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Petitioner: MUHAMMAD SHARIF VS Respondent: STATION HOUSE OFFICER, POLICE STATION, CITY, JUDGMENT
Court Name: Lahore High Court Judge(s): Ch. Muhammad Nasim Title:MUHAMMAD SHARIF vs STATION HOUSE OFFICER, POLICE STATION, CITY,
JUDGMENT
Reported As: PLD 1997 Lahore 692 Result: Petitions accepted Judgment JUDGMENT This judgment is intended to dispose of the following two Writ Petitions as the identical questions of law and facts are involved therein: (i) Writ Petition No,5809 of 1997 titled as Muhammad Sharif v. S.H.O., Police Station City, ,Hafizabad, District Hafizabad and 2 others. (ii) Writ Petition No,5819 of 1997 namely Muhammad Sharif v. S.H.O., Police Station Sukheyki, District Hafizabad and 2 others. 2.Crime Case No,15, dated 12-1-1997 stands registered at Police Station Hafizabad, District Hafizabad under section 161 Pakistan Penal Code and under section 5 of the Prevention of Corruption Act, 1947 at the instance of Mr. Sakindar Zulqarnain, Deputy Superintendent of Police/Sub-Divisional Police Officer, Saddar Circle, Hafizabad at the direction of the Superintendent of Police, Hafizabad after the report of inquiry was submitted to him by the aforesaid Deputy Superintendent of Police. According to the recitals of the F.I.R. In connection with the theft of buffalo of Saif Ullah allegation of receipt of an amount of Rs,5,500 as illegal gratification was made against Muhammad Sharif, Head Constable No,8, C.I.A. (petitioner). An inquiry was held wherein the statements of Saifullah applicant, his brother Nasrullah as well as other witnesses were recorded. After the registration of the case the investigation has been started. Writ Petition No,5809 of 1997 has been filed for the quashment of the aforesaid F.I.R. 3.Writ Petition No,5819 of 1997 has been filed for the quashment of F.I.R. No,22, dated 15-1-1997 registered at Police Station Sukheyki, District Hafizabad under section 161/452, Pakistan Penal Code and under section 5 of the Prevention of Corruption Act, 1947 at the instance of Mr. Sakindar
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Zulqarnain, Deputy Superintendent of Police/Sub-Divisional Police Officer, Saddar Circle, Hafizabad. The allegation was made against Muhammad Sharif, Head Constable (petitioner) that during his posting in C.I.A. He trespassed the house of one Zulfiqar, took into possession his .12 bore gun and registered false criminal case against him and that he had to pay Rs,40,000 to Muhammad Sharif, Head Constable as illegal gratification. The inquiry was held when Mukhtar Ahmed, Commission Agent appeared and stated that he paid an amount of Rs,40,000 through Jahangir and the said Jahangir testified for the payment of Rs,40,000 to Muhammad Sharif petitioner as illegal gratification. After the holding of the inquiry the order for the registration of the aforesaid F.I.R. Was passed by the Superintendent of Police, Hafizabad. 4.The aforesaid both the writ petitions have beer. Filed by Muhammad Sharif, Head Constable (petitioner) for the quashment of each F.I.R. On the grounds that the Deputy Superintendent of Police/Sub-Divisional Police Officer, Saddar Circle, Hafizabad was not competent to initiate and conduct inquiry against him and the Superintendent of Police, Hafizabad had no jurisdiction to pass the order for the registration of both the cases. According to the petitioner the preliminary inquiry could only be conducted at the direction of the Deputy Director, Anti-Corruption and that also by the Anti-Corruption Establishment and that the F.I.R. Could be registered at the relevant Anti-Corruption Establishment and not at the aforesaid Police Stations under the administrative control of the local police. It is maintained that the local police has proceeded in the matter without any legal justification in violation of the rules and that he has been involved due to personal enmity. 5.I have heard the learned counsel for the 'petitioner as well as the learned Assistant Advocate- General and gone through the record before me. Learned counsel for the petitioner referred to Rules 3 to 17 of the Punjab Anti-Corruption Establishment Rules, 1985 wherein the procedure for the initiation of preliminary inquiry against the public servants, registration of cases, arrest of the accused, imparting of information to the Administrative Department regarding his arrest, obtaining sanction for prosecution, prosecution of the accused public servant, traps, dropping of cases or recommending departmental action and the factum of establishment of Police Stations of Anti- Corruption Establishment have been incorporated. According to him all the proceedings conducted by the Deputy Superintendent of Police/Sub-Divisional Police Officer on the respective application of each applicant of both the cases are without jurisdiction. He added that incorporation of section 452 of Pakistan Penal Code in F.I.R. No,22 of 1997 registered at Police Station Sukheyki, District Hafizabad is not justified as the aggrieved person whose house was allegedly trespassed is not the complainant of that F.I.R. On the contrary