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Writ Petition No. 703 of 1956, decided on 27th November 1957, under Article 170 of the Constitution.

S. 3‑"Matters concerning the Central and Provincial Governments"‑Defalcation or misappropriation of District Board Funds covered by phrase "matters concerning Provincial Government"‑Special Police Establishment has jurisdiction to investigate such offences.

Held, that defalcation or misappropriation of District Board Funds comes within the phrase "matters concerning the Provincial Government" occurring in section 3 of Pakistan Special Police Establishment Ordinance (VIII of 1948), and so the Special Police Establishment has jurisdiction to investi gate an offence involving misappropriation of District Board funds.

Examination of the various provisions of the District Boards Act (XX of 1883) showed that the Board's affairs are very much the concern of the Provincial Government.

There is a difference in meaning between the two phrases "matters concerning the Provincial Government" and "matters of the Provincial Government".

S. 2‑-Does not empower Central Government to stop an investigation conducted by Special Police Establishment.

Section 2 means that the members of the Special Police Establishment would be entitled to exercise' certain powers and enjoy certain privileges or perform certain duties, subject to any general or special orders passed by the Central Government, in that behalf. This does not appear to connote a power to stop an investigation, though the powers exercisable by a particular officer may either be taken away or varied by' orders of the Central Government.

Sardar Muhammad Iqbal for Petitioner.

S. A. Mahmood, Additional Advocate‑General for Govern ment of West Pakistan and State Mian Maqbool Ahmad P. P. Special Police Establishment, Lahore for Respondents 2 and .3.

Dates of hearing: 24th October 1957 and 27th November 1957.

This order will dispose of a petition for an appropriate writ, presented under Article 170 of the Constitution by Shah Muhammad Khan. The circumstances giving rise to the petition are as follows.

Shah Muhammad Khan and four other persons submitted a complaint to the Inspector General, Special Police Establish ment, Karachi, making certain allegations of misappropriation and corruption, against the President of the Municipal Committee, Multan, the president of the District Board, Multan, and the President of the Market Committee; Multan, and some other persons. Sayyed Ali Jaffar Zaidi, D. S. P., S. P. E., Sukkur, was deputed to investigate the matter. He registered a case under section 5 of Act II of 1947, on the 2nd of October 1956 and commenced investigation. The investi gating officer arrested Jamal Din, Overseer, Khalil Ahmad, Overseer, Abdul Karim, Contractor, and Khuda Bakhsh, Accounts Clerk of the District Board, Multan, in that con nection. It is stated that he also wanted to effect the arrest of Mr. Rehmat Hussain. Shah Gilani, Chairman, Mr. Nisar Ahmad, District Engineer, and Muhammad Ibrahim, Overseer,. District Board, Multan, but the Central Government intervened on the 22nd of November 1956 and suspended the investigation. It was ordered that papers of the case should be handed over to the Provincial Police for such action as they may deem fit. The order of the Central Government was based ostensibly on the ground that the Special Police Establishment had no jurisdiction in the matter. This view of the law was contested by the petitioner, and it was contended that the Special Police Establishment had full jurisdiction to go on with the investigation which had been stopped wrongfully illegally and mala fide. It was prayed that the Federation of Pakistan and the Inspector General, Special Police Establishment, Karachi, should be restrained from interfering with the investigation being carried on by respon dent No. 3;" who may be directed to complete the said investigation.

On behalf of the Special Police Establishment, written statement was submitted through Mian Maqbool Ahmad, Advocate, setting out that the case was under investigation when the Ministry of Interior, Government of Pakistan, Karachi, brought it to the notice of the Inspector General, Special Police Establishment, that his establishment had no jurisdiction to investigate matters concerning affairs of Local Bodies. The Inspector‑General himself contested this view of the law, but after the Law Officer of the Central Govern ment had been consulted, he accepted that view. No written statement on behalf of respondent No. 1, the Government of Pakistan, was filed.

We have not had the advantage of hearing the learned Attorney‑General of Pakistan in spite of the fact that the Central Government had been duly apprised of the date of the hearing. Mian Maqbool Ahmad has told us that on the 21st of October 1957, he received a telegram from the Central Government intimating that the learned Attorney‑General would be attending this Court. We regret to note, however, that no such appearance was put in before us, on behalf of the Central Government. As we thought that the Provincial Government may be interested in the matter, we gave notice to the Advocate‑General, West Pakistan, to appear and put forward his Government's point of view. Mr. S. A. Mahmood has, therefore, been heard on behalf of the West Pakistan Government.

The Special Police Establishment of the Central Govern ment was set up under Ordinance VIII of 1948. Section 2 thereof provides for the constitution and powers of the Special Police Establishment for the investigation of offences notified in section 3 of the Ordinance. Subsection (2) of section 2 declares that subject to any orders which the Central Government may make in this behalf, members of the said police establishment shall have, throughout the Provinces of Pakistan, in relation to the investigation of such offences and arrest of persons concerned in such offences, all the powers, duties, privileges and liabilities which the police officers of a Province have, in connection with the investigation of offences. There is a proviso to the effect that unless other wise directed by the Central Government by a general or special order, where such offences or persons concerned in such offences are connected with matters concerning the Central Government or the Special Police Establishment has already started investigation of or has been ordered by the Central Government to investigate any such offence, the said police establishment shall have exclusive jurisdiction and powers of investigation and arrest. Subsection (3) of section 2 indicates that any member of the said police establishment of or above the rank of Sub‑Inspector may, subject to any orders which the Central Government may make in this behalf, exercise in the Provinces of Pakistan any of the powers of the officer‑in‑charge of a police station in the area in which he is for the time being, and when so exercising such powers shall, subject to any such orders as aforesaid, be deemed to be an officer‑in‑charge of a police station discharging the functions of such an officer within the limits of his station.

