P L D 1964 (W (PLP)

It is thus clear that such certificate ceased to have effect whenever the holder of the certificate ceased for any reason to be a police officer. Mr. Karamat Hussain Shah by becoming a member of the Anti-Corruption Establishment, under Ordinance XX of 1961 which is a statutory force, obviously ceased to be a police officer, and the fact that he has not surrendered the certificate will not make any difference. This can be well understood by reference to certain provisions of the Police Act, 1861, According to section 2 "the entire police establishment under a Provincial Government shall, for the purposes of this Act, be deemed to be one police force, and shall be formally enrolled", and under section 4 of the Act, the administration of the police throughout a general police district shall be vested in an officer to be styled the Inspector-General of Police, and in such Deputy Inspector-General and Assistant Inspectors-General as the Provincial Government shall deem fit. Under section 7 of the Act, subject to such rules as the Provincial Government may, from time to time, make under this Act, the Inspector-General, Deputy Inspectors-General, Assistant Inspectors-General and District Superintendents of Police may at any time dismiss, suspend or reduce any police officer of the subordinate ranks whom they shall think remiss or negligent in the discharge of his duty, or unfit for the same. Before Mr. Karamat Hussain Shah became a member of the Establishment under Ordinance XX of 1961, he was a member of the force as contemplated by section 2 of Police Act, 1861. He obviously is not so after he has been seconded to the Establishment constituted under Ordinance XX of 1961, and there is no manner of doubt also about the fact that he is not subject to the control of the Inspector-General of Police or any other police officer mentioned in section 4 or section 7 of the Police Act, 1861. He is to act subject to the control of the Director of the Anti -Corruption Establishment as laid down under section 4 of the Act. It is inconceivable that he should be working both as a member of the Anti-Corruption Establishment and as a Deputy Superintendent of Police subject to the control of the Inspector-General of Police. Whereas, under Ordinance XX of 1961, the Director is to exercise all the powers of the Inspector-General of Police in respect of the officers and men belonging to the police force serving in the Establishment, under sections 4 and 7 of the Police Act, 1861, the Inspector-General of Police or any other police officer empowered in this behalf can exercise those powers. It could not be possible that there should be two persons exercising the control and powers of the Inspector-General of Police over Mr. Karamat Hussain Shah only because he was a police officer at one time and is now serving in the Anti-Corruption Establishment. There is another aspect of the case as well. Section 10 of the Police Act debars police officer from engaging in any employment or office whatever other than his duties under this Act. He may do so with the express permission in writing of the Inspector-General of Police. The duties which Mr. Karamat Hussain Shah is performing under the Anti-Corruption Establishment Ordinance, 1961, are certainly not duties under the Police Act and co permission of the Inspector-General of Police in writing authorising him to do so has been produced. The Court can only presume that that document has been withheld because, if produced, it would have gone against the deponent. The appointment to the Anti-Corruption Establishment rests with the Government under the law and the Inspector-General of Police has no jurisdiction to make any appointment to this Establishment. Probably the document was a permission by the Inspector-General of Police under section 10 of the Police Act, and if so, it could only mean that on his transfer to the Anti-Corruption Establish ment, Mr. Karamat Hussain Shah ceased to be a police officer for the time being and deputed to a different office or employment. I am, therefore, of the opinion that Mr. Karamat Hussain Shah is not a police officer, and that being so, he cannot be deemed a Deputy Superintendent of Police within the meaning of section 5-A of Act II of 1947. I am otherwise of the opinion that he was not investigating into these offences as a Deputy Superintendent of Police under section 5-A of Act II of 1947. The investigation is also in respect of offences under sections 420, 468 and 477-A, P. P. C. These offences are not covered by Act 11 of 1947. Obviously, Mr. Karamat Hussain Shah, when investigating into these offences, was not acting under Act 11 of 1947, because under the said Act, he could not take cognizance of offences under sections 420, 468 and 477-A, P. P. C. This claim is negatived also by his own first information report. The Government had asked the Anti-Corruption Establishment to register the case and it was accordingly done. It was not denied at any stage by the learned Advocate-General that the investigation was being conducted in pursuance of this direction.

12. To sum up, the proviso to section 3 (1) of the Anti-Corruption Ordinance provides that "nothing contained in this Ordinance" shall affect the provisions of subsection (2) of section 2 of the Pakistan Special Police Establishment Ordinance, 1948, which, as already stated, gives exclusive jurisdiction to the Special Police Establishment where the offences to be investigated or the persons concerned for such offences are connected, as in the present, with the matters concerning the Central Government. The bar against the investigation by agencies other than the Special Police Establishment having been so categorically stated, nothing in the Anti Corruption Establishment Ordinance, not even subsections (4) and (5) of section 3 or section 8, can be invoked to claim for the Anti-Corruption Establishment, as constituted under Ordinance XX of 1961, jurisdiction to investi gate offences alleged to have been committed by persons in regard to matters which are a concern of the Central Government. And this position is not affected by Notification No. 13/73/48 Police (2) dated the 11th of December 1954, which merely means that the power of the ordinary police under Chapter XIV of the Code of Criminal Procedure and sections 3 and 5 of the Prevention of Corruption Act, 1949, to investigate, subject to the restrictions mentioned in that Notification, is not affected by the Special Police Establishment Ordinance. The Prevention of Corruption Act creates no special investigating agency ; it merely creates a new offence (criminal misconduct) and makes certain offences (sections 161 to 165-A, P. P. C.) cognizable by the ordinary police.

