' Petitioner is an accused in Case F.I.R. No,371 dated 20-6-2000 under sections 409, 468, 471, P.P.C.
Read with section 5(2), 47/PCA registered with Police Station Saddar, Okara. The petitioner was challaned and case is pending trial before the learned Judge, Anti-Corruption, Lahore. Through the instant petition proceedings pending in the trial Court have been sought to be quashed.
2. Brief facts of the case giving rise to the present petition are that case was registered on the complaint of Executive Engineer, Provincial Building Division, Okara alleging that the petitioner was Accountant/1nd Clerk in the said Division from 13-8-1995 to 25-1-2000 and during this period he used to maintain the cash books of the division and deposit the cash collected in the treasury through challan forms. During this course he embezzled an amount of Rs,5,26,800 from 6/97 to 1/2000. The petitioner was arrested on 17-8-2000 and investigation was completed and three separate challans have been submitted for trial. The petitioner moved three applications under section 265-K, Cr.P.C. Praying for his acquittal but those applications were dismissed vide order dated 18-9-2002. Hence this petition.
3. Learned counsel for the petitioner in support of this petition has argued that it was a scheduled offence and the local police had no jurisdiction to register a case and submit challan, consequent thereupon proceedings pending against the petitioner before Special Judge is abuse of process of Court and the same are liable to be quashed. It is further argued that from the allegations no case has been made out against the petitioner; that the petitioner was only second clerk and could not commit the offence without the help of other officials/officers and this fact stands proved by the opinion of District Attorney. It has also been argued that proceedings can be quashed even after framing of charge in the case. Further adds that case cannot be registered without prior permission of the superior officer of the petitioner as given in the Rules of 1985. In support of the contention, learned counsel has placed reliance on "Muhammad Afzal and 2 others v. Muhammad Siddique Girwa and 3 others" (1992 MLD 311), "Muhammad Hafeez and 2 others v. The State and another" (1999 MLD 1174), "Muhammad Iqbal, A.S.-I. v. Station House Officer, Police Station New Anarkali, Lahore and 2 others " (2000 PCr.LJ 1924), "Bashir Ahmed v. The State" (2002 MLD 746), "Syed Murad Ali Shah and others v. Government of Sindh through Home Secretary and 7 others" (PLD 2002 Karachi 464) and "Maqbool Rehman v. The State and others" (2002 SCMR 1076).
4. Conversely, the petition has been opposed by the learned Additional Advocate-General.
5. I have given due consideration to the contentions raised at the bar and have also perused the file, case-law referred by the learned counsel for the petitioner.
6. The case-law referred above by the learned counsel for the petitioner is not applicable to the present case. The principle laid down in "Muhammad Afzal and 2 others v. Muhammad Siddique Girwa and 3 others" (1992 MLD 311), "Muhammad Sharif v. Station House Officer, Police Station City, Hafizabad and another" (PLD 1997 Lahore 692), and "Muhammad Hafeez and 2 others v. The State and another" (1999 MLD 1174), that case against the public servant for having committed scheduled offence cannot be registered at ordinary police station before preliminary inquiry and prior approval of the superior official is no law now in the field as the abovesaid rule was distinguished in the case of "Mirza Muhammad Iqbal and others v. Government of Punjab" (PLD 1999 Lahore 109) by my learned brother Karamat Nazir Bhandari, J. (as he then was), wherein it has been held that registration of cases under section 154, Cr.P.C. At the ordinary police stations is not illegal as section 8 of the Anti-Corruption Establishment Ordinance provides that provisions of Ordinance are in addition to and not in derogation of any other law for the time being in force. In other words, all the provisions of Criminal Procedure Code are kept intact. This judgment has been upheld by the Hon'ble Supreme Court of Pakistan in C.P.S.L.A.No,1557-L-98. In another judgment of Division Bench of this Court reported as "Shafqat Hussain and another v. Malik Sarfraz, Inspector/Circle Officer, Anti-Corruption Establishment, Hafizabad and another (2000 PCr.LJ 1995) after examining entire case-law on the subject it has been held in para. 15 of the judgment that permission for registration of case against public servant under the written orders of the officers mentioned in rule 8, sub-rule (2) is neither provided in scheme of section 3 or permissible under the rule-making power of the Government bestowed upon them under section 6 in para. 28 it has been further held as under:-- "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, Cr.P.C., Code of the Criminal Procedure wherein after detailed investigation the guilt or innocence is 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 provisions of section 154, Cr.P.C. Rules 6 and 7 conferred upon him a right to be subjected to a preliminary inquiry first and thereafter permission to register a case be obtained."
' I have also noticed that judgment referred to above by the learned counsel for the petitioner reported as "Syed Murad Ali Shah and others v. Government of Sindh through Home Secretary and 7 others" (PLD 2002 Karachi 464) has not been noticed in this case. Needless to observe that the judgment delivered by Division Bench of this Court titled Shafqat Hussain and another v. Malik Sarfraz, Inspector/Circle Officer, Anti-Corruption Establishment, Hafizabad and another" (2000 PCr.LJ 1995). Therefore, following the principle laid down in the above mentioned case, I find no force in the argument that the case against the public servant cannot be registered at the ordinary police station and without approval of the senior police officers. As far as argument of learned counsel that no offence has been made out from the allegations, it is pertinent to mention here that the trial Court has already framed the charge and the petitioner can seek amendment in the charge at any stage under the law and the judgment is to be pronounced on the basis of evidence recorded by the trial Court. There is no cavil to the proposition that High Court has got inherent jurisdiction to quash the proceedings even after framing of charge but in the instant case, sufficient material is available on record against the petitioner. I do not find any jurisdictional defect in the proceedings pending before the trial Court. The petitioner cannot seek help of the opinion, if any, given by the District Attorney as the same is inter se the officials of the prosecution department.
7. For what has been stated above, the petition is dismissed having no force.