Karim Bakhsh Versus State

Order

Muhammad Amjad Rafiq, J .--- Through this petition, order dated 25.04.2024 was assailed, whereby, learned Special Judge Anti-Corruption Court, Dera Ghazi Khan has partially agreed to the cancellation report submitted by the Anti-Corruption Establishment.

2. Being deprived of his right to inherited property, petitioner reported the criminal deception and cheating through lodging of FIR bearing No.11/2020 dated 19.03.2020 registered under Sections 420/468/471 Pakistan Penal Code 1860 (P.P.C) and Section 5 of the Prevention of Corruption Act 1947, at ACE Headquarter, District Dera Ghazi Khan. The case was investigated and recommended for cancellation, report whereof was attended by the learned Special Judge Anti-Corruption Court, who without agreeing or disagreeing with it proceeded to order stay of criminal proceedings till the decision of civil litigation by virtue of order dated 18.06.2021. Such order was set aside by this Court vide order dated 15.12.2023 passed in Crl. Misc. No. 1583-Q of 2023, and learned Special Judge was directed to decide the case cancellation report afresh on merits. Now learned Special Judge through order dated 25.04.2024 (impugned herein) partly disagreed with the cancellation report for accused namely Allah Bakhsh, Abdul Aziz and Abdul Hameed, and agreed for the rest of accused (revenue officials). In this criminal revision, due notices were given to all the respondents for successive dates, but respondents Nos. 2 to 5 did not enter appearance, whereas it was reported that respondent No.7 (Abdul Aziz) has died. However, representation of respondents Nos. 06, 08 and 09 was available through their counsel. Even otherwise hearing of parties in revisional proceedings is optional as per section 440 of Cr.P.C., therefore, this petition was heard in the presence of available parties.

3. Learned counsel for the petitioner contends that there is no concept of partial quashing of FIR or partial agreement with the cancellation report. Further states that earlier by virtue of order dated 15.12.2023 in Criminal Miscellaneous No.1583-Q/2023, this Court had directed the Special Judge Anti-Corruption Court, Dera Ghazi Khan to decide the cancellation report strictly in accordance with law but now another order dated 25.04.2024 impugned herein has been passed against the law.

4. Learned counsel for respondents Nos.06, 08 and 9 has opposed this petition while stating that when no sufficient material was available against revenue officials, learned Special Judge had no other option except to give a partial agreement to such report, however, claimed that sufficient material was also not available against the present respondents, yet they are facing the trial and matter is in recording of evidence.

5. Heard. Record perused.

6. In ordinary regime of law Police can prepare the case cancellation report only on three recognized grounds mentioned in Rule 24.7 of the Police Rules 1934, which are as under;

When information or other intelligence is recorded under section 154, Criminal Procedure Code, and, after investigation, is found to be maliciously false or false owing to mistake of law or fact or to be non-cognizable or matter for a civil suit ..

(Emphasis supplied)

Under Rule 14 of the Punjab Anti-Corruption Establishment Rules, 2014 (the Rules 2014), the Establishment shall, as far as may be, follow the provisions of the Punjab Police Rules for purposes of inquiry and investigation of offences specified in the Schedule; but the Rules 2014 itself suggest a deviation from above Rule 24.7 of the Police Rules 1934 and introduce different grounds for dropping of inquiry as well as dropping of case. Rule 6(6) of the Rules 2014 says that on completion of inquiry;

1. if the allegations are not substantiated, the enquiry shall be dropped;

2. if sufficient evidence is not available for registration of a case but there is reasonable evidence on record for initiation of disciplinary action against the public servant, the authority shall refer the matter along with the complaint and complete record of enquiry and findings to the concerned departmental authority for disciplinary action under the law for the time being in force.

Similarly, Rule-10 (1) of the Rules 2014 says that when case stood registered, and on completion of investigation;

(a) if the allegations are not established, the case shall be dropped and intimation to the effect shall be sent to the concerned administrative department and the public servant; and

(b) if after investigation, it is found that judicial action is not warranted but reasonable evidence is available to initiate disciplinary action against the public servant, the Establishment shall, after the confirmation of the cancellation report by the concerned court, refer the matter to the competent authority for initiation of such action in accordance with law for the time being in force.

Thus, unlike ordinary regime of law, where FIR is required to be registered if the information or intelligence discloses commission of a cognizable offence, Anti-Corruption establishment shall not register the case if the allegations are not substantiated or sufficient evidence is not available . In ordinary regime of law case is dropped/cancelled on three recognized grounds mentioned in Rule 24.7 of the Police Rules 1934 as cited above but Anti-Corruption Establishment shall drop the case either on the ground that the allegations are not established or judicial action is not warranted but reasonable evidence is available to initiate disciplinary action against the public servant .

