2004 PLP 716 (YLR)

3. Hassan Abdal Police after registration of the case submitted the challan against both the petitioners in the Court of learned Special Judge Anti-Corruption, Rawalpindi. The petitioners moved an application under section 249-A, Cr.P.C. for quashment of the proceeding and acquittal. The same has been declined by the impugned order dated 19-2-2003.

4. Mr. Arshad Tabraiz, the learned counsel for the petitioner contends that Dr. Ishtiaq, who allegedly prepared the bogus and fictitious certificate was a public servant and the case could have neither been registered nor investigated by the local police of Hassan Abdal Police Station, and that the "Establishment" within the meaning of section 2(1) (i) (West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961) having been created and it being a special law only Member of the Anti-Corruption Establishment could investigate the offence against a public servant under the Punjab Anti-Corruption Establishment Rules, 1985 framed under section 6 of the Ordinance ibid. Further contends that the Court of Special Judge, could have not take the cognizance of the case for the bar contained under section 195(1) (c) of the Cr.P.C. because admittedly the disputed medical certificate was submitted before the Sessions Judge during the hearing of the bail application of the petitioner No.2 and therefore, no case could have been registered against petitioner without written complaint made by the Court concerned as required under section 195 (1) (c) of the Cr.P.C. Reliance has been placed on the case of Abdul Wahab Khan v. Muhammad Nawaz and 7 others 2000 SCMR 1904 and Bashir Ahmad v. The State 2002 MLD 746.

5. Conversely Raja Muhammad Saeed Akram, A.A.-G., assisted by Ch. Waris Khan, Advocate, for the respondent, contends that the Police Station Hassan Abdal had the jurisdiction to register and investigate the case against the petitioner, in view of section 8 of the West Pakistan Anti-Corruption Establishment Ordinance (XX) of 1961. Reliance has been placed on the case of M. Abdul Latif v. G. M. Paracha and others 1981 SCMR 1101. Further contends that the Court of Special Judge, Anti-Corruption has rightly taken the cognizance of the case and bar contained in section 195 (1) (c), Cr.P.C. does not apply to the present case because the offence of preparing the bogus certificate has been committed by the petitioner outside the Court.

6. I have considered the arguments of the learned counsel for the parties and perused the record with their assistance.

7. There are some points to be determined by this Court in this quashment petition i.e. (i) whether the case F.I.R. in respect of the scheduled offence mentioned in the Anti-Corruption Ordinance, 1961 committed by a public servant can be registered and investigated by the local police and the challan can be submitted to the Court of Special Judge, Anti-Corruption Establishment under section 5 of the Criminal Law Amendment Act, 1958 or not; (ii) whether the case could have been registered against the petitioner without written complaint made by the Court concerned, in which the bogus certification was produced at the time of pendency of the bail application, as required under section 195 (1)(c) of the Cr.P.C.? and (iii) whether in the facts and circumstances of the case there was no chance of conviction and the continuation of the case and the proceeding before the Special Judge Anti -Corruption, Rawalpindi was without due process of law?

8. Section 3 of the West Pakistan Anti-Corruption Establishment Ordinance (XX) of 1961) regarding the Constitution and powers of Anti-Corruption Establishment and the procedure of inquiry and investigation against a public servant. The local police does not figure anywhere in the above stated Ordinance. The inquiry and investigation have to revolve around the fountain of Anti-Corruption Establishment for matter of allegation of Corruption against a public servant. Before proceeding further it is necessary to read sections 3 and 8 of the West Pakistan Anti -Corruption Establishment Ordinance, 1961, which is as under:-- "

3. Constitution and powers of Anti-Corruption.

(1) Notwith standing anything contained in any other law for the time being in force, Government may constitute an establishment to be known as the Anti-Corruption Establishment, 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." "