learned Assistant Advocate-General referred to section 5(2)/5-A of Prevention of Corruption Act, 1947 as well as section 3 read with section 8 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 and laid the emphasis that investigation of offences under section 5(2) of the Prevention of Corruption Act, 1947 could be conducted by the Deputy Superintendent of Police without obtaining the permission from the Magistrate of the First Class as required under section 5-A of Prevention of Corruption Act, 1947 and thus the contention of the learned counsel for the petitioner that the investigation was violative of law is misconceived. He maintained that the provision of section 8 of the West Pakistan Anti-Corruption Ordinance, 1961 has made out that all the provisions of the aforesaid Ordinance, 1961 are in addition to and not in derogation of any other law for the time being in force. He continued that the provisions of Code of Criminal Procedure are applicable to anti-corruption cases and for that matter local police can proceed under section 154 of the Code of Criminal Procedure with regard to the registration of the case at the respective local police station mentioned in the respective F.I.R. Required to be quashed. He added that these are the cases of corruption and on the basis of legal technicalities, it is not proper and fair to quash the F.I.Rs,
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6.I, however, agree with the learned counsel for the petitioner. I would express that when law prescribes a particular manner and procedure in which things are required to be done, the same must be done in that way and not otherwise at all. Before proceeding further in the matter it would be proper to reproduce the relevant sections and Rules as under for the sake of convenience so that the controversy stands projected and disposed of in a proper, just and salubrious manner:-- "A Sections 5 and 5-A of Prevention of Corruption Act, 1947: 5. Criminal misconduct.--(1) A public servant is said to commit the offence of criminal misconduct: (a) (b) (c) (d) if he, by corrupt or illegal means, or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage (or) (2) Any public servant who commits (or attempts to commit criminal misconduct) shall be punished with imprisonment for a term which may extend to seven years or with fine or with both. 5-A. Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), no officer below the rank of (Inspector) shall investigate any offence punishable under any of the sections of the Pakistan Penal Code (Act XLV of 1860), mentioned in section 3 of any offence punishable under section 5 without an order of a Magistrate of the first class or make an arrest therefor, without a warrant: B Sections 3 and 8 or the West Pakistan Anti-Corruption Establishment Ordinance, 1961: 3.Constitution and powers of Anti-Corruption Establishment.--(1) Notwithstanding anything contained in any other law for the time in force, Government may constitute an establishment to be known as Anti-Corruption Establishment for the investigation of offences set forth in the Schedule, and for holding preliminary inquiries for determining whether such offences shall be investigated or departmental inquiries into the conduct of any public servant concerned in such offences shall be held. 8.Provisions not in derogation of any other law.--The provisions of this Ordinance are in addition to and not in derogation of any other law for the time being in force. C. Rules 3 to 17 of the Punjab Anti- Corruption Establishment Rules, 1985: 3.Area of jurisdiction of ex-officio Deputy Director and Additional Director of.--The area of jurisdiction of ex-officio Deputy Director shall be the district of his posting while that of ex-officio Additional Director shall be over his Department and attached Department in which he shall be assisted by the ex-officio Assistant Directors. 4.The ex-officio Additional Director and ex-officio Deputy Director shall only deal with the category of cases which may be assigned to them by the Government from time to time by notification. 5.--(1) After the preliminary enquiry, if the ex-officio Additional Director or ex-officio Deputy Director finds that--- (a) there is no ground to proceed further in the matter, the proceeding shall be dropped after recording reasons, and the complainant if any, shall be informed; (b) there are reasonable grounds to proceed further in the matter, he shall refer the case along with the relevant record to the appointing authority of the accused public servant for departmental proceedings under the Efficiency and Discipline Rules. (2) If the ex-officio Additional Director or ex-officio Deputy Director receives a complaint or gets information through reliable source regarding a serious case which does not fall within the category of the notification issued under rule 4, he shall refer the same to the Director. (3) If a case is referred under sub-rule (2), the Director after examining the same may return the same to the concerned ex-officio Additional Director, ex-officio Deputy Director who shall deal with the same under these rules.