13. For the reasons given above, Mr. Karamat Hussain Shah has no authority to investigate this case under the Anti-Corruption Establishment Ordinance XX of 1961 or Act II of 1947. The investigation done by him in pursuance of the aforesaid first information report is without lawful authority and of no effect. The proceedings already taken by him are hereby quashed. He is further directed not to carry out investi gation against the petitioners under the said first information report. No relief has been asked for against respondent No. 1, nor one could, under the circumstances, be available against him. The petition is accepted, but there shall be no order as to costs. BASHIR-UD-DIN AHMAD, J.-On the 25th of June 1963, Mr. Karamat Hussain Shah, Deputy Superintendent of Police Anti-Corruption Establishment, had a case registered at Rawalpindi Sadar Police Station against Saigol Brothers owners 9f Koh-i-Noor Industries, Rawalpindi, and some of the employees of the Central Government for offences under sections 420, 468, 477-A and section 161, Pakistan Penal Code, read with section 5 (2) of the Prevention of Corruption Act (II of 1947). We do not propose to reproduce the first information report (No. 111 of 1963) in this order, but a brief reference to the allegations therein seems to be necessary in order to be able to appreciate the facts properly. The allegations are: First, that Saigol Brothers in alliance with Government servants of the Excise and Taxation Department are enjoying illegal income without paying Government dues. Second, that lacs of rupees are shown as bonus paid to their employees, but they enjoy it themselves by putting forged signatures of the employees. Third, that the cloth and yarn manufactured in the Mills is sold in black-market and the sale is shown in fictitious names ; duplicate accounts are maintained in which sale less than the actual is shown and no tax is paid on the extra amount of income thus earned. Similarly, production is shown less than the actual and sales tax is evaded. Fourth, that Saigol Brothers charge rent for the houses given to their employees which they do not show in their accounts and evade income-tax. Fifth, that Saigol Brothers have built and purchased huge property for which they have not maintained proper accounts by showing more expenses on repairs of the building and thus evaded income-tax. Sixth, that they have gold ornaments and jewellery worth lacs of rupees but do not pay income-tax on it, because out of this money they pay huge sums as bribes to the officers of the Income-tax Department. Seventh, that they have money in foreign banks for which they have never given accounts. Eighth, that the hospital and the buildings in Saigolabad in Chakwal Tahsil of Jhelum District have been built from the funds of the Koh-i-Noor Textile Mills, Rawalpindi, but during Martial Law they declared it as their personal property and thereby, apart from evading income-tax, loss has b; ea caused to the shareholders. Ninth, that they have shares in Murree Brewery Company the profit of which has never been shown in the books and no income-tax paid to the Government. Tenth, that they have built two bungalows costing lacs of rupees in Murree out of the funds of the Public Limited Company and have shown them as their personal property and thereby not only evaded income-tax but also caused loss to the shareholders. Eleventh, that with such illegal income they put up new projects and show sale of shares but many of the shareholders are fictitious persons. Also with this illegal income they have purchased and built houses and cinemas in Lahore and purchased vast areas of agricultural land at different places.

2. After the registration of the case, the premises of the Koh-i-Noor Textile Mills, Rawalpindi, were raided by the Anti-Corruption Establishment on the 27th of June 1963 and a large number of books, registers and other documents were seized with the result that the business of the Mills was seriously affected and M. Bashir Saigol, Director Koh-i-Noor Industries, and Koh-i-Noor Industries Limited, Lahore, through its Secretary, filed the present petition under Article 98 of the Constitution of the Republic of Pakistan against the State through the Chief Secretary, Government of West Pakistan, Lahore, and Mr. Karamat Husain Shah, Deputy Superintendent of Police, Anti-Corruption Establishment, Murree Road, Rawalpindi, for a declaration that the proceedings already taken by the respondents are without lawful authority and of no legal effect. The relief sought by the petitioners also includes a direction to the respondents to refrain from further investigating the matter and from taking any action, whatsoever, in pursuance of the case registered against the petitioners.

3. The contentions raised on behalf of the petitioners may be summarised as under :- (i) That the Anti-Corruption Establishment is empowered under section 3 of the West Pakistan Anti-Corruption Establish ment Ordinance (XX of 1961) to investigate a case relating to offences set out in the Schedule to the Ordinance. (ii) That in view of the proviso to section 3 (1) of the West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961), read with subsection (2) of section 2 of the Pakistan Special Police Establishment Ordinance (VIII of 1948), the West Pakistan Anti-Corruption Establishment have no juris diction to investigate the case as the alleged offences are connected with matters concerning the Central Government.

