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Writ Petition No. 4785 of 1986, decided on 17th June, 1987.

West Pakistan Anti‑Corruption Establishment Ordinance (XX of 1961)‑‑

‑‑‑Ss. 3, 4 & 6‑‑Punjab Anti‑Corruption Establishment Rules, 1985, R. 19(4)‑‑Director performing duties under S. 4 of Ordinance is subject to orders as Government may give from time to time‑ Government is empowered to frame Rules under the Ordinance‑‑Chief Executive of Province can call for records of any case or inquiry‑‑Rule 19(4) of the rules not ultra vires of S. 6 of the Ordinance‑‑Chief Minister being Chief Executive of Government is competent to transfer case investigated by Anti‑Corruption Establishment to Chief Minister's Inspection Team.

Masti Khan v. Sarfraz Hussain etc. Cr.Rev. No.426 of 1986

(unreported) distinguished.

Raja Mahmood Akhtar for Petitioner.

Khalil Ramday, A.‑G. Punjab for Respondents.

The petitioner, Muhammad Sharif has moved this constitutional petition against respondents Nos.l to 3 praying therein that the impugned order dated 15‑10‑1986 passed by the Chief Minister, Punjab, respondent No.l, may be declared without lawful authority and of no legal consequence whereby the investigation of a case was transferred from Anti‑Corruption Establishment to Chief Minister's Inspection Team.

2. Brief facts of the case, as mentioned by the petitioner in his petition are that in the year 1958 in village Deo Sial, Tehsil Chunian, District Kasur in lieu of the land left in India some land was allotted to him alongwith 150 other families. It is further mentioned that the land allotted to the aforesaid families came to 2641 Kanals and 8 Marlas. It is stated that the petitioners and others invested huge amount of money and labour in the development of the land in question. The petitioner and others have built their houses wherein he and others are living. It is next stated that the learned Collector of District Kasur reviewed mutation No.453 dated 18‑3‑1963. The grievance of the petitioner is that the order reviewing mutation No.453 was passed at the back of the petitioner and other allottees and they were never impleaded as parties by the learned Collector. It is stated that the order reviewing the aforesaid mutation was based on mala fides. It is submitted that the conduct of the learned Collector as well as that of the subordinate staff was wholly fraudulent and 'in violation of all rules of natural justice. The petitioner maintained that as a consequence of the application submitted by him and others a case under section 166/465/466/468/471/109 P.P.C. read with section 5 (2)/47 was registered against the Collector, Kasur on 28‑9‑1986 vide the copy of F.I.R. as Annexure 'A'. Accordingly the Assistant Director (Investigation) of the Anti‑Corruption Establishment started intensive investigation in the case. However, under the influence of the Collector an accused of the aforesaid case, the respondent No.l abruptly passed an order on 15‑10‑1986 transferring the investigation from the Assistant Director (Investigation) Anti‑Corruption Establishment to the Chief Minister's Inspection Team.

3. Learned counsel appearing on behalf of the petitioner submitted that respondent No.l possesses no jurisdiction whatsoever to transfer the investigation from one Agency to another Agency. Learned counsel maintained that this is the function of the police authorities under the provisions of Criminal Procedure Code, Police Act and the Police Rules made thereunder. Learned counsel submitted that respondent No.l does not figure anywhere under the provisions of law, referred to above. It is next contended that the order passed by respondent No.l is based on political influence inasmuch the order shows that an application by Haji Saif Ullah Khan M.N.A. was entertained and on his application the investigation from the Anti‑Corruption Establishment was transferred to the Chief Minister's Inspection Team and then after passing the impugned order dated 15‑10‑1986, an intimation was conveyed to Haji Saif Ulah Khan, M.N.A. From this the learned counsel vehemently argued that respondent No.l has passed the impugned order under the immense political influence of Haji Saif Ullah Khan M.N.A, a heavy weight politician of Pakistan.

4. A report with parawise comments was called for from respondent No.3 in the case and in compliance with the order of the Court respondent No.3 submitted a report with parawise comments on 13‑11‑1986. In reply to paragraph 12 of the writ petition it has been stated that under rule 19 subrule (4) of the Punjab Anti‑Corruption Establishment Rules, 1985, respondent No.l being the Chief Executive of the Government of the Punjab was competent to pass such order to satisfy himself as to the correctness or propriety of the decision having been taken by any authority working under him.

5. The learned counsel for the petitioner submitted that in similar facts and circumstances vide the judgment of this Court in Cr.Rev.No.426 of 1986, Masti Khan Vs. Sarfraz Hussain etc. it was held that Chief Minister, Punjab had no jurisdiction to transfer the investigation from one Agency to another.

