Shaukat Ali Shah Vs Noorma Gul etc

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JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH

(Judicial Department)

Shaukat AIi Shah Vs Noorma Gul, etc.

JUDGMENT

For petitioner(s): Mr. Inavat Ullah Khan Advocate(r-Ur!

For FOP: Mr. Muhammad Riaz Khan Khattak.

Assistant AttorneY-General

For respondents:

Ahmadzai. Addl. Advocate-General

Date