P L D 2007 Lahore 269 (PLP)

HASNAT AHMAD KHAN, J.

This order shall dispose of Writ Petitions Nos. 6672 of 2006 and 675 of 2006 as both these petitions emanate from the same facts and in both the writ petitions the impugned order is same.

2. Through these writ petitions the order dated 19-11-2005 passed by Addl. Director Anti-Corruption Establishment Multan Region Multan directing the concerned quarter to prepare a challan and to submit the same in the Court of learned Special Judge Anti-Corruption Establishment, Dera Ghazi Khan, has been challenged and prayer has been made to quash the same.

3. Brief facts of the case are that respondent No.2 moved a written application to respondent No.1 for initiating action against the writ petitioners for misappropriating certain amounts by awarding fake leases in favour of their own clerks etc. He had further prayed for recovery of an amount of Rs.60,000 from the petitioners. On the basis of the said application a case was registered on 4-6-2003 under section 409, P.P.C. read with section 5 of the Prevention of Corruption Act (No.II of 1947) at police Station Anti-Corruption Establishment, Layyah vide F.I.R.No.12 of 2003.

4. The learned counsel for the writ petitioners have contended that on the basis of said F.I.R. investigation was conducted by Muhammad Safdar Ali, Inspector/Circle Officer Anti-Corruption Establishment Layyah who recommended for dropping the inquiry vide his report dated 13-10-2004 and thereafter investigation was conducted by Deputy Director (Technical) Anti-Corruption Establishment who vide his order dated 30-6-2005 showed his inability to give any specific verdict about the question in issue, whereafter the investigation was conducted by Ghulam Asghar Chandia, Inspector/Circle Officer, Layyah who also recommended for droppage of inquiry vide his report dated 15-10-2005. They have further contended that ignoring the material of innocence of the petitioners, the respondent No.1 directed the concerned quarter to prepare the challan and to submit the same before the concerned Court. While relying upon Rule 15(1)(a) of the Punjab Anti-Corruption Establishment Rules, 1985, which says that on the completion of the investigation if the allegations are not established the case shall be dropped it has been maintained that the impugned order dated 19-11-2005 is illegal and unlawful.

5. On the other hand the learned Addl. Advocate-General assisted by the complainant counsel has opposed these writ petitions. While supporting the parawise comments submitted by respondent No.1 it has been contended by them that recommendations of the Investigating Officer are nor binding upon the competent authority.

6. Heard. Record perused.

7. The record shows that respondent No.1 had appointed Circle Officer Anti-Corruption Establishment Layyah as Inquiry Officer vide order dated 23-11-2002. The said officer after making inquiries at the spot and recording the statements of certain persons and the parties came to the conclusion that loss of not less than Rs.5.00,000 was caused to the Government by the petitioners. Investigation of, this case was conducted by Deputy Director (Technical) Anti-Corruption Multan Region, Multan also, who held that a case should be decided on the basis of legal opinion and the evidence. His report dated 30-6-2005 is also part of the record. Another report dated 28-7-2004 submitted by the same gentleman shows that according to him detail of loss caused by the petitioners is not that of Rs.5,00,000 but Rs.1,54,636.

8. There is no cavil with the proposition that it is the respondent No.1 who has the ultimate authority to accept such reports or to do otherwise. On the basis of the material he came to the conclusion that the recommendation of the droppage of the case was not justified and keeping in view the evidence on record, technical report submitted by Deputy Director (Technical) dated 28-7-2004 and final report dated 30-6-2005 of the Inquiry Officer he approved the judicial action.

9. While exercising the writ jurisdiction neither controversial facts can be looked into nor the orders/action of competent authority can be subjected to judicial scrutiny and reason for not exercising the jurisdiction is that the purpose of the investigation is only to collect the evidence and place the same before the Court. The Investigating Officers are not final authority to decide the guilt or innocence of the accused. Said function exclusively lies with the Courts of law which are supposed to decide the cases on the basis of the evidence collected during the investigation and produced before the said Courts.

10. Right from Shehnaz Begum's case PLD 1971 SC 677, it has been consistent view of the Hon'ble Supreme Court that High Court cannot intervene in the matter of investigation, which is exclusive function of the investigating agency and quashing of the F.I.Rs. and the proceedings thereon has been disapproved. Latest authorities on the subject-matter are 2006 SCMR 276 and 2006 SCMR 1957.

11. As far as the contention of the learned counsel for the petitioners that under Rule 15(1)(a) of the Punjab Anti-Corruption Rules, 1985 respondent No.1 was under compulsion to drop the proceedings is concerned, I am unable to agree with them as according to my humble view the said Rule is not mandatory as no consequence has been provided for non-compliance of said Rule and it is established law that as a general rule a Statute is understood to be directory when it contains matter merely of direction, but not when those directions are followed up by express provision that in default of following them, the facts shall be null and void. If Act is directory, its disobedience does not entail any invalidity. Judging the case on litmus test as laid down in case decided by the Honourable Supreme Court and reported as Niaz Muhammad Khan v. Mian Fazal Raqib PLD 1974 SC 134, I have come to the conclusion that provisions of Rule 15(1)(a) of above mentioned rules are directory in nature and the word "shall" used in said rule/provision would be treated as "may". So respondent No.1 was under no circumstance bound to drop the inquiry in any situation. It was in his discretion to decide on the basis of the evidence to drop the proceedings or not.

12. There is yet another reason for dismissal of the writ petitions. The Punjab Anti-Corruption Establishment Rules, 1985 being not an Act of legislation and having been made by the Executive Authorities could not override the parent law under which the police is bound to submit the challan under section 173, Cr.P.C. whatever the result of investigation may be and the relevant Court would be authorized to agree or differ with the said report. Through the impugned order only direction has been given to the concerned quarter to submit the challan and after submission of the same the petitioners would be having the remedy of tiling application under section 265-K, Cr.P.C. if so advised. At this stage there is no occasion to interfere with the order of respondent No.1.

13. For all the reasons mentioned above, both these writ petitions are hereby dismissed in limine. S.M.B./M-719/L Petitions dismissed.