2003 PLP 1582 (YLR)

(3) In all cases of raid/trap the District Magistrate, Additional District Magistrate, or Sub‑Divisional Magistrate, of the jurisdiction shall be found to depute a Magistrate for supervising raid trap on the request made in writing by the officer of the Establishment. (4) The criminal cases shall be registered by the Establishment at Anti Corruption Police Station and where there is .no such notified police station, at local police station. (5) When a case is registered at local police station, the District Police shall have no jurisdiction whatsoever to continue the investigation and the relevant record shall be made over to the Establishment. Admittedly, the F.I.R. in this case was registered with Police Station Clifton, Karachi‑South, on the basis of a written complaint from S.P. Noor Ahmad Peechouho of the Crime Branch of Sindh Police and it was neither transferred to the Anti‑Corruption Police under sub‑rule (5) of rule, 11 (supra) nor it was investigated by any officer of Anti Corruption Establishment, 'Karachi. In order to substantiate their view‑point the learned counsel for the applicants have placed reliance on the case of Syed Murad Ali Shah and others v. Government of Sindh arid others (PLD 2002 Kar. 464) where a Division Bench of this Court has quashed the F.I.Rs. registered against the accused nominated in the said F.I.Rs. at Police Station Artillery Maidan, Karachi for the scheduled offences exclusively triable under Prevention of Corruption Act (II) of 1947 for having committed irregularities and misappropriation of millions of rupees of the Sindh Agricultural Supply Organization. Accused No. 1 in that case was Minister of the concerned department whereas other accused were public officers serving in the said organization on various posts. It has been argued that rule 11 of the Sindh Enquiries and Anti‑Corruption Rules, 1993 framed under the Sindh Enquiries and Anti‑Corruption Act, 1991 is very clear on the point that it is the Anti‑Corruption Establishment alone which is competent to register a criminal case against a public servant in respect of the commission of a scheduled offence by him and that too with the prior approval of the competent authority. The local police has been debarred from registering and investigating any such case. However if there is no notified Anti Corruption Police Station available in the area, a case may be registered under sub‑rule (5) of rule 11 at the local police station but the police has no jurisdiction whatsoever to investigate the case and the relevant record is to be made over to the Anti‑Corruption Establishment. While placing reliance on the cases of (1) Miraj Khan v. Gull Ahmed and others (2000 SCMR 122), (2) Mian Munir Ahmad v. The State (1985 SCMR 2.57), (3) Shahnaz Begum v. Honourable Judges of the High Court of Sindh and Balochistan (PLD 1971 SC 677) and (4) Adamjee Insurance Company Limited v. Assistant Director, Economic Enquiry Wing (1989 PCr.LJ 192) the learned counsel for the applicants have vehemently urged that the proceedings against the applicants/accused are also liable to be quashed and this ‑ Court is fully competent to grant such relief to the applicants/accused. Learned State Counsel has not opposed the prayer made on behalf of the applicants and has no objection if the proceedings pending before the learned trial Court are quashed and the applicants/accused are acquitted. I have heard the learned counsel for the applicants and the learned State Counsel. I have also gone through the impugned order passed by the learned trial Court. I find that while rejecting the applications tiled under section 249‑A, Cr.P.C. the learned trial Court has taken a view that under sub section (1) of section 4 of Pakistan Criminal Law Amendment Act, 1958 a Special Judge has jurisdiction to take cognizance of any offence committed within his territorial limits and triable under the said Act, upon receiving a complaint of facts which constitute such offence, or upon a report of such facts made by any police officer and since the trial Court has already taken cognizance of the alleged offence on the challan submitted against the applicants by D.S.P., Manzoor Hussain which is virtually a report of facts constituting the offence committed by the applicants, hence contravention of rule 11 of Sindh Enquiries and Anti‑Corruption Rules, 1993 in view of provisions of subsection (1) of section 4 of the Pakistan Criminal Law Amendment Act, 1958 shall not affect or vitiate the trial. In order to examine the said view of the learned trial Court in the light of the arguments of learned counsel of applicants I feel it necessary to reproduce subsection (1) of section 4 of the Criminal Law Amendment Act 1958, which reads as under:‑‑

