Saturday, November 21, 2009

Case Law, Anti Corruption

Citation Name : 2008 PLC 509 SERVICE-TRIBUNAL-SINDH
Side Appellant : RAB NAWAZ HINGORO
Side Opponent : GOVERNMENT OF SINDH through Chief Secretary, Karachi
Rr. 4(1)(b)(iii), 5 & 6---Sindh Service Tribunals Act (XV of 1973), S.4---Awarding penalty of removal from service---Appeal---Penalty of removal from service was awarded to appellant after issuing him show-cause notice and holding enquiry against him on certain illegalities and gross irregularities in performance of his duties---Allegations against appellant were almost based upon the documentary evidence, copies of which were supplied to him and he, at no occasion, proved same as false---Appellant had not alleged any personal enmity or ill-will against any of his superiors---Appellant also neither questioned/challenged the impartiality of the Inquiry Officer nor alleged any ill-will or animosity against the witnesses who recorded their statements before the Enquiry Officer---Appellant also had not challenged the genuineness and authenticity of the documents placed before the Enquiry Officer---In earlier investigation conducted by the anti -corruption Authorities, appellant though was exonerated, but criminal proceedings and departmental proceedings could go side by side and mere acquittal/exoneration from the criminal case/charge was no bar for initiation of disciplinary proceedings at the departmental level---Appellant had contended that departmental proceedings were not conducted in accordance with law---Validity---Appellant though had not pointed out any irregularity and illegality in said proceedings, but technicalities, which were the hallmark of the legal proceedings, could not be pressed into service in judging the legality of the departmental proceedings---All mandatory requirements of law were complied with and requirements of natural justice were fulfilled in the case of appellant---Assessment of the material placed on the record had made it clear that appellant was rightly found guilty---No illegality or irregularity or serious omission having been pointed out by the appellant in departmental inquiry, impugned orders could not be interfered with.

Citation Name : 2008 PLC 1188 SUPREME-COURT
Side Appellant : NOOR MUHAMMAD KHAN
Side Opponent : REGISTRAR, LAHORE HIGH Court
Ss. 3 & 10---Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991), S.5---Constitution of Pakistan (1973), Art.212(3)---Imposition of penalty of dismissal from service---Conversion of penalty to compulsory retirement from service---Appellant against whom disciplinary proceedings were taken on ground of certain acts of misconduct and adverse remarks in his Annual Confidential Report, was dismissed from service---Inquiry was conducted against appellant and Inquiry Officer affirmed certain charges levelled against him---Competent Authority ordered dismissal of appellant from service and on filing appeal against judgment of the competent Authority, Service Tribunal altered penalty of dismissal from service into compulsory retirement from service---Validity---Questions involved in the appeal did not raise any substanti al question of law of public importance within the purview of the expression employed in Art.212 of the Constitution---Service Tribunal did not find any adequate and concrete evidence for holding appellant guilty of corruption , but found him guilty of judicial impropriety, lack of mannerism, indiscipline and being a tactless Judicial Officer---Findings of fact did not appear to suffer from any legal infirmity or misreading of record---Service Tribunal was fully authorized and. empowered to confirm, modify, . vary and revise the quantum of punishment, which power was rightly exercised by the Tribunal---No substanti al question of law of public importance and no ground for interference with the exercise of jurisdiction, having been made out, both appeals were dismissed by the Supreme Court.