4. Before we examine the points raised in the petition, we consider it appropriate to briefly outline the position taken up by the respondents in this behalf. We may state here that the respondents did not file a written statement and on the actual date of hearing an affidavit on behalf of Mr. Karamat Husain Shah, respondent No. 2, was filed arming that he was appointed to the Police Force under the Police Act, 1861, in 1927 and that he still holds a certificate under section 8 of the Act, that on his promotion as Deputy Superintendent of Police on the 19th of April 1960, he was appointed in the Anti-Corruption Establish ment by the Inspector-General of Police, West Pakistan, with headquarters at Rawalpindi and with jurisdiction extending to Rawalpindi, Jhelum, Gujrat, Sargodha, Mianwali, Cambellpur and Abbotabad Districts. Reliance was also placed on Notification No. 13/73/48-Police (2) dated the 11th December 1954. The affidavit discloses that information was sent to the appropriate officer of the Special Police Establishment regarding the investigation of this case and that the first information report recorded by respondent No. 2 disclosed the commission of cognizable offences committed by public servants and as such respondent No. 2, who continues to exercise the powers of investigation under the Criminal Procedure Code and the Prevention of Corruption Act (II of 1947), is competent to investigate into the matter.

5. From the trend of arguments of learned counsel for the petitioners on the first day of hearing the respondents realised that it was necessary to have filed written statement and on the following day a written statement on behalf of the respondents was filed. The respondents maintained that all that is required under the law is that the first information report should disclose the commission of a cognizable offence in a particular case and it need not mention the accused or accused persons by name to enable the Anti-Corruption Establishment to proceed with the investigation and as the nature of allegations contained in the first information report in this case showed that officers of the Income-tax Department and that of Central Excise and Taxation Department had accepted bribes from the petitioners who deprived the Government of taxes, excise duty and sales tax etc., which amounted to an offence punishable under section 161, read with section 5 (2) of the Prevention of Corruption Act (II of 1947), the Special Police Establishment set up under Ordinance XX of 1961 of which respondent No. 2 is a member, could investigate the case in exercise of the powers conferred on him by the Prevention of Corruption Act (II of 1947) and under the Code of Criminal Procedure and under Ordinance XX of 1961. It was also submitted that the Special Police Establishment Ordinance (VIII of 1948) did not operate as a bar against registering a case and then investigating it in view of the provisions of section 8 of Ordinance XX of 1961 and further that section 2 (2) of the Special Police Establishment Ordinance (VIII of 1948) in no way debars the police officers, who are members of the Special Police Establishment, from exercising all or any of the powers vested in or conferred on such police officers by or under the Code of Criminal Procedure or the Prevention of Corruption Act (II of 1947) in any case in which the Special Police Establishment has not already started investi gation provided that in every such case information of the investigation started by such police officer as aforesaid, shall be given to the appropriate officer of the Special Police Establishment as early as may be after its commencement and further that in any case in which a requisition is made by the Superintendent Police of the Special Establishment in this respect, such investi gation shall be handed over to the Special Police Establishment. In this regard, reliance is again placed on Notification No. 13/73/48-Police (2) dated the 11th of December 1954.

6. We now proceed to examine whether the provisions of section 2 (2) of Ordinance VIII of 1948 operate as a bar against the investigation of the case under consideration by the Anti-Corruption Establishment. Section 2 (2) reads as under :- "2(2):- Subject to any orders which the Central Government may make in this behalf, members of the said police establish ment shall have throughout Pakistan in relation to the investigation of such offences and arrest of persons concerned in such offences, all the powers, duties, privileges and liabilities which the Police Officers of a Proving have in connection with the investigation of offences ; provided that, unless otherwise directed by the Central Government by a general or special order, where such offences or persons concerned in such offences are connected with matters concern ing the Central Government or the Special Police Establishment has already started investigation of or has been ordered by the Central Government to investigate any such offence, the said police establishment shall have exclusive jurisdiction and powers of investigation and arrest. It is clear from the wording of subsection (2) that in offences connected with matters concerning the Central Government, the Special Police Establishment shall have exclusive jurisdiction and powers of investigation and arrest. The subsection also provides that the Central Government may by general or special order empower any other agency to investigate and arrest even when such offences and persons concerned in such offences are connected with matters concerning the Central Government. The Central Government issued Notification No. 13/73/48-Police (2) dated the 11th of December 1954 which is reproduced below for facility of reference :- "In exercise of the powers conferred by the proviso to sub section (2) of section 2 of the Pakistan Special Police Establish ment Ordinance, 1948 (VIII of 1948), the Central Government is pleased to direct that the substantive provision of that sub section shall not debar Police Officers who are not members of the Special Police Establishment from exercising all or any of the powers vested in or conferred upon such police officers by or under the Code of Criminal Procedure, 1898 (Act V of 1898), or the Prevention of Corruption Act, 1947 (II of 1947), in respect of any such offence or person as is specified in the said proviso, in any case where the Special Police Establishment has not already started investigation of the case: Provided that in every such case intimation of the investigation started by such police officers as aforesaid shall be given to the appropriate officer of the Special Police Establish ment as early as may be after its commencement; Provided further that, in any case in which a requisition is made by a Superintendent of Police of the said Establishment in this behalf, such investigations shall be handed over to the Special Police Establishment." It is not shown in the case under consideration that the Special Police Establishment had already started investigation. The affidavit filed by Mr. Karamal. Husain Shah, respondent No. 2, shows that information regarding the investigation was duly sent to the appropriate officer of the Special Police Establishment as required by the aforesaid notification. In the absence of a counter affidavit of the petitioners on the point we feel ourselves justified in presuming that information was given to the appropriate officer of the Special Police Establishment by respondent No. 2 regarding investigation of this case.

