1998 PLP 464 (MLD)

(ii) An amount of Rs.2,65,00,000 was placed at his disposal for the construction of Court Building at Islamabad but instead that amount was also shown as spent on amenities etc.: (iii) The Income Tax allegedly deducted from the Contractors, Suppliers of the Department was not deposited with the Income Tax Department and instead was, also, spent on amenities etc.; (iv) The petitioner had shown expenditure of Rs.25,00,000 for provision of amenities to the occupants of Gulshan-e-Jinnah, who were staying in these suits, have given affidavits to I.O. that no amenity was provided; (v) There are six Federal Lodges in Murree consisting of 34 rooms. The petitioner charged for replacing 8000 Sq. Ft. of window-panes for the period from 1--7-1996 to 31-12-1996. (vi) The accused awarded 543 works through tenders in the sum of Rs.10,000 to Rs.25,000 while invariably in all these contracts the payment ultimately made to the Contractor/Supplier was in the vicinity of Rs.2,50,

000. It is explained that the amount of tender was kept under Rs.25,000 in order to avoid publication of notice and thus to eliminate the competition and the financial limit of the petitioner is Rs.2,50,000, therefore, the total payment on all these works was kept slightly below this figure. The learned Standing Counsel added that this continued in face of Audit observations that huge amount is being defalcated by under hand means; (vii) The petitioner in the second half of 1996 has shown total expenditure of Rs.70,00,000 on the Ministers' residence while in the corresponding period the expenditure was slightly over Rs.1,00,000. (viii) The petitioner has shown replacement of 36,000 Sq.ft. of window panes etc. in 15 Federal Ministers' residences whereas the total area of the window-panes etc. comes to 18,000 sq.ft. It is explained that half of the residences were newly constructed and according to the investigation only 3000 sq.ft. glass was utilised. The remaining amount has been embezzled; and (ix) The tenders were given at higher rates because of precautions taken and underhand mans adopted to eliminate competition. This way causing a loss of about 10 million to the public exchequer and misappropriating this amount. i

4. It is argued that the above allegations are by the large based' on documents and works can be physically verified, therefore, to allege that the accused have been involved mala fide is without any merit. The real anxiety of the petitioner and others is to prolong the investigation as long as possible. It is added that it is not the object of law to kill investigation. In this behalf, the earned Standing Counsel has referred to Ahmad Saeed v. The State and another (1996 SCMR 186) and Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan and 2 others (1994 SCMR 2142). It is next argued that the Government officers are trustee of the Public exchequer and there is no protection, whatsoever, available rather now the consensus is that the public servant indulging in fraud, forgery, embezzlement should be dealt more severely than the ordinary citizen. It is added that all rules giving civil servant any privilege position to that of other citizen is ultra vires of the Constitution of 1973 and cannot be countenanced in Islamic Republic of Pakistan in view of Article 25 read with I-A of the Constitution of 1973. It is argued that nobody an he allowed to plunder the public exchequer and avoid legal consequences. In this behalf, reference is. made to Imtiaz Ahmed and another v. The State (PLD 1997 SC 545).