Citation Name : 2008 PLD 166 SUPREME-COURT
Side Appellant : MANSUR-UL-HAQUE
Side Opponent : GOVERNMENT OF PAKISTAN
Ss. 9(a)(vi) & 14(a)---Constitution of Pakistan (1973), Art.185(3)---corruption and corrupt practices---Misuse of authority---Mens rea---Initial burden of proof---Procedural irregularities and violation of substanti al provisions of law---Effect---Conviction and sentence awarded to accused persons was set aside by High Court and they were acquitted---Validity---Essential elements of mens rea and intention to commit an offence under S.9(a)(vi) of National Accountability Ordinance, 1999, were not traceable in the transaction---Authorities also failed to prove that accused acted for their personal gain at the cost of' causing financial loss to the organization (Pakistan Naval Shipping Corporation) or ships in question were not of viable technology and were not that of international standard and specification---Mere procedural irregularities in transaction were not sufficient to constitute offence under S.9(a)(vi) of National Accountability Ordinance, 1999---Essential to draw distinction between procedural irregularities and violation of substanti al provisions of law to determine question of criminal liability in transaction---Procedural irregularity might bring an act done in official capacity within the ambit of misconduct which was distinguishable from criminal misconduct---Act which might constitute an offence and unless it was established through evidence that such act or series of acts done in transaction constituted an offence, the criminal charge would be groundless---Accused might have committed certain procedural irregularities constituting act of misconduct in contemplation of law applicable to their service but the same might not have constituted a criminal offence under S.9(a)(vi) of National Accountability Ordinance, 1999, punishable under S.10 of the Ordinance or under any other law without proof of the existence of element of dishonest intention of personal gain---Prosecution failed to discharge initial burden of proving even a prima facie case constituting an offence under National Accountability Ordinance, 1999---Supreme Court declined to interfere with judgment passed by High Court---Leave to appeal was refused.

Citation Name : 2008 SCMR 1465 SUPREME-COURT
Side Appellant : SALEEM ULLAH KHAN
Side Opponent : State
S. 5(2)---Penal Code (XLV of 1860), S.161---Constitution of Pakistan (1973), Art.185(3)---Case was registered against the accused after thorough inquiry by the anti -corruption Department---Accused, who was a Sub-Inspector of Police, became a fugitive from justice and was proceeded against under S.87/88, Cr.P.C.---Prosecution had duly proved the charge against the accused of accepting illegal gratification of Rs.5,000 from the complainant---High Court had dismissed the appeal of accused after reappraisal of evidence---No material discrepancy could be pointed out in the prosecution case---Mere non-recovery of bribe money was not of any consequence in the facts and circumstances of the case---Impugned judgment did not suffer from any legal infirmity--Leave to appeal was refused to accused by Supreme Court accordingly.

Citation Name : 2008 SCMR 1241 SUPREME-COURT
Side Appellant : NOOR MUHAMMAD KHAN
Side Opponent : REGISTRAR, LAHORE HIGH COURT
Ss. 3 & 10---Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991), S.5---Constitution of Pakistan (1973), Art.212(3)---Imposition of penalty of dismissal from service---Conversion of penalty to compulsory retirement from service---Appellant against whom disciplinary proceedings were taken on ground of certain acts of misconduct and adverse remarks in his Annual Confidential Report, was dismissed from service--Inquiry was conducted against appellant and Inquiry Officer affirmed certain charges levelled against him---Competent Authority ordered dismissal of appellant from service and on filing appeal against judgment of the competent Authority, Service Tribunal altered penalty of dismissal from service into compulsory retirement from service---Validity---Questions involved in the appeal did not raise any substanti al question of law of public importance, within the purview of the expression employed in Art.212 of the Constitution---Service Tribunal did not find any adequate and concrete evidence for holding appellant guilty of corruption , but found him guilty of judicial impropriety, lack of mannerism, indiscipline and being a tactless Judicial Officer---Findings of fact did not appear to suffer from any legal infirmity or misreading of record---Service Tribunal was fully authorized and empowered to confirm, modify, vary and revise the quantum of punishment, which power was rightly exercised by the Tribunal---No substanti al question of law of public importance and no ground for interference with the exercise of jurisdiction, having been made out, both appeals were dismissed by the Supreme Court.