7. The objection to the investigation by respondent No. 2 has been two-fold : First that section 2 (2) of Ordinance VIII of 1948 is a bar to investigation by respondent No. 2 who is a member of the Anti-Corruption Establishment and Second that the notification empowered a police officer in a given case to investigate the offences or persons concerned in such offences connected with matters concerning the Central Government and that since respondent No. 2 ceased to be a police officer when he became a member of the Anti-Corruption Establishment, he was not competent to investigate the case.

8. Now, the Anti-Corruption Establishment came into existence as a result of promulgation of the West Pakistan Anti-Corruption Establishment Ordinance, 1961. The relevant portion of section 3 of the Ordinance is reproduced below :- "3(1) :-Notwithstanding anything contained in any other law for the time being in force, Government may constitute an establishment to be known as the Anti-Corruption Establish ment, 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: Provided that nothing contained in this Ordinance shall affect the provisions of subsection (2) of section 2 of the Pakistan Special Police Establishment Ordinance, 1948. (2) . . . . . . . (3) . . . . . . . (4) Subject to any orders or rules which Government may make in this behalf, the Directors, officers and members of the Establishment shall, throughout the Province, in relation to the investigation of offences mentioned in the Schedule and the arrest of persons involved in such offences have all the powers, perform all the duties, possess all the privileges and be subject to all the liabilities which a police officer has, or is subject to, in connection with the investigation of offences under the Code of Criminal Procedure, 1898. (5) . . . . . . . . ." In view of the proviso to section 3 and the provisions of section 3 (4), it was vehemently argued that respondent No. 2 ceased to be a police officer when he became a member of the Anti-Corruption Establishment and as such the notification did not apply and he was not competent to investigate the case. We do not agree. The mere fact that provision is made in section 3 (4) that Directors, officers and members of the Establishment shall, throughout the Province, in relation to the investigation of offences mentioned in the Schedule and the arrest of persons involved in such offences shall have all the powers, perform all the duties, possess all the privileges and be subject to all the liabilities which a police officer has or is subject in connection with the investigation of offences under the Code of Criminal Procedure, 1898, does not necessarily imply that respondent No. 2 ceased to be a police officer when he became a member of the Anti-Corruption Establishment, because he was conferred powers of a police officer under subsection (4) of section 3 of Ordinance XX of 1961. This view finds support from the enactment itself. Section 8 of the Ordinance provides that the provisions of this Ordinance are in addition and not in derogation of any other law for the time being in force.

