GULSHER Versus CIRCLE OFFICER, ANTI-CORRUPTION ESTABLISHMENT, LARKANA

ORDER

1. Through the present application the applicant has sought quashment of F.I.R. No.9 of 2002 registered at Anti-Corruption Establishment, Larkana under sections 201, 218, 120(b), 477-A and 34, P.P.C. read with section 5(2), Act II of 1947 on the ground that the Investigating Officer was not competent to investigate the case or lodge the F.I.R., on behalf of the State, against the applicant.

2. The facts of the case are disclosed in the F.I.R. which read as under:--

3. "Complainant Rahim Bux Arijo, Circle Officer, ACE, Larkana registered this case on behalf of the State on receipt of permission from his competent authority the result of enquiry of Complaint No.98 of 2001 of ACE, Larkana which was taken up on the application of Mst. Haleema w/o Naukar Ali Brohi alleging therein that her son namely Magsi son of Naukar Ali Brohi was murdered on 23-8-1999 in day time at Shahdadkot Town by accused Lal alias Lal Bux Brohi, Sohi son of Jan Muhammad Brohi and others. Such F.I.R. No.141 of 1999 of Police Station Shahdadkot was registered by complainant Naukar Ali Brohi but accused Inspector Arbab Ali Soomro, S.H.O. Police Station Warah shown the arrest of accused Lalu alias Lal Bux Brohi in ante-date prior to date of murder case of deceased Magsi son of Naukar Ali Brohi and challaned him under section 109, Cr.P.C. in the Court of Mukhtiarkar Warah. Gulsher Rind with the connivance of Mukhtiarkar got convicted accused Lalu alias Lal Bux Brohi in Police Karwai No.16 of 1599, Policf; Station Warah under section 109, Cr.P.C.

4. During the course of enquiry of Complaint No.98 of 2001 of ACE, Larkana it was established that accused Lalu alias Lal Bux Brohi was nominated accused of murder case Crime No.141 of 1999 of Police Station Shahdadkot registered on 23-8-1999 by S.-I.P. Muhammad Rafique of Police Station Shahdadkot. Inspector Arbab Ali Soomro, S.H.O., Police Station Warah who was originally of Shahdadkot Town was S.H.O., Police Station Warah and he on 18-8-1999 shown the arrest of accused Lalu alias Lal Bux Brohi son of Jan Muhammad Brohi, resident of Shahdadkot Town from the Bazar of Warah Town at 13-45 hours being a suspect. Inspector Arbab Ali Soomro made such Entry No. 15 at 14-20 hours dated 18-8-1999 in the Roznamcha of P.W. Warah and prepared Karwai No.16 of 1999 under section 109, Cr.P.C. against accused Lal Bux Brohi and sent him to Mukhtiarkar, Warah but due to non-availability of Mukhtiarkar, Warah the accused was brought back to Police Station Warah vide Entry No.17 dated 18-8-1999 at 14-45 hours of Roznamcha of Police Station Warah. Again Inspector, Arbab Ali Soomro on 19-8-1999 shown the arrest of accused Lal alias Lal Bux from Warah Bazar under section 55, Cr.P.C. as per Entry No.5 at 14-00 hours dated 19-8-1999 and again prepared Karwai No.16 of 1999 under section 109/55, Cr.P.C. and sent the accused to Mukhtiarkar Warah Gulsher Rind for trial through H.C./265 Faiz Ahmad of Police Station Warah and such Entry No.6 dated 19-8-1999 at 14-05 hours was made in the Roznamcha of Police Station Warah. Though the accused was shown arrested already on 18-9-1999 and his Mashirnama of arrest was prepared on 18-8-1999 Mr. Gulsher Rind, Mukhtiarkar, Warah, on the same date i.e. 19-8-1999 shown completed all the formalities and sentenced the accused Lalu alias Lal Bux Brohi under section 109, Cr.P.C. for six months and issued letter to Superintendent, District Jail, Larkana for the transfer of accused Lalu alias Lal Bux Brohi on the same date i.e. 19-8-1999, but the accused Lalu alias Lal Bux Brohi was received at District Central Jail, Larkana on 28-8-1999 as intimated by Superintendent of District Jail, Larkana under his No.JB/7697 dated 19-8-2001. Further the perusal of lock-up register sub jail Warah shows that the name of accused Lal Bux son of Haji Jan Muhammad Brohi is shown at its Serial No.58 by changing its date 20-8-1999 into 19-8-1999 whereas serial number of lock-up register Sub-Jail Warah, Serial Nos.55, 56 and 57 are shown entered on 20-8-1999 and also Serial No.59 of the same lock-up register is also shown entered on 20-8-1999 as such the name of accused Lalu alias Lal Bux Brohi was falsely and fraudulently entered in the lock-up Register of Sub-Jail Warah by making forgery of the date 19-8-1999. As such false record of Police Station Warah and Sub-Jail Warah was prepared by the accused persons in order to cause disappearance of evidence of murder case Crime No.141 of 1999 of Police Station Shahdadkot and framed incorrect record with the intention to save accused Lalu alias Lal Bux Brohi from punishment of murder case of deceased Magsi Brohi.