5. The learned counsel for the petitioner while summing up the arguments submitted that the case of Ahmed Saeed (Supra) relied by the learned Standing Counsel is not relevant because it was a petition under section 561-A of Cr.P.C. while in the case of Brig. (Retd.) Imtiaz Ahmad (Supra) one of the points for consideration was public office and not the terms and conditions of civil servant. Moreover, there is no provision in the law to take the matter to the Committee of Parliament. It is added that no law was relied in the said case while petitioner is relying on the Act of 1973. Moreover, that was a political case, which is not the matter here. It is argued that the High Court in the facts of the present case can legally interfere in the investigation. The learned counsel in this behalf has relied on the judgments in the cases of Mst. Dilshad Akhtar and another v. The State and another (PLD 1996 Lahore 145). Muhammad Anwar v. Muhammad Younas Butt, Inspector/S.H.O. and 11 others (PLD 1997 Lahore 145) Abdul Aziz v. S.P. (C.I.A.). Sargodha and 2 others (PLD 1997 Lahore 24) and Muhammad Yousaf v. Inspector-General of Police and 4 others (PLD 1997 Lahore 135). It is argued that the Secretary as per rule 4(2) of the Rules of Business, 1973, is the official head of the Department and not the D.G It is added that the D.G. was so inimical that he proceeded to file Writ Petition No. 152 of 1996 against the Minister etc. It is argued that as per provisions of O.M. period of three years is the normal period of posting and after which one can remain on the post for another two years with the concurrence of the competent authority. It is added that this part of the O.M. is not applicable to the technical/professional post. It is maintained that the petitioner is covered by the technical post. It is explained that the tender for Murree subject matter of FIR No.7/97 was accepted by the Chief Engineer vide order dated 15-4-1996 on the recommendation of S.E. It is added that LS Builders is registered with Pak. PWD as A-Class Contractor and tender was purchased by the said company from the office of the Chief Engineer. It is argued that the provisions of Articles 25 and 2A are not relevant because the Constitution is to be read as whole and Article 2A is not to be given precedent over the provisions of the Constitution: In this behalf, reference is made to Messrs Tank Steel and Re-Relling Mills (Pvt.) Ltd., Dera Ismail Khan and others v. Federation of Pakistan and others (PLD 1996 SC 77) and Farough Ahmed Siddiqi v. The Province of Sindh and others (PLD 1996 Karachi 267). It is argued that Murree work was running contract and the payments were made subject to adjustment. It is submitted that the learned Standing Counsel while detailing alleged criminal acts of the petitioner travelled beyond the F.I.R. It is argued with reference to F.I.R. No." of 1997 that the earth work to the extent of 1,65,000 cubic feet was as per plan prepared by D.G. while carriage was approved by the Chief Engineer. It is argued that the price of steel quality and quantity was approved by the S.E., therefore, petitioner cannot be blamed for the misappropriation of any amount in this behalf.

6. The learned counsel for the petitioner with reference to F.I.R. No.8/9'" submitted that the staff was permanently employed for the upkeep and maintenance of the Federal Lodges and Rest Houses. The rooms etc. have to be cleaned and maintained even if nobody was staying therein. It is added that monthly statement of expenditure as regularly submitted to the D.G. There is no allegation of embezzlement in the letter written by the Chief Engineer to the DG on 17-2-1997 while D.G. sent a letter to S.E. to fix the responsibility and assess the losses but nothing has been done so far. It is argued that even the learned Special Judge in his order dated 12.6.1997 asked the I.O. to make physical verification but without any result. It is submitted that the glass purchased and used at Islamabad was for 53 Bungalows and not 17 as urged by the learned Standing Counsel while the glass purchased for Muree included in the premises of Survey of Pakistan, Intelligence Bureau besides Holiday Home II. It is argued that the allegations are figment of imagination, therefore, liable to be quashed.

7. The Investigating Officer is present in Court. He explained that the investigation could not be completed due to the lack of cooperation on the part of the accused petitioner and because for sometime investigation was not with him.

8. I have given my anxious consideration to the arguments advanced on behalf of the parties, gone through the record, precedent cases and provisions of Constitution as well as Law and Rules. The first question for decision is whether the F.I.Rs could legally be quashed while the investigation is still in progress. The learned counsel for the petitioner with reference to cases of Mst. Dilshad Akhtar and another, Muhammad Anwar and Abdul Aziz (Supra) argued that the writ can be issued. These cases are not relevant because in the case of Mst. Dilshad Akhtar and another (Supra) the petitioners were accused in case under section 11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) registered on 26.8.1995 while the petitioners had already contracted Nikah on 13-8-1995. It was held that no offence is made out from the F.I.R. The other two cases pertained to the interference in the investigation and not quashment.