9. Learned counsel for the petitioners referred to section 8 of the Police Act V of 1861. It reads as under :- "Every police officer appointed to the police force other than an officer mentioned in section 4 shall receive on his appoint ment a certificate in the form annexed to this Act, under the seal of the Inspector-General or such other officer as the Inspector-General shall appoint, by virtue of which the person holding such certificate shall be vested with the powers, functions and privileges of a police officer. "Such certificate shall cease to have affect whenever the person named in it ceases for any reason to be a police officer, and, on his ceasing to be such an officer, shall be forthwith surrendered by him to any officer empowered to receive the same It was contended that when respondent No. 2 became a member of the Anti-Corruption Establishment, he ceased to be a police officer. We are unable to share this view as we have already come to the conclusion that respondent No. 2 continued to be a police officer even after his becoming a member of the Anti-Corruption Establishment. We have already come to the finding that respondent No. 2 retained his character as a police officer even after his becoming a member of the Anti-Corruption Establishment. We are of the opinion that respondent No. 2 was competent both under subsection (5) of section 3 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961, and under section 5-A of Act 11 of 1947, to register the case and investigate as the offences with which the petitioners have been charged are scheduled offences. Subsection (5) of section 3 of Ordinance XX of 1961 reads as under :- "Subject to any orders of Government in this behalf, any officer of the Establishment of or above the rank of a Sub-Inspector may, in relation to the offences mentioned in the Schedule, exercise any of the powers of the officer in charge of a police station within the meaning of clause (p) of sub section (1) of section 4 of the Code of Criminal Procedure, 1898, in the area in which he is for the time being posted, and when so exercising such powers shall be deemed to be an officer in charge of a police station discharging the functions of such an officer within the limits of his station." Section 5-A of Act 11 of 1947 runs thus: "Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), no officer below the rank of Deputy Superintendent of Police shall investigate any offence punishable under any of the sections 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 an arrest therefore without a warrant: Provided that an officer of the Special Police Establishment not below the rank of Inspector of Police who is specially authorised in this behalf by the Inspector-General of that Establishment, or any other police officer so authorised by the Provincial Government, may, if he has reason to believe that on account of the delay involved in obtaining the order of a Magistrate of the first class any valuable evidence relating to such offence is likely to be destroyed or concealed, investigate the offence without such order, but in every case where he makes such investigation, he shall, as soon as may be, send a report of the same to a Magistrate of the first class together with the circumstances in which the investigation was made." It cannot, therefore, be urged successfully that respondent No. 2 in registering the case and proceeding with the investigation acted without any lawful authority. There is no substance in the argument that in fact the investigation is directed against Saigol Brothers and not any servant of the Central Government. In para. 2 of the written statement appear the names of the employees of the Central Government against whom the investigation is mainly directed. There are allegations of bribery and corruption against the officers of the Income-tax Department as well in the first information report in this case.

10. The first information report was also severely criticised on the ground that it purports to have been recorded at the instance of an informer and the source of information has not been disclosed. Whatever defects there may be in the first information report, still it discloses not only the commission of offences but the persons cencerned in such offences are connected with matters concerning the Central Government and as such it cannot be held, as put by Mr. Brohi, that respondent No. 2 tried to clutch at jurisdiction which did not vest in him. Their Lordships of the Privy Council in Khwaja Nazir Ahmad's case (AIR 1945 PC 18), observed: "But, in any case, the receipt and recording of an information report is not a condition precedent to the setting in motion of a criminal investigation. No doubt in the great majority of cases, criminal prosecutions are undertaken as a result of information received and recorded in this way but their Lordships see no reason why the police, if in possession through their own knowledge or by means of credible though informal intelligence which genuinely leads them to the belief that a cognisable offence has been committed, should not of the own motion undertake an investigation into the truth of the matters alleged. Section 157, Criminal Procedure Code, when directing that a police officer, who has reason to suspect from information or otherwise that an offence which he is empowered to investigate under section 156 has been committed shall proceed to investigate the facts and circumstances, supports this view." We are in respectful agreement with the view expressed by their Lordships of the Privy Council. We consider that the point under consideration in the case before us is somewhat similar to that which their Lordships of the Privy Council were called upon to decide in Khwaja Nazir Ahmad's case.

11. The argument that with the filing of the revised return under Martial Law Regulation No. 43 of excess income the Saigol Brothers became immune from investigation carried out in this case against Central Government servants is not available to the petitioners. We reproduce below the relevant provision from the aforesaid Regulation: "2(i) Any person, who has filed the return of his income under the Income-tax Act, 1922 for the assessment year 1954-55 or any assessment year thereafter, and who has reason to believe that the return so filed is not correct, may file a revised return of his true income by the 31st December 1958. No action of any kind whatsoever shall be taken for having sub mitted an incorrect return originally, or in respect of the nature of the transaction from which the income represented by the difference between the revised return and the original return, hereinafter called the `excess income', was derived ; nor will the fact of his having filed a revised return be taken as a ground for the re-opening of any assessment under subsection (2) of section 34 of the Income-tax Act. It will be seen that Martial Law Regulation No. 43 under which the petitioners filed a revised income-tax return nowhere forbid investigation being carried out in the present case against certain employees of the Central Government in respect of wrongful gains made by the officers of the Sales Tax and Income-tax Depart ments and wrongful loss caused to the Central Government. The petitioners figure as abettors. The first information report charges the petitioners with cognizable offences which res pondent No. 2 is entitled to investigate under the statute. The charges now levelled against the petitioners did not exist when they, of their own accord, filed revised return of true income. If the charges now brought against the petitioners are considered by them as unfounded or groundless, they have nothing to fear. Even if we were to hold that the words it para. 2 (i) of Martial Law Regulation No. 43 afford complete protection to the petitioners against their prosecution, that stage has not yet reached and we cannot order the investigation to be stopped.

12. We have carefully considered the facts and the circum stances but we have not been able to persuade ourselves to accept the view that the investigation carried out at present is without any lawful authority or is in any manner illegal. In our opinion, the case of the petitioners does not fall within the framework of Article 98 of the Constitution and we see no ground for issuing a writ as prayed for in this case.

