' Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner seeks quashment of case F.I.R. No. 4, dated 8-1-2003, registered under section 161, P.P.C.
Read with section 5(2) of Prevention of Corruption Act, 1947 at P.S. ACE, Multan on the statement of Allah Yar, Driver of the Additional Director, Anti-Corruption, Multan on the ground that F.I.R. Was got lodged for ulterior motives and with mala fide intention by misusing the lawful authority whereas' no such offence was committed by the petitioner or is made out from the facts of the case.
2. . Briefly, the facts narrated in the F.I.R. Are that Allah Yar, Driver of Additional Director, Anti- Corruption, Multan on 29-11-2003 at 8-00 p.m. Had taken the children of the Additional Director to visit Industrial Exhibition and parked the official vehicle near the.Main gate, which was objected to by the petitioner, present on duty being Police Constable. The complainant apprised him that he had to only stay for five minutes whereupon the petitioner demanded Rs.100 as illegal gratification for parking there as long as he wanted. On having introduction that the petitioner was a police Constable working as driver with Mr. Bokhari, S.S.P. The petitioner asked him to park the vehicle with the main pole whereafter the complainant went inside the Exhibition along with the children. When they returned, he found that the front wheel of the vehicle was flat and the Security Guard informed the complainant that the petitioner did it. The complainant complained him about the wrong done by him whereupon the petitioner gave slaps to the complainant and uttered abuses. According to the complainant during the scuffle Rs.3,225 were fallen on the ground from his pocket out of which Rs.225 were collected by him whereas remaining amount of Rs.3,000 was taken away by the petitioner. The occurrence was also witnessed by Liaqat Nawaz, Constable P.S. ACE, Multan, who also came at the spot. Hence this case was registered.
3. Learned counsel for the petitioner contends that even from the bare perusal of the F.I.R. No offence falling within the jurisdiction of ACE is made out, but with mala fide intention and ulterior motive the case has been got registered against the petitioner; that it was a public place but no independent witness was associated in the investigation and the other witness Liaqat Nawaz is also the Gunman of Additional Director, ACE. Multan who even as per F.I.R. Did not witness the demand of illegal gratification allegedly made by the petitioner; that earlier three cars were stolen from the Exhibition, being not parked at proper parking place, and direction was issued by the DPO not to allow any person to park vehicle without parking while the petitioner being a low rank official has been punished only because he had requested the driver of the high-up officer of his Department to abide by the law; that in fact the petitioner, who was an official duty was beaten by the driver (complainant) and gunman of the Additional Director, ACE Multan, but instead of taking any action against them, the petitioner has been entangled in this false case malafidely by misusing lawful authority only to please the Additional Director whose children felt illwill as the petitioner had asked the complainant driver to park the vehicle in the proper car parking; that true version of the incident was reported in "Daily Khabrain" on 9-1-2003; that the whole inquiry proceedings as well as investigation was one sided and the petitioner was not provided any opportunity of hearing, and that the registration of the case is with sheer mala fide and misuse of the authority, hence the impugned F.I.R. Is liable to be quashed.
4. On the other hand learned A.A.-G. Has raised a preliminary objection that the report under section 173, Cr.P.C. Has been submitted in the Court and the petitioner has an alternate remedy by filing an application under section 249-A, Cr.P.C. Before the learned trial Court. Relies upon Muhammad Sarwar v. The State PLD 1969 SC 278 to contend that even demand of illegal gratification is an offence covered by section 161, P.P.C. It is further contended that the case was registered after holding preliminary inquiry and fulfilling other formalities.
5. Ch. Bashir Ahmad, Assistant Director (Legal), ACE, Multan, has contended that the petitioner during the investigation has also admitted the commission of offence.
6. In reply, learned counsel for the petitioner has submitted that in the report and parawise comments in reply to the writ petition at ground (h) it has been specifically stated by the respondents that the petitioner had neither joined the inquiry proceedings nor the investigation in spite of his Talbi for at least nine times, hence the confessional statement of the petitioner, if any, has been manoeuvred subsequently with mala fide intention which shows that how the inquiry/investigation was conducted and it also lends support to the version of the petitioner that he was not afforded any opportunity to prove his innocence during the inquiry/investigation.
7. I have heard the learned counsel for the parties and perused the writ petition as well as the documents attached therewith along with the parawise comments submitted on behalf of the respondents.
8. No doubt it is a case of two versions even from the bare perusal of the F.I.R. As on the one hand the petitioner while present on duty at the gate of Industrial Exhibition had asked the complainant- driver not to park the vehicle in front of gate in violation of the instructions issued by the DPO and on the other hand the complainant claims that the petitioner had demanded Rs.100 as bribe, if he wanted to park the vehicle outside the proper Car Parking near the main gate. Which one version was true definitely requires evidence and this Court in such circumstances normally do not interfere. But one thing which pinched the mind of this Court was that the complainant was posted as driver with the Additional Director, ACE, Multan while other witness, namely, Liaqat Nawaz produced in support of the complainant's version was the Gunman of said Additional Director and the occurrence allegedly took place at a public place but no private person was made as a witness. The facts of the case also showed the interest of the Additional Director in the present case who is Head of ACE at Multan where the case has been registered against the petitioner. Hence this Court took cognizance.