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6. Preliminary enquiries and investigations against public servants.---Preliminary enquiries and investigations shall be initiated by the Establishment against public servants on complaints received from the Government, Heads of Departments or other reliable sources. 7.Initiation of preliminary enquiries against public servants.---A Deputy Director or an officer of or above his rank shall initiate preliminary enquiries in order to ascertain the identity of the complainant or informer and genuineness of the complaint/information: Provided that enquiry against the Commissioners of Di' ions, Secretaries to the Provincial Government, Heads o. Attached Departments and other officers of BPS-20 and above, shall be initiated by the Director with the prior permission of the Governor: Provided further that, for those officers mentioned in the first proviso who are in BPS-19, such permission shall be accorded by the Chief Secretary. 8.Registration of cases.---(1) Criminal cases shall be registered by the Establishment under Prevention of Corruption Act, 1947 and under such sections of the Pakistan Penal Code, as have been set forth in the schedule to the Ordinance. (2) Criminal cases shall be registered against accused public servants under the written orders of officers of Establishment mentioned below: (a) Public Servants in BPS 1--16 Not below a Deputy Director (b) Public servants in BPS 17 and 18.Not below an Additional Director (c) Public servants in BPS-19 and above:Director Provided that, no case shall however be registered by the Director against public servants of the status of Commissioner, Secretary to Provincial Government, Heads of Attached Departments and, other officers of BPS-20 and above without the prior permission of the Governor: Provided further that for those public servants mentioned in the first proviso who are in BPS-19, such permission shall be accorded by the Chief Secretary: Provided further that no prior permission shall be required for registration of a case against a public servant caught as a result of trap arranged by the Establishment under the supervision of a Magistrate, in the act of committing an offence specified in the Schedule to the Ordinance. In such a case, a report shall immediately be made to the Chief Secretary, the Administrative Secretary and immediate superior of the public servant concerned if he is in BPS-16 and above and to the appointing authority and immediate superior if the public servant is in BPS-15 and below. (3) If the competent authority under sub-rule (2) decides not to register a case, he shall record reasons therefor. 9.Arrest.---The accused public servant may be arrested if his arrest becomes unavoidable during investigation, except in the following cases when permission will be accorded by the authority specified below:-- (a)Officers in BPS-18 and 19. Commissioner (b)Commissioners and Secretaries to Government, Heads of Attached Chief Secretary Departments and Of ficers in BPS-20 and above: Provided that no such permission for arrest shall be required after sanction for prosecution has been accorded by the authority prescribed for the purpose under the Criminal Law Amendment Act, 1958; Provided further that no prior permission shall be necessary for the arrest of a public servant caught as a result of trap as mentioned in sub-rule (2) of rule 8.