4. Jurisdiction of Special Judge and cognizance of cases by them.‑‑‑(1) A Special Judge shall have jurisdiction within such territorial limits as may be fixed by the appropriate Government by notification in the official Gazette and may take cognizance of any offence committed or deemed to have been committed within such limits and triable under this Act upon receiving a complaint of facts which constitute such offence or upon a report in writing of such , facts made by any Police Officer. In the case of M. Abdul Latif v. G. M. Paracha and others (1981 SCMR 1101) an identical legal question had arisen with reference to investigation of a case of embezzlement and corruption in Food Department, which was entrusted for investigation to certain police officials attached to the Anti‑Smuggling (Rice and Paddy) Mobile Team, Multan, including a Sub‑Inspector and an A.S.‑I. Police. Referring to section 3 read with section 8 of the West Pakistan Anti‑Corruption Ordinance, 1961, it was held that provisions of the said Ordinance are in addition to and not in derogation of any other law for the time being in force. The judgment passed by the Lahore High Court dismissing Writ Petition No.9045 of 1980 challenging the competency of the investigation, was maintained by the Honourable Supreme Court. The relevant portion from the judgment of the Honourable Supreme Court is reproduced as below:‑‑ "

4. The learned counsel for the petitioner before us submits that investigation of the case by respondents Nos.2 and 3 who are S.‑I. and A.S.‑I. respectively in violation of section 5‑A of the Prevention of Corruption Act, 1947 which reads as follows:‑‑ "Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898) no officer below the rank of Inspector shall investigate any offence punishable under any of the section of the Pakistan Penal Code Act (XLV of 1860) mentioned in section 3 or any offence punishable under section 5 without any order of a Magistrate of the First Class or make an arrest therefore without a warrant."

5. He, therefore, submitted that the investigation of the case' by the respondents Nos.2 and 3 should have been declared as illegal by the High Court. This contention is wholly misconceived because a reading of the above mentioned section would show that it provides that a Police Officer of the rank of Inspector or above could investigate any of the offences mentioned therein including an offence under section 5(2) of the Prevention of Corruption Act without the permission of a Magistrate, but a police officer below the rank of Inspector could investigate such a case only after obtaining permission from a Magistrate of the First Class. Now, it is admitted by the learned counsel that such a permission had, in fact, been obtained by the above mentioned police officers. An affidavit to this effect has also been filed by Raja Aurangzeb, S.P., respondent No.4.

6. The learned counsel contended next that section 3 of the West Pakistan Anti‑Corruption Establishment Ordinance, 1961 provides that: "Notwithstanding 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, or the investigation of offence set forth in the Schedule, and for the holding of preliminary inquiries for determining whether such offence shall be investigated, or departmental inquiries into the conduct of any public servant concerned in such offences shall be held."

7. He submitted that such an Establishment had, in fact, been created and it being a special law, only members of this Establishment could investigate the offences of corruption, and that, therefore, Police Officers attached to the Anti‑Smuggling (Rice and Paddy) Mobile Team could not investigate such a case. This contention overlooks the provision of section 8 of the said Ordinance which provides: "The provisions of this Ordinance are in addition to and not in derogation of any prior law for the time being in force." In view of the above discussion we find that the petition has no merit and is, therefore, dismissed." The said view expressed by the Honourable Supreme Court was followed by a learned Single Judge of Lahore High Court in the case of Mirza Muhammad Iqbal and others v. Government of Punjab (PLD 1999 Lahore 109). With reference sections 3, 6(2) and 8 of the West Pakistan Anti‑Corruption Establish ment Ordinance (XX of 1961) as well as rules 8, 9 and 15 of the Punjab Anti‑Corruption Rules, 1985 and section 154, Cr.P.C. it has been held as under:‑‑ "Scrutiny of the provisions of the Ordinance shows that it does not contain any non obstante clause. On the contrary, section 8 clearly provides that the provisions of the Ordinance are in addition to and not in derogation of any other law for the time being in force. In other words, the application of all the provisions of Criminal Procedure Code, 1898 including section 154 of the Criminal Procedure Code, 1898 has not been ruled out, rather it has been clearly kept intact." Which reference to the rules not being in harmony with the parent Act or Ordinance, the learned Judge has observed as follows:‑‑ " Prima facie some of the provisions of the Rules, 1985 travel beyond the provisions of the Ordinance. In particular, rule 8(2) placing embargo on registration of cases is not covered by any provision of the Ordinance. The rule‑making authority, therefore, seems to have taken upon itself the function of Legislature. It is well‑settled that rules are made by Executive Authorities and it is not the act of legislation. Rules have to remain within the parameters of the Act/Ordinance and the moment the same or some of them travel beyond the provisions of parent law, the same are struck down as ultra vires. Rules 8 and 9, in particular, and some other rules can be dubbed as an exercise of legislation and an act of usurpation by the rule‑making authority. If the objective was to describe the public servants as a different class of offenders and to afford them some protection against indiscriminate arrest etc., the provisions ought to have been inserted in the Ordinance itself. This object cannot be legally achieved by exercising the power of rule‑making by executive authority. I may clarify that the above are some of the facts of the controversy which will have to be examined in an appropriate case in the light of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973." After examining a large number of authorities for and against the proposition and while following the view of the Supreme Court in the case of M.A. Latif v. G.M. Paracha and others (1981 SCMR 1101) 29 writ petitions seeking quashment of the F.I.Rs. for the alleged offences covered by Schedule of the Punjab Anti‑Corruption Ordinance, 1961 (here in this case Sindh Anti‑Corruption Ordinance, 1961) registered at ordinary police station under section 154, Cr.P.C. and proceedings pending before the trial Court on the ground that the case was neither registered by the Anti‑Corruption Establishment nor investigated by it, were dismissed. The relevant discussion made and the view taken by the learned Judge depicts that the view taken in the cases of (1) Saleem Hussain v. The State (PLJ 1996 Criminal Cases Lahore 916), (2) Mahboob Ali v. The State and 3 others (PLD 1996 Lahore 454), (3) Tariq Latif Butt and others v. The State and 4 others (1996 MLD 1874) and Muhammad Sharif v. S.H.O., P.S. City Hafizabad (PLD 1997 Lahore 692) does not lay down correct law as the law laid down by the Supreme Court in the case of M.A. Latif (supra) was not taken note of. The learned Single Judge while relying upon the cases reported as Province of Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari (PLD 1997 SC 351 at 364) has held that the said judgments were per incuriam. There can be no two opinions that the rule laid down and the law declared by Supreme Court by virtue of Article 189 of the Constitution is binding on all Courts and authorities in Pakistan. Any judgment passed by any authority or Court contrary to the law laid down by the Supreme Court shall be a judgment per incuriam. I would like to reproduce the relevant discussion on the point made in the case of Province of Punjab through Secretary, Health Department (supra) which reads as follows:‑ "

