A.H. MASOOD Versus PROVINCE OF THE, PUNJAB

This Constitutional petition is directed against registration of F.I.R. No.4 dated 18-2-1970 under section 161 P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947. Admittedly by both the learned counsel, the challan has been filed before the Special Judge Anti-Corruption, Gujranwala and on summoning the petitioner, present writ petition was fixed.

2. Facts relevant for the disposal of this writ petition are that petitioner was Director in the Office of Basic Democracies, Lahore and on 18-2-1970, a raiding party was constituted consisting of Muhammad Aslam, Magistrate alongwith Muhammad Akram, S.1. Anti-Corruption Department and a sum of Rs.750 was recovered from the person of one Sultan Sikandar S.D.O. in the Department of Basic Democracies. The aforementioned amount was recovered by the Raiding Magistrate. According to both the learned counsel, Sultan Sikandar filed written statement admitting the recovery of amount and further stated that the amount in question was received for payment to the petitioner, A.H. Masood ' for showing favour to some other officials in connection with their promotion. On the basis of this statement, aforementioned F.I.R. was registered and challan submitted accordingly. It is stated by Mubashar Hussain, Assistant Director, Anti-Corruption, present in the Court, that the present petitioner was not arrested because tainted money was not recovered from him.

3. Learned counsel for petitioner has raised three-fold points in support of his plea. Firstly; that registration of the F.I.R. against petitioner was without lawful authority as that required prior permission of Anti-Corruption Committee consisting of Chairman and 3 members, in view of Notification dated 24-5-1969 issued by the Governor of West Pakistan, secondly; that the pivotal witnesses namely Sultan Sikandar and Muhammad Akram S.I. have died and there is no likelihood of the case being succeeded and thirdly; an affidavit has been placed on the record today, which has been seen by the learned counsel for respondents, to show that the date of birth of petitioner is 21-1-1918 and he has already been retired in 1976 and he is a heart patient and cannot undergo the agony of the trial particularly; when the bribe money has not been recovered from him.

4, Mr. Pervaiz Anayat Malik, learned counsel for respondents, has vehemently controverted the learned counsel for petitioner by pleading that notification dated 24-5-1969 at page 22 of the file was valid and legal but no prior permission for the registration of the case was required from the Anti-Corruption Committee No 1. In support of his plea, he relies upon the first proviso of sub-Rule (2) of Rule 6 of the West Pakistan Anti -Corruption Establishment Ordinance, 1961, which is reproduced as hereunder:--

6. Investigation and enquiries against Public Servants:--

(1) Subject to the provisions of sub-Rules (2) and (3) and Rule 5, the Director or Superintendent or any other officer not below the rank of Sub-Inspector of Police authorized by the Director or Superintendent in that behalf, may within their respective jurisdiction and either suo motu, or on an application made by any person or on a reference received from Government, the Council, the Committee concerned or a Head of Department, initiate an enquiry or investigation against any Government servant or an employee of an autonomous body established under Statute and under the control of Government to whom the provisions of the Ordinance are applicable.

(2) No enquiry or investigation under the Ordinance shall be taken up against a public servant holding a gazetted post or an equivalent post without the prior approval of the Council or the appropriate committee nor shall any such public servant be arrested for any offence specified in the Schedule to the Ordinance or prosecuted in a Court for any such offence without the prior approval of the Chief Secretary:--

Provided that such prior approval shall not be necessary for the arrest of an officer caught red-handed committing any offence specified in the Schedule to the Ordinance."

5. Learned counsel has further submitted that in any case, permission was obtained from the Anti-Corruption Committee and reliance is placed on a photostat copy of letter No.DAC-CR-(65)-70/15, dated 1-1-1971 produced today in the Court wherein it was stated in para. 2 that this case was put up to the Anti-Corruption Committee No. 1 on 21-12-1970. The Committee approved judicial action against the officers. You are requested to send necessary documents for obtaining sanction for prosecution of the accused officers to this Directorate immediately. This letter was issued by the Directorate of Anti -Corruption Establishment, Lahore to the Superintendent of Police Anti- Corruption Establishment, Lahore. It is contended by the learned counsel for respondents that in view of the aforementioned sanction, the plea of the learned counsel to the contrary loses all significance.

6. As to the other contention, learned counsel for respondents submitted that the proper course for the petitioner was to file an application under section 265-A before the trial Court and the present writ petition is liable to be dismissed.

7. I have heard both the learned counsel at length and am of the opinion that the reliance on the aforementioned provision is of no avail in the case of petitioner as according to the proviso, it is amply demonstrated that the approval shall not be necessary for the arrest of an officer caught red-handed committing any offence specified in the Schedule to the Ordinance. This proviso, therefore, is applicable only in the case of arrest and Mr. Mubashar Hussain, Assistant Director rightly pointed out that petitioner was not arrested because he was not caught red-handed committing any offence as the bribe money was recovered from the 'person of some one else. Therefore, the question still remains as to whether any approval was necessary from Anti -Corruption Committee No.l before registration of case against the petitioner. The notification dated 24-5-1969 is reproduced as under:--

"In exercise of the powers of the Governor of West Pakistan conferred on him by the Chief Martial Law Administrator, the Administrator of Martial Law Zone "A" is pleased to order that the Provincial Anti -Corruption Council, the Provincial Anti-Corruption Committee and all the Divisional, and the District Anti-Corruption Committee in West Pakistan as at present constituted shall stand abolished with immediate effect. He is further pleased to constitute the following Committees for the scrutiny of the cases worked out by the Anti -Corruption Establishment:--

ANTI-CORRUPTION COMMITTEE NO.1

This Committee shall consist of the following officers:--

(1) Chief Secretary to Government of Chairman

West Pakistan.

(2) Brigadier (CA.) Member

(3) Secretary to the Administrative Co-opted Member (to be

Department concerned invited at the meetings of the Committee when final decisions are to be taken on cases/ inquiries completed by the Anti Corruption Establishment).

(4) Director, Anti-Corruption Estab- Member/Secretary lishment, West Pakistan.

The functions of the Committee will be as follows:--

(6). To permit registration of a case against Gazetted Officers.

(7) To decide whether a case should go to a Civil Court or to a Military Court or for departmental action or be referred to a Jirga.

8. As is stated above, the validity and legality of the notification is not questioned by the learned counsel for respondents and by plain reading of the same, permission of Anti-Corruption Committee No. 1 was to be required before registration of case against the petitioner admittedly a I A Gazetted Officer.

9. The plea of the learned counsel, that in any case, the permission was obtained in view of the aforesaid letter dated 1-1-1971, is not acceptable because one of the functions of the Committee as stated in para No.7 of the notification is to decide whether a case should go to a Civil Court or to a Military Court or for departmental action or be referred to a Jirga . The letter in question, on which reliance is placed by the learned counsel for respondents, states that the Committee approved judicial action against the officers , which clearly meant that the case was to be tried in a Court of law but subject to para. 6 of notification which envisages registration of case only after the approval of the Anti-Corruption Committee No.l. No other sanction or letter has been placed on the record to show that any approval was forthcoming from the Committee. In absence of such a legal requirement, registration of F.I.R. against the petitioner is manifestly without lawful authority and of no legal effect.

10. The other plea of learned counsel for petitioner, that pivotal witnesses have died and that the petitioner is an old man and heart patient and these grounds could also be considered for quashment of F.I.R., do not attract any serious consideration as the mandatory requirement, as discussed above, is lacking.

In view of above, the aforementioned F.I.R., in so far as it relates to the petitioner, is quashed and petition is accepted but without any order as to costs.

N.H.Q./A-526/L F.I.R. quashed.