P L D 2004 Lahore 284 (PLP)

4. In the report and parawise comments submitted by respondent No. 1 the facts are almost admitted. However, a stand had been taken that respondent No. 1 is empowered under rule 19 of the Punjab Anti- Corruption Establishment Rules, 1985, to call for the record of any case/enquiry for examination and to pass appropriate orders and that respondent No. 1 is also empowered under rule 15(2)(b) of the said Rules to order for the droppage of the case against public servant up to BPS‑18, if after due examination of the evidence/material on the record he is satisfied that the allegations were not established against the accused. On merits it has been stated that on the one hand no case was made out and on the other the registration of the case required prior permission of the Competent Authority as provided under Rule 8 of the Punjab Anti‑Corruption Establishment Rules, 1985, hence he supported the impugned order.

5. Learned counsel for the petitioner contends that respondent No. 1 with mala fide intention and ulterior motive had called for the record and without considering the material (blank Tender Forms) taken into possession as a result of the raid has passed the impugned order for the droppage of the case only on the recommendation of Assistant Director (Legal‑II) that the case was registered without conducting preliminary inquiry in contravention of Rules which opinion too was against the latest case‑law declared by this Court that mere violation of rules is not sufficient to quash the F.I.R. Relies upon Mirza Muhammad Iqbal and others v. Government of Punjab PLD 1999 Lah. 109 and Shafqat Hussain and another v. Malik Sarfraz and another 2000 PCr.LJ 1995.

6. Ch. Bashir Ahmad, Assistant Director (Legal) while present in the Court has submitted that in his legal opinion conveyed vide letter dated 21‑8‑2003, he recommended for the continuation of the investigation, as sufficient material is available on the record to connect respondent No.6 with the crime but on 24‑7‑2003 the order for the droppage of the case has already been passed. While Saeed Iqbal, Assistant Director who gave the opinion for droppage of the case states that Faqir Muhammad Shad, Deputy Director (Legal) had also endorsed his opinion on the basis of which order for the droppage of the case was passed.

7. Learned counsel for respondent No.6 on the query of this Court has also conceded that now it is settled law that mere violation of Punjab Anti‑Corruption Establishment Rules, 1985 while registration of any case is not sufficient to quash the F.I.R. However, he conceded that under rule 19, sub‑rule (2) the Director is empowered to call for the record of any case and pass appropriate orders thereon, hence the impugned order was passed quite within jurisdiction, which order could be reviewed by the Chief Secretary under rule 19, sub‑rule (3) of Punjab Anti -Corruption Establishment Rules, 1985 and as such the alternate remedy is available to the petitioner hence this writ petition is not maintainable. It is further contended that there being no sufficient evidence on the record to constitute any offence the order for droppage of the case is sustainable.

8. I have heard the learned counsel for the parties and also perused the record as well as the report and parawise comments. The Assistant Director (L‑II) pursuant to orders of the Director Anti‑Corruption gave the opinion that the case was registered without holding preliminary inquiry which was prerequisite for the registration of the case and also without obtaining the orders of the C/A (Competent Authority) which was the flagrant violation of the rules, hence the case may be dropped This opinion was endorsed by the Deputy Director (L) and on the basis of the same respondent No. 1 has dropped the case against respondent No.6.

9. Now it is settled law that the Punjab Anti‑Corruption Establishment Rules, 1985 being not an act of legislation and having been made by the Executive Authority cannot override the parent law and if F.I.R. is lodged anyhow without following the said rules that cannot be quashed merely because of said reasons. In PLD 1999 Lah. 109 (supra) case was registered against the civil servant by the local police and it was argued that the civil servants if are found to have committed some offence, covered by the Schedule of the Punjab Anti‑Corruption Ordinance, 1961, the registration of the case in the ordinary police station under section 154, Cr.P.C. was without lawful authority but this Court after discussing the case‑law declared in following cases: ‑‑ "PLD 1996 Crl. Cases (Lah.)

