ZAHOOR ELAHI Versus DIRECTOR ANTI CORRUPTION

ORDER

SARDAR MUHAMMAD IQBAL, C. J. -The petitioner who is a member of the National Assembly of Pakistan and claims to be a leader of the Opposition has filed this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan alleging that he demonstrated vehemently against the conduct of respondent No. 3 who has been the Governor of the Punjab for about two years, Chief Minister of the Province for exactly four months, and still continues to be a member of the Punjab Assembly, but since his protests remained unheeded, he drew up a report reciting details of allegations pertaining to the charges of corruption, nepotism and other criminal malpractices against the said respondent and sent the same to respondent No. 1 for registration of a case, its due investigation and submission of a challan in a Court of com petent jurisdiction. The "contents of information lodged by the petitioner for registration of a case" against respondent No. 3 have been set out in Annex. `D' and, when during the course of hearing of the petition, we questioned Dr. Khalid Ranjah who has argued the case on behalf of the petitioner, whether the report lodged before the Anti-Corruption Establishment was also the same as appears at Annex. `D' he replied in the affirmative. A perusal of this document reveals that the petitioner has accused not only respondent No. 3 of being guilty of offences of various types afore mentioned, but in some cases the accusations are also against some of his very close relatives. Moreover, the basis of the report of the petitioner were a series of transactions alleged to have taken place during the periods respondent No. 3 held public offices in one capacity or the other.

2. The case of the petitioner is that the Directorate of Anti-Corruption of which respondent No. 1 is the administrative head was under a statu tory obligation to register an F. I. R. when he received the petitioner's report in accordance with the provisions of section 154 of the Code of Criminal Procedure ; that after registering the case he should have embarked upon an investigation into the charges, and that after completing the same he should have submitted a report under section 173, Cr. P. C. to the Special Judge,. Anti-Corruption. It is alleged that, in complete disregard of his statutory responsibilities to investigate the case in accordance with the provisions of the Code of Criminal Procedure, respondent No. 1 referred the matter to the Anti-Corruption Committee No. 1 for seeking its permission to undertake investigation. This action of respondent No. 1, it is alleged, was neither necessary nor legal, for at the relevant time respondent No. 3 was not a public servant so as to come within the jurisdiction of Anti Corruption Committee No. I. It is further complained that after obtaining permission in 1974, respondent No. 1 completed the investigation, but instead of drawing up a report under section 173, Cr. P. C., and forwarding the same to a Special Judge, appointed under the Criminal Law (Amend ment) Act, he referred the matter to respondent No. 2 with the ostensible object of seeking permission to register a case. This action of respon dent No. 1, the petitioner alleges, was again illegal, and that he could no longer keep the matter away from the said Judge. The petitioner charges respondent No. 2 to have helped respondent No. 1 in evading his statutory obligations, for, instead of convening a meeting of the Committee he is alleged to have forwarded the papers to the Chief Minister of the Punjab who, according to the petitioner, kept the same with him, without taking any action even though no fault could be found with the investigation con ducted by the Anti-Corruption Establishment. The petitioner has further alleged that his demand raised both in public meetings as well as on the floor of the House for submission of the final report before the Special Judge against respondent No. 3 having gone by the board, he is left with no other remedy whatever except to invoke this; Court's constitutional jurisdiction and to seek an order in the nature of a writ of mandamus against the Director of Anti-Corruption Establishment, Lahore, requiring him to complete the preliminaries, if any, and to submit his final report forthwith to the Special Judge, Anti-Corruption, on charges levelled by him against respondent No. 3.

