1999 PLP 1843 (PCRLJ)

Date of hearing: 16th March, 1998. A case was registered on 6-1-1998 under section 5(2) of the Prevention of Corruption Act, 1947 on an application of Muhammad Ashraf addressed to Deputy Inspector-General of Police, Gujranwala, wherein he stated that on 20th December, 1997 a case under section 420/471/279/468, P.P.C. was registered against his driver namely Muhammad Ayub and himself. His driver was granted bail after arrest whereas he was admitted to pre-arrest bail by the learned Additional Sessions Judge, Gujranwala and the matter was fixed for 6-12-1997 for confirmation of bail. Muhammad Arif, S.-I. (petitioner), apart from Rs.10,000 for the S.H.O., accepted Rs.50,000 from him (Muhammad Ashraf) for himself as illegal gratification on the undertaking that he would cancel the said case.

2. On this application, the Deputy Inspector-General of Police on 6-1-1989 ordered the registration of a case. Accordingly F.I.R. No.7 of 1998 was registered under section 5(2) of the Prevention of Corruption Act, 1947 at Police Station Baghbanpura, Gujranwala.

3. The petitioner submits that the order of the Deputy Inspector-General of Police directing the registration of a case under section 5(2) of the Prevention of Corruption Act was without lawful authority and ultra vires the provisions of Punjab Anti-Corruption Establishment Rules, 1985.

4. The learned Assistant Advocate-General, Punjab, contacted Deputy Inspector-General of Police and the Senior Superintendent of Police, Gujranwala to seek instructions. He was apprised the Senior Superintendent of Police, Gujranwala had taken up the matter with Directorate of Anti-Corruption of Punjab, Lahore and the Directorate advised him that in view of the Supreme Court decision in M. Abdul Latif v. G.M. Paracha and others 1981 SCMR 1101, the local police had concurrent jurisdiction with the Directorate, Anti-Corruption in respect of schedule offences. The F.I.R. in issue was competently registered and was being lawfully investigated by the local police.

5. Learned counsel for the petitioner submits that the judgment referred to had no bearing as the Punjab Anti-Corruption Establishment Rules, 1985, which stipulate a distinct mode of registration of case under section 5(2) of the Prevention of Corruption Act, 1947, at the time of the pronouncement of the above Supreme Court judgment, the Anti-Corruption Establishment Rules were not even in the field. The said judgment was of no interpretive value much less, when the judgment relied upon was only a leave refusing decision and could not be treated as a case decided.

6. It was argued that according to section 3 of the West Pakistan Anti- Corruption Establishment Ordinance, 1961, the inquiry or investigation of a case under scheduled offences could be conducted by Anti-Corruption Establishment and not by local police. Reliance was placed on Saleem Hussain v. State PLJ 1996 Cr.C. Lah.

916. It was submitted that under Rule 8 of the Anti-Corruption Establishment Rules a criminal case could be registered against a public servant under a scheduled offence, by a written order of an officer of the Establishment mentioned in sub-rule (2). In the present, case it could be done only by an Officer below the rank of Deputy Director. In Muhammad Afzal's case 1992 MLD 311 the order for registration of a case under scheduled offence had been passed by the Additional Sessions Judge, Gujranwala. The order was held to be repugnant and ultra vires aforesaid Rule 8 and the F.I.R. registered pursuant to the said order, was quashed. Similarly reference was also made to Mehboob v. State PLD 1996 Lah. 454 wherein the registration of F.I.R. was declared to be without lawful authority. It was observed that the petitioner being a Revenue Patwari such a case could not have been registered except under orders of the Officers mentioned in Rule 8 after holding preliminary inquiry.

7. It is now an establishment proposition of law that where a certain thing is required to be done in a certain manner, it better be done in that manner or not at all. The Deputy Inspector-General of Police, Gujranwala is not a functionary recognized under Rule 8 of the Anti-Corruption. His order to register a case under section 5(2) of the Prevention of Corruption Act, 1947-was without lawful authority. The registration of F.I.R. No.7 of 1998 registered at Police Station, Baghbanpura, Gujranwala is, thus, declared to be of no legal effect and quashed. There will be no order as to costs.

8. It is, however, clarified that the competent Authority, under the West Pakistan Anti-Corruption Establishment Ordinance, 1961 and the Rules of 1985, may proceed against the petitioner, if deemed apt. It will be available to the complainant (Haji Muhammad Ashraf) as well to approach the said authority for seeking action against the petitioner. In such an event, the matter shall be investigated and disposed of in accordance with law. H.B.T./M-671/L Order accordingly.