7. Anti-Corruption Establishment was primarily established for the investigation of offences set forth in the Schedule, and for holding preliminary inquiries for determining whether such offence shall be investigated or departmental inquiries into the conduct of any public servant concerned in such offences shall be held, as mentioned in Section-3 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961, but private individuals who are in league with the public servants in commission of such offences can also be inquired and investigated by the Anti-Corruption Establishment, as reflected from the updated and amended Schedule of such Ordinance ^[1] , which is as under;

(a) Offences punishable under sections 161 to 169, 217 and 218 of the Pakistan Penal Code, and as attempts, abetments and conspiracies in relation thereto or connected therewith.

(b) Offences punishable under sections 186, 188, 189, 201 332, 353, 379, to 382, 403 to 409, 411 to 420, 465 to 468, 471 and 477-A of the Pakistan Penal Code, and as attempts, abetments and conspiracies in relation thereto or connected therewith, when committed by any public servant as such, or by any person acting jointly with or abetting or attempting to abet or acting in conspiracy with any public servant as such; and

(c) Offences punishable under the Prevention of Corruption Act, 1947, and as attempts, abetments and conspiracies in relation thereto or connected therewith.

(Emphasis supplied)

Paragraph (a) specifically deals with offences relating to public servants only, therefore, abetment and conspiracies by private individuals get them into the jurisdiction of Establishment. Paragraph (b) contains offences which can be committed by both public servant as well as the private individuals; therefore, apart from abetment and conspiracies it was specifically added that person acting jointly with or abetting or attempting to abet or acting in conspiracy with any public servant as such, shall also be subject to the jurisdiction of the Establishment. Whereas paragraph (c) though deals with abetments and conspiracies of offences in relation thereto or connected with offences under the Prevention of Corruption Act, 1947, yet Section-2 of said Act makes it clearer when it says that Act shall apply to all citizens of Pakistan and persons in the service of Government wherever they may be .

8. Thus, Anti-Corruption Establishment after registration of FIR, on investigation if found that allegations against public servants for commission of scheduled offences are not established, it shall drop the case and intimation to this effect shall be sent to the concerned administrative department and the public servant. Complainant then can move to the local police for further action against the private individuals because there remains no jurisdiction with Anti-Corruption Establishment to investigate the private individuals any more, and it is like situation when an offence is not committed within the jurisdiction of a Police Station, it is cancelled by the order of Superintendent of Police in the district without the order of a Magistrate as mentioned in Rule 25.7 of the Police Rules, 1934 as under;

25.7 Cancellation of a case in one police station and registration in another. When a case is transferred from one police station to another, the offence registered in the original police station shall be cancelled by the Superintendent and a first information report shall be submitted from the police station in the jurisdiction of which the case occurred.

Under Rule-14 of the Rules 2014, the Establishment is bound by law to follow the provisions of the Punjab Police Rules, therefore, in such situation, FIR shall be cancelled by the order of Director General Anti-Corruption Establishment without seeking its confirmation from the Special Judge Anti-Corruption Court which is the mandate of Rule 10(1)(a) of the Rules 2014. However, if the Anti-Corruption Establishment after investigation, found that judicial action is not warranted but reasonable evidence is available to initiate disciplinary action against the public servant, then Establishment shall, after the confirmation of the cancellation report by the concerned Court, refer the matter to the competent authority for initiation of such action in accordance with law for the time being in force as per mandate of Rule-10(1)(b) of the Rules 2014. When the case is dropped/cancelled by the order of Director General or by the Court, the complainant can move to the local police for registration of case against the private individuals or can file private complaint before Anti-Corruption Court on the ground that sufficient evidence was also available against the public servants which was not considered by the Anti-Corruption Establishment, and in such eventuality, Special Judge Anti-Corruption Court if entertains the complaint can direct for investigation as mentioned in Section 6, Subsection (5) of the Criminal Law (Amendment) Act, 1958.

9. It is observed that in this case, cancellation report clearly finds mentioned that on 28.07.2020, Abdul Majeed Inspector after obtaining legal opinion recommended the case to be dropped, and proposed departmental action against the revenue officials (Public servants). Thus, under Rule 10(1)(b) of the Rules 2014, the only course available to the learned Special Judge, Anti-Corruption Court was either to confirm the cancellation report, or disagree to it in toto if considered that the allegations are established against public servants as well. There is no concept of trial of private individuals by the Special Judge Anti-Corruption Court without framing charge against the public servants, because it is like trying the abettors, instigators, conspirators, facilitators while exonerating the principal offender which is against the very spirit of criminal prosecution.

10. In the light of above legal position, it is held that order impugned dated 25.04.2024 passed by the learned Special Judge, Anti-Corruption Court, Dera Ghazi Khan is against the cannons of law which cannot be given sanction of this Court. Consequently, this petition is allowed and order impugned is set aside. Learned Special Judge, Anti-Corruption Court is directed to decide the case cancellation report afresh in accordance with law.

MH/K-15/L Petition allowed.

1. Schedule was amended by the West Pakistan Anti-Corruption Establishment (Amendment) Ordinance, 1970 (W. P. Ord. No. III of 1970) which stood validated through the Validation of Laws Act, 1975 as figured at entry No. 24.