3. In order to consider the contentions raised on behalf of the petitioner it is necessary to examine the law which has created the office of respon dent No. 1 and under which he performs his functions. The relevant law is contained in the West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961), and the rules framed thereunder. The Ordinance comprises 8 sections and a Schedule. Subsection (1) of section 3 deals with the constitution and powers of the Anti-Corruption Establishment and sets out the scope of its functions. Subsections (2) and (3) prescribe the composition of the Establishment and contain provisions with regard to the terms and conditions of the members thereof. Subsection (4) confers the power to investigate offences upon the members of the Establishment and in this regard it brings them at par with other police officers functioning under the Code of Criminal Procedure with an important difference, which is, that the members of the Establishment are to exercise their powers subject to any order or rule which the Government may consider fit to make. Section 4 refers to the appointment of the Director and determines his position in the Establishment. Section 5 gives legal immunity to the Director and other members of the Establishment in respect of things done or intended to be done in good faith under the Ordinance. Section 6 empowers the Government to make rules for carrying out the purposes of this Ordinance. Section 7 repeals an earlier statute in force in the Province of Sind. Section 8 states that the provisions of the Ordinance are in addition to and not in derogation of any other law for the time being in force. The Schedule gives a list of the offences which can be investigated by the Establishment.

4. Subsection (1) of section 3 of the Ordinance lays down : "Notwith standing 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, for the investigation of offences set forth in the Schedule, and for holding preliminary inquiries for determining whether such offences shall be investigated or departmental inquiries into the conduct of any public servant concerned in such offences shall be held". The proviso to subsection (1) of section 3 lays down "that nothing contained in this Ordinance shall affect the provisions of subsection (2) of section 2 of the Pakistan Special Police Establishment Ordinance, 1948". A reading of this provision shows that the Anti-Corruption Establishment was created within two objects, namely (a) for the investigation of offences set out in the Schedule, and (b) for holding preliminary inquiries for determining whether the offences set out in the Schedule should be investigated or departmental inquiries into the conduct of any public servant concerned in such offences should be held. It draws a clear distinction between a preliminary inquiry and investigation. Apart from that, a preliminary inquiry precedes investigation for it is on the findings of the preliminary inquiry that the Establishment has to decide whether the offences prima facie made out should be investigated or the matter be disposed of at the departmental level Of course, in some cases the Establishment may even without holding any preliminary inquiry straightaway start the investigation after registering case, but then this is a matter falling within the discretion of the Establish ment which is to be exercised in accordance with the rules framed under the Ordinance and any order of the Government which being the employer, understandably enjoys extensive powers in this regard. In view of this position, it is not necessary for the Establishment to immediately register a case whenever information regarding the commission of an offence men tioned in the Schedule is received by it. Consequently, the contention o the petitioner that immediately on receipt of his report, respondent No. 1 should have registered a case does not seem to have any force. It is to be observed that subsection (1) contains a non obstente clause and as such the provisions of section 154 of the Code of Criminal Procedure upon which the petitioner relies, cannot be invoked to do away with the discretion which subsection (1) confers upon the Establishment in the matter. Dr. Khalid Ranjah, who appeared for the petitioner, conceded this position in so far as persons still in service were concerned but argued that in the case of those who had ceased to be in service no discretion was available to the Establishment for the reason that no departmental inquiry could be held against them. The distinction drawn by the learned counsel is uncalled for, because even in the case of persons who have ceased to be in service, departmental inquiries can be held, for, in the event of their being found guilty, their pensions can be withheld or reduced. It is, therefore, not right to contend that the Establishment has no option but to investigate the offences alleged against persons who have lost their character as public servants.

5. Under subsection (2) of section 4 of the Ordinance, the Provincial Government exercises an over-all superintendence and general control over the Establishment. The power of arrest and investigation exercised by the members of the Establishment is, under subsection (4) of section 3 subject to any orders or rules which the Government may make in this behalf. This position has been reiterated in subsection (2) of section 6 which states that the Government may make rules prescribing the authorities with whose permission investigation of any case or class of cases may be started. The Government has, in fact, framed an elaborate set of rules in this regard. These are known as the Punjab Anti-Corruption Establishment Rules, 1974. Rule 5 of these Rules which prescribes the manner in which the Estab lishment is to initiate inquiries and investigations, lays down : "Subject to the provisions 6f rules 6, 7 and 8, inquiries and investigations shall be initiated by the Establishment against public servant on complaints received from Government Heads of Departments, the Committee concerned or other reliable source." It will be seen that the authority given to the Establish ment to initiate inquiries and investigations is not unqualified but is subject to the limitations set out in rules 6, 7 and 8. One of the checks provided in rule 6 is that no inquiry under the Ordinance can be taken up against a public servant occupying a rank higher than that of a Commissioner unless the prior approval of the Governor has been obtained through the Chief Secretary.

