SARMAD JALAL OSMANY, J.---In Constitutional Petition No,902 F.I.R. No,114 of 2000 dated 15-5-2000 converted into F.I.R. No,58 of 2000 of A.C.E, F.I.R. 124 of 2000 dated 31-5-2000, F.I.R. No,126 of 2000 dated 3-6-2000, F.I.R. No,128 of 2000 dated 6-6-2000, F.I.R. No:129 of 2000 dated 8-6-2000 and F.I.R.
No,132 of 2000 dated 10-6-2000 of Police Station Artillery Maidan are impugned and it has been prayed by the petitioner S. Murad Ali Shah that his detention under said F.I.Rs, be declared as being illegal, unjustified, without lawful authority and mala fide and consequently it has been further prayed that the said F.I.Rs, be quashed.
2. In Constitution Petition No,996 of 2000, petitioners Amanullah, Syed Bashir Ali Shah and Ghulam Haider Arain have similarly impugned the F.I.Rs, Nos. 124 of 2000 lodged on 31-5-2000, F.I.R. 126 of 2000 lodged on 6-6-2000, F.I.R. 129 of 2000 lodged on 8-6-2000, F.I.R. 132 of 2000 lodged on 10-6- 2000 and F.I.R. 135 of 2000 lodged on 15-6-2000 with Police Station Artillery Maidan and have consequently prayed for declarations that their continued detention under said F.I.Rs, as being without lawful authority, illegal and mala fide. They have further prayed that these F.I.Rs, be quashed.
3. As the facts and the law connected thereto in both these petitions are similar we purpose to dispose them of through this common order.
4. Briefly stated the facts are that the petitioners Syed Murad All Shah was arrested by the Army Monitoring Team at Karachi on 14-5-2000 and was taken for interrogation. On that day no case was pending against the petitioner but on 15-5-2000 he was shown to be arrested in F.I.R. No,114 of 2000 lodged. With Police Station Artillery Maidan, Karachi wherein he alongwith other officials of the SASO were accused of having committed irregularities and accordingly misappropriated millions of rupees and caused a loss to the exchequer. On 25-5-2000 another F.I.R. No,58 of 2000 based on the same allegations as that of F.I.R. No,114 of 2000 was lodged at the Anti-Corruption Establishment, Karachi, consequent upon the transfer of F.I.R. Nu. 114 of 2000 from Police Station Artillery Maidan. Again on 31-5-2000 another F.I.R. Bearing No,124 of 2000 was lodged with Police Station Artillery Maidan on the same facts as the earlier F.I.R. Yet again on 3-6-2000 F.I.R. No,126 of 2000 was lodged with Police Station Artillery Maidan wherein it was alleged that 13 officers of SASO were illegally promoted by the then M.D./Chairman, SASO, which were subsequently cancelled by the caretaker Minister but still the said officers have not been reverted to their respective ranks, which has caused monetary loss to the Government of Sindh. Finally on 6th and 8th and 10th June of 2000, F.I.Rs, Nos. F28, 129 and 132 of 2000 were lodged at Police Station Artillery Maidan wherein the allegations against the petitioner and other officers ofSASO are that they had by virtue of their office enriched themselves at the expense of the Government.
5. As regards Constitution Petition No,996 of 2000 besides F.I.Rs, Nos.124, 126, 128 and 129 of 2000, two further F.I.Rs, have been lodged against the petitioners viz. F.I.Rs, 132 of 2000 and 135 of 2000 .Dated 10-6-2000 and 15-6-2000 respectively in which again the present petitioners have been alleged to have committed acts of corruption and other wrong doing whereby they have unjustly enriched themselves at the expense of the Government.
6. Mr. Rasheed A. Rizvi learned counsel for the petitioner in C.F. No,902 of 2000 has submitted that the F.I.Rs, in question have been wrongfully lodged with Police Station, Artillery Maidan since the petitioner who was then a civil servant has been accused in his capacity as such in the said F.I.Rs, and hence should have been proceeded against under the Sindh Inquiries and Anti-Corruption Act, 1991. Learned counsel has submitted that as per section 3 of the said Act, the matter has to be investigated by means of a preliminary enquiry and thereafter further steps are to be taken for prosecution of the civil servants concerned. Hence, per learned counsel, in terms of section 3 of the aforementioned Act only the Anti-Corruption Department of the Government of Sindh has the jurisdiction to inquire into any allegation of corruption against civil servants. Learned counsel has also referred to Rule 11 of the Rules framed under the Act whereby the Anti-Corruption Establishment has been given sole jurisdiction to register a case under the provisions of the Act at the Anti-Corruption Police Station per sub-rule (4) of rule 11.