9. Admittedly, the children of the Additional Director had, gone to see the Industrial Exhibition along with the complainant on official vehicle, who wanted to park the same in front of the main gate instead of the car parking, which might cause disturbance in the flow of the traffic due to rush and some altercation took place between the complainant and the petitioner, who was on duty there.
The complainant after parking the car with the main gate went inside the Exhibition, but when returned found that the front wheel of the car was flat and the Security Guard, according to him, told that it was done by the petitioner, which annoyed the complainant who was on duty with the children of Additional Director and it seems to be very reason for registration of the present case against the petitioner. It is strange that no action was taken against the complainant about his act of wrong parking and on the other hand the case was registered against the petitioner on his sole B oral statement that the petitioner had demanded Rs.100 as bribe without there being any corroboration in spite of the fact that it was a public place and many persons might be present there.
10. The facts of the present case shows that the conduct of the complainant was not above the board as he while using the official status of his boss, an S:S.P. Rank officer posted as Additional Director, ACE, Multan had firstly parked the car wrongly and when he was asked to park the car at a proper place by the petitioner, some altercation took place between both of them, which to my mind would amount to interference in the official duty being performed by the petitioner. It does not appeal to mind that the petitioner could have demanded amount of Rs.100 as bribe from the complainant who was on official vehicle of the Additional Director, ACE, Multan accompanied by the Gunman as well as children of the said officer and according to his own version he had introduced him as such to the petitioner, who is also a Constable in the Police Department. The allegation of demanding Rs.100 as illegal gratification seems to have been levelled by the complainant in order to bring the case within the jurisdiction of Anti-Corruption Establishment and avoid any penal action against him for the wrong committed by him, whereas no further scheduled offence was made out against the petitioner from the other facts of the present case.
Muhammad Sarwar's case (supra) is not applicable to the facts and circumstances of the present case.
11. The facts of the present case lends support to the contention of the learned counsel for the petitioner that it has been got registered to wreak the personal vendetta by the complainant to save his own skin by using the authority of Additional Director, ACE, Multan and I do not think that it would be proper for the petitioner to undergo the process of lengthy trial in a case registered against him for punishment that he had dared to ask the driver of a high-up of his Department to park the car in the. Proper Car Parking. The version of the Assistant Director (Legal), ACE, Multan that the petitioner has confessed his guilt during the investigation is in contradiction with the parawise comments submitted by respondent No.1 where in reply to the writ petition at ground (h) it has been specifically mentioned that the petitioner had neither joined the inquiry proceedings nor the investigation in spite of his Talbi for at least nine times, and I am in agreement with the learned counsel for the petitioner that the confessional statement of the petitioner, if any, has been maneouvred subsequently with mala fide intention. It also shows that how the inquiry/ investigation was conducted and it also lends support to the version of the petitioner that he was not afforded any opportunity to prove his innocence during the inquiry/investigation. I have also perused the news item published in "Daily Khabrain" on 9-1-2003 regarding the present incident, which gives support to the version of the petitioner and its Reporter should have been joined in the investigation by the Investigating Officer to unearth the true facts, but such exercise was not done.
12. Taking into consideration all these hard facts, this Court directed the Additional Director, ACE, Multan to appear in this Court. He had no answer on the query of this Court that in how many cases investigation was completed and challan submitted in such a short span as it came to the notice of this Court at different times that numerous inquiries even in cases of serious allegations involving crores of rupees were being not completed for years and what was the urgency in the present case except that he was personally interested in the present case.
13. Although the challan has been submitted in the Court and the petitioner has an alternate remedy by filing an application under section 249-A, Cr.P.C. Before the learned trial Court, as pointed out by the learned A.A.-G., but it does not take away the right of this Court of interference in suitable/exceptional cases. Reliance may be placed on Miraj Khan v. Gul Muhammad and 3 others 2000 SCM R 122 wherein it has been held that this Court in exceptional cases can exercise jurisdiction under section 561-A, Cr.P.C. Without waiting for trial Court to pass orders under section 249-A or 265-K, Cr.P.C. If the facts of the case so warrant. The main consideration to be kept in view would be whether the continuance of the proceedings before the trial forum would be futile exercise, wastage of time and abuse of process of Court or not.
14. Taking into consideration all these facts I am of the considered view that continuation of trial against the petitioner as a result of the impugned F.I.R. Will be abuse of process of Court and sheer wastage of time. Hence this writ petition is accepted and the impugned F.I.R. Along with the consequent proceedings is quashed. There will be no order as to costs.