11. The judgment of the Supreme Court in the case of Dr. Sh. Muzaffar Iqbal supra, appears not to have been brought to the notice of the learned Judge of the High Court. Had it been noticed the declaration made and the direction issued would not have been made and issued for the reason that the law declared by the Supreme Court by virtue of Article 189 of the Constitution of Islamic Republic of Pakistan is binding on all Courts and authorities in Pakistan. The judgment dated 29‑4‑1989 passed by the Lahore High Court in Writ Petition No.61 of 1989 in view of the dictum laid down to the contrary by the Supreme Court is a judgment per incuriam. Halsbury's Laws of England, Fourth Edition, Volume 26 in paras. 577‑578, has commented on the "judgment per incuriam" as under: "A decision is given per incuriam when the Court has acted in ignorance of previous decision of its own or of a Court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force. A decision should not be treated as given per incuriam, however, simply because of a deficiency of parties, or because the Court had not the benefit of the best argument and, as a general rule, the only cases in which decisions should be held to be given per incuriam are those given in ignorance of some inconsistent statute or binding authority. " The judgment of the High Court is not only judgment per incuriam having been passed contrary to the judgment of the Supreme Court but is also without jurisdiction as the High Court had wrongly assumed jurisdiction in the case, which did not vest in it in view of the provisions contained in Article 212 of the Constitution." I also find that prima facie sub- rules (1), (2), (4) and (5) of rule 11 of the Sindh Enquiries and Anti‑Corruption Rules, 1993 placing embargo on registration and investigation of a case without approval of the "Competent Authority" do not stand covered by Sindh Enquiries and Anti‑Corruption Ordinance, 1991. The rule‑making authority, therefore, seems to have taken upon itself the functions of Legislature. It is well‑settled that rules are made by executive authorities and it is not the act of legislation. Rules have to remain within the parameters of the Act/Ordinance and the moment the same or some of them travel beyond the provisions of parent law, the same are to be struck down as ultra vires. The above cited sub‑rules (1), (2), (4) and (5) of rule 11 can be dubbed as an exercise of legislation and an act of usurpation by the rule‑making authority, as held in Mirza Muhammad Iqbal and others (supra). Section 8 of Act VIII of 1991 also clearly lays down that the provisions of the said Ordinance are in addition to and not in derogation of any other law for the time being enforced. As a result of discussion made above and without dilating further upon applicability of rule 11 of the Sindh Enquiries and Anti‑Corruption Rules, 1991 to the present case and keeping in view the fact that the learned trial Court has already taken cognizance under section 4(1) of the Criminal Law Amendment Act, 1958, and while following the law laid down by the Honourable Supreme Court in M.A. Latif's case (supra), the rule laid down by the Honourable Division Bench of this Court in Murad Ali Shah"s case (supra) appears to be distinguishable and does not stand attracted on all fours to the facts and circumstances of this case. For the foregoing reasons I am of the considered view that no case for quashment has been made out hence these applications stand dismissed. N.H.Q./Z‑41/K Petitions dismissed.