13. For all these reasons, the petition is dismissed but in view of the difficult nature of the questions involved, we leave the parties to bear their own costs. SARDAR MUHAMMAD IQBAL, J.--In view of the fact that important questions of law in respect of the jurisdiction of the Anti-Corruption Establishment and the Special Police Establish ment arise in this case which are of general public importance, the case be placed before his Lordship the Chief Justice for the constitution of a larger Bench. BASHIR-UD-DIN AHMAD, J.-The facts are fully set out in my judgment and need not be repeated. My learned brother appears to have reached a different conclusion on the questions raised in the writ petition for determination. In view of difference of opinion between us, the case is referred to the learned Chief Justice for nomination of a third Judge as requires by paragraph 26 of the Letters Patent of the Lahore High Court, which now governs this Court. ABDUL AZIZ KHAN, C. J.-In view of Clause 26 of the Letters Patent the case has to be referred to a third Judge. Even if it be treated as a criminal matter section 429, Cr. P. C., would apply: I therefore refer this case to Mr. Justice S. A. Mahmood, who will hear and decide the case. S. A. MAHMOOD, J.-On the 25th of June 1963, Mr. Karamat Hussain Shah, Deputy Superintendent of Police, Anti-Corruption Establishment, Rawalpindi recorded a report under the order of the Provincial Government for offences under section 5 (2) of the Prevention of Corruption Act, 1947, and sections 161, 477-A, 420 and 468, P. P. 0. and sent it to the Police Station Sadar, Rawalpindi, for formal registration. He mentioned in this report that he would investigate the case himself. On this M. Bashir Saigol, on his own behalf and on behalf of Koh-i-Noor Industries Limited, of which he is a Director, brought this writ petition praying for a direction that the respondents, namely, the State and Mr. Karamat Hussain Shah, be restrained from investigating into the matters mentioned in the report and for grant of declaration that the proceedings already taken by the respondents were without lawful authority and of no legal effect. The writ petition was admitted and was placed before a Division Bench of this Court, consisting of Bashir-ud-Din Ahmad and Muhammad Iqbal, JJ. On behalf of the petitioners it was contended before the learned Judges that Mr. Karamat Hussain Shah, respondent No. 2, was not authorized to carry on the investigation in his capacity as a member of the Anti-Corruption Establishment in the offences which related to officers and persons concerning the Central Government. The learned Advocate General on behalf of the respondents contended otherwise. The petitioner's contention found favour with Muhammad Iqbal, J., but was repelled by Bashir-ud-Din Ahmad, J. Hence the case has been referred to me for decision under clause 26 of the Letters Patent.

2. The learned Judges have agreed that the first information report recorded by Mr. Karamat Hussain Shah, respondent No. 2, discloses the commission of offences by public servants in connection with the affairs of the Central Government and that police officers had authority to investigate into such offences and such investigation could not be interfered with by the Courts and in coming to this conclusion relied on Secretary of State v. Kh. Nazir Ahmad, while Bashir-ud-Din Ahmad, J., held that respondent No. 2 continued to be a police officer even after joining Anti-Corruption Establishment and he was competent under section 3 (5) of Ordinance XX of 1961 and section 5-A of the Prevention of Corruption Act, 1947, (II of 1947). Muhammad Iqbal, J, came to the conclusion that Syed Karamat Hussain Shah having become a member of the Anti-Corruption Establishment, ceased to be a police officer and having ceased to be a police officer, no power or authority vested in him to investigate offences under the Code of Criminal Procedure.

3. Before the case could be set down for hearing before me, the Advocate-General applied that the name of Mr. Karamat Hussain Shah, Deputy Superintendent of Police, be struck off as he had been transferred and replaced by Mirza Zafar Muhammad. The petitioners also applied that the name of Mirza Zafar Muhammad be substituted as respondent No.

2. These applications were accepted. The officer now investigating the alleged offences is the present respondent No. 2, Mirza War Muhammad, Deputy Superintendent of Police, deputed to the Anti-Corruption Estab lishment.

4. Mr. A. K. Brohi, learned counsel for the petitioners, has contended that respondent No. 2 like Syed Karamat Hussain Shah had, on joining the Anti-Corruption Establishment, ceased to be a police officer, and, therefore, was not a police officer who could exercise all or any of the powers vested in or conferred upon police officers by or under the Code of Criminal Procedure. He argued that whatever power of investigation was invested in him was derived from section 2 (4) and (5) of Ordinance XX of 1961, and as such Notification No. 13/73/48-Police (2), dated the 11th December 1954, did not exempt the members of the Anti-Corruption Establishment from the operation of the provision. Subsection (2) of section 2 of the Special Police Establishment Ordinance, 1948, conferred exclusive jurisdiction, unless otherwise directed by the Central Government, on members of Special Police Establishment to investigate in offences connected with the affairs of the Central Government and persons concerned therein. The Advocate-General contended otherwise and argued that respondent No. 2 being a police officer continued to be a police officer even after being deputed to the Anti-Corruption Establish ment and had power by reason of the Notification referred to above to investigate the offences which form the basis of the first information report drawn up by Syed Karamat Hussain Shah.