6. It cannot be disputed that while holding public office as Governor and Chief Minister respondent No. 3 occupied a rank higher than that of a Commissioner. It is to be noticed here that his present status is immaterial for, the offences attributed to him relate to the period when he was a public servant. It may also be mentioned that the Establishment is concerned with the conduct of public servants only. The petitioner must have been aware of this position when he himself chose to approach the Establish ment for the purpose of prosecuting respondent No. 3 ; consequently he cannot now take up the contradictory stand that the protections which are available to a public servant should be denied to respondent No. 3. It will thus appear that when respondent No. 1 received the report of the petitioner it was required of him to refer the matter to the Chief Secretary for obtaining the prior approval of the Governor under rule 6, before embarking upon an inquiry into the allegations made therein. The peti tioner's contention, therefore, that respondent No. 1 acted illegally in sending the papers to the Governor must be rejected as unsound.

7. The petitioner alleges that permission to investigate was, in fact, accorded - to respondent No. 1 by the Governor; the investigations were then completed and as a result thereof respondent No. 3 was found guilty. His grievance is that instead of forwarding the final report alongwith a challan to the Special Judge, Anti-Corruption, respondent No. 1 once again referred the matter to the Chief Secretary who, in his turn, passed on the papers to the Chief Minister. This contention too is based upon ignorance of sub-rule (2) of rule 7 which says : "No case shall be registered by the Establishment against a public servant holding Class I or equivalent post without the prior approval of the Chief Secretary and against a public servant holding Class II Gazetted or equivalent post without the prior approval of the Commissioner. Provided that (a) in the case of officer of . the rank of Commissioner and above, permission of the Governor which shall be obtained through the Chief Secretary will be necessary . " Manifestly enough, it was incumbent upon respondent No. 1 to obtain prior permission of the Governor through respondent No. 2 before registering a case against respondent No. 3. In the face of this sub-rule it is not open to the petitioner to contend that respondent No. 1 acted illegally in sending the relevant papers to respondent No. 2 for that was exactly what he was required to do.

8. Under clause (1) of Article 105 of the Constitution, the Governor is to act on and in accordance with the advice of the Chief Minister in the performance of his functions. Consequently, the Governor was under an obligation to seek advice from the Chief Minister before granting or withholding permission for the registration of a case against respon dent No. 3. This being so, respondent No. 2 acted with perfect propriety in transmitting the papers which he had received from respondent No. 1 to the Chief Minister before obtaining the permission of the Governor for the registration of a case against respondent No. 3. In the circumstances, the assertion of the petitioner that respondents 1 and 2 had acted illegally at any stage while his report was being processed must be rejected as without any foundation whatsoever.