6. I have heard the learned counsel at great length but do not find myself in agreement with his contentions. The West Pakistan Anti‑Corruption Establishment Ordinance, 1961 was enacted with a view to eradicate corruption from amongst the Government Servants and to hold preliminary enquiries in the allegations against such Government Servants. Under section 3 of the 'aforesaid Ordinance, Anti‑Corruption Department was established comprising a Director and other officers. The object behind the creation of the Anti‑Corruption Ordinance was to investigate the offences set forth in the schedule and for holding preliminary enquiries as to find out whether such offences shall be investigated or departmental inquiries into the conduct of any public servant in such offences shall be held. In the Schedule attached to the aforesaid Ordinance, the offences under sections 161 to 166, 168, 217 and 218 and sections 403 to 409, 417 to 420, 468 to 471 and 471‑A P.P.C. were included. Under section 4 of the said Ordinance, the Government shall appoint a Director to perform the duties under the Ordinance but the said officer shall perform his duties subject to such orders as the Government may give from time to time. Under section 6 of the Ordinance, the Government may make rules for carrying out the purposes of this Ordinance.

7. The Government under the provisions of section 6 of the West Pakistan Anti‑Corruption Establishment Ordinance, 1961 has framed rules. Under rule 19 (4) of the Anti‑Corruption Establishment Rules, 1985, it has specifically been provided that the Chief Executive of the Province may call for record of any case or enquiry pending or finalized for the purposes of satisfying himself as to the correctness or propriety of the decision having been taken by any authority. On the basis of this rule 19 (4) I am of the view that respondent No.l was competent to transfer the investigation pending before the. Anti‑Corruption Establishment to Chief Minister's Inspection Team.' The learned counsel for the petitioner contended that the Punjab Anti‑Corruption Establishment Rules, 1985 and specially rule 19 (4) of the said Rules are ultra vires of section 6 of the West Pakistan Anti‑Corruption Establishment Ordinance, 1961, inasmuch as no such power has been allowed to the Chief Minister to pass any order in respect of the domain of powers wholly reserved for the officers of A the Anti‑Corruption Establishment. I am afraid I cannot agree with the contention of the learned counsel, for the reason that Government has framed rules in accordance with the mandate given to it under the provisions of section 6 of the West Pakistan Anti‑Corruption Establishment Ordinance, 1961 and I do not find that in any way rule 19 (4) of the Punjab Anti‑Corruption Establishment Rules, 1985 was ultra vires to the provisions of section 6 of the Ordinance. The aforesaid rule is wholly intra vires as the same has been framed by the Government competently providing powers to the Chief Executive to pass necessary orders which orders he deems fit in each case in order to satisfy himself as to the correctness or propriety of the decision having been taken by the authorities of the Establishment. This being so, the Chief Minister is competent to pass the impugned order dated 15‑10‑1986 vide Annexure 'B'. The learned counsel for the petitioner has not been able to point out any jurisdictional defect in the impugned. order. I find that the impugned order has been passed under the provisions of subrule (4) of rule 19 of the Punjab Anti‑Corruption Establishment Rules, 1985 which rules in turn were competently framed under the provisions of the Anti‑Corruption Establishment Ordinance, 1961. The learned counsel for the petitioner has also drawn my attention to the judgment given by a learned Judge of this Court vide judgment in case captioned 'Masti Khan vs. Sarfraz Khan etc., referred to above. The facts and circumstances of that case were wholly different from the facts and circumstances of the case in hand. That was a murder case arising out of F.I.R No.33/85 dated 25‑3‑1985, registered at Police Station Pindi Bhattian, District Gujranwala under section 302/34/109 PPC. One Mazhar Hussain Bhatti submitted an application before the Chief Minister Punjab seeking transfer of investigation pertaining to the aforesaid case from Gujranwala Police to Superintendent of Police Kasur, namely, Mr. Ahmad Nawaz Khan Niazi. On 18‑1‑1986 the Chief Minister passed an order that Mr. Ahmad Nawaz Khan Niazi, Superintendent of Police Kasur might look into the investigation for appropriate action. The Hon'ble Judge of this Court was pleased to observe in paragraph 6 of his judgment that the investigation of a criminal case is regulated by the provisions contained in Chapter XIV of the Code of Criminal Procedure. Under section 156 Cr.P.C. any officer incharge of a police station can investigate a cognizable case without the order of a Magistrate relating to his police station. The Hon'ble Judge came to the conclusion that in view of the provisions contained in Cr.P.C. the Chief Minister had no jurisdiction to transfer the investigation from one police station to another police station. However, in the case in hand it is observed that special powers have been given to the Chief Executive of the province to pass any order in order to satisfy himself to the correctness or propriety of the decision having been taken by any officer of the Anti‑Corruption Establishment. This being so, the facts and circumstances of. the instant case are distinguishable from the facts and circumstances of the case referred to above. I, therefore, proceed to hold that respondent No.l Chief Minister, Punjab, was competent to pass the impugned order vide Annexure 'B' dated 15‑10‑1986 transferring the investigation from the Anti‑Corruption Establishment to Chief Minister's Inspection Team. It appears from the facts and circumstances of the case that the action was taken on the demand of a representative of public. Therefore, there was legally nothing wrong whatsoever in positively responding to the public demand in accordance with the provisions of law.

8. The upshot of the above discussion is that I proceed to hold that the instant writ petition is devoid of any force and accordingly the same is dismissed in limine.

K.B.A./M‑269/L Petition dismissed.

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