Citation Name : 2008 PLD 162 PESHAWAR-HIGH-COURT-NWFP
Side Appellant : MAZHAR ILLAHI
Side Opponent : State
S. 409---Prevention of corruption Act (II of 1947), S.5(2)---North-West Frontier Province anti -corruption Establishment Rules, 1999, Rr.3, 4, 7, 8 & 10---West Pakistan anti -corruption Establishment Ordinance (XX of 1961), S.8---Appreciation of evidence---Inquiry and investigation---Authority competent to conduct inquiry and investigation---Counsel for accused had contended that things were not processed according to the procedure laid down in North-West Frontier Province anti -corruption Establishment Rules, 1999---Validity---Provisions of the West Pakistan anti -corruption Establishment Ordinance, 1961, provided that an offence under S.409, P.P.C. when committed by a public servant becomes a Scheduled offence and any inquiry or investigation of the case under the Scheduled offences could be conducted by the anti -corruption Establishment and not by the Local Police---Local police, did not figure any where in the anti -corruption Establishment and the inquiry and investigation had to revolve around the fountain of anti -corruption Establishment in the matters of allegation of corruption against public servants---Cases with respect to the alleged corruption could be registered against public servants by the Establishment under written order of the officers mentioned in Rule 4 of North-West Frontier Province anti -corruption Establishment Rules, 1999 at the anti -corruption Establishment Circle Office and not by the inferior or superior police officers at the local police stations---F.I.R. in the case along with investigation followed by judicial proceedings in the case, could not remain in the field which was liable to be set aside for want of jurisdiction---Conviction and sentence recorded by the Senior Special Judge (anti -corruption ) was set aside and accused was acquitted of the charge and was set at liberty.

Citation Name : 2008 PLC 267 Punjab Service Tribunal
Side Appellant : FAYYAZ HUSSAIN
Side Opponent : DIRECTOR EXCISE AND TAXATION (REGION "C") LAHORE
Ss. 3, 5 & 10---Punjab Service Tribunals Act (IX of 1974), S.4---Compulsory retirement from service---Appeal against---Penalty of compulsory retirement from service was imposed on appellant after serving him show-cause notice and holding inquiry against him on allegations of absence from official duty, gross misconduct and corruption within the meaning of R.3(1)(b) & (c) of Punjab Removal from Service (Special Powers) Ordinance, 2000---Appellant had contended that he had requested for medical leave for the relevant period---Departmental Authorities were supposed to get the verification of medical certificate and pass necessary orders on advice of Authorized Medical Attendant---Leave application was never considered and no orders were passed about acceptance of request submitted by the appellant---Inquiry Officer had himself admitted that the charge against appellant was partly proved---Validity---Appellant could not be penalized on the basis of charge of wilful absence partly proved---Competent Authority should have confirmed the misconduct of absence from record and facts---Inquiry Officer and penalty awarding authority had given the findings that benefit of doubt would go in favour of appellant and the charge of receiving of alleged misappropriated amount stood substanti ated to some extent---Such were conflicting statements---On the basis of said conflicting and unconfirmed findings penalty could not be imposed on appellant---Other charge of receiving amount illegally by appellant was not proved because the complainant had not appeared to substanti ate his claim---Appellant, in circumstances had been penalized without confirmation of evidences and record---Appellant was reinstated, in circumstances and intervening period was treated as leave of the kind due.

Citation Name : 2008 PLD 437 LAHORE-HIGH-COURT-LAHORE
Side Appellant : AHMAD ALI GOARAYA
Side Opponent : AZHAR ALI BHATTI
R. 6---Preliminary enquiries and investigation against public servants---Meaning and scope---Rule 6 of the Punjab anti -corruption Establishment Rules, 1985, is very clear to hold enquiries of a public servant who commits an offence in his private capacity---Interpretation drawn on "or other reliable sources" means the complaint received by the anti -corruption Establishment from persons other than the Head of the Department, meaning thereby that a private person can also file a complaint against the public servant for the commission of offence in his private capacity.


