2001 PLP 678 (MLD)

Date of hearing: 12th May, 2000. Muhammad Aslam, Project Manager, Punjab Mineral Development Corporation, Sargodha Road, Khushab has called in question the order dated 5‑11‑1998 passed by the Special Judge, Anti‑Corruption, Sargodha whereby he held that the local police had no jurisdiction to register and investigate the instant case through F.I.R. No.52, dated 21‑2‑1993 at Police Station Khushab under sections 403, 406, 409, 420, 463, 464 and 471, P.P.C. and thereafter sent the challan to this Court for trial. As a result proceedings were declared nullity in the eye of law and the accused were discharged and set at liberty. The order was redeemed with a rider that the competent Authority under the Anti‑Corruption Ordinance, 1961 and the Punjab Anti‑Corruption Rules, 1985 may register a case against the accused if they so liked in accordance with law.

2. The petitioner was the first informant in the aforesaid case registered against respondents Nos. 2 to 4 who were employees of the Punjab Mineral Development Corporation an organization of the Government of the Punjab engaged in the exploration and exploitation of mineral wealth in Punjab. Respondents Nos.2 to 4 who were accused persons are started to have prepared some bogus documents using the same as genuine knowing them to be bogus and thereby withdrawing a sum of Rs.1,60,000 causing wrongful loss to the Corporation and wrongful gain to themselves. Further amounts details of which have been given in the First Information Report were also withdrawn by the respondents/accused in a similar manner causing yet further wrongful loss to the Corporation.

3. Special Judge, Anti‑Corruption, Sargodha after framing charge examined three prosecution witnesses and adjourned the case for recording remaining evidence when on 26‑10‑1999 A.D.(P) submitted an application that the trial before the Special Judge was illegal for reasons stated above, which weighed with the Trial Judge and through the order now impugned the proceedings were quashed.

4. Learned counsel for the petitioner has bitterly criticised the impugned order and in support of his arguments relied upon M. Abdul Latif v. G.M. Piracha and others (1981 SCMR 1101) and Mirza Muhammad Iqbal and others v. Government of Punjab (PLD 1999 Lahore 109) to state that the view taken by the Trial Judge is contrary to the dictum of the Supreme Court. It was stated that although the Trial Judge had taken note of numerous rulings in his order, however, referred to judgments were not brought to his notice which has occasioned a grave miscarriage of justice.

5. Learned counsel for the petitioner taking his arguments to its logical conclusion submitted that section 154, Cr.P.C. has an overriding effect over other laws particularly when section 3 of the West Pakistan Anti‑Corruption Ordinance, 1961 provides that the provisions of the Ordinance shall be in addition to and not in derogation of any other law for the time being in force. Registration of the First Information Report with the local police was, therefore, not in conflict either with the special law of Anti‑Corruption or with the West Pakistan Anti‑Corruption Establishment Ordinance, 1961 or the rules framed thereunder.

6. Learned counsel for the contesting‑respondents relied on section 5‑A of the Prevention of Corruption Act, 1947 and urged that the said section although permitted registration of. the case against respondents Nos.2 to 4 yet the investigation was to be conducted by an officer not below the rank of Inspector. Section 5‑A (ibid) is quoted below:‑‑ "5‑A. Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V, of 1898), no officer below the rank of Inspector of Police shall investigate any offence punishable under any of the section of the Pakistan Penal Code (Act XLV of 1860) mentioned in section 3 or any offence punishable under section 5 without an order of a Magistrate of the First Class or make any arrest, therefore, without a warrant."

7. By reading section 5‑A, one has to look for sections 3 and 5 (supra). Section 3 speaks of offences punishable under sections 161, 162, 163, 164, 165 and 165‑A of the Pakistan Penal Code and section 5 (ibid) refers to the definition of general misconduct which is based on bribery and illegal gratification received by a public servant as a motive or reward to show favour or disfavour to the person giving gratification or the person against whom action has to be taken.

8. The point now canvassed that the investigation was conducted by a person lower in rank of the Inspector by the local police was not at all taken before the Trial Judge. Reasoning given by the Trial Judge for quashing the proceedings against the respondents was on totally different premises.

9. Be that as it may, Prevention of Corruption Act, 1947 by a bare reading of its preamble manifests framing of law to make effective provisions in the prevention of the bribery and corruption. Forgery and bogus preparation of a document by a public servant is not strictly envisaged either under section 3 or section 5 of the Act.

10. Order impugned having been passed without taking into consideration the dictum of the Supreme Court in M. Abdul Latif v. G.M. Piracha and others 1981 SCMR 1101) and the subsequent judgment of this Court reported in Mirza Muhammad Iqbal and others v. Government of Punjab (PLD 1999 Lahore 109) as also unreported judgment of the Division Bench in Shafqat Hussain v. Malik Sarfraz (1.C.A. No. 778 of 1999, decided on 26‑4‑2000), suffers from an inherent illegality and there is no alternative but to set aside the same. Resultantly the order dated 5‑11‑1998 passed by the Special Judge, Anti‑Corruption, Sargodha is set aside by accepting the writ petition with the result that the case stands remanded to him with the direction that he will hear the case from the stage when the order dated 5‑11‑1998 was passed. N.H.Q./M‑464/L Petition accepted.