5. Accused Abdul Jabbar Bijarani was S.H.O., Police Station Shahdadkot on 23-8-1999 and he took over the investigation of case Crime No.141 of Police Station Shahdadkot from his S.-I. P. Muhammad Rafique Rind but did not arrest accused Lalu alias Lal Bux Brohi and make him facility to arrange his defence in murder case though the other accused persons of case Crime No.141 of 1999 of Police Station Shahdadkot namely Rasool Bux and Akbar Brohi were also arrested by him.

6. As such the accused persons intentionally and wantonly with a joint conspiracy has framed false record and causing disappearance of evidence of a murder case and to save accused Lalu alias Lal Bux Brohi from punishment of murder case.

7. The offence so committed falls under sections 201, 218, 477-A, 34, P.P.C. read with section 5(2), Act-II of 1947."

8. Learned Advocate for the applicant has stated that the competent authority had not granted approval to hold preliminary enquiry as required under rule 8 of Sindh Enquiries and Anti-Corruption Rules, 1993; and that criminal case was registered without approval of competent authority.

9. On the other hand learned Assistant A.-G. has stated, that an enquiry was conducted against Inspector Abdul Jabbar and S.H.O. Arbab Ali under the approval of competent authority vide Letter No.DD/ACE/R/4355, dated 21-7-2001; that .during the enquiry, all the material collected by the Enquiry Officer, was placed before the competent authority, who by Letter No.DD/ACE/RI-7045-46, dated 21-11-2002 directed the Circle Officer Anti-Corruption Establishment, Larkana to register the case against the said Arbab Ali and Abdul Jabbar alongwith Mukhtiarkar Gul Sher Rind (present applicant), as such the F.I.R. was lodged in accordance with law. He has further stated that F.I.R. cannot be quashed at this stage as it discloses a cognizable offence. He has relied upon a case of Ahmad Saeed v. The State reported in 1996 SCMR 186.

10. In reply to the arguments, learned Advocate for the applicant has stated that the Court is competent to quash the F.I.R. and relied upon case of Bashir Ahmed v. State reported in 2002 MLD page 746 and Mairaj Khan v. Gul Ahmad reported in 2000 SCMR 122.

11. I have given due consideration to the arguments and find that under rule 8 of Sindh Enquiries and Anti-Corruption Rules, 1993, no preliminary enquiry can be initiated by an officer of Anti-Corruption Establishment against the accused public servant without prior approval of the competent authority. Under rule 11, a criminal case can only be registered against a public servant with the approval of competent authority. Under rule 2(1)(g), the competent authority means the competent authority as specified under the schedule to accord permission either to hold enquiry or to order registration of criminal case or to drop the case after investigation or decide departmental action under these rules. The applicant is Mukhtiarkar and is a public servant in Basic Pay Scale No.16 therefore, according to schedule appended to the above mentioned rules Director Anti-Corruption not below Basic Pay Scale 19 would tie the competent authority.

12. In the present case the police papers reveal that on 21-7-2002, the Chairman, A.C.C. II which is the Divisional Anti -Corruption Committee as mentioned in rule 3 accorded approval for holding enquiry in respect of public servants viz. Inspector Abdul Jabbar and S.H.O. Arbab Ali. It appears that after holding such enquiry papers were placed before. the A.C.C. It for consideration where after going through the papers a decision was taken that case may be registered not only against Inspector Arbab Ali and Abdul Jabbar but also against Mukhtiarkar Gul Sher the present applicant. Such approval was granted which was communicated by Deputy Director, Anti-Corruption Establishment, Larkana vide his Letter No.DD/ACE/R -7045-46, dated 21-11-2002 to Circle Officer, A.C.E., Larkana for registration of F.I.R. against the above named persons, In pursuance of the said letter and approval the F.I.R. was registered against the applicant. It is one of the function of the competent authority either to hold an enquiry or to register a criminal case. The preliminary enquiry and the criminal case has been registered under proper approval of competent authority as such the F.I.R. against the applicant has been properly registered in accordance with law.

13. A perusal of F.I.R. shows that it discloses an offence which is cognizable by the Anti-Corruption Police as such they have powers to investigate the same. It is well -settled principle of law that investigation cannot be interfered with by the judicial forum and F.I.R. cannot be quashed if cognizable offence is made out from the facts mentioned in the F.I.R.