Citation Name : 2008 PLD 437 LAHORE-HIGH-COURT-LAHORE
Side Appellant : AHMAD ALI GOARAYA
Side Opponent : AZHAR ALI BHATTI
S.5(1)(d)---Punjab anti -corruption Establishment Rules, 1985, R.6---Constitution of Pakistan (1973), Art.199---Constitutional petition---Summoning of petitioner to face enquiry proceedings---Validity---Petitioner had misused and abused his position as a public servant and had obtained pecuniary advantage by misappropriating Rs.16,00,000 from the complainant, as such his case was covered under S.5(1)(d) of the Prevention of corruption Act, 1947---Petitioner, thus, was liable to face enquiry proceedings as enunciated in Rule 6 of the Punjab anti -corruption Establishment Rules, 1985---Impugned order issued by the anti -corruption Establishment to the petitioner to face the enquiry proceedings did not suffer from any illegality---Even otherwise, there was no foul play on the part of the anti -corruption Authorities in summoning the petitioner to join enquiry proceedings and if at all the petitioner was declared innocent in the enquiry proceedings he would be relieved of his liability---Constitutional petition was dismissed in limine in circumstances.


Citation Name : 2008 YLR 908 KARACHI-HIGH-COURT-SINDH
Side Appellant : WAJID SHAMSUL HASSAN
Side Opponent : State
S.497(5)---Penal Code (XLV of 1860), S.409/34---Prevention of corruption Act (II of 1947), S.5(2)---Bail, cancellation of--Special Judge had sought direction for taking action against accused who, after grant of bail to him, had jumped the concession of bail and had gone abroad and was not attending the court---If bail was granted by superior Court then the Trial Court could not cancel the same on merits and the Trial Court had to make reference to the court which had granted the bail for appropriate action according to law, but in cases where accused, after grant of bail from superior court, failed to attend the Trial Court or jumped the bail, the Trial Court was competent to cancel the bail for his non-attendance and issue non-bailable warrants in order to arrest him---Trial Court was also competent to issue notice to surety under S.514 Cr.P.C. for procuring the attendance of accused---In the present case Special Judge had informed that accused had furnished surety with the Nazir of the High Court---Nazir of the court was directed to immediately send the details and particulars of surety to he Special Judge who would issue notice under S.514 Cr.P.C. to the surety and would issue non-bailable warrant of the absconding accused---Earlier order granti ng bail to accused was recalled/cancelled on the ground of abscondance of accused.
Citation Name : 2008 PLD 381 LAHORE-HIGH-COURT-LAHORE
Side Appellant : RIZWAN AHMAD
Side Opponent : NATIONAL ACCOUNTABILITY BUREAU through Chairman
Preamble, Ss.9 & 18---Constitution of Pakistan (1973), Arts.199 & 25---Constitutional petition---Aims and objects of National Accountability Ordinance, 1999---Petitioner allegedly having demanded Rs.50,000 from complainant for restoration of electricity connection earlier disconnected by him, a raid was conducted on petitioner---Petitioner who allegedly was arrested red-handed with tainted amount, remained on physical remand and thereafter was sent to judicial lock-up by Administrative Judge of Accountability Court---Petitioner had submitted that NAB Authorities were not competent to get the raid conducted in the matter, which fell exclusively within the domain of anti -corruption Authorities and submitted that the aims and objects of National Accountability Ordinance, 1999 were to root out corruption in the public departments of high magnitude---Validity---Main purpose of the promulgation of National Accountability Ordinance, 1999 was to check large scale rampant corruption in the public offices in particular and in the country in general---NAB Authorities, in circumstances took cognizance of cases of high magnitude corruption and other laws on the subject of checking of corruption from the Public Offices, such as anti -corruption Laws and Criminal Law Amendment Act, 1958, were not repealed and remained as live statutes and the special courts under said statutes were very much functional along with the investigation staff etc.---Chairman NAB or any of his delegatees had no jurisdiction to pick and choose for filing reference against anybody under the provisions of National Accountability Ordinance, 1999 as discretion with NAB Authorities was not absolute or arbitrary---Discrimination in treatment to the citizens by public authorities could not be allowed to sustain in opposition to law on the subject as constitutional protection through Art.25 of Constitution of equality of all citizens before law had been guaranteed---Action by NAB Authorities, prima facie, was not warranted in the case under the law as other laws on the subject could cater the need in the shape of action against the petitioner on the application of the aggrieved person---High Court accepted the constitutional petition of the accused and granted him bail in circumstances.