9. I am conscious of the rule that there should be no interference or judicial scrutiny of the investigation, which was laid in Emperor v. Khawaja Nazir Ahmad (AIR 1945 PC 18). The same was followed in the cases of Brig. (Retd.) Imtiaz Ahmad (Supra), Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another (PLD 1971 SC 677) and Malik Shaukat Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others (PLD 1994 SC 281). The rule has its origin from the colonial era when the bureaucracy controlling the police would not interfere in the functions of the police unless the imperial interest demanded. The police by and large was also disciplined and treated citizens alike and the police force was conscious of the fact that its main purpose was to maintain law and order but strictness of this rule has been diluted in view of the general tendency of the policeman to overstep its authority and general deterioration in the Society. The rule has been departed especially in the family matters more particularly, marriages and civil dispute. Reference can be made to Muhammad Imtiaz and another v. The State (PLD 1981 FSC 308), Muhammad Banaras v. S.H.O. and others (1995 PCr.LJ 94), Abdul Haque v. The State and another (PLD 1996 SC 1), Muhammad Tariq Mahmood and others v. Station House Officer, P.S. Millat Park, Lahore (1997 P. Cr. LJ 758), Muhammad Arshad v. Station House Officer and others (1997 P.Cr.LJ 928), Mst. Zarina v. The State (1997 P.Cr.LJ 1271) and Muhammad Sharif and 8 others v. The State and another (1997 SCMR 304). The rule thus modified makes limited interference possible against violation of fundamental rights, criminal injury, prosecution of citizen by abusing the statutory powers or machinery of criminal law being used mala fide or for ulterior purpose. The High Court in such case looked into the facts and passed order as were found just, legal and equitable. However, the High Court cannot undertake investigation and make sweeping inquiry. Reference, in this behalf, can also be made to Muhammad Khalid Mukhtar v. The State (PLD 1997 SC 275). The relevant portion reads as under:-- "As observed in the case of Asif Ali Zardari (1994 SCMR 798) the powers under section 561-A, Cr.P.C. can be exercised to prevent abuse of the process of any Court or to secure the ends of justice. Such powers cannot be exercised in mechanically or in every case where there is allegation of false implication or of the evidence being false. Exercise of such powers cannot further the ends of justice, if an exercise is undertaken at pre-trial stage to determine whether the prosecution evidence likely to come on record is true or false...' In other words, interference does not mean stifling investigation or creating hurdles in the way of the investigator: The golden rule remained that the High Court could quash criminal proceedings if no criminal case is made out from the allegations contained in the F.I.R. But in such a case it has to be assumed that whatever is stated in the F.I.R. is correct. This is the rule which have come into existence as result of chains of precedents starting from Khawaja Nazir Ahmad (Supra). Therefore, it is held that even the F.I.R. could be quashed in exercise of writ jurisdiction in exceptional cases.'

10. Now coming to the case in hand. The learned Standing Counsel, with reference to the details of the acts of embezzlement as given in the two F.I.Rs, submitted that the total amount embezzled would be about 150 millions. On the other hand, the trend of arguments advanced on behalf of the petitioner was that the tender given and payment were made with the approval of either S.E. or Chief Engineer or the Secretary, Pak. PWD. It is made clear that this argument was only in respect of some of the allegations enumerated in the two F.I.Rs. The others remained uncontroverted. There was not even slightest attempt on behalf of the petitioner to show that actually no embezzlement 'has taken place. This argument taken on its face value would tantamount to acceptance of allegations to a great extent but raised the question that who and to what extent is responsible for this loss to exchequer? The same was position in the case of M.S. Khawaja v. The State (PLD 1965 SC 287), wherein the quashment petition of the Engineer was dismissed. The scope of expressions, 'abuse of process of Court' and 'ends of justice' was considered while the leave was refused by the Hon'ble Supreme Court.

11. I have noted some of the main acts of embezzlement attributed to the petitioner. Neither it is possible nor it is scope of the writ jurisdiction hold that the allegations 41embezzlement have been proved or not proved as held in the case of Muhammad Khalid Mukhtar (Supra).