14. As regards the quashment of F.I.R. under section 561-A, Cr.P.C., the said question was examined by the Honourable Supreme Court of Pakistan in the case of Ahmad Saeed (supra) in paragraph 3 it has been observed as under:--

15. "We have carefully attended to the arguments raised by the learned counsel for the parties. We feel persuaded to agree with the learned counsel for the petitioner that the High Court, in exercise of its powers under section 561-A, Cr.P.C., was not competent to quash the F.I.R. We find that the investigation was not complete and no challan had been submitted in the Court when petition for quashment of the F.I.R. was filed in the High Court. The High Court, under its inherent powers, may quash judicial proceedings, if it was of the view that the proceedings amount to an abuse of the process of Court. Since no proceedings were pending in the Court by the time the quashment petition was filed in the High Court, the question of preventing the abuse of process of any Court did not arise in this case. A plain reading of section 561-A, Cr.P.C. shows that nothing in the Criminal Procedure Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under the Criminal Procedure Code, or to prevent abuse of process of any Court or otherwise to secure the ends of justice. In the instant case neither any order was made by any Court nor any process was issued by any Court. So, the question of making such orders as may be necessary to give effect to any order under the Criminal Procedure Code or to prevent abuse of process of any Court does not arise. We are afraid that the High Court under section 561-A, Cr.P.C. could not quash F.I.R. on the ground of mala fide or on the ground that F.I.R. discloses civil liability. Since we have held that the High Court had no powers to quash the F.I.R. under section 561-A, Cr.P.C., we need not examine correctness of the reason given by it for quashing F.I.R."

16. From the above dictum, it is clear that the F.I.R. cannot be quashed under section 561-A, Cr.P.C. when no challan has been submitted before the Court. This decision was given by a Bench comprising of three Honourable Judges. A contrary view was taken in a case of Mairaj Khan (supra), relied upon by the Advocate for the applicant, but this decision was given by two Honourable Judges of the Honourable Supreme Court of Pakistan. I have gone through the judgment delivered in a case of Bashir Ahmad (supra) decided by a Single Bench of this Court, in which the case of Mairaj Khan (supra) and case of Mian Muneer Ahmad v. State reported in 1985 SCMR 257 were relied upon and then the F.I.R. was quashed on the ground that the local police had no jurisdiction to investigate the case for offence punishable under Act II of 1947 after registering the F.I.R. at the police station against a public servant.

17. I have gone through the case of Mian Muneer Ahmad (supra) and find that question before the Honourable Supreme Court was that proceedings before a lower Court may be quashed under section 561-A, Cr.P.C. The question of quashment of F.I.R. was not raised before the said Court.

18. From the above position, it is clear that rule laid down in Ahmad Saeed (supra) (decided by three Honourable Judges) would prevail over authority of case of Mairaj Khan (supra) (decided by two Honourable Judges) being the decision of larger bench.

19. It is further pointed out that a similar question was considered by Privy Council in a case Emperor v. Nazir Ahmad reported in AIR 1945 Privy Council page 18 and at page 21, it has been observed as under:--

20. "In their Lordships' opinion however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. Just as it is essential that every one accused of a crime should have free access to a Court of Justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is statutory right of the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under section 491, C. P. C., to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then. It has sometimes been thought that section 561-A has given increased powers to the Court which it did not possess before that section was enacted. But this is not so. The section gives no new powers, it only provides that those which the Court already inherently possess shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code, and that no inherent power had survived the passing of that Act. No doubt, if no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation and for this reason Newsam, J. may well have decided rightly in AIR 1938 Mad.

129. But that is not this case."

21. From the above decision, it is clear that the Court can interfere if cognizable offence or no offence at all is disclosed in the F.I.R. The above authority has also been relied upon by the Honourable Supreme Court in a case of Shahnaz Begum v. Honourable Judges of the High Court of Sindh and Balochistan reported in PLD 1971 SC 677. The said decision was delivered by five Honourable Judges of the Supreme Court. Both the above decisions were further relied upon in the case of Imtiaz Ahmad v. Government of Pakistan reported in 1994 SCMR 2142.

22. Keeping in view the above principle of law, I have examined the F.I.R. and find that a cognizable offence has been disclosed in it which is to be investigated by the Anti Corruption Police. No challan has been submitted before the Court as the; investigation has not been completed, so far.

23. Following the above cases, it is held that, in the circumstances of the present case, the F.I.R. cannot be quashed under section 561-A, Cr.P.C. The application is dismissed.

24. N.H.Q./G-148/K Petition dismissed.