8. Provisions not in derogation of any other law.

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

8. Rules 3 to 17 of the Punjab Anti -Corruption Rules, 1985, framed under section 6 of the Ordinance (XX) of 1961, are also relevant. Rule 6 deals with the preliminary inquiry and investigation against a public servant. Rule 8 provides that a criminal case shall be registered by the Establishment under the Prevention of Corruption Act, 1947, and under such section of the Pakistan Penal Code, as has been set forth in the Schedule of the Ordinance. Under rule 12, it was provided that sanction for the prosecution shall be obtained from the Authority specified under the Criminal Law Amendment Act, 1958 (Act No. XL of 1958). It is to be noted that the provisions of section 197, Cr.P.C. and section 6(5) of the Pakistan Criminal Law Amendment Act, 1958 have been declared against Islam being repugnant to Injunction of Islam, and therefore, would cease to have any effect. See case of Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs Islamabad v. Zafar Awan, Advocate, High Court PLD 1992 SC

72. The present position of law thus would be that sanction for prosecution under section 197, Cr.P.C, or section 6(5) of the Pakistan Criminal Law Amendment Act, 1958, or under rule 12 ibid, from competent authority for taking cognizance against a public servant is not a mandatory prerequisite. In this regard reference can be made to the case of Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others .PLD 1994 SC

281. Rule 7 says that the case shall be registered by the Establishment at the Police Station of Establishment having the jurisdiction.

9. It is admitted position that sections 468, 471 are of the Pakistan Penal Code are the scheduled offences under Articles 4 and 25 of the Constitution or Islamic Republic of Pakistan, 1973, "to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizens wherever he may be, and that all the citizens are equal before, the law and are entitled to equal protection of law". The term "law mentioned in the above Article definitely means the Act, Ordinance, Rules and Regulations which are enacted for the citizens. It is well-established principle of law that special law of the Anti-Corruption made for the public servant provides mechanism for the registration of the case and the investigation shall have the preference over the general law. The Punjab Anti-Corruption Establishment Rules, 1985 were enforced on 2-5-1985 vide Notification No.SV-13-1 of 1985 dated 23-5-1985 in the published Gazette.

10. In case of Muhammad Afzal and 2 others v. Muhammad Siddique Girwa, Additional Sessions Judge Gujranwala and 3 others 1992 MLD 311, the cases under sections 409, 420, 466, 468, 218, 471, 104, 167, P.P.C. which were registered on, the direction of the Additional Sessions Judge, were quashed against the accused on the ground that the police was not authorized under the law to register the said cases and investigate the same. In the case of Riaz Ahmad Tahir v. The State and others PLJ 1996 Criminal Cases Lahore 80, F.I.R. lodged with local police station under section 409, 467, 468, P.P.C. against a Patwari, was quashed as under the law, the case could have only be registered with the Anti-Corruption Establishment. In case of Saleem Hussain v. The State PLJ 1996 Criminal Cases Lahore 916, it was ruled that Anti-Corruption cases could only be registered at Anti-Corruption Establishment and not at the local police station under the Administration control of the Superintendent of Police. In case- of Muhammad Sharif v. S.H.O., Police Station City Hafiz Abad and another PLD 1997 Lahore 692 while making survey of the whole case-law on the subject it was observed, that, "Cases with respect to the alleged Anti-Corruption Offence could be registered against a public servant (accused) only by the Establishment under the written orders of the officer mentioned in rule 8 of the Punjab Anti-Corruption Establishment Rules, 1985 at the Anti-Corruption Establishment and not by the inferior or superior police officers at the local police stations and after adopting distinct

method as provided in the said rule".

11. In case of Bashir Ahmad v. The State 2002 MLD 746 the Karachi High Court while interpreting the provisions of Sindh Inquiry and Anti-Corruption Act (IV) of 1991 alongwith the rules made thereunder quashed the proceedings of the F.I.R. against the accused, who was a public servant, the case was registered at the police station.