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10.Informing Administrative Department, etc. Regarding registration of a case and arrest.---As soon as may be after registration of a case against a public servant, the Establishment shall inform the Administrative Secretary and immediate superior if the public servant involved is in BPS-16 or above and the appointing authority and immediate superior in case of a public servant in BPS-15 and below, giving gist of allegations upon which the case has been registered. The said authorities shall also be informed immediately after the arrest of the accused public servant. 11.Obtaining sanction for prosecution.---After investigation in cases considered fit for prosecution, the following authorities shall be competent to move for sanction for prosecution required under subsection (5) of section 6 of the Criminal Law Amendment Act, 1958 (XL of 1958):-- (a) Director or Additional Director in cases against public servants up to BPS-18; and (b) Director in cases against public servants in BPS-19 and above. 12.Sanction for prosecution.--Sanction for prosecution shall be obtained from the authority specified under the Criminal Law Amendment Act, 1958 (Act XL of 1958). 13.Prosecution of the accused public servant.-- On receipt of sanction the accused public servant shall be challaned to Court without any delay and the Authorities mentioned in rule 8 shall be intimated. 14.Traps.-- In all cases of raids, the Deputy Commissioner or in his absence the Additional Deputy Commissioner (General) of the District shall be approached by the officers of the Establishment posted in the district to depute a Magistrate for supervising the raid. 15.Dropping of cases or recommending departmental action.--(1) The following procedure shall be followed for 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 the effect shall be sent to the authorities mentioned in rule 8. (b) If after investigation it is found that prosecution is not called for but sufficient material is available on record for departmental action, the Establishment shall move the departmental authorities of departmental proceedings under Efficiency and Discipline Rules. (2) The following Authorities shall decide dropping of cases or departmental action:-- (a) Additional Directors in cases in which public servants up to PBS-17 are involved. (b) Director in cases in which public servants up to BPS-18 are involved. (c) Chief Secretary in which officers in BPS-19 and 20 are involved except those mentioned in clause (d) below; and. (d) Governor in cases involving Commissioners, Administrative Secretaries and officers in BPS-21 and above are involved. (3) After a decision to take departmental action has been taken under foregoing sub-rule the competent Authority shall initiate departmental proceedings against the accused public servant. (4) Copies of final reports and summaries of dropped cases shall not be supplied, without the permission of the Director. (5) When decision to hold departmental enquiry against a public servant is taken, the Establishment shall forward facts of the case, statement of allegations, list of witnesses and documents, if any, to the Authority prescribed under the Efficiency and Discipline Rules. (6) As soon as the enquiry has been completed and final orders have been passed the result of the same shall be intimated to the Establishment, along with a copy of Enquiry Officer's Report for completion of record. 16. Where Senior Public Servants are involved along with Junior Public Servants.---For the purpose of dropping the case after investigation, or referring it for departmental action or making a move to obtain sanction for prosecution, if more than one public servants are involved, the competent authority for these decisions shall be the one, which is in case of the public servant in the highest BPS.
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17.Police Stations of the Establishment.---Cases shall be registered by the Establishment at the Police Station of the Establishment having the jurisdiction." 7.It is the admitted position that section 161 of the Pakistan Penal Code and section 5 of the Prevention of Corruption Act, 1947 are the scheduled offences. It is proper to refer to Article 4 of the Constitution of 1973 at this stage which says," to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen wherever he may be and every other person for the time being within Pakistan". Further, Article 25(1) of the Constitution, 1973 on the subject of equality of citizens provides that all citizens are equal before law and are entitled to equal protection of law. Legally and technically the term "law" given in these Articles means the General Law of the land, Special laws, Rules and Regulations vis-a-vis a citizen. I would glossing over an important aspect of the matter by making the observation which is that an enormous importance that General Law, Substantive or Procedural, is superseded by the Special Law of the same category. Thus, the provisions of the Special Laws towards the anti-corruption measures shall have the preference. The Punjab Anti-Corruption Establishment Rules, 1985, have been enforced later and rather the latest in time, the Rules 8 and 17 of which are relevant and significant/prominent and for that matter shall have the preference with regard to its applicability and attraction towards a matter of the instant nature. According to the said Rules, 1985 whole of the texture in the matter stands altered and changed. The Punjab Anti-Corruption Establishment Rules, 1985 were enforced on 23-5-1985 vide Notification No,SV-13-1-85, dated 23rd May, 1985 published in Gazette Extraordinary, dated 23-5-1985. Practically with the passage of time the provision of section 5-A of the Prevention of Corruption Act, 1947 has become obsolete which is not utilized by the present authorities at the helm of anti-corruption matters who act under the Punjab Anti-Corruption Establishment Rules, 1985. 