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Petitioner: MUHAMMAD IQBAL, A.S.I. VS Respondent: STATION HOUSE OFFICER, POLICE STATION NEW JUDGMENT
Court Name: Lahore High Court Judge(s): Ch. Muhammad Nasim Title:MUHAMMAD IQBAL, A.S.I. vs STATION HOUSE OFFICER, POLICE STATION NEW
JUDGMENT
Reported As: 2000 P Cr. L J 1924 Result: Petition allowed Judgment JUDGMENT ' Muhammad Iqbal, A.S.-I. Posted in Police Station New Anarkali, Lahore under the administrative control of Mr. Khalid Javed, Deputy Superintendent of Police, New Anarkali Circle, Lahore has filed this writ petition for the quashment of F.I.R. No,49 registered on 10-4-2000 at Police Station New Anarkali, Lahore under section 161, Pakistan Penal Code and under section 5 of the Prevention of Corruption Act, 1947. 2. The aforesaid crime case stands registered at Police Station New Anarkali, Lahore at the instance of Mr. Khalid Javed, Deputy Superintendent of Police, New Anarkali Circle, Lahore wherein he alleged that the investigation of Crime Case No,103 registered on 29-2-2000 under sections 302, 452, 324 and 109, Pakistan Penal Code at Police Station Shandara Town, Lahore was entrusted to him. He handed over the file to Muhammad Iqbal, A.S.-I. (petitioner) so that both the parties were heard and the correct facts were brought before him. He alleged that Muhammad Iqbal, A.S.-I. Started bargaining and received an amount of Rs,2,000 from Muhammad Khurshid son of Ghulam Muhammad resident of House No,547-E, Pari Lal Shah Almi, Lahore and, thus, committed the offences under section 161, Pakistan Penal Code and under section 5 of the Prevention of Corruption Act, 1947. 3. Muhammad Iqbal, A.S.-I. Has been arrested whose physical remand has been obtained. Muhammad Iqbal, A.S.-I. Has sought the quashment of the aforesaid F.I.R. On the ground that the Deputy Superintendent of Police, New Anarkali Circle, Lahore was not competent and authorised to get registered the criminal case and that the case against him could not be registered at the local police station i,e, Police Station New Anarkali, Lahore. According to the petitioner no preliminary
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inquiry in terms of the Punjab Anti-Corruption Rules, 1985 has been conducted and that the First Information Report could be registered at the Anti-Corruption Establishment, Lahore. He maintained that the local police has proceeded in the matter without any legal justification in violation of the rules and the law of the land. He claimed to be a law-abiding citizen serving in the Police Department for the last 20 years and claimed to have unblemished record. He maintained that the First Information Report was lodged by the Deputy Superintendent of Police, New Anarkali, Circle, Lahore who was not an aggrieved person and that no prosecution witness was mentioned in the F.I.R. In short due to the non-initiation of the inquiry, registration of the First Information Report at local police station and expressing that the investigation could not be conducted by the police of the local police station; Muhammad Iqbal, A.S-I. Petitioner prayed for the quashment of the F.I.R. 4. This petition has been resisted by the respondents who submitted the report and parawise comments wherein they contended that the F.I.R. Could be registered at the local police station and the case could be investigated by the local police station. In this regard reliance was placed on the judgment passed in Writ Petition No,18785 of 1999. They maintained that the registration of the criminal case against Muhammad Iqbal, A.S.-I. Is warranted by law and that due to the registration of the F.I.R. At the local police station the police of local police station was competent to investigate the case. They prayed for the dismissal of the writ petition. 5. This writ petition has been admitted for regular hearing. The comments and report are treated as the written statement. 6. 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 case, 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 department action and the factum of Establishment of Police Station of Anti- Corruption Establishment have been incorporated. According to him the registration of the criminal case without any inquiry at the local police station at the instance of the Deputy Superintendent of Police, New Anarkali Circle, Lahore is illegal, void and without jurisdiction. He added that the things have not proceeded according to the procedure laid down in the Punjab Anti-Corruption Establishment Rules, 1985. On the contrary learned Assistant Advocate-General referred to section 5(2)/5-A of the Prevention of Corruption Act, 1947 as well as section 3 read with section 8 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 and argued 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 1st Class as required under section 5-A of the 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 provisions of section 8 of the West Pakistan Anti-Corruption Establishment 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 added 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 known as Police Station New Anarkali Circle, Lahore. He added that this is a case of corruption and on the basis of legal technicalities it is not proper and fair to quash the F.I.R. 7. I, however, agree with the learned counsel for the petitioner. In this regard it is proper to 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. In order to test the accuracy of
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the submissions made by the learned counsel for the petitioner and the learned Assistant Advocate-General it would be proper to reproduce the relevant sections and rules of the Prevention of Corruption Act, 1947, West Pakistan Anti-Corruption Establishment Ordinance, 1961 and the Punjab Anti-Corruption Establishment Rules, 1985 as under:-- "(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-- ' 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, 6 and 8 of 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 being 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. 6. Power to make rules.--- (1) Government may make rules to carry out the purposes of this Ordinance. (2) In particular and without prejudice to the generality of the foregoing power such rules may provide for the organization of the Establishment and for prescribing the authorities with whose permission investigation of any case or class of cases may be commenced or any person may be arrested. 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 alongwith 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.
