2011 PLP 2117 (YLR)

SARDAR MUHAMMAD SHAMIM KHAN, J.

Anwar Mahmood, petitioner, through this Constitutional petition seeks quashment of case F.I.R. No. 95 dated 21-3-2010 for the offence under sections 420, 447, 468 and 471 of P.P.C., registered at Police Station Sahooka, District Vehari.

2. Succinctly, the prosecution story as per F.I.R. is that on 21-3-2010, Ali Muhammad son of Allah Yar made application to the police that he along with his brothers purchased 40 kanals land from Ghul Sher Ahmad and the accused persons in collusion with the Helqa Patwari i.e. present petitioner, tampered the record and by cutting the mutation and Khewat Nos.368,319, fraudulently 8 kanals of land was transferred in the name of Riaz Ahmad, accused and the accused persons also tampered Mutation Nos.4825 and 3684. Hence, the instant case was registered against the petitioner and his co-accused.

3. It was contended by the learned counsel for the petitioner that S.H.O., Police Station Sahooka, District Vehari was not authorized to register a case against the petitioner, who is public servant and that the offences allegedly committed by the petitioner are scheduled offences which are exclusively to be investigated by the Anti-Corruption Establishment constituted under section 3 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961; that the complainant with the connivance of local police had got registered the impugned F.I.R. at ordinary police station; that prior to registration of impugned F.I.R., departmental inquiry was conducted by the DDO(R), Burewala, and two increments of the petitioner were stopped/withheld, so, the petitioner had already been penalized and under the Rule of Double Jeopardy as provided under Art.13 of the Constitution a person cannot be twicely penalized. Reliance has been placed on Mehboob v. The State and 3 others PLD 1996 Lahore 454 and Muhammad Sharif v. Station House Officer, Police Station, City Hafizabad and another PLD 1997 Lahore

692. He prayed that the instant F.I.R. be quashed.

4. Learned Assistant Advocate-General and learned Deputy Prosecutor-General, Punjab have frankly conceded that the S.H.O. had no authority to register a case against the petitioner, instead, the jurisdiction only lie with the Deputy Director, Anti-Corruption Establishment to take over the cognizance of the matter.

5. I have considered the submissions raised by the learned counsel for the parties and have gone through the record carefully.

6. Learned counsel for the petitioner referred to Rules 3 to 17 of the Punjab Anti-Corruption Establishment Rules, 1985, wherein, the procedure for the initiation of preliminary inquiry against the public servants, registration of cases, arrest of the accused, imparting of information to the Administrative Department regarding his arrest, obtaining sanction for prosecution, prosecution of the accused public servant, traps, dropping of cases or recommending departmental action and the factum of establishment of Police Stations of Anti-Corruption Establishment have been incorporated. Under section 3 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961, the Government has been empowered to establish Anti-Corruption Establishment. The Sections of Pakistan Penal Code, under which the impugned F.I.R. was got registered, are undoubtedly scheduled offences. The offences committed by a public servant jointly with other persons are to be tried and investigated in accordance with the provisions of said Ordinance and the Rules made thereunder. Rule 6 of the Punjab Anti-Corruption Establishment Rules, 1985 provides that preliminary inquiries and investigation shall be initiated by the Establishment against the public servants on a complaint received from the Government, Head of the Department or other reliable sources. Under Rule 7, a Deputy Director of an officer or above his rank has been empowered to initiate preliminary inquiries in order to ascertain the identity of the complainant or informer and genuineness of the complaint/information. Rule 8 of the said Rules deals with the registration of case against public servants, and any other person who commits offences jointly with public servants. This Rule provides that criminal cases shall be registered' by the Establishment under Prevention of Corruption Act, 1947 and under such sections of Pakistan Penal Code, as have been set forth in the Schedule to the Ordinance. According to this Rule a criminal case shall be registered against the public servant under a written order of officer of the Establishment mentioned in sub-clauses (a),(b) and (c) of sub-rule (2). The case against the public servant in BPS 1 to 16, according to this Rule, can be registered under written orders of an officer not below the rank of a Deputy Director, Anti-Corruption Establishment. Rule 15 provides that the case after registration could be dropped in the circumstances mentioned therein.

7. Admittedly, the petitioner, a Revenue Patwari, is a pubic servant and close scrutiny of the relevant provision of law as discussed above, leaves no doubt that the case against the petitioner could not have been registered except under the orders of the officer mentioned in Rule 8 after holding preliminary investigation. In this view of the matter, the registration of case through F.I.R. No. 95 dated 21-3-2010 for the offence under sections 420, 447, 468 and 471 of P.P.C., registered at Police Station Sahooka, District Vehari was illegal and the S.H.O. was not authorized under the law to register the said case and to investigate it. Resultantly, this writ petition is accepted and F.I.R. No.95 dated 21-3-2010 is declared to be without lawful authority and of no legal effect and, consequently, quashed.

8. It is, however, clarified that the competent authority under the West Pakistan Anti-Corruption Establishment, 1961 and Rules of 1985, framed thereunder, may if they so decided, proceed to register a case against the petitioner. Ali Muhammad, respondent No.2, may also approach the competent authority for registration of a case against the petitioner, which if registered, shall be investigated and disposed of in accordance with law. H.B.T./A-120/L Petition accepted.