Section 3 of the Ordinance empowers the Central Government, by notification in the official gazette, to specify the offences or classes of offences committed in connection with matters concerning the Central and Provincial Govern ments, which are to be investigated by the Pakistan Special Police Establishment. The expression "in connection with the matters concerning the Central and Provincial Govern ments" calls for interpretation in this case. It is contended on behalf of the petitioner that offences of the notified type committed in connection with matters relating to District Board funds, would fall within the expression "matters concerning the Provincial Government" and would thus be Covered by the section. On the contrary, the position taken up by Mr. S. A. Mahmood before us is that these words are susceptible of a restricted meaning, namely, that the offences should be such as are committed in connection with the affairs of the Provincial Government and that Local Bodies' affairs are excluded from its purview.

The preamble to the Ordinance also refers to the necessity of constituting a special police force for the investigation of certain offences committed in connection with matters concerning the Central and Provincial Governments. These words apparently provide the keynote of the Ordinance and on their proper construction depends the fate of the present petition. These words are very wide and prima facie it appears to us that they are inconsistent with the restricted meaning contended for by Mr. S. A. Mahmood. We consider that the argument raised by Mr. Muhammad Iqbal on behalf of the petitioner that defalcation or misappropriation of funds of a District Board or other local authority, a major part of which may have been contributed by Government, is eminently a matter concerning the Provincial Government and would, therefore, be covered by the Ordinance has considerable force. It is significant that the expression is "matters concerning the Provincial Government" and not "matters on affairs of the Provincial Government". The consideration of the pro visions of the District Boards Act would fortify the inference that the question of misappropriation of funds belonging to the District Board would be a matter of vital concern to the Provincial Government. Under section 30 of the District Boards Act, 1883, a District Board fund may impose any tax which the Provincial Legislature has power to impose under the Government of India Act, 1935, but only with the previous sanction of the Provincial Government, provided that the Provincial Government may empower a. District Board to impose without such sanction one or more of such taxes subject to such limitations as it may prescribe. The taxation power of the Board is, therefore, subject to the control of the Government. Section 34 of the Act provides that additional funds may be provided by the Government for disbursement by the Board when the control and administra tion of any matter is by or under this Act, transferred to a District Board and at the time of the transfer, the cost of that control and administration was defrayed from Provincial revenue. The "District fund", of which section 35 of that Act talks, includes, all sums contributed to the fund, by the Central or any Provincial Government and the proceeds of all sources of income which the Provincial Government may order to be placed at the disposal of the District Board. This "District fund" undoubtedly vests in the District Board to be spent on various functions of the Board under the Act. Section 39 of the Act requires that the estimate of the income and expenditure of the Board for the whole financial year, shall be sent to the Deputy Commissioner who may approve or disapprove it. In case of objections raised by the Deputy Commissioner, if the Board does not agree to modify the estimate, the matter has to be decided on a reference to the Commissioner. Under section 40 of the Act, the accounts the District Board have to be examined and audited by such persons as the Provincial Government may appoint in that behalf. Sections 44, 45, 47, 48, 49, 50 and 51 give extensive power of control to Government and its officers over the Board. It will thus be apparent that the Board's affairs are very much the concern of the Provincial Government and a vigilant eye has to be kept on its funds on behalf of the Government. It is well known that the Government makes considerable grants to Local Bodies, like District Boards, for the purposes of construction of roads or provision of schools, hospitals, etc. Section 19 of the District Boards Act makes every servant or officer of a District Board a public servant, within the meanings of section 21 of the P. P. C., and it is noteworthy that section 2 of Act III of 1947 refers to public servants

Having regard to the generality of the words used in the Ordinance, we have reached the conclusion that offences, relating to which investigation was taken in hand by the Special Police Establishment in the present case; concerning, as they did, the finances of the District Board, were offences "in connection with matters concerning the Provincial Government," and, therefore, the Special Police Establishment has jurisdiction to conduct the relevant investigation.

Mr. S. A. Mahmood drew our attention to the provisions of the Central General Clauses Act and in particular to the definition of "Provincial Government" contained in section 3(43‑a) thereof. He pointed out that "Local authority" was separately defined in section 3 (28) of that Act and drew the inference that "the Provincial Government" excluded a local authority. With this proposition we have no quarrel. The question here is not whether a local authority is included within the term "Provincial Government" or not. The point for decision is whether a matter which concerns the defalca tion or misappropriation of the District Board Funds is a matter concerning the Provincial Government or, not. We have no doubt that the answer should be in the affirmative, By way of contrast, we might refer to Article 218 of the Constitution wherein "services of Pakistan" is defined as meaning any service or post in connection with the affairs of the Federation or of a ‑Province. The connecting word here is "of" and not the word concerning", as we find in the Ordinance.

Mr. S. A. Mahmood suggested that under section 2 of the Ordinance, the Central Government would have the power to stop any investigation. We are unable to subscribe to that view. The section apparently means that the members of the Special Police Establishment would be entitled to exercise certain powers and enjoy certain privileges or perform certain duties subject to any general or special orders passed by the Central Government, in that behalf. This does no appear to connote a power to stop an investigation, though the powers exercisable by a particular officer may either be taken away or Varied by orders of the Central Government.

As a result of the above discussion, we consider that the petition succeeds. We hereby allow it and issue a direction to the Central Government and to the Provincial Government that they should not interfere with the investigation of the offences in question by the Special Police Establishment. We further direct that respondent No. 3 should proceed with the investigation and conclude it in accordance with law. There will be no order as to costs.

A. H. Petition accepted.

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