Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner challenges the letter/order, dated 27-5-2003 passed by respondent No.1 (Director, Anti- Corruption, Punjab, Landre) whereby he dropped the case F.I.R. No.6 of 2003, dated 2-4-2003 registered un,der sections 420/467/468/471/109/161, P.P.C. Read with sections 5(2), 47 of PCA at P.S. ACE, Khanewal against Shahbaz Yousaf respondent No.4 on the ground that the same has been passed without lawful authority and it has been prayed that by declaring the same of no legal effect direction may .Be issued for submission of challan of the said cake in the Court so that the said case be decided in accordance with law.
2. The brief facts relevant for the disposal of this writ petition are that the petitioner is a Homeopathic Doctor and running Alsamad Homeopathic Clinic at Khanewal. As he has also set up a Pharmacy, he usually requires alcohol for use in medicines. A.Ccording to the petitioner, respondent No.4 who is an Excise and Taxation Officer, Khanewal extracted huge amount of Rs.4,09,400 on different occasions as bribe in the names of higher Officers with promise to get the licence for keeping alcohol sanctioned in the name of the petitioner, but he failed to do so. On the application submitted by the petitioner the above said case was registered after usual inquiry. The investigation of the present case was in progress when on the application of respondent No.4 the file of the case was requisitioned by the Directorate of A.C.E. Punjab vide No. DAC -DDL/2003/5241 , dated 7-4-2003 which was sent there vide letter, dated ACE MR(78)2003/4207, dated 21-4-2003 and finally the case was dropped by the Director ACE, Punjab on 22-5-2003 conveyed vide letter, dated 27-5-2003. Hence this writ petition.
Learned counsel for the petitioner contends that the Director, ACE, Punjab had no authority to pass the order for the droppage of the case as the investigation was still undergoing and he could not have interfered with the investigation unless the same was finalized by the Regional Directorate and submitted to him in due course. It is also contended that the Director (respondent No.1) had acted in an arbitrary manner even against the Punjab Anti-Corruption Establishment Rules, 1985 under the influence of the political personalities only to favour the accused who has committed a very heinous offence.
' On the other hand respondents Nos.4 and 5 are present in person. According to them their learned counsel (Mr. Nishat Ahmad Siddiqui, Advocate) is not available today having gone to the Principal Seat in connection with some other case. The cases fixed before the Court cannot be adjourned merely on vague grounds. No written request was sent by the learned counsel while mentioning the number of case and the Bench where the same is fixed at the Principal Seat. Moreover, the learned counsel could have made arrangement for alternate appearance of a learned counsel on his behalf in this case. Hence request for adjournment is declined. However, the respondents stated that the case against them was false and was rightly ordered to be dropped by the Director, ACE, Punjab after soliciting recommendations from the Legal Wing of Directorate of ACE, Punjab. It is also claimed that in fact the dispute between the petitioner and the respondents 4 and 5 was of civil nature which was converted into criminal offence by levelling false allegations and the petitioner is not running any Pharmacy whrrefor he was allegedly requiring licence for keeping alcohol. Learned A.A.G has contended that under Rule 19 of the Punjab Anti-Corruption Establishment. Rules, 1985 the Director is empowered to order for droppage of the case.
5. Arguments heard and the documents attached with this writ petition as well as the comments submitted by respondent No.1 have been perused.
6. From para.3 of the parawise comments it is very much clear that the case was still under investigation when its file was requisitioned at the Directorate on the application of respondent No.4 and order for its droppage was passed by the Director, ACE, Punjab, Lahore. The foremost question resolved is whether in the present case the Director, ACE, Punjab respondent No.1 was competent to pass the impugned order under rule 19 of the Punjab Anti-Corruption Establishment Rules, 1985. Accused-respondent No.4 admittedly is working in BS-16.
' Droppage of the cases or recommendation for departmental action is made under rule 15 of the Punjab Anti- Corruption Establishment Rules, 1985 which is reproduced here for ready reference:--- "(1) The following procedure shall be followed by dropping of a case or recommending departmental action:---
(a) On completion of investigation if allegations are not established, the case shall be dropped and intimation to this effect shall be sent to the authorities mentioned in rule 8.
(b) If after investigation it is found that production is not called for but sufficient material is available on record for departmental action, the Establishment shall move the Departmental authorities for departmental proceedings under Efficiency and Discipline Rule.
(2) The following Authorities shall decide dropping of cases or departmental action:---
(a) Additional Directors in cases in which public servants upto BPS 17 are involved.
(b) Director in cases in which public servants upto BPS-18 are involved.
(c) ----------------------
(d) --------- ' From the perusal of the above referred provisions it is clear that in the case of the petitioner (working in BPS-16) only the Additional Director, ACE, Multan was empowered to decide for droppage of case or recommendation for departmental action.
8. Let's see whether rule 19 of the Punjab, Anti-Corruption Establishment Rules, 1985 provides any such powers to the Director, ACE, Punjab for droppage of the case. Sub-rules (1) and (2) are relevant which are reproduced here:--- "(1) The Director may suo motu or otherwise call for the record of any case/enquiry, pending investigation with the Establishment, examine it and give such directions as may be necessary for the speedy, fair and just disposal of the same.