5. The following provisions of law have been referred to and are relevant for the decision of the matter under consider ation. Section 2 of the Pakistan Special Police Establishment Ordinance, 1948, provides as follows :- "2. (I) Notwithstanding anything in the Police Act, 1861, the Central Government may constitute a special police force to be called the Pakistan Special Police Establishment for the investigation in Pakistan of offences notified under section 3. (2) Subject to any orders which the Central Government may make in this behalf, members of the said police establish ment shall have throughout Pakistan in relation to the investi gation of such offences and arrest of persons concerned in such offences, all the powers, duties, privileges and liabilities which the police officers of a Province have in connection with the investigation of offences; provided that, unless otherwise directed by the Central Government by a general or special order, where such offences or persons concerned in such offences are connected with matters concerning the Central Government or the Special Police Establishment has already started investi gation of or has been ordered by the Central Government to investigate any such offence, the said police establishment shall have exclusive jurisdiction and powers of investigation and arrest." By reason of subsection (2) of this section the members of Special Police Establishment have exclusive jurisdiction to investigate such offences as are connected with matters concerning the Central Government unless otherwise directed by the Central Government by a general or special order. The relevant Notification of the Central Government directing otherwise is No. 13/73/48-Police (2), dated 11th of December 1954. It provides as follows :- "No. 13/73/48-Police (2), dated the 11th December 1954. In exercise of the powers conferred by the proviso to sub section (2) of section 2 of the Pakistan Special Police Establish ment Ordinance, 1948 (VIII of 1948), the Central Government is pleased to direct that the substantive provision of that sub section shall not debar Police Officers who are not members of the Special Police Establishment from exercising all or any of the powers vested in or conferred upon such police officers by or under the Code of Criminal Procedure, 1898, (Act V of 1898), or the Prevention of Corruption Act, 1947 (II of 1947), in respect of any such offences or persons as is specified in the said proviso, in any case where the Special Police Establishment has not already started investigation of the case: Provided that in every such case intimation of the investi gation started by such police officers as aforesaid shall be given to the appropriate officer of the Special Police Establishment as early as may be after its commencement: Provided further that in any case in which a requisition is made by a Superintendent of Police of the said Establishment in this behalf, such investigations shall be handed over to the Special Police Establishment." The effect of this Notification is that police officers who are not members of the Special Police Establishment are not debarred from exercising all or any of the powers vesting in or conferred upon them by or under the Code of Criminal Procedure or the Prevention of Corruption Act in investigating the specified offences where the Special Police Establishment has not already started investigation subject to information being given to the relevant officer of the Special Police Establishment, as soon as may be.

6. The Anti-Corruption Establishment is governed by the West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961). Its sections 3 and 8 are relevant and may be reproduced with advantage :- "3. (1) Notwithstanding anything contained in any other law for the time being in force, Government may constitute an establishment to be known as the Anti-Corruption Establish ment, 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: "Provided that nothing contained in this Ordinance shall affect the provisions of subsection (2) of section 2 of the Pakistan Special Police Establishment Ordinance, 1948. (2) The Establishment shall consist of the Director and such number or officers and such members as may be determined by Government. (3) Subject to the provision of section 4, the pay and other conditions of service of the Director, officers and members of the Establishment shall be such as may be determined by Government. (4) Subject to any orders or rules which Government may make in this behalf, the Directors, officers and members of the Establishment shall, throughout the Province, in relation to the investigation of offences mentioned in the Schedule and the arrest of persons involved in such offences have all the powers, perform all the duties, possess all the privileges and be subject to all the liabilities which a police officer has, or is subject to, in connection with the investigation of offences under the Code of Criminal Procedure, 1898. (5) Subject to any orders of Government in this behalf, any officer of the Establishment of or above the rank of a Sub- Inspector may, in relation to the offences mentioned in the Schedule, exercise any of the powers of the officer in charge of a police station within the meaning of clause (p) of sub section (1) of section 4 of the Code of Criminal Procedure, 1898, in the area in which he is for the time being posted, and when so exercising such powers shall be deemed to be an officer in charge of a police station discharging the functions of such an officer within the limits of his station.

8. The provisions of this Ordinance are in addition to and not in derogation of any other law for the time being in force."

7. The precise objection of Mr. A. K. Brohi is that Syed Karamat Hussain Shah was and now Mr. Zafar Muhammad, Deputy Superintendent of Police, is a member of Anti-Corruption Establishment and he and its other members have and exercise such powers as have been conferred on them by Ordinance XX and are no longer police officers who can exercise `powers of police officers vested in or conferred upon them as police officers by or under the Code of Criminal Procedure. In other words, the officers as members of the Establishment cease to be police officers and not being in a position to exercise powers of police officers under the Code of Criminal Procedure, they do not satisfy the requirements of the Notification dated the 11th of December 1954, and in consequent the exclusive jurisdiction to investigate into offences which are connected with nature or persons concerning the affairs of the Central Government remains in the Special Police Establishment. This being the contention, the argument is that investigation by members of the Anti-Corruption Establishment is without lawful authority.