12. The golden rule, as noted above, is that to assume that the allegations as incorporated in the F.I.Rs. are correct and then to find out whether a criminal case is made out or not. When this rule is applied to the present case then petitioner has no case for quashment. It is needless to add here that the allegations by and large can be either checked from the record or verified by spot inspection. The petitioner claims to be innocent and in respect of some payments and tenders have taken up the position that it was done under the orders of his superiors. This plea of the accused is yet to be verified by the I.O. but if looked from this angle then it is even in the interest of the petitioner that the investigation should reach its logical conclusion rather it should be side tracked or stifled or hurdles are created in the smooth progress of the investigation. It may be recorded here that the investigator clearly stated that the petitioner is not cooperating and joining the investigation. The petitioner was unable to show at least prima facie that there was no probability of his conviction in these two cases for any offence or that quashing of case could secure the ends of justice.

13. The legal objection to the registration of the case is that the petitioner being civil servant is governed by Act of 1973. No Court or Authority has jurisdiction in the matter of terms and conditions of a civil servant in view of the provisions of Article 212 of Constitution of 1973. The argument is utterly misconceived. It is true that the civil servants for matter of terms and conditions of service are governed by Act of 1973 but for their criminal acts they would be liable to be proceeded under the provisions of Pakistan Penal Code as well as the Prevention of Corruption Act. The argument advanced on behalf of the petitioner if accepted would tantamount to holding that a civil servant has no criminal liability or in other words, he cannot be proceeded under the P.P.C., Prevention of Corruption Act and Ehtesab Act etc. The argument is without any merit suffice it is to refer here to the judgment in the case of Muhammad Azim Jamali and 11 others (Supra).

14. The other arguments is that the D.G. referred the matter to Secretary, Pak. PWD, who asked him to frame the charge. The Secretary never ruled out registration of criminal case. He only kept silent on this point for the reasons best known to him. May be it was embarrassing for him. It is interesting to note here that as per arguments advanced on behalf of the petitioner the Authorised Officer of the petitioner is Secretary, therefore, it was his duty to formulate the charge sheet and serve the same on the petitioner but he conveniently hoodwinked his statutory duty as Authorised Officer. This cannot be appreciated. The other argument in the same sequence was that D.G. could not have reported the criminal cases. The argument is misconceived for the reason that according to Chapter IV Para 4.01 of Pak. PWD Manual the administrative control of entire PWD rests with the D.G. and incidentally he has the powers to transfer the officers of the Department except Chief Engineer. The F. I. R. could not be legally quashed on the ground of mala fide suffice it is to refer here to the judgment of the Hon'ble Supreme Court in the case of Muhammad Khalid Mukhtar (Supra).

15. There is a recent trend of filing quashment petitions both under Constitution and Cr.P.C. immediately after the registration of the case. This is neither desirable nor in the interest of justice. On the other hand, it gives impression that. the accused is endeavouring to side track the investigation in order to avoid the consequences of his criminal act. And on top of it these matters are argued like regular appeals. The result is that in spite of all precautions some observations are made about the merits. This results in prejudicing the case of either side. This practice was noted in the judgment of Muhammad Khalid Mukhtar (Supra) and was depricated. The relevant portion reads as under:-- In the case of Raja Haq Nawaz v. Muhammad Afzal and others (PLD 1967 SC 354), it was held that quashment of proceedings at an early stage gives an unfortunate impression of stifling of criminal prosecutions, by exercise of an extraordinary power which is given for the dispensation of complete justice, m the forms provided by law. Similar view was taken in the case of Gian Chand v. State (1968 SCMR 380) where it was observed that determination of the guilt or innocence of an accused, depends on totality of facts and circumstances revealed during the trial, and when such a stage had not been reached, the application for quashment of the proceedings in the trial Court, was rightly rejected by the High Court.

16. A copy of the judgment be sent to Regional Commissioner, Income Tax Rawalpindi, to submit a report to Additional Registrar as to the position of the recovery of Income Tax in respect of the payments made to the contractors, suppliers etc. by the Pak. P.W.D. Rawalpindi Office.

17. The upshot of the above discussion is that this petition is dismissed with costs. The Investigating Officer is present. He is directed to conclude the investigation within two months positively. A.A./K-50/L Petition dismissed.