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(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. 6. Prelitninary 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 Divisions, Secretaries to the Provincial Government, Heads of 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 Not below an Additional and 18. Director. (c) Public servants in BPS 19 and Director:. above. ' 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 Chief Secretary to Government Heads of Attached Departments and Officers 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 Pakistan 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 Pakistan 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 for 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 BPS-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, alongwith a copy of Enquiry Officer's Report for completion of record. 16. Where Senior Public Servants are involved alongwith Junior Public Servant.--- 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." 8. 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 and for that matter shall have the preference with regard to its applicability and attraction towards a matter of the instant nature. Legally the general law, substantive or procedural is superseded by the special law of the same category and thus, the special laws towards anticorruption measures shall have the preference. According to the Punjab Anti-Corruption Establishment Rules, 1985 framed in pursuance of section 6 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961; whole of the texture in the matter stands changed. The Punjab Anti-Corruption Establishment Rules, 1985 were enforced on 23-5-1985 vide Notification No,SV-13-1-85, dated 23-5-1985 published in Gazette, Extraordinary, dated 23-5-1985. Practically with the passage of time the provisions of section 5-A of the Prevention of Corruption Act, 1947 have become obsolete which is not utilized by the present authorities at the helm of the Anti-Corruption matters who act under the Punjab Anti-Corruption Establishment Rules, 1985. The scheme for re-organization of Anti-Corruption Establishment Rules, 1985 has been incorporated in clear terms in Punjab Anti-Corruption Establishment Rules, 1985 wherein one of the salient features 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 the corruption cases at the district level instead of Circle Officer who is the Inspector of Police only and is sent on deputation to the Anti-Corruption Establishment. 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 none 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 Rule 8 of the Punjab Anti-Corruption Establishment Rules, 1985 reproduced supra. At present the District Magistrate has not to act under section 156 of the Code of Criminal Procedure in anti-corruption cases which is departure towards addition of his powers. According to section 3 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 the inquiry or investigation of the case under the 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. I am tempted to express at this stage that there are water tight compartments of jurisdiction. There are different branches of police, viz. Local police, Central Intelligence Agency (C.I.A.), Legal Branch, Anti-Corruption Establishment, Task Force, Highways Police, Motorway Police, Railway Police, Federal Investigating Agency (F.I.A.), Traffic Police, Intelligence Police and Anti-Narcotics Force etc. Etc. If any branch starts working, meddling according to its whims 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. I deem it proper to record that if a hurt or theft case cannot be registered at Anti-Corruption Establishment how the case(s) of scheduled offence(s) mentioned in the Prevention of Corruption Act, 1947 and the Pakistan Criminal Law Amendment Act, 1985 against a public servant can be registered at the local police station under the administrative control of the local police being headed by the Superintendent of Police who has no concern with 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 Anti-Corruption cases regarding scheduled offences directly at Anti-Corruption Establishment is that the provision of inquiry at the end of the said
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Establishment before the registration of the case has also been provided and it is simply to save the reputation and honour of the public servants. It may be that in the inquiry he stands exonerated before the registration of the case and has not to go through the ordeal as the accused of any other case registered at local police station which he has to face and against whom the case may be cancelled under section 169 of the 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 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 and a perusal of the same has made out that some legal restraint has been made on the immediate and forthwith arrest of the public servants 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 as in the instant case. Thus, the persons in authority have been made cautious. This sword hanging on 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 Deputy Superintendent of Police (Circle Officer, New Anarkali, Lahore) of local police. My view is that the very order of the registration of the case in the manner adopted by the Deputy Superintendent of Police, New Anarkali Circle, Lahore and its registration at the local police station not only offends the law of the land the same is also violative of legal ethics and human rights. Therefore, 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. 9. It is the proper stage to refer to the ruling printed as Muhammad Afzal and 2 others v. Muhammad Siddique Girwa, Additional Sessions Judge, Gujranwala and 3 others 1992 MLD 311 (Lahore) according to which the case got registered by an Additional Sessions Judge under sections 409, 20, 466, 468, 218, 411, 104, 106, Pakistan Penal…
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