12. The learned A.A.-G. as well as the counsel for the complainant has relied on section 8 of the West Pakistan Anti- Corruption Ordinance (XX) of 1961 and the case reported as M. Abdul Latif v. G. M. Paracha and others 1981 SCMR 1101 and contends that the provisions of the Ordinance are in addition to, and not derogation of any other law for the time being in-forced and thus the case could be registered in terms of section 154 of the Code of Criminal Procedure at the local police, is not sustainable under the law. Above-referred case of M. Latif (1981 SCMR 1101, was of the year 1981 whereas the rules under the Ordinance, 1961 were framed in 1985 which has altogether changed the mechanism and procedure of the registration and investigation of the case regarding the scheduled offence committed by the public servant. It is important to mention that it is cordial principle of administration of justice that when law prescribes a particular manner and procedure in which things are required to be done the same must be done in that way and no otherwise at all. From the reading of the provisions of the Anti-Corruption Ordinance, rules framed thereunder in 1985 and the survey of case-law, would clinch the issue that the local police has neither jurisdiction nor the powers to investigate, the case in respect of the scheduled offences committed by the public servant.

13. This brings me to the second point that no case could have been registered against the petitioner that the written complaint made by the Court of Session concerned as required under section 195(1)(c) of the Cr.P.C. because the certificate was produced by the petitioner during the pendency of the bail application before the Sessions Court. To appreciate the legal position, reading of section 195(1)(c) is relevant which is reproduced as under:-- "

195. Prosecution for contempt of lawful authority of public servants.

(1)........ (a) ............ (b) ............ (c) of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint writing of such Court, or of some other Court to which such Court is subordinate".

14. The general rule is that any person irrespective of the fact whether he is at aggrieved or not and his interest is involved or otherwise having knowledge about the commission of an offence may bring the law in motion but the provisions as contained in sections 195 to 198, Cr.P.C. contained exception to general rule from taking cognizance of offences mentioned above, unless the functionary concerned instituted a complaint. Under section 195, Cr.P.C. only the public authority concerned and Court has the right to file a complaint and unless there is a complaint, by the Authority or the Court, the Court cannot take the cognizance. The provisions of section 195(1)(c), Cr.P.C. (V) of 1898 came up for consideration before the Honourable Supreme Court in case of Abdul Wahab Khan v. Muhammad Nawaz and 7 others 2000 SCMR 1904, it has been ruled that, "Conditions necessary for the applicability of section 195(1) (c) are that the offence mentioned should be committed by a party to the proceeding in Court, and that such offence should be in respect of a document produced or given in evidence in the such proceeding".

15. In the light of what has been discussed above and in view of the provisions as contained under section 195(1)(c), Cr.P.C., it can be concluded safely that only "a public servant" or Court concerned are competent to file such a complaint which cannot be filed by a private person in respect of any of the offences mentioned in section 195, Cr.P.C. and in case such a complaints are instituted the "Court concerned" can take cognizance. See the case of Mashood Ali v. The State (1990 PCr. LJ 1997) and the case of Nga Pan Gaing and others v. King Emperor (AIR 1927 Rangoon 61), it, can, therefore, be concluded that the complainant was not competent to file the complaint before the Army Monitoring Cell, and the case could have not been registered at Police Station, Hassan Abdal.

16. Since the petitioner No.1, who allegedly committed a scheduled offence was a public servant, and the Police of Hassan Abdal had no authority to register and investigate the case and the order of registration of case is coram non judice, without jurisdiction and the learned Special Judge Anti-Corruption could have not taken cognizance under section 195 (1)(c) of the Cr.P.C. The proceeding before the learned trial Court is exercise in futile. There is no possibility of the conviction of the petitioner. The proceedings are therefore, without due process of law and are hence to be quashed. For what has been discussed above, this petition is accepted. The proceedings of the case F.I.R. No.175 dated 20-9-2000, under sections 420, 468, 471 and 167, P.P.C., registered at the Police Station Hassan Abdal, District Attock, pending in the Court of Special Judge, Anti -Corruption, are quashed. H.B.T./I-203/L Petition accepted.