1984 P Cr (PLP)

The facts giving rise to this petition are that on 1st July, 1975 a case under sections 161 & 165-A, P. P. C. and section 5 of the Prevention of Corruption Act, 1947 was registered against Ihsan Ahmad, Manager Auqaf, Faisalabad. During the investigation the petitioner was also included as an accused. After the completion of the investigation the case was put up before Anti-Corruption Committee, respondent Not. 1 herein. The Committee approved the recommendation of the Director, Anti -Corruption Establishment that the case be dropped but observed that in view of the admission of Ihsan Ahmad, Manager Auqaf, before the raiding Magistrate that he had obtained the tainted money under the direction of the Administrator, Auqaf, i.e. the petitioner, the department may take such administrative action against the accused Officer/official concerned as may be deemed fit (Annexure 'R'). A departmental enquiry was accordingly held in which the petitioner was exonerated (Annexures `S' and 'T'). Therefater, the Punjab Government in Services and General Administration Department examined the case and held that the case was not fit to be dropped and Anti-Corruption Establishment was directed to place the matter before the respondent-Committee for reconsideration. On reconsideration the Committee approved judicial action against the petitioner and others (Annexure `X'). The petitioner has challenged this order through this constitutional petition.

2. The learned counsel for the petitioner has raised the following contentions :- (i) The earlier decision of the Committee had been implemented and the petitioner exonerated in the departmental enquiry, therefore, the Committee was not competent to exercise the power of review under rule 11 of the Punjab Anti-Corruption Establishment Rules, 1974. (ii) Rule 11 contemplates independent exercise of power of review but in this case the power was exercised under the orders of the Government. (iii) Working paper put up before the Committee in the first instance (Annexure 'Q') and the second time (Annexure `U') are the same except that in (Annexure `U') the decision of the Government is added. There was thus no fresh material before the Committee for reviewing the earlier decision. (iv) The impugned order cannot tantamount to a review order because it neither contains any reason nor refers to the earlier decision as being under review. (v) The impugned order was passed on 9th April, 1983 and the alleged offence was committed at Faisalabad on 1st July, 1975. The new Faisalabad Division having come into existence on 1st July, 1982 the competent Committee was Anti-Corruption Committee No. 2 Faisalabad and not the Anti-Corruption Committee No. 2, Sargodha. (vi) The refusal of the Committee to send the case for judicial action tantamounts to refusal to grant sanction to prosecute and sanction once refused cannot be regranted. The learned Assistant Advocate-General submitted that under rule 11 the Committee had the power to review its earlier decision which was of administrative nature and no legal right of the petitioner has been violated to entitle him to approach this Court.

3. I have gone through the record in the light of the arguments of the parties and feel that some of the points urged by the learned counsel for the petitioner are not without force. The fate of this case to a large extent rests on the application of rule It of the Anti-Corruption Establish ment Rules, 1974. This rule confers wide powers on the Anti-Corruption Committee to decide, in the light of the evidence brought before it, whether an accused official may be prosecuted or dealt with departmentally. It was in exercise of this power that the Committee did not recommend judicial action and maintained that administrative action be taken by the departmental authorities against the petitioner. Pursuant to this decision of the Anti-Corruption Committee, the petitioner was proceeded against departmentally, but an enquiry into the charges against him resulted in his exoneration. The question now arises whether in the circumstances of the case the Anti-Corruption Committee could recall its previous order. The power to review is clearly provided in rule 11 which permits the Anti. Corruption Committee to recall its order, if the interest of justice requires. Exercise of such power, however, is not unfettered. It is well- A established that the authority which has the power to pass an order, can also recall it, provided the order to be recalled has not been already implemented and no decisive step has been taken in the matter. Support for this view can be sought from Pakistan v. Muhammad Himayatullah (P L D 1969 S C 407) in which it is laid down :- "There can hardly be any dispute with the rule that apart from the provisions of section 21 of the General Clauses Act, locus poenitentiae, i.e., the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such necessary in the case of authorities empowered to pass orders to retrace the wrong step taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights." In view of this legal position, the petitioner who has already been departmentally tried and exonerated, cannot be again thrown to prosecution.

4. The Anti-Corruption Committee expressed its opinion under its order (Annexure `R'). For recalling this order it was necessary for the Anti-Corruption Committee to have given some reasons and passed a speaking order, manifesting application of mind and grounds which persuaded the Committee to recall its previous order. The Committee has failed to comply with this requirement of law as the order passed by it does not disclose any reason for review. As the petition succeeds on the grounds aforesaid, it is wholly unnecessary to burden this order with the discussion of other contentions. There is hardly any substance in the submissions of the learned Assistant Advocate-General. The exoneration of the petitioner in the departmental enquiry confers a valuable right on him. The denial of such right by launching prosecution against him can certainly be called in question through invocation of writ jurisdiction.

5. For the foregoing reasons, this petition is allowed and the impugned order in so far as it approves/directs judicial action against the petitioner, is declared to have been passed without lawful authority. M. Y. H. Petition allowed.