Citation Name : 2008 YLR 1066 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ZAHID MAHMOOD MALIK
Side Opponent : DIRECTOR ANTI-CORRUPTION, PUNJAB
Ss.409, 420, 471 & 168---Punjab anti -corruption Establishment Rules, 1985, R.7---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction---Scope---Quashing of F.I.R.---Petitioners had contended that registration of the F.I.R.; had not been regulated by the provisions of R.7 of the Punjab anti -corruption Establishment Rules, 1985, which provided initiation of preliminary inquiry against public servant by a Deputy Director or an Officer above his rank---Validity---Contention of the petitioners was meritless in view of settled law---Other contention that since the accused stood exonerated in the departmental inquiry, criminal case against him ought to be quashed, was also devoid of any substance, because departmental action and criminal action against civil servants could go side by side and could even end in varying results---Disputed question of fact could not be resolved by the High Court in its constitutional jurisdiction---If prima facie an offence had been committed, ordinary course of trial before the court should not be allowed to be deflected from by resorting to constitutional jurisdiction of High Court---High Court had no jurisdiction to quash F.I.R. by appreciation of documents produced by the parties without providing them chance of cross-examination or confronting them with the documents in question---No occasion for interference in the matter having been found by High Court, constitutional petition for quashing F.I.R. was dismissed, in circumstances.

Citation Name : 2008 YLR 372 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Ch. MUHAMMAD TARIQ
Side Opponent : NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD
Ss.18(c), (d), 19, 27 & 34-A---Rules of Business, 1973, R. 14(1)(c)---Criminal Procedure Code (V of 1898), S.537---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of proceedings-Petitioner and his co-accused allegedly embezzled huge amount by misusing their authority and caused loss to Government Exchequer---Reference was filed in Accountability Court---Application of petitioner filed under S.265-K, Cr.P.C. for his acquittal was dismissed by the Trial Court---Chairman NAB had delegate the powers of inquiry and investigation to Regional Accountability Commander--Contention of petitioner was that Chairman, NAB did not have the power to delegate the power of enquiry and investigation to Regional Accountability Commander and subsequent letter of said Commander directing. anti -corruption Establishment to investigate against petitioner and his co-accused were alleged to be without any legal authority---Special Prosecutor for NAB had submitted that Chairman had delegated his powers and functions under Ss.18(c) (d), 19 & 27 of National Accountability Ordinance, 1999 to Commander Regional Accountability who had ordered for initiation of investigation against petitioner and his co-accused to anti -corruption Establishment---No lacuna existed in the letter in which initiation of investigation was ordered against petitioner---Even otherwise case of petitioner was covered by S.537, C.P. C.-Error, omission, irregularity in the proceedings, if any, were not sufficient to quash proceedings against petitioner.


