2017 P Cr (PLP)

AQEEL AHMED ABBASI, J.

A common controversy has been agitated in the aforesaid matters challenging the identical orders passed by learned Anti- Corruption Court Sukkur on Direct Complaints, whereby, directions have been issued to the Anti-Corruption Department for registration of FIR on the basis of such complaints. According to learned counsel for the petitioners/applicants the impugned order(s) passed by the learned Judge of Anti-Corruption Court, Sukkur, in the instant matters are without lawful authority and violative of express provision of Prevention of Corruption Act, 1947, provisions of section 200, Cr.P.C., as well as in violation of Rule 11 of Sindh Enquiries Rules, 1993. Per learned counsel, such orders passed by the learned Anti-Corruption Court have been assailed by filing Constitutional Petitions as well as Criminal Misc. Applications under section 561-A, Cr.P.C., as according to learned counsel, the orders passed by learned Anti-Corruption Court on direct complaints of individuals, directing for registration of FIR to the Anti-Corruption Department, are administrative orders, against which, no appeal or revision lies. However, per learned counsel, the same can be assailed by filing Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 or under section 561-A, Cr.P.C. i.e. inherent powers of the Hon'ble High Court to correct a wrong in the interest of justice. Learned DPG, APG and State Counsel present in Court did not controvert such contention of the learned counsel for the petitioners/ applicants, however, submitted that against an administrative order, if it suffers from jurisdictional error or legal infirmity, the proper remedy would be a constitutional petition under Article 199, instead of an application under section 561-A, Cr.P.C. We are also of the tentative view that the orders passed in the instant matters by the learned Judge of Anti-Corruption Court, Sukkur, on direct complaints are administrative in nature, against which, there is no appeal or revision provided under the law. Hence, the same can be assailed by filing a Constitutional Petition on the grounds of being coram non judice or violative of express provisions of law/rules as referred to hereinabove. Accordingly, all the Criminal Misc. Applications are converted into Constitutional Petitions, which are being disposed of with the consent of learned counsel for the petitioners/applicants and DPG, APG and State Counsel through this common order in the following terms: (i) The impugned orders passed by learned Anti-Corruption Court on the Direct Complaints received from private complainants, issuing directions to the Anti-Corruption Department to register FIRs under Prevention of Corruption Act, 1947, are administrative in nature for having been passed without hearing the concerned parties. Whereas, such order(s) have been passed in violation of express provision of Prevention of Corruption Act, 1947, and the Rule 11 of Sindh Enquiries and Anti-Corruption Rules, 1993, which provides as under:-

11. Registration of Cases.

(1) Criminal cases shall be registered by the Establishment under Prevention of Corruption Act, 1947, and under such sections of the Pakistan Penal Code, as have been set forth in the Schedule to the Act. (2) No criminal case shall be registered against accused public servant without prior approval of the Competent Authority. Provided that such prior approval shall not be necessary for registration of case against public servant likely to be caught red-handed as a result of raid/trap, arranged by Establishment under the supervision of a Magistrate and in case of his non- availability the Gazetted Officer of the Establishment. (3) In all such cases of raid/trap, [the Services Judge] shall be bound to depute a Magistrate for supervising raid/trap on the request made in writing by the officer of the Establishment. (4) The criminal cases shall be registered by the Establishment at Anti-Corruption Police Station and where there is no such notified Police Station, at local police station. (5) When a case is registered at local police station the District Police shall have no jurisdiction whatsoever to continue the investigation and the relevant record shall be made over to the Establishment." (ii) The impugned orders are also violative of express provisions of section 200, Cr.P.C. which relates to entertaining Direct Complaints and to exercise powers of a Magistrate by Anti-Corruption Court, for the reason that the procedure provided under the aforesaid section has not been adopted by the learned Judge of Anti-Corruption Court, Sukkur in these cases, as the learned Judge of Anti-Corruption Court has neither recorded statement of the complainant on oath, nor conducted Preliminary Enquiry or taken cognizance of the complaint in terms of section 204, Cr.P.C. On the contrary, directions have been issued to the Anti-Corruption Department to register the FIRs under Prevention of Corruption Act, 1947, which being a special law, provides for the own mechanism and procedure for initiating enquiry, seeking approval or competent authority and then to register an FIR under Prevention of Corruption Act, 1947, read with rules 11 of Sindh Enquiries and Anti-Corruption Rules, 1993. Such procedure in the instant matters admittedly, has been bypassed, therefore, the impugned orders are without lawful authority, illegal and void ab initio, hence the same are hereby set aside. Reliance in this regard can be placed on the case of Syed Murad Ali Shah v. Government of Sindh and others reported as (PLD 2002 Kar. 464). (iii) The impugned orders passed by the Anti-Corruption Court while assuming jurisdiction in terms of section 156(3), Cr.P.C. pursuant to Direct Complaint under section 200, Cr.P.C. is also violative of the provision of Prevention of Corruption Act, 1947, as well as provision of Rule 11 of Sindh Enquiries and Anti-Corruption Rules, 1993, for the reasons that unless there is an FIR registered under section 154, Cr.P.C. the Court cannot issue direction under section 156(3), Cr.P.C. for enquiry, more particularly, when no cognizance is taken in terms of section 190, Cr.P.C. by learned trial Court, therefore, the orders passed by Anti-Corruption Court, Sukkur in the above matters, while assuming jurisdiction in terms of section 156(3), Cr.P.C. in the absence of registration of FIR or cognizance under section 190, Cr.P.C. are also without lawful authority and of no legal consequences, hence the same are hereby set aside.

2. Resultantly, all the proceedings pending before Anti-Corruption Court, Sukkur in the aforesaid matters pursuant to Direct Complaints under section 156(3), Cr.P.C. and FIRs registered by the Anti-Corruption Department on such directions are hereby quashed.

3. However, the disposal of instant matters in the aforesaid terms would not operate as a bar for proceeding against delinquent persons who may be involved in any offence falling under the Prevention of Corruption Act, 1947. Instant petitions stand disposed of in the above terms. JK/A-99/Sindh Order accordingly.