P L D 2008 Lahore 437 (PLP)

KHURSHID ANWAR BHINDER, J.

Through the present constitutional petition, Ahmad Ali Goaraya, petitioner has challenged the summoning notice dated 18-3-2008 issued by respondent No.3.

2. Briefly the facts leading to the filing of this constitutional petition are that respondent No.1 submitted an application to respondent No.2 alleging therein that he had paid Rs.16,00,000 to the petitioner for the purchase of land in January, 2005 when he was posted as S.H.O. Police Station Saddar Muridke but he neither returned the aforesaid amount nor purchased land for respondent No.1. On receipt of the aforesaid application the Anti-Corruption authorities issued summoning notice to the petitioner to face the enquiry which the petitioner has challenged through this constitutional petition.

3. Learned counsel for the petitioner submits that the Anti-Corruption Established has erred in summoning the petitioner to face the enquiry proceedings whereas petitioner has not committed any offence about which the enquiry could be initiated by respondent No.2. According to the learned counsel for the petitioner it is a clear violation of rule 5 of the Anti-Corruption Establishment Rules, 1985 which provides the conditions under which a public servant can be called for enquiry proceedings, therefore, the entire exercise undertaken by respondent No.2 in this context is against rule 5 of the Anti-Corruption Establishment Rules, 1985.

4. On the contrary, learned counsel for respondent No.1 submits that the petitioner being a public servant can be summoned for joining enquiry proceedings if he has committed an offence which is covered within the ambit of section 7 of the Anti-Corruption Establishment Rules, 1985 according to which a public servant can be summoned to face the enquiry to ascertain the nature of offence and the liability of the accused person regarding the commission of the offence.

5. I have heard the learned counsel for the petitioner as well as learned counsel for respondent No.1 and have also perused the available record. Precise allegation of the petitioner is that petitioner being a public servant has misappropriated an amount of Rs.16,00,000 under the transaction taken place between the petitioner and the complainant. Thereafter on the application of complainant Anti-Corruption Establishment had issued summoning notice to the petitioner to face enquiry proceedings to the genuineness of the complaint against him. Grievance of the petitioner is that since private transaction was effected between the petitioner and the complainant, therefore, Anti-Corruption Establishment could not have issued him summoning notice and such an action is not warranted by law because if a public servant commits any crime in his official capacity only then he is to be summoned for preliminary enquiry. I am enlightened by Rules 6 of the Punjab Anti-Corruption Establishment Rules, 1985 which is reproduced below:-- "Preliminary enquiries and investigation against public servants.

Preliminary enquiries and investigations shall be initiated by the Establishment against public servants on complaints received from the Government, Heads of Departments or other reliable sources." There is no denying the fact that offence committed by the public servant in his official capacity is reported to the Anti-Corruption Establishment by the Head of the Department of that particular department where public servant commits an offence but at the same time the said rule also enumerates that if a complaint is received through other reliable source other than the, Head of the Department is to be considered as a complaint by a private person,' then, obviously when a complaint is lodged against a public servant by a private person means that the crime is committed by a public servant in his private capacity, therefore, argument of the learned counsel for the petitioner is not persuasive as rule 6 of the Punjab Anti-Corruption Establishment Rules, 1985 is very clear to hold enquiries of a public servant who commits an offence in his private capacity. Interpretation drawn on "or other reliable sources" means the complaint 'received by the Anti-Corruption Establishment other than the Head of the Department meaning thereby that private person can also file a complaint against the public servant for the commission of offence in his private capacity.

6. Section 5(d) of the Prevention of Corruption Act, 1947 also deals with the criminal misconduct of a public servant. The said section is reproduced below:-- "

5. Criminal misconduct.

(1) A public servant is said to commit the offence of criminal misconduct. (a)

(b)

(c)

(d) if he, by corrupt or illegal means, or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage." In the instant case petitioner had misused and abused his position as a public servant and had obtained pecuniary advantage by misappropriating Rs.16,00,000 from the complainant, a such, his case is covered under the afore-quoted section. Under the circumstances I am fully convinced that the petitioner is liable to face enquiry proceedings as enunciate in rule 6 of the Punjab Anti-Corruption Establishment Rules, 1985 and there is no illegality in the summoning order issued by the Anti-Corruption Establishment to the petitioner to face the enquiry proceedings. Even otherwise, there is no illegality or foul play on the part of the Anti-Corruption Authorities in summoning the petitioner to join enquiry proceedings and if at all the petitioner is declared innocent in the enquiry proceedings he shall be relieved of his liability. For what has been discussed above, I do not find any force in this petition which is hereby dismissed in limine. N.H.Q./A-58/L Petition dismissed.