(2) the Director may suo motu or otherwise call for the record of any case or enquiry for the purpose of satisfying himself as to the correctness or propriety of decision taken by the Additional Director under clause (a) of sub-rule (2) of rule 15 and of the ex-officio Additional Director and ex- officio Deputy Director under these rules, and may pass such order as may be deemed fit in each case,"
A bare perusal of sub-rule (1) to rule 19 of the Punjab Anti-Corruption Establishment Rules, 1985 shows that it is not meant to give powers to the Director to drop the cases during investigation registered anywhere in the Anti-Corruption Establishment at Punjab but under the same he can only issue directions to his subordinates necessary for the speedy, fair and just disposal of the case if any illegality committed in the same is brought to his notice either by any aggrieved party or otherwise.
9. Similarly under sub-rule (2) to rule 19 of the Punjab Anti-Corruption Establishment Rules, 1985 the Director suo motu or otherwise can interfere only if the case is dropped by the Adoitiorial Director Anti-Corruption under clause (a) of sub- rule (2) of rule 15 and may concur with the same or pass such order as deemed fit. Both the above provisions do not provide any authority to the Director to order droppage of case against the officials upto BPS-17 in any manner at any stage of the investigation or afterwards if the judicial action is recommended in the case but a bare perusal of sub-rule (2) shows that under the same only the complainant can seek remedy before the Director being Appellate Authority if the case got registered by him is dropped by the Additional Director.
Hence it is declared that the power exercised by the Director for droppage of the case vide order/letter, dated 27-5-2003 was without any lawful authority and illegal. The writ petition of the petitioner is thus quite maintainable in such circumstances as no other remedy as per provisions of the Punjab Anti-Corruption Establishment Rules, 1985 was available to him to challenge the order of the Director. I have intentionally not commented upon the facts of the case on merits lest it may prejudice the case of either party in the appropriate proceedings.
10. For the foregoing reasons, this writ petition is accepted, impugned letter/order, dated 27-5-2003 passed by the Director, Anti-Corruptiod Establishment, Punjab, Lahore/respondent No.1 is set aside.
The investigation vide order, dated 21-10-2003 passed by this Court was continued which shall be concluded in accordance with the rules by the Additional Director/respondent No.2. It is, however, clarified that any observations made in this order will not prejudice the case of either party during the investigation, which shall be concluded on its own merits.
11. Before parting with this judgment I am constrained to observe that illegalities committed by the higher officers of the Anti-Corruption Establishment in the droppage of the cases are being continuously brought to the notice of this Court. Earlier in the case reported as Muhammad Yousuf v. Director Anti-Corruption Punjab, Lahore etc. PLD 2004 Lahore 284 this Court after discussing rule 19 and other rules of the Punjab Anti-Corruption Establishment Rules, 1985 held that these rules are not mandatory in nature and under the garb of same, the Director, Anti-Corruption Establishment Punjab cannot exercise the judicial powers nor he can assume the role of Court.
12. It is noteworthy that after the inquiry under the provisions of the Punjab Anti-Corruption Establishment Rules, 1985 the cases are registered under section 154, Cr.P.C. Statements of the witnesses are recorded under section 161, Cr.P.C. And after the investigation if the case is recommended for judicial action, final report is submitted under section 173, Cr.P.C. The crux of the provisions of sections 169, 170 and 173, Cr.P.C. Is that whatever course the Investigating Officer adopts i.e. Whether he acts under section 169 or under section 170, Cr.P.C. It is incumbent upon him to submit a final report under section 173, Cr.P.C: with regard to the result of his investigation to a competent Magistrate and the said Magistrate shall, thereupon, take such action as he may consider proper under subsection (3) of section 173, Cr.P.C. Or under section 190, Cr.P.C. As the case may be in PLD 1999 Lah. 109 this Court after discussing certain rules of the Punjab Anti-Corruption Establishment Rules, 1985 held as under:-- ' Rules have to remain within the parameters of the Act/Ordinance and the moment the same or some of them travel beyond the provisions of parent law the same are struck down as ultra vires 73.
The droppage of cases after registration of the cases only at the level of the Officers of the Anti- Corruption Establishment is not only violation of the provisions of Cr.P.C. But also interference in the judicial functions of the Courts empowered to decide the cases finally. Moreover, the Anti- Corruption Establishment is an executive body and instances are there that its functionaries can be influenced by the political as well as influential personalities while exercising their authority.
Hence the final action into cases of corruption, which is spreading over very badly and has to be dealt with iron hands in order to revive confidence of the people on the State Departments, cannot be left only at the option of the executive authority.
13. Consequently, it is directed that in future if the competent authority after completion of the investigation reaches the conclusion that the case is liable to be dropped or recommended for departmental action, the final report as required under section 173, Cr.P.C. Shall invariably be submitted before the learned Special Judge, Anti-Corruption concerned who under the Code acts as a Magistrate because under subsection (3) to section 6 of the Pakistan Criminal Law Amendment Act, 1958, Chapter XX (of the Trial of cases by Magistrates) of the Code of Criminal Procedure, 1898 is applicable to trial of cases before them under this Act and under subsection (3) of section 173, Cr.P.C. He may agree or disagree with the same after considering the evidence collected so far while giving reasons. This is requirement of law, which will of course be not a check on the vast powers of the authorities acting under the Punjab Anti-Corruption Establishment Rules, 1985 for the droppage of the cases but will also eliminate/ minimize the illegalities and irregularities often found to be committed in passing of such orders by them.
14. Copy of this judgment shall also be sent to the Secretary, Services General, Administration and Information Department, Government of the Punjab, Lahore for information.