7. Secondly, learned counsel has submitted that the complainant in all the F.I.Rs, is one Qamaruddin Shaikh, who was a Store Keeper in SASO and who had been suspended on the grounds of corruption and hence the F.I.Rs, have been initiated solely on the basis of mala fide intent.
8. Further, per learned counsel, F.I.Rs, Nos.128 of 2000. 129 of 2000 and 132 of 2000 lodged also under section 10 of the NAB Ordinance, 1991 are without jurisdiction as well since it is only the NAB Court, which is legally competent to take cognizance of an offence upon receiving a reference made by and on behalf of the Chairman of NAB. Similarly, F.I.Rs, Nos.126, 128 and 129 were also lodged for offences allegedly committed under sections 3 and 4 of the Ehtesab Act, 1997, which has since been repealed. Per learned counsel again it is only-the Ehtesab Court, which has the competence to take cognizance upon receiving a reference from the Chief Ehtesab Commissioner. To that extent also, therefore, learned counsel has submitted that the said F.I.Rs, are without jurisdiction.
9. In support of his submissions learned counsel has relied upon Shahnaz Begum v. Hon'ble Judges of the High Court and another (PLD 1971 SC 677), Adamjee Insurance Company Limited v. Assistant Director Economic Enquiry Wing (1989 PCr.LI 1921), Anwar Ahmed Khan v. The State (1996 SCM R 24) and Muhammad Latif v. Sharifan Bibi (1998 SCM R 666). Hence, learned counsel has prayed that the F.I.Rs, having been lodged in Police Station Artillery Maidan, with the local police are without any jurisdiction at all since firstly the procedure prescribed under section 3 has not been followed and secondly, only the Anti-Corruption Police has the jurisdiction to entertain any complaint against a civil servant where the charges against him are those of misconduct, corruption, etc. Hence, learned counsel has prayed that the F.I.Rs, be quashed.
10. Mr: Muhammad Nawaz Shaikh, learned counsel appearing for the petitioners in C.P. No,996 of 2000 alongwith Mr. Hamid Hussain has adopted the arguments of Mr. Rasheed A. Rizvi.
11. On the other hand, Mr. Raja Qureshi, the learned Advocate-General, Sindh, has opposed the petitions on the basis that the sanction from the competent Authority had been obtained, which is evident in the opening para of all the F.I.Rs, In this respect he has also placed on the record the Minutes of the Meeting of the Anti Corruption Committee, Government of Sindh, dated 27th September, 2000 whereby the approval has been given for the registration of F.I.R. No,74 of 2000 of ACE, Karachi against petitioners Murad Ali Shah, Amanullah Pathan and Muhammad Yousuf Ali Mirza as well as F.I.R. No,80 of 2000 also of ACE, Karachi against Syed Murad Ali Shah. Similarly, three other letters have been placed on record, one addressed to the Chairman, Inquiries and Anti- Corruption Establishment, Government of Sindh dated 24-6-2000 whereby permission was accorded by the Chief Secretary for the registration of and arrest of the Accused Officers in respect of F.I.R. No,132 of 2000 of Police Station Artillery Maidan, the second letter, dated 22-5-2002 addressed again to the said Chairman by the Chief Secretary whereby permission was accorded for the registration of F.I.R. Etc. With respect to F.I.R. No,129 of 2000, and the third one is a similar letter dated 13-7-2000 addressed to the Director Anti-Corruption whereby permission, was accorded to take cognizance of F.I.R. No,114 of 2000 both of Police Station Artillery Maidan. The learned A.-G has also relied upon Abdul Latif v. G.M. Paracha and others (1981 SCM R 1101).
