2023 PLP (C (PLC(CS))

MUSARRAT HILALI, J.

This petition has been filed by Dr. Jehanzeb Khalil and others, the petitioners, under section 114 read with Order XLVII of the Code of Civil Procedure, 1908, for review of the judgment of this Court dated 14.11.2018 passed in Writ Petition No. 2640-P/2015.

2. Facts of the case, concisely, are that petitioners Nos. 1 and 2 were serving in Khyber Pakhtunkhwa Text Book Board while petitioners Nos. 3 and 4 were working in the Board on deputation. They were members of the Committee, constituted by the competent authority, to frame and settle guidelines for implementation of Supplementary Reading Material Scheme. The Textbook Board advertised tender in which five publishing firms applied. Out of them, the committee awarded contract to Messrs Ummee (Socio Educational Services). During audit proceedings, conducted by the Audit General, the auditor raised audit Para regarding loss of Rs. 3.861 million to the government due to acceptance of high rates to Messrs Ummee, Socio-Educational Services, consequently, the matter went to Anti-Corruption establishment. Since the petitioners were the members of the Committee, therefore, a notice dated 12.07.2015, herein impugned, was served upon them by the Anti-corruption department, wherein they were informed to deposit the misappropriated amount within five (05) days, failing which legal action will be taken against them. The petitioners challenged the above referred notice before this court by filing Writ Petition No. 2640-P/2015 on the ground of being illegal and without jurisdiction, however, the writ petition was dismissed by this court, vide judgment dated 14.11.2018, in the following terms:- "Petitioner could not be prosecuted for denial of payment of the loss allegedly occasioned to the government; however, he would be proceeded in accordance with law for an offence, if any, after proper inquiry/investigation and petitioner would be at liberty to defend himself in accordance with law. Therefore, this petition being premature is dismissed"

3. Feeling aggrieved, the petitioners have now filed the instant review petition.

4. Arguments heard and record perused.

5. It has now been well settled that the right to claim review of any decision of a Court of law, like the right of appeal is a substantive right and not mere matter of procedure. Ref: (PLD 2007 Supreme Court 121), section 114, C.P.C. deals with jurisdiction of Courts to review its judgments, according to which any person considering himself aggrieved from the decree or order from which an appeal allowed, but no appeal has been preferred or where no such appeal is allowed or by a decision on a reference from a Court of Small Causes may be applied for review of the judgment of the Court which passed the decree or order, the Court may make such order thereon as it think fit, while the grounds on which a review can be sought are enumerated under Order XLVII, Rule 1, C.P.C. Perusal of the above referred provisions of law would reveal that power of review can be exercised to correct the errors and the main aim of power to review is to prevent injustice being done by a Court and the key requirement for invoking the review is that an error or mistake which is manifestly float on face of record, which is patent that if it allow to intact would perpetuate illegality and gross injustice.

6. The key question in the present case is that whether the Anti-Corruption department (respondents Nos. 6 and 7) has the powers to issue the impugned notice dated 12.07.2015. Perusal of section 3 of the Khyber Pakhtunkhwa Anti-Corruption Establishment Rules, 1999, would reveal that the Anti-Corruption Establishment can investigate offences set forth in the schedule and hold preliminary inquiries for determining whether such offences, which are enumerated under Rule 5, shall be investigated or departmental inquiries into the conduct of any public servant concerned in such offences shall be held and, thereafter, if found that a criminal case under the schedule offence is made out, a case is to be registered in the manner as prescribed under Rules 4 and 5 of Rules, 1999. If, on completion of investigation, allegations are not established then under Rule 8 of the Rule, 1999, the case shall be dropped. We have perused the entire Rules but nowhere it has been provided that before initiating preliminary inquiry or after completion of the inquiry or registration of a criminal case a notice, like the one issued to the petitioners, is required to be issued for deposit of the embezzled amount and even otherwise, once it is proved that the offence is committed, then any payment made subsequent thereto, will not absolve the accused of criminal liability and in this respect procedure as to investigation and dropping of the proceedings, as stated earlier, has been provided under Rule 8 of the Rule, 1999. It is well settled that every Court of law is under obligation to apply the correct law and if it is established that same has not been applied by Court, then, a review application in this regard is maintainable. Similarly, where by some inadvertence an important statutory provision has escaped notice which, if had been noticed, might materially have affected the judgment of the Court. Hon'ble the apex court in the case reported as (PLD 1962 Supreme Court 355) has held that "the indulgence by way of review may no doubt be granted to prevent irremediable in injustice being done by a Court of last resort, as where by some inadvertence an important statutory provisions have escaped notice which, if had been noticed, might materially have affected the judgment of the Court, but in no case should be a rehearing be allowed upon merits". Thus, on the face of it, issuance of the impugned notice to the petitioners to deposit the amount is not in accordance with law; therefore, the same is liable to be set aside.

7. For what has been discussed above, the impugned notice dated 12.07.2015 issued to the petitioners is set aside being illegal, unlawful and without jurisdiction, however, they (petitioners) can be proceeded in accordance with law. The review petition is disposed of in the above terms. SA/324/P Order accordingl