Citation Name : 2008 PLD 410 KARACHI-HIGH-COURT-SINDH
Side Appellant : ALI ASGHAR
Side Opponent : MAZHAR ASIM
Ss. 417(2), 247, 249-A---Penal Code (XLV of 1860), Ss.161, 163, 167 & 408---Prevention of corruption Act (II of 1947), S.5(2)---Appeal against acquittal---Respondents/accused persons having been acquitted under S.249-A, Cr.P.C., appeal against such acquittal had been filed by the complainant under S.417(2), Cr.P.C.---Trial Court in acquitting accused persons was influenced by the provision of S.247, Cr.P.C. dealing with non-appearance of complainant in the court on certain occasions---Case diaries and other evidence on record had shown that since filing of direct complaint complainant and prosecution witnesses attended the court on various dates of hearing---Complainant and prosecution witnesses attended the court on 44 dates of hearing out of total 46 dates of hearing since framing of charge---Subsequently complainant and prosecution witnesses were present, but case was adjourned on application of accused persons---Complainant was keen to proceed with the case and he approached High Court on two occasions---Examination-in-chief of complainant was recorded earlier and subsequently on some occasions complainant was present along with one witness, but case was adjourned on the ground that complainant had not brought all his witnesses, in the given circumstances, if the Trial Court felt that case was being adjourned unnecessarily, then the evidence of complainant along with said one witness ought to have been recorded---Trial Court had finally acquitted accused persons under S.249-A, Cr.P.C. mainly on the ground of non-appearance of prosecution witnesses---Impugned order was unwarranted by the facts as well as law as same was not within the ambit of law and justice, especially when the Trial Court had not made best efforts in granti ng sufficient time for procuring the prosecution witnesses including official witnesses---Impugned order of acquittal was set aside and case was remanded to the Trial Court for trial according to law.
Citation Name : 2008 PLC 860 FEDERAL-SERVICE-TRIBUNAL
Side Appellant : MUHAMMAD SHAKEEL
Side Opponent : DIRECTOR-GENERAL INTELLIGENCE BUREAU and another
Ss. 3, 5 & 10---Service Tribunals Act (LXX of 1973), S.4---Imposition of major penalty of compulsory retirement from service---Appeal---Major penalty of compulsory retirement from service was imposed on appellant after serving him with charge-sheet and holding inquiry against him that he being in Intelligence Bureau along with another harassed citizen and extorted money from them through coercion and blackmailing---When the Inquiry Committee started its proceedings, appellant was under detention having been arrested in a criminal case against him---Counsel for appellant had predicated his case on three main .grounds; (a) defective inquiry proceedings; (b) discrimination in punishment; and (c) no criminal case was pending against appellant---Number of infirmities appeared in inquiry report, for instance, the Chairman of the Inquiry Committee had himself admitted that while conducting the inquiry, he had recorded the statements of appellant/accused and the witnesses and "subjected them to the cross-examination wherever required"---Said admission by the Inquiry Officer lent credence to the contention of appellant that the inquiry was not conducted in the specified manner---Section 5(1)(c) of Removal from Service (Special Powers) Ordinance, 2000 provided that "Inquiry Officer or Inquiry Committee would enquire into the charges and could examine such oral or documentary evidence in support of the charge or in defence of accused as could be considered necessary and accused would be entitled to cross-examine the witnesses against him"; in the light of S.5(1)(c) of the Ordinance it was a right of appellant to cross-examine. witnesses, but that mandatory requirement had not been taken into consideration during the inquiry proceedings, which was a serious lacuna---Inquiry proceeding, were thus, defective in circumstances---Regarding discriminatory treatment, it was evident that department had not treated appellant fairly by awarding him major penalty, while his co-accused was, given minor penalty of stoppage of increments on same charges---Ground that no criminal case was pending against appellant, was also correct. as the only 'criminal case against appellant was dismissed by the Special Court of anti -corruption ---Impugned order granti ng major penalty of compulsory retirement was set aside and replaced by order reducing his rank by one stage for a period of one year---Appellant was reinstated in service accordingly.