12. We have heard all the learned counsel as well as learned A.-G and our conclusions are as follows.
13. Admittedly, all the petitioners before us were/are civil servants at the relevant time when the subject F.I.Rs, were registered against them, which basically allege that the petitioners have been instrumental in causing massive loss to the exchequer by their acts of corruption and corruptpractices in their capacity as officials of SASO. It would be seen that as far as the charges of corruption is concerned against a civil servant, section 3 of the Sindh Inquiries and Anti-Corruption Act, 1991 creates an Enquiry and Anti-Corruption Establishment for investigation of or enquiry into the offences set forth in the Schedule and cases relating to the misconduct of public servants and for holding of a preliminary enquiry for determining whether such offences or cases should be investigated or departmental enquiries into the conduct of the public servants concerned in such offences or cases shall be held. It is thus clear that in terms of section 3 of the aforementioned Act only the Anti-Corruption Establishment of the Government of Sindh is responsible and has jurisdiction to inquire into any allegation of corruption against a civil servant and thereafter initiate proceedings for the purposes of prosecution of the said civil servant. As much is also evident from the preamble to the Act, which provides for the constitutions of a special agency for investigation of offences relating to corruption by or enquiry into misconduct of a public servant etc. Under rule 8 of the Rules a preliminary enquiry is to be initiated by an officer of the establishment against an accused public servant only upon prior approval of the Competent Authority. Similarly, under rule 11 of the Rules framed under the Act, the Establishment has been given sole jurisdiction to register cases under the provisions of the Anti-Corruption Act and under sub-rule (4) a criminal case has to be registered by the Establishment at the Anti-Corruption Police Station. When no such notified Police Station is available initially as per sub-rule (5) the case may be registered at the local Police Station but then the District Police has no jurisdiction whatsoever to continue the investigation and the relevant record is to be made over to the Anti-Corruption Establishment. In view of the abovesaid provisions it is crystal clear that the F.I.Rs, in question lodged by the Police Authorities against the petitioners suffer from a basic legal defect viz. They are totally without jurisdiction as Anti-Corruption Police Stations are available at Karachi. Secondly, it also does not appear that prior permission was accorded by the Competent Authority for such prosecution in terms of rule 11(2).
Finally, there is nothing on the record to determine whether or not any exercise in terms of section 3 of the Act was carried out. Consequently, as per well-settled principles laid down by the Honourable Supreme Court it has been the practice and procedure when it is demonstrated to the High Court that when a complaint, investigation, report or other step either in lodging of an F.I.R. Or prosecution of a criminal case is patently against the provisions of any law or otherwise no case can possibly be made out then this Court has been clothed with the jurisdiction to quash the same as no useful purpose would be served to keep the matter lingering on. This in fact amounts to an abuse of the process of a Court of law. For this, proposition reference can be made to Miraj Khan v.
Gull Ahmed and others (2000 SCM R 122), Miami Munir Ahmed v. The State (1985 SCM R 257), Shahnaz Begum v. Hon'ble Judges of the High Court (supra), Adamjee Insurance Company Limited v. Assistant Director Economic Enquiry Wing (supra), Anwar Ahmed Khan v. The State (supra) and Muhammad Latif v. Sharifan Begum (supra).
14. We would also agree with Mr. Rasheed A. Rizvi that the addition of offences under the NAB and the Ehtesab Ordinance in some of the F.I.Rs, is again without any jurisdiction as ordinary Courts of law cannot take cognizance of such offences as special Courts have been created for this purpose under the aforementioned Ordinances.
15. As far as the contentions of the learned A.-G. Are concerned the documentation placed on the record by him do not also help the prosecution in any respect since these are the minutes of the meeting of the Anti-Corruption Committee whereby the previously registered F.I.Rs, Nos.74 of 2000 and 8 of 2000 against the petitioners with the Anti-Corruption Establishment have been given ex post facto approval. It appears from this document that the procedure provided under section 3 of the Act and role 11(2) of the Rules has not been followed and hence the said approvals being ex post facto in nature cannot be up held. In any event such approvals pertain to F.I.Rs, Nos.74 and 80 of 2000 of ACE which are not the subject-matter of the present petitions. Similarly, the other three letters brought on the record whereby permission has been accorded by the Chief Secretary, Government of Sindh, for investigation in F.I.Rs, Nos.132 of 2000, 129 of 2000 and 114 of 2000 on its own cannot help the prosecution since again this is ex post facto in nature whereas rule 11(2) of the Rules clearly mentions that prior permission is necessary. As regards the case of Abdul Latif v. G.M.
Paracha and others (supra), we are of the opinion that the same is distinguishable as it was decided under the West Pakistan Anti-Corruption Establishment Ordinance, 1961, which did not contain the procedures as specified in the 1991 Act and the Rules as to prior permission etc. Before launching any enquiry into the alleged misconduct of a civil servant etc. And subsequent prosecution.
16. For all the foregoing reasons these petitions are allowed and F.I.Rs, Nos.124, 126, 128; 129, 132 and 135 of 2000 as well as F.I.R. No,114 of 2000 of Police Station Artillery Maidan converted into F.I.R. 58 of 2000 are hereby quashed being registered without jurisdiction. This order, however, would not in any manner at all prevent the State from resorting to the proper methodology for the purposes of undertaking disciplinary/criminal prosecution against the petitioners. The above are the reasons for the short order earlier announced by us in the foregoing terms.