ALLAH NAWAZ vs THE STATE and 4 others

' IJAZ-UL-HASSAN KHAN, J.---Petitioner Allah Nawaz, has filed instant petition under section 561-A, Cr.P.C. Seeking quashment of: A. The orders dated 18-12-2003 and 8-1-2004 passed by learned Sessions Jude, D.I. Khan.

B. First Information Report No,533 dated 20-1-2003 under sections 420/468/471, P.P.C. Registered at Police Station City, D.I. Khan by respondent No,3 at the instance of respondents Nos.5 and C. First Information Report No,01 dated 18-1-2004 Police Station Anti-Corruption Establishment, D.I. Khan under section 5(2) of P.C. Act, being ultra vires and without lawful authority.

2. The facts which I have been able to gather from the record of the case are that Inamullah, respondent No,5 entered into a sale transaction with one Ibrar Ahmad Chishti in respect of certain land. Subsequently it transpired that the documents prepared in respect of it were bogus and incorrect. Some Revenue officials were accused of having a hand in the affair. Inamullah respondent addressed an application to Superintendent of Police D.I. Khan on 31-2-2003 for taking legal action against Ibrar Ahmad Chishti and the Revenue officials involved. After conducting inquiry, case F.I.R. No,533 dated 20-11-2003 was registered against the petitioner under sections 420/ 468/471, P.P.C. The petitioner approached the Court of Session for his post-arrest bail. The learned Sessions Judge declined to accept the request of the petitioner holding 'he, in my view, is guilty of corruption. His act is covered by section 5 of the Anti-Corruption Act. While rejecting his bail before arrest application, I direct the local police to include section 5 of the Anti-Corruption Act in the list of offences and hand over the case to the concerned authorities. The Anti-Corruption Department should consider handing over this case to NAB authorities as the act of the accused Patwari is also covered by the offences mentioned in the NAB Act, 1999.'

3. M/s Abdul Latif Khan Baloch and Nasrullah Khan, Advocates, for the petitioner mainly contended that the local police of Police Station City did not have the power to register a case against the petitioner for his official acts done in capacity as a Government Servant and it was only the Anti- Corruption Establishment, which could register any case against the Government Officials and thus registration of case by the local police is not only mala fide and illegal but also without jurisdiction.

It was also contended that when the learned Session Judge, D.I. Khan arrived at the conclusion that the police should have added section 5(2) Prevention of Corruption Act, he could and should not decide even bail before arrest application on the sole ground that he did not have jurisdiction. The learned counsel added that the impugned orders of the learned Sessions Judge have materially prejudiced the cause of the petitioner and the same cannot be allowed to remain intact.

4. Chaudhry Muhammad Sharif, learned Deputy Advocate-General, on the other hand, maintained that the petitioner having been found having a hand in the affair, was rightly proceeded against and the impugned orders are not open to legitimate exception.

5. Having considered the arguments of the learned counsel for the parties with reference to the material on record, I find that the local police of Police Station City did not have the power to register a case against the petitioner for, his official acts done in capacity as a Government Servant and it was only the Anti-Corruption establishment, which should register any case against the Government officials and thus registration of case by the local police is not only mala fide and illegal but also without jurisdiction. It is well established 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.

Further the learned Sessions Judge was seized with an application for bail. He should have confined his powers to sections 497/498, Cr.P.C. The direction given in the matter, appears to be in excess of jurisdiction. The orders of the learned Sessions Judge dated 18-12-2003 and 8-1-2004 for registration of case against the petitioner are hereby declared to have been passed without lawful authority and of no legal effect and quashed. Muhammad Arif v. Station House Officer, Police Station Baghwan Pura, Gujranwala and 2 others (1999 PCr.LJ 1843 Lahore) and Muhammad Afzal and 2 others v. Muhammad Siddique Girwa, Additional Sessions Judge, Gujranwala and 3 others (1992 M LD 311 Lahore).

' It is, however, clarified that the competent authorities under the West Pakistan Anti-Corruption Establishment Ordinance, 1961 and the Rules of 1985 framed thereunder may, if they are so minded, proceed to register the case against the petitioner. Respondent No,5 may also approach the said competent authorities for registration of case against the petitioner, which if registered shall be investigated and disposed of in accordance with law.