'The Scheme for reorganization of Anti-Corruption Establishment Rules has been incorporated in clear terms in the Punjab Anti-Corruption Establishment Rules, 1985 wherein one of the salient feature of the Scheme as mentioned is that Deputy Commissioner is made the ex-officio Deputy Director of Anti-Corruption Establishment. The basic idea is to have the Deputy Commissioner dealing with corruption cases at the District level instead of the Circle Officer who is the Inspector of Police only. By making the Deputy Commissioner responsible for Anti-Corruption Establishment duties he has also been made an Officer with added enhanced prestige, respect and authority at the District level. Only the ex-officio Deputy Director of Anti-Corruption who, as expressed above, is non-else than the Deputy Commissioner/Magistrate of the District could pass the order for the registration of the case as he is empowered in the matter under Rules 8 of the Punjab Anti-Corruption Establishment Rules, 1985 reproduced supra. According to the aforesaid section 3 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 the inquiry or investigation of the case under scheduled offences can be conducted by the Anti- Corruption Establishment and not by the local police as rightly pointed out by the learned counsel for the petitioner. At this stage it is relevant to refer to this aspect of the matter that there are watertight compartments of jurisdiction. There are different branches of police, viz. Local police, Central Intelligence Agency, Legal Branch, Anti-Corruption Establishment/Department, Task Force, Highways Police, Motorway Police, Railway Police, Federal Investigation Agency, Traffic Police, Intelligence Police and Anti-Narcotics Force etc etc. If any branch starts working/meddling/interfering according to its whim or desire in the working of the other branch and their actions are approved, I must record and express that there would be administrative chaos in the society leading towards judicial anarchy which is not the intention of law. It would not be out of place to exemplify that if a hurt or theft case cannot be registered at Anti-Corruption Establishment how the cases of scheduled offence(s) mentioned in the Prevention of Corruption Act, 1947 and the Pakistan Criminal Law Amendment Act, 1958 against a public servant can be registered at the aforesaid Police Station City, Hafizabad and Police Station, Sukheyki under the
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administrative control of the Local Police being headed by Superintendent of Police, Hafizabad who has no concern with the Anti-Corruption Establishment so far as the administrative control is concerned. There is separate administration of the Anti-Corruption Establishment having the separate Provincial Head designated as Director, Anti-Corruption, Punjab, Lahore leading a force of subordinates of all levels incorporated in the Punjab Anti-Corruption Establishment Rules, 1985. The wisdom behind the registration of the anticorruption cases regarding scheduled offences directly at Anti-Corruption Establishment is that the provision of inquiry at the end of the said Establishment before the registration of the case has also been provided and it is simply to save the reputation and honour of the public servant. It may be that in the inquiry he stands exonerated before the registration of the cases and has not to go through the ordeal as the accused of any other case registered with local police which he has to face and against whom the case may be cancelled under section 169, Code of Criminal Procedure or who may be acquitted under section 249-A, Code of Criminal Procedure/265-K, Code of Criminal Procedure or after holding of a full- fledged trial. About the arrest of a public servant there is the aforesaid Rule 9 of the Punjab Anti- Corruption Establishment Rules, 1985. A perusal of the aforesaid rule has made out that some legal restraint has been made on the immediate and forthwith arrest of the public servant except those caught as a result of trap. It has been incorporated as an abundant caution to inculcate confidence in the public servants and to save them from autocratic working of any person in authority who may jump upon them for their arrest. Thus, the persons in authority have been made cautious. This sword hanging on the heads of the civil servants/public servants must be removed and it is the right time to take note of it and to take exception to such type of working of the said Deputy Superintendent of Police of local police. Thus, the very order of the registration of the case and its registration at the local police station not only offends the law of the land the same is also violative of the legal ethics and human rights. Thereafter, on the basis of the aforesaid reasoning and findings the investigation of the case by the local police is transgression of authority being without competence and jurisdiction. 8.It is the proper stage to refer to the ruling Muhammad Afzal and 2 others v. Muhammad Siddique Girwa, Additional Sessions Judge, Gujranwala and 3 others (1992 M LD 311 (Lahore)) according to which the case got registered by an Additional Sessions Judge under section 409/420/466/468/ 218/471/104/167, Pakistan Penal Code and section 5…
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