9. There is yet another aspect of this petition which is even more important. The petitioner seeks relief in the nature of a writ of mandamus. Before a writ of mandamus can issue under Article 199 of the Constitution the applicant must satisfy the Court at the very outset that he is an aggrieved party, who has no other adequate remedy available to him. As t what locus stand) the petitioner has to maintain these proceedings, there is not a word in the petition, except that he gave some information to the Anti-Corruption Establishment which according to his thinking, amounted to criminal misconduct on the part of respondent No. 3. When during the course of hearing of the petition we called upon Dr. Khalid Ranjha to state what was the personal interest of the petitioner in this particular case, he, at first, replied that both the petitioner and respondent No. 3 were political rivals, but when it was pointed out to him that the writs of mandamus were not issued solely to serve the political ends of any person he resiled from that position and took up a totally different stand that the petitioner had the interest of a complainant in a criminal case. In support of his contention, learned counsel for the petitioner relied on Abida Khatoon v. Ghulam Shabbir P L D 1964 S C 793. In that case the Supreme Court was consi dering the competency of an informant to institute proceedings for the issuance of a writ where, after holding a preliminary inquiry, the Settle ment Commissioner had declined to act on the information supplied to him. While holding that such an informant had no locus standi to move the Court on the writ side, Cornelius, C. J., speaking for the Court observed "At the most, should there have been no inquiry or if the proceedings were merely colourable, with no visible effort to investigate the allegation of irregularity, certiorari may perhaps be available to oblige the authorities to act in accordance with the law." It is difficult to see how these observations can be of any assistance to the petitioner. The learned Chief Justice was not recording any considered view on the point, but merely assumed a possibility, without expressing any definite opinion there on. Once a person has laid some information regarding commission of an offence amounting to criminal misconduct on the part of a public servant, the parties to the action are the State and the individual complained against. The complainant can, at best, appear as a witness to depose in favour of the allegations he has levelled against the public servant. In the instant case, however, the petitioner is admittedly not a witness to any of the allegations attributed to respondent No. 3. His own position is that he prepared his report after analysing the available data. Since the petitioner cannot be a party to the proceedings, he cannot thereby claim an right or interest in him. The existence of some right or interest, though it may not be in the strict juristic sense, is the foundation of the exercise o jurisdiction by the Court under Article 199 of the Constitution. Even under the Common Law of England, an application for a writ f mandamus can be filed only by a person whose some right is infringed. As observed by lord Goddard, Chief Justice, in R. v. Dunsheat Ex parte Meredith (1950) 2 All E R 741, mandamus is neither a writ of course nor a writ of right and can be granted only if the duty is in the nature of a public duty and specifically affects the rights of an individual. Mere fact of a person being interested in the proper performance of a duty by a public functionary is not enough for granting far writ of mandamus. Therefore, a person applying for a writ of mandamus' must, in the first instance, show a right or interest in him to compel the i performance of a legal duty through the interference of the Court. The words "aggrieved party" have been specifically mentioned in Article 19)(1)(,) of the Constitution and, therefore, no person unless he is an aggrieved party can maintain a writ petition for either (i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or (ii) declaring that any act done or pro ceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful autho rity and is of no legal effect. In Fazal Din v. Lahore Improvement Trust P L D 1969 S C 223, it was held by their Lordships of the Supreme Court that "the right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the appli cant discloses that he had a personal interest in the performance of the legal duty which, if not performed or performed in a manner not permit ted by law would result in the loss of some personal benefit or advantage o the curtailment of a privilege or liberty or franchise." Learned counsel has failed to show how the petitioner has suffered the loss of any personal benefit or advantage or had any of his privileges, liberties or franchise curtailed by the failure of respondent No. 1 to register a case against .1 respondent No. 3. It is also not his case that if respondent No. 1 does not submit his report to the Special Judge, it would result in the loss of some personal benefit or advantage to him, or the curtailment of his privileges. if any. In Muhammad Yunus v. Islamic Republic of Pakistan P L D 1972 Lah. 847, it was held : "The legal right to enforce the performance of the duty must be in the applicant himself. The right must be a specific right, as distinguished from a general interest in the performance of the public duty which a member of the public has in common with the other members equally interested . . . . . Where the applicant has no such immediate and particular interest to the performance of the act he cannot ask for a writ to serve some ulterior purpose of his own." It was further observed that "except in cases for writs in the nature of habeas corpus and qua warranto, in all other matters the petitioner should be an aggrieved person". A similar view was taken in Muhammad Botta v. Commissioner Sargodha Division P L D 1973 Lah. 580. Thus, a writ of mandamus cannot be sought pro bon publico. The petitioner has utterly failed to show that he had any persona interest in the matter which he wishes to agitate. It was not his case. a observed already that the report prepared by him was based on his personal knowledge, or that he was, in anyway, directly affected by any of the allegations recited therein. In the circumstances, he has no locus standi to bring this petition, for, he can, by no stretch of imagination, be regarded as an aggrieved party within the meaning of clause (1) of Article 199 of the Constitution.

10. For the reasons stated above, this petition is clearly misconceived and is hereby dismissed in limine.

S. A. H. Petition dismissed in limine.