2011 PLP 769 (MLD)

SH. AHMAD FAROOQ, J.

Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed for setting aside the order dated 17-6-2008, passed by the Assistant Director (Technical), Anti-Corruption Establishment, Lahore, Region, Lahore, whereby while conveying the decision of the competent authority qua the dropping of enquiry proceedings against respondent No.4/Naeem Ahmad Mughal, Nazim Union Council No.3, Shandara, Lahore, proceedings under section 182, P.P.C. have been ordered to be initiated against the present petitioner/ complainant of the aforementioned enquiry.

2. Concisely, the facts necessary for adjudication of the lis in hand are that the present petitioner/Jan Muhammad, who claims himself to be the Information Secretary of Pakistan Peoples Party, Shandara, Lahore, made a written complaint to the Additional Director, Anti-Corruption Lahore, wherein he levelled certain allegations of corruption against respondents Nos. 4 and 5/Nazim and Secretary,' Union Council No.3, Shandara, Lahore, respectively, in the execution of development work in Union Council No.3, Shandara. The matter was probed into by conducting an enquiry, which resulted into exoneration of the accused/ respondents Nos. 4 and

5. Dissatisfied with the enquiry the petitioner approached the Director General, ACE as well as the Chief Minister of Punjab but no action was taken against the aforesaid respondents and the enquiry was dropped and recommendations were made for initiation of proceedings under section 182, P.P.C. against the present petitioner/ complainant. Hence, the instant constitutional petition.

3. In compliance with the order of this Court, respondents Nos. 1 and 3 have filed their report and parawise comments. None appeared on behalf of respondents Nos. 4 and 5 despite submission of power of attorney by their learned counsel. Hence, they are proceeded ex parte and the matter is being disposed of on the basis of the available record.

4. In the report and parawise comments submitted by respondent No.1/Director-General, Anti-Corruption Establishment, Punjab, Lahore, it has been stated that the complaint of the present petitioner has been enquired into twice but the allegations levelled by him were found to be false and the accused were declared innocent. It is further submitted that during the enquiry proceedings, the present petitioner/complainant changed his stance by filing a sworn affidavit stating therein that the work in question was executed as per specifications. Consequently, proceedings under section 182, P.P.C. were proposed to be initiated against the present petitioner.

5. The learned counsel for the petitioner contended that the present petitioner has acted bona tide to bring into the notice of the authority the instances of corruption and material irregularities being committed by respondents Nos. 4 and 5 in the discharge of their official duties qua the execution of development works in Union Council No.3, Shandara, Lahore. The learned counsel for the petitioner further contended that the petitioner had laid before the Enquiry Officer the complete documentary proof of the corruption of the respondents but the same was not taken into consideration while concluding the enquiry proceedings. The learned counsel has also contended that proceedings against the present petitioner under section 182, P.P.C. was not warranted under the law and before passing such recommendations, he was not afforded an opportunity of being heard. The learned counsel finally, submitted that the impugned order, dated 17-6-2008 is totally unlawful and illegal and may be set aside.

6. The learned Additional Advocate-General, Punjab argued that the allegations levelled by the present petitioner against respondents Nos.4 and 5 were thoroughly investigated in two enquiries, but the same were found to be false and baseless, and the consequential recommendations for initiation of proceedings under section 182, P.P.C. against the present petitioner were made in accordance with law.

7. I have heard the learned counsel for the petitioner as well as the learned Additional Advocate-General, Punjab. I have also perused the entire record with the assistance of the learned counsel for the parties.

8. As per the report and parawise comments, respondents Nos. 4 and 5 have been exonerated in two enquiries as the allegations levelled by the present petitioner against them were found false and baseless. In the instant petition, the petitioner seeks a direction for taking action against the aforesaid respondents on the same charges, which have already been probed into during the enquiry proceedings conducted by the Anti-Corruption Department twice. I am afraid, this Court in the exercise of its constitutional jurisdiction cannot go into the factual controversy between the parties, which can only be resolved by the proper forum after recording evidence of both the parties. The instant writ petition to the extent of challenging the droppage of enquiry against respondents No.4 and 5 is not maintainable and the same is dismissed to that effect.

9. So far as the question of initiation of proceedings under section 182, P.P.C. against the present petitioner is concerned, the respondents have not issued by show-cause notice to the present petitioner to appear and explain his position, and in proceedings under section 182, P.P.C. was the mandatory requirement of law, non-fulfilment of which deprived the petitioner of his legal rights of opportunity of hearing. It is settled principle of law that no one should be condemned unheard and opportunity of hearing is the vested right of a party before passing any adverse order against that party. The present petitioner had a right to explain his position that he had acted bona fide and the complaint filed against respondents Nos. 4 and 5 was not tainted with his ill-will or malice. The order for initiation of proceedings against the present petitioner under section 182, P.P.C. was thus, not justified and to this extent, was not sustainable in the eyes of law.

10. For the foregoing reasons, the instant petition is accepted and the impugned order dated 17-6-2008 is set aside only to the extent it dictates to initiate proceedings against the present petitioner under section 182, P.P.C. H.B.T./J-7/L Petition accepte