8. On the arguments raised before me by the learned counsel for the parties, the question which falls for determination in this case is whether the words "police officers" in the Notification of the Central Government connote police officers serving in the police force for the time being or include those police officers who have been deputed to the Anti-Corruption Establishment. My view is that the notification of the Central Government is intended to include even those police officers who have been deputed to the A. C. E. The wordings of the notification in itself gives that indication. Under section 8 of the Police Act V of 1861 every police officer receives on his appoint ment a certificate in the form annexed to the Act, by virtue of which the person holding such certificate shall be "vested with the powers, functions and privileges of a police officer." Such certificate shall cease to have effect when the person named in it ceases for any reason to be a police officer and on his ceasing to be such an officer he shall forthwith surrender the certificate to the officer empowered to receive it. It is nobody's case that the police officers when deputed to the A.C.E. surrender their certificates. Thus by reason of holding the certificate which deputed to A. C. E. they are vested with the powers, functions and privileges of a police officer. It is noteworthy that a police officer does not even cease to be a police officer for reason of being suspended. My learned brother Sardar Muhammad Iqbal, J., was of the view that it made no difference that Syed Karamat Husain Shah had not surrendered his certificate, but this conclusion, I say so with all respect, ignores the provision in section 8 of the Police Act that every police officer, by virtue of which he holds a certificate, shall be vested with the powers, functions, privileges of a police officer. My learned brother was also influenced by the con sideration that Syed Karamat Husain Shah by reason of having been deputed to A. C. E. had come under the control of its Director. This had necessarily to be so because he was deputed to another department, but it is obvious by reference to sub section (3) of section 4 of the Ordinance that a police officer deputed to the A. C. E. remains a police officer, because the Director of Anti-Corruption Establishment has been conferred, in respect of such officers all the powers exercisable by the Inspector-General of Police in respect of the police force. The necessity for making the provision in subsection (3) of section 4 appears to have been felt for the reason that the police officers deputed to A. C. E. retain their certificates and continue to be police officers. If they had not continued to be police officers, this provision was not necessary. It is correct that subsection (4) of section 3 enacts that members of A. C. E. shall have all the powers, perform all the duties, possess all the privileges and shall be subject to all the liabilities which a police officer has or is a subject to in connection with the investigation of offences under the Code of Criminal Procedure," but does it show that it was found necessary to confer these powers on members of A. C. E., as they were deemed not to be police officers ? The simple answer to it is that this provision may have been deemed necessary by way of abundant caution, or because some members of the A. C. E. may not be police officers, and in the alternative that it was deemed necessary to declare their powers in the Ordinance which governs the Establishment. It makes no difference even if the Ordinance may be deemed to be legislation by reference as is contended by Mr. Brohi for the petitioners. I may mention that section b of Ordinance XX of 1961 provides that the provisions in the Ordinance are in addition to and not in derogation of any other law for the tithe being in force, In my view there is nothing in the provisions of Ordinance XX of 1961, which leads to the necessary conclusion that police officers on being deputed to the A. C. E. cease to be police officers and are deprived of the powers which they can exercise under the Code of Criminal Procedure.

9. The notification of the Central Government also speaks of the powers of police officers exercised under the Prevention of Corruption Act 1947. Section 5-A of the Prevention of Corruption Act II of 1947 was introduced in 1953 (the notification of the Central Government referred to above is dated the 11th of December 1954). It provides that notwithstanding anything contained in the Code of Criminal Procedure, no officer below the rank of D. S. P. shall investigate any offence punishable under any of the sections of the Pakistan Penal Code mentioned in section 3 or any offence punishable under section 5 of the Act, without an order of a Magistrate of the First Class or make an arrest therefore without a warrant. The person referred to in this section is Deputy Superintendent of Police. It follows that an Inspector or a Sub-Inspector of Police, under the order of a Magistrate of 1st Class, may investigate the offences mentioned in the sections. These offences are usually investigated by members of the A. C. E., and if the contention of Mr. Brohi is accepted, only a D. S. P. or police officers in the police force, for the time being, could investigate such offences. This would render all the members of the A. C. E. incompetent to investigate such offences. If it be argued that subsection (4) of section 3 gives them the power, section 5-A speaks of the Deputy Superinten dent of Police, which is a designation known to the police force.

10. For the reasons given above, I am in respectful agreement with the view taken by my learned brother Bashir-ud- Din Ahmad, J., and differing (with all respect) from the view expressed by my learned brother Muhammad Iqbal, J., I hold that investigation of the offences mentioned in the report recorded by Syed Karamat Husain Shah, now to be investigated by respondent No. 2, is not by an incompetent authority. In the result this writ petition has no force and shall stand dismissed. K. B. A. Petition dismissed.