Citation Name : 2007 PLD 566 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ZAIN ULLAH KHAN
Side Opponent : ADDITIONAL DIRECTOR
----S. 409---Prevention of corruption Act (II of 1947), S.5---West Pakistan anti -corruption Establishment Ordinance (XX of 1961), S.3---Constitution of Pakistan (1973), Art.199--Constitutional petition-- Petitioner, a public servant, was an accused person in an F.I.R. registered under S.409, P.P.C., but during investigation another F.I.R. was registered against the accused with Police Station anti -corruption Establishment and challan had been submitted before the Special Judge, anti -corruption ---Validity---F.I.R. registered with anti -corruption Establishment had restated the factual contents of the first F.I.R. and had merely added the additional offence under S.5 of the Prevention of corruption Act, 1947---Accused could have no justifiable grievance against the second FIR., because scheduled offences against public servants could only be inquired and investigated by the anti -corruption Establishment, being a statutory mandate under S.3 of the West Pakistan anti -corruption Establishment Ordinance, 1961 read with the Punjab anti -corruption Establishment Rules, 1985---Neither investigation by the police in the first F.I.R. was ever completed, nor any challan was submitted in the Court---Since the accused was a public servant, the matter stood transferred to anti -corruption Establishment according to mandate of law---Constitutional petition was dismissed accordingly.
Citation Name : 2007 YLR 1135 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Rana RIAZ AHMAD
Side Opponent : State
--S. 8---Investigation in case---Jurisdiction of Court---Petitioner had impugned orders, whereby Special Judge directed remission of file to the anti -corruption Establishment for investigation according to law; and then send a report under S.173, Cr. P. C. ---Investigation conducted by the local police was neither subservient to nor governed by subordinate legislation provided in Rules as S.8 of West Pakistan anti -corruption Establishment Ordinance, 1961, was enacted in addition to all other provisions of law---Impugned order was set aside---Challan having been submitted in the Court, trial would commence from the stage of framing of charge.


Citation Name : 2007 YLR 345 LAHORE-HIGH-COURT-LAHORE
Side Appellant : UMER HAYAT
Side Opponent : State
---S. 498---Penal Code (XLV of 1860), S.161---Prevention of corruption Act (II of 1947), S.5(2)---Pre-arrest bail, grant of---Unexplained delay in lodging of F.I.R.---Inquiries against accused dropped by anti -corruption Establishment---Allegation against accused/petitioner was that he allegedly received certain amount as bribe from complainant on pretext of procuring his appointment as Lamberdar through concerned officers---Accused contended that two inquiries held against accused by anti -corruption Establishment were dropped as allegations of complainant were found baseless; that complaint against petitioner was filed after delay of one year for which no plausible reason was given and that provisions of S.161, P.P.C. were not applicable to the case of petitioner---Validity---Admittedly, there was an unexplained delay of one year in lodging of complaint---Accused had been exonerated in two inquiries held by anti -corruption Establishment and necessity for initiating third inquiry had not been explained---Alleged transaction between the parties did not relate to official duties of accused in his capacity as public servant and registration of case against accused appeared to be immature---Complainant himself appeared to be involved in a number of criminal cases, hence not much credibility could be attached to complaint or his statement made before Investigating Officer---Provisions of S.161, P.P.C. were not applicable to the case of petitioner---Accused, who was a constable, could not by any stretch of imagination procure appointment of complainant as Lamberdar---Present case was not that of raid conducted by Magistrate but a transaction which took place between the parties---Offences mentioned in F.I.R. were not hit by prohibitory clause of S.497, Cr.P.C., hence grant of bail was a rule---Ad interim pre-arrest bail granted to accused was confirmed.

