2018 P Cr (PLP)

ISHTIAQ IBRAHIM, J.

Haji Rooh-ul-Amin, petitioner, has invoked the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, impugning the order dated 21.10.2015 passed by learned Additional Sessions Judge-III/Justice of Peace, Swabi, whereby application under section 22-A, Cr.P.C., filed by petitioner against respondents, was dismissed.

2. The grievance of petitioner is that he had filed civil suit No.48/1 against respondents Nos.1 to 3, regarding land measuring 1 Kanal, 6 Marlas which was decreed vide judgment and decree dated 5.12.1995 by the concerned Court in favour of petitioner. On the basis of said decree, mutation No.7138 was registered and attested on 3.10.2013 but entry of Khasra No.5906 was left intentionally and maliciously during attestation and entry of said mutation by respondent No.4/Patwari Halqa with conspiracy of respondents Nos.1 to 3 as per averment of petitioner. Aggrieved from the same, he approached the respondent No.6/DPO, Swabi, by filing an application for taking legal action and registration of FIR against respondents Nos.2 to 4, which was marked to the respondent No.5/SHO Police Station, Swabi, for necessary and legal action. Thereafter, he approached the learned Justice of Peace by filing application under section 22-A, Cr.P.C., which was dismissed vide impugned order dated 21.10.2015, hence the present Constitutional petition.

3. Arguments of learned counsel for petitioner heard and material available on file perused.

4. Admittedly, respondent No.4 namely Jehanzeb, Patwari Halqa is a public servant whereas respondents Nos.1 to 3 are private individuals. It is settled principle of law that where a public servant is involved in a case of corruption, then a case is to be registered against him by the Anti Corruption Establishment and not by the local police as the local police has got no jurisdiction to investigate or register an FIR against a public servant. In application under section 22-A, Cr.P.C. submitted before the Justice of Peace as well as in the Writ Petition filed before this Court, the respondents Nos.1 to 3 are private persons whereas respondent No.4 is public servant while respondents Nos.5 and 6 are officials of District Police having no jurisdiction to investigate or register an FIR nor it was the domain of Justice of Peace (respondent No.7) to order for registration of FIR in cases of corruption because under the Khyber Pakhtunkhwa Anti-Corruption Establishment Rules, 1999, a different procedure has been laid down for registration of such like cases whereunder, first the Director Anti-Corruption has to direct a preliminary inquiry, followed by open inquiry and if any case is made out against a public servant on the materials collected during the inquiry, then he has to accord sanction for registration of the case. For convenience, the relevant rules are reproduced as under:-

3. Preliminary/Open enquiries against Public Servants. (1) Preliminary inquiries and investigation against public servants shall be initialed by the Establishment on complaints received from government, Head of Departments or other reliable sources. (2) The Director shall, initiate preliminary/open enquiries in order to ascertain the identity of the complainant or informer and geniuses of the complaint or information. (3) It shall be incumbent on the Head of concerned Department/Office to provide the relevant record required in connection with enquiries/investigations as soon as a request is made by the Establishment. Provided the enquiry against the Commissioners of Divisions, Secretaries to the Provincial Government, Head of Attached Departments and other officers in BPS-19 and above shall be initiated by the Director with prior permission of the Chief Secretary.

4. Registration of cases/arrest of accused. (1) Criminal cases shall be registered by the Establishment under the Prevention of Corruption Act, 1947 and under such sections of Pakistan Penal Code, as have been set forth in the Schedule to the Ordinance. (2) Criminal cases shall be registered against accused public servants under the written orders of the officers mentioned below:- (a) Public Servants in BPS-18 and below - Director (b) Public Servants in BPS-19 and above - Chief Secretary. Provided that for Public Servants in BPS-19 and above, the Chief Secretary, before according permission, may, in his discretion, get the case examined by a Judicial Officer specially appointed in the S&GAD for the purpose. Provided further that no prior permission shall be required for registration of a case against a public servant caught as a result of a trap arranged by the Establishment under the supervision of a Magistrate, in the act of committing an offence specified in the schedule to the Ordinance in such a case, a report shall immediately be made to the Chief Secretary, the Administrative Secretary and immediate superior of the public servant concerned if he is in BPS-16 and above, and to the appointing authority and immediate superior officer if the public servant is in BPS-15 and below.

3. If the competent authority under sub-rule (2) above decides not to register a case, he shall record reasons therefor.

4. Before making a request for registration of a case against the accused public servant, a simultaneous request may be made by the Establishment to the authorities specified below if the arrest is so required during the investigation:- (a) Public Servants upto BPS-16 - Director (b) Public Servants in BPS-17 and above - Chief Secretary Provided that no prior permission shall be necessary for the arrest of a public servant caught as a result of a trap as mentioned to the last proviso to sub-rule (2) of Rule-4. Besides, as per rule 10 of Khyber Pakhtunkhwa Anti-Corruption Establishment Rules, 1999, the cases shall be registered by the Establishment at the Police Station or the Establishment having the jurisdiction. The entire rules are silent regarding registration of cases of corruption by local police at ordinary police station other than the Police Station of Anti-Corruption Establishment.

5. So far as application of petitioner under section 22-A(6), Cr.P.C. for registration of case against respondents is concerned, no doubt that an Ex-officio Justice of the Peace may issue appropriate directions to the police authorities concerned on a complaint regarding (i) non-registration of a criminal case; (ii) transfer of investigation from one police officer to another; and (iii) neglect, failure or excess committed by a police authority in relation to its functions and duties. But it is nowhere mentioned in the said section that the Justice of Peace may issue appropriate directions in cases of corruption by public servant for which a separate procedure as discussed above, has been provided under ACE Rules, 1999, according to which only Anti-Corruption Establishment has the domain of registration of cases. The petitioner had the remedy of approaching the proper forum i.e, Anti-Corruption Establishment for registration of FIR against respondent No.4 and even against private respondents.

6. For the abovementioned reasons, this petition is dismissed in limine. However, the petitioner may approach the competent forum for redressal of his grievance if so advised. JK/252/P Petition dismissed.