of their official function, failing which he would not have been able to get the possession of the plot and the abovesaid persons in furtherance of their common object kept the petitioner on avoiding the sale formalities of the above plot completed on one or the other pretext. On 13-7-2001, the petitioner shocked to know through daily "fang" that the above said Estate Agents Mobin Qureshi and Syed Wajid Ali had offered to sell the plot, in question, to one Zainur-Rehman son of Jamil-ur-Rehman and rushed the said Banking Court alongwith his Advocate where all the abovesaid persons were present who despite of the request of the petitioner refused to show the Court file to him.
4. Subsequently, the petitioner obtained a copy from the Court which showed that in absence of the petitioner an application having forged signature of the petitioner was filed on 21-11-2000 before the Court for withdrawal of Rs,9,00,000 endorsing "No Objection" of the sale confirmation of the plot, in question, in the name of Zain-ur-Rehman. The petitioner, in view of the above position, addressed criminal complaint to respondent No,1 requesting therein that since the abovesaid persons, in collusion with Manager United Bank Limited, Binnori Town, Karachi, have committed an offence under sections 409, 468 and 471, P.P.C. Read with section 5(2) of Act II of 1947, by opening the fictitious account, they may be dealt with in accordance with law. According to him, no action has been taken by the respondent No,1 on his application and on 28-8-2001 an envelope containing such complaint was received by the petitioner with the endorsement that there is no Director, F.I.A. In Karachi. The petitioner, on 28-8-2001, again sent the said complaint to respondents Nos.2 and 3 but, according to him, no action was taken by respondents Nos.2 and 3 against the abovementioned persons. Having no other remedy available, the petitioner has approached this Court by filing this Constitutional petition, invoking its Constitutional jurisdiction under Article 199 of the Constitution. In their parawise comments respondents have denied the allegations of the petitioner. It is stated in their parawise comments that on receipt of the complaint of petitioner on 15-9-2001, respondent No,3, following the prescribed rules, entrusted the verification to S.H.O./Inspector Allah Ditta Baloch, F.I.A. Crime Circle II, Karachi who issued letter dated 17-9-2001 to the petitioner/ complainant for his personal appearance before him in order to own complaint and to submit the supporting documents enabling F.I.A. To proceed further into the matter. It is further stated in their parawise comments that the petitioner appeared before the verification officer on 17-9-2001 and owned his complaint through affidavit and his statement was also recorded. After this verification process, respondent No,3 referred the matter to the Director, F.I.A., K.Z. Karachi for according permission of open enquiry against the culprits in accordance with their prescribed rules and as a result thereof permission was accorded by the competent Authority and consequently on 25-9-2001 an Enquiry (bearing No,8 of 2001) has been registered at F.I.A. Crime Circle-II, Karachi and was entrusted to S.H.O./Inspector Allah Ditta Baloch, F.I.A./Crime Circle-II, Karachi. Said Allah Ditta Baloch, who has been entrusted such enquiry has also filed his statement which reveals that during the course of enquiry petitioner/complainant did not produce the original certified copies of documents which he obtained from the Banking Court No,II, Karachi.
5. However, the Investigating Officer obtained certified copies of those documents from the Banking Court No,II, Karachi and also recorded the statements of Azeem Ahmed. Riaz, Nazir, Khubchand.
6. Reader of the said Court, Ghulam Waris, Rafiq Ahmed Patel, Assistant U.B.L., Binnori Town Branch Karachi. According to Investigating Officer on 9-10-2000, Banking Court No,II, Karachi announced auction of mortgaged property viz. Plot No,C-6, Block No,13. F.B. Area, Karachi involved in the case of Messrs Habib Bank Limited v. Sabico International Karachi in which petitioner was declared highest bidder by offering bid amounting to Rs,36,00,000 and as per prescribed condition he deposited 25% of bid amount i,e, Rs,9,00,000 on the same day vide Receipt No,35,' dated 9-10-2000, duly signed and issued by the Nazir of the said Banking Court. After depositing of such amount, the petitioner was required to deposit the remaining amount within 15 days of auction but till 21-11-2000 he failed to deposit the said amount: However, on 21-11-2000, a joint application of Ghulam Waris and Muhammad Idrees. Qureshi was filed before the Banking Court offering enhanced bid being Rs,36,50,000. On the same day, the petitioner appeared before the Banking Court and filed an application stating therein that since an enhanced bid of Rs,36,50,000 has been offered and he has not been able to arrange the remaining amount. i,e, an amount of Rs:9,00,000 deposited by him as 25% of the bid be returned to him. The Banking Court, accordingly, allowed the petitioner to withdraw the above amount, who received the same through Cheque No,1550 and deposited in Account No,121000 on 29-11-2000 which account is being maintained by him. He also got encashment of such amount as is evident from Bank Statement (Annexure "E" to the statement of Investigating Officer). Thereafter, on 5-12-2000, after accepting the enhanced bid of Ghulam Wairs and Muhammad Idrees Qureshi, Sale Certificate was issued by the Nazir of the Banking Court which was confirmed by the learned Presiding Officer of the Banking Court vide order, dated 5-12-2000.