916. PLD 1996 Lah. 454. 1996 MLD 1874. PLD 1997 Lah. 692" held that even if the case has been registered without observing the relevant rules, that cannot be quashed merely because of same and said judgment has distinguished the above case‑law inasmuch as that the law declared by the Supreme Court of Pakistan in Abdul Latif's case reported in 1981 SCMR page 1101, was applicable in all the cases and it was admitted by all the learned counsel including the learned Advocate -General that Abdul Latif's case was not brought to the notice of this Court and it was held that these judgments were per incuriam hence the petitions Were dismissed. The relevant portion of the said judgment reported in PLD 1999 Lah. 109 is as under:‑‑ "

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." The Division Bench of this Court in Shafqat Hussain and others v. Malik Sarfraz and others reported in 2000 PCr.LJ page 1995 held that the, Rules not to override the statutes of the general law. The relevant portion is reproduced as under:‑‑ " ... ... ...Having reproduced the relevant provisions of the Ordinance and rule 8(2) of the Rules for comparison our conclusion is that seeking permission of the authorities before registration of the case against public servants is beyond the scope of section 3 of the rule‑making powers given to the Government under section 6 as neither of the two quoted provisions authorises the executive to frame rules seeking prior permission for the registration of cases." ". .... The cumulative effect of the discussion is that cases are registered under section 154, Code of Criminal Procedure wherein after detailed investigation the guilt or innocence is determined and this law which has stood rigours of time, for more than a century cannot be allowed to become subservient to, be governed by subordinate Legislature contained in the rules as section 8 of the Ordinance itself provides that the provisions are in addition to and not in derogation to any other law." From the perusal of the above said case‑law it is clear that if any rule of Punjab Anti‑Corruption Establishment Rules, 1985 is not followed before the registration of the case it cannot provide any right to an accused claiming for the quashment of the F.I.R. Hence the legal opinion, on the basis of which the impugned order has been passed, was bad and illegal being given without perusal of the latest case‑law on the subject. Moreover, the purpose of inquiry as required under Rule 7 is only to ascertain the identity of the complainant or informer and genuineness of the complaint/information. In the present case the nature of the allegations required immediate action and any delay therein in the garb of fulfilment of legal requirements would tantamount to loss of incriminating evidence which has been collected in lieu of sudden raid conducted under the orders of the learned Sessions Judge as provided under section

14. What prejudice was caused to respondent No.6 due to non‑initiation of preliminary inquiry is lacking in the present case and or course even after the registration of the case an accused has to be provided opportunity to rebut the allegations during the investigation. In the present case the allegations levelled by the petitioner were supported, by the documentary evidence. It is an admitted position that the case was still at investigation stage and there was no occasion for the Director to exercise powers under sub‑rule (2) of rule

19. Even otherwise these rules are not mandatory in nature and under the garb of same, the Director, Anti‑Corruption Establishment cannot exercise the judicial powers nor he can assume the role of Court.

10. The preliminary objection about the maintainability of this writ petition on the grounds that the alternate remedy by way of filing a petition before the Chief Secretary under section 19(3) is available to the petitioner and that the Director was competent to call for the record and pass such order as may be deemed fit under section 19(2) is misconceived. Under rule 19(3) the Chief Secretary can only suo motu call for the record of any case for the purpose of satisfying himself as to correctness or propriety of decision taken by the Director under sub-rule (2) of the said rule or clause (b) of sub‑rule (2) of rule 15 and may pass such order as deemed fit. These provisions do not provide any alternate remedy to the aggrieved person against the orders of the Director passed in the exercise of his suo motu powers. Moreover, the Director, Anti‑Corruption Establishment in the exercise of powers under sub‑rule (2) of rule 19 could only revise the order of dropping of case or departmental action of the Additional Director passed under clause (a) of sub‑rule (2) of rule 15, but in the present case no such order was passed by the Additional Director and the case was, still at investigation stage. Hence it is declared that the power exercised by the Director for droppage of the case vide order dated 14‑7‑2003 was without any lawful authority and illegal. Writ jurisdiction of this Court is quite maintainable in such circumstances.

11. For the foregoing reasons, this writ petition is accepted impugned order dated 14‑7‑2003 passed by respondent No. 1 is set aside and the Additional Director, Anti‑Corruption Establishment, Multan is directed to get the investigation of case F.I.R. No.37 of 2003 dates 23‑6‑2003 registered with Police Station Anti‑Corruption Establishment, Muzaffargarh restarted from the stage of interference by the Director by the officer already seized of it, which shall be concluded within shortest possible, period. It is, however, clarified that any observation made in this order will not prejudice the case of either party during the investigation/trial, which shall be concluded on its own merits. There will be no order as to costs. N.H.Q./M‑2450/L Petition accepted.