Citation Name : 2007 MLD 1583 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ABDUL MAJEED KHAN
Side Opponent : HABIBULLAH KHAN
---Ss.6, 13 & 24---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for pre-emption---Determination of price of suit property---Revisional Court had only relied upon the notice of Talb­-i-Ishhad. to hold that the price of the property mentioned therein was Rs.4,30,000, but counsel for respondents had stated that as per enquiries of anti -corruption Department and D.C.O., it stood established that original "Part" had been changed because in the "Partsarkar" the price of suit property was mentioned as Rs. 1,30,000, it was also stated that as per roznamcha waqiati of the Patwari, District Council tee and mutation fee, had been deposited according to said value---Said factors had not been examined by the revisional court and in absence of same, no effective decision could have been given---Impugned order was set aside with direction to revisional court to re-decide the matter after looking into all the factors, which were propounded by the parties to determine as to what was the correct price of the property, and whether zar-a-soem should have been paid by the petitioner at Rs. 1,30,000 or Rs.4,30,000.
Citation Name : 2007 PLD 269 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD AKHTAR
Side Opponent : ADDITIONAL DIRECTOR, ANTI-CORRUPTION ESTABLISHMENT, MULTAN
---S.5---Punjab anti -corruption Establishment Rules, 1985, R.15(1)(a)-Penal Code (XLV of 1860), S.409---Criminal Procedure Code (V of 1898), Ss.173 & 265-K---Constitution of Pakistan (1973), Art.199---Constitutional petition---Inquiry conducted against accused/petitioners by anti -corruption Establishment---Order for submission of challan before Court of competent jurisdiction---Accused/petitioners/public servants were booked under S.409, P.P.C. read with S.5 of Prevention of corruption Act, 1947 by anti -corruption Establishment on application of authorities alleging therein that the former had misappropriated certain amounts by awarding fake leases in favour of their own clerks and prayed for recovery of misappropriated amounts, from them (petitioners)---Petitioners contended that three officers of anti -corruption Establishment who conducted investigation recommended for dropping of inquiry against them but Additional Director anti -corruption directed the concerned quarter to prepare challan and submit the same in Court of competent jurisdiction---Petitioners contended that under Rule 15(1)(a) of Punjab anti -corruption Establishment Rules, 1985, on completion of investigation, if allegations were not established, the case was to be dropped and that order of Additional Director anti -corruption was illegal and unlawful---Validity---Additional Director anti -corruption had ultimate authority to accept reports of his subordinates or to do otherwise and on the basis of material he came to conclusion that recommendation of dropping of case was not justified and keeping in view the evidence on record he approved judicial action---Rule 15(1)(a) of Punjab anti -corruption Rules, 1985 was not mandatory as no consequence had been provided for non-compliance of said Rule---Statute, as a general rule, was understood to be directory when it contained matter merely of direction but not when those directions were followed up by express provision that in default of following them, the facts were to be null and void---Disobedience of Act, if it was directory, did not entail any invalidity---Punjab anti -corruption Establishment Rules, 1985 being not an Act of Legislature and having been made by Executive Authorities could not override parent law under which police was hound to submit challan under S.173, Cr.P.C, whatever result of investigation might be, the relevant Court would be authorized to agree or differ with the said report---Additional Director was under no circumstances bound to drop inquiry in any situation and it was in his discretion to decide the basis of evidence to drop proceedings or not---Additional Director had, vide his order, only given direction to submit challan and after its submission petitioners would be having remedy of filing application under S.265-K, Cr.P.C.---No occasion, at such a stage, was there to interfere with order of Additional Director anti -corruption ---Constitutional petitions were dismissed.

Citation Name : 2007 MLD 1505 LAHORE-HIGH-COURT-LAHORE
Side Appellant : DOST MUHAMMAD
Side Opponent : Mian KAUSAR HUSSAIN
--Art. 199---Constitutional petition---Quashing of proceedings---Civil and criminal proceedings---Contemporaneous determination---Validity---Petitioner had called in question the inquiry proceedings initiated against him by anti -corruption Establishment on application of respondent, which stood finalized on the basis of material produced before it---High Court could not interfere in the inquisitorial exercise being conducted by an Investigating Agency---Determination of the validity or otherwise of the allegations. would entail resolution of controversial question of -fact which exercise could not be undertaken by High Court in its constitutional jurisdiction---Contention that since the matter had been finally settled by the Revenue Authorities,- therefore proceedings being conducted by the anti -corruption Establishment was unwarranted, had no force---Determination of a dispute by Revenue Authorities could by no means wipe out the criminal liability of a person who, on the basis of material collected by the Investigating Agency; was prima facie found to be implicated in the crime---Other argument that matter being essentially of civil nature, continuation of proceedings by the Investigating Agency was uncalled for, was also devoid of any force---Civil as well as criminal proceedings could continue side by side as those both related to different laws and. could be instituted simultaneously---Counsel for petitioner had not been able to satisfy the court as to the maintainability of constitutional petition.

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