7. The Investigating Officer further stated that enquiry based on the attested documents obtained by him from the Banking Court reveals that all procedural formalities were completed with regard to change of bid by accepting its enhancement. However, Photostat copies of Sale Certificate dated 5-12-2000 and order, dated 5-12-2000, produced by the petitioner during the course of enquiry appear to be contradictory story.
8. ' I have heard the learned counsel for the petitioner and the learned Standing Counsel and with their assistance of both the learned counsel propose to dispose of this Constitutional petition once for ail.
9. ' It has been contended by the learned counsel for the petitioner that the petitioner being an aggrieved person the attitude of respondents Nos.1 to 3 who has been wilfully protecting the accused persons, has invoked the jurisdiction of this Court under Article 199 of the Constitution by filing the present petition as the petitioner has no other alternate and efficacious remedy. It has, also been contended by learned counsel for the petitioner that petitioner is interested in lodging the F.I.R. Followed proper investigation and culprits be punished publicly in fair dispensation of justice. He has referred three unreported orders passed in Constitutional Petitions Nos.300, 345 and 358 of 2001.
10. ' On the other hand, learned Standing Counsel has opposed on the ground that the writ petition invoking the jurisdiction of High Court under Article 199 of the Constitution can only be filed when the citizens are being deprived of their fundamental rights by the Government Functionary which is not the case of the petitioner as upon receiving the complaint from the petitioner. Respondents, following their prescribed Rules, i,e, sections 3(1) and 5(1) of the Federal Investigation Agency Act, 1974 (Act VIII of 1975), held verification and thereafter that registered an open enquiry (bearing No,8 of 2001) which is going on and if, for the sake of arguments, it concludes that a cognizable offence has been committed by the accused persons, a case will be registered. He has referred to the case of Mst. Zar Rano v. The State 1989 SCM R 202 and Adamjee Insurance Company Limited and others v. Assistant, Director Economic Enquiry Wing Federal Investigation Agency 1989 PCr.LJ 1921.
11. ' I have given my anxious thought to the above facts, put forth by the respective parties, and have also gone through the record.
12. ' The learned counsel for the petitioner, while arguing the petition, took up the plea that once the facts, disclosed by the petitioner, ex facie, showed the commission of a cognizable offence, the Police Authorities including the Federal Investigation Agency had no alternative but to register a case if the fact showed commission of a cognizable offence. The holding of an open/preliminary enquiry has no statutory place or force to stall or hinder the registration of the case.
13. ' Under the Federal Investigating Agency Act, 1974 (Act No, VIII of 1975), the Federal Government has been authorized by section 5(1) of the said Act to make orders for carrying out of the functions by the Federal Investigation Agency and the powers of Federal Investigation Agency to carry on the inquiry and the investigation is controlled by such an order if passed by the Federal Government.
14. According to procedure prescribed in an official Gazette titled as "Instructions Regarding Investigation of Cases of Bribery and Corruption by The Federal Investigation Agency" issued by Ministry of Interior, States and Frontier Regions, Government of Pakistan, upon verification of identity of the complainant, the Agency shall ascertain from him full facts in support of his allegations in the shape of preliminary enquiry and shall, if the preliminary enquiry shows that there is reason to suspect the commission of an offence which the Agency is empowered to investigate, send a brief statement of the case to the Competent Authority i,e, Anti-Corruption Council, and seek its concurrence to the registration of the case. On receipt of this occurrence, the Ministry or Department under which the Government Servant, complained of, is serving shall be informed of the registration of the case. Only in case where Government servant is likely to disappear, apprehension of tampering of evidence or any immediate loss to Government is expected, the Federal Investigation Agency may register a case, at once, after recording reasons in writing. It is also provided in those instructions that before the registration of a case all enquiries shall be secret as far as possible and after a case has been registered, investigation shall proceed with care and discretion and no undue publicity shall be given to it' and also special care shall be taken to ensure that no unnecessary damage is caused to the prestige, reputation and dignity of Government servant involved in the case. Therefore, it is quite clear that holding of the preliminary inquiry is borne out by the said Act and it cannot be contended with any success that where the facts on preliminary inquiry do not disclose prima facie the commission, of the cognizable offence, as one of the necessary requirements of criminal intent was found absent, even then the agency has a duty to register the case. In the present case, respondents, as soon as received the complaint of the petitioner which was sent by him on 28-8-2001, issued letter for his personal appearance on 17- 9-2001 to own the complaint and after completing such exercise, permission to hold preliminary/open enquiry was accorded which in its process shows that fundamental right of the petitioner has not been denied by the Government Functionary i,e, Federal Investigation Agency, hence Constitutional jurisdiction cannot be invoked for carrying on a futile exercise simply because the petitioner feels that there is a case made out against those whom he considers to be guilty.
15. There is an alternative remedy available all the same to the petitioner that is of filing a direct complaint in the Court having jurisdiction if he is not satisfied with the progress being made by the respondents and is also so advised.
16. ' Accordingly, I do not find any merit in the above Constitutional petition, which is dismissed being not maintainable. However. Respondents are directed to register the F.I.R. If they come to the conclusion, in the open enquiry that any cognizable offence has been committed by the proposed accused.
17. ' Constitutional Petition No,357 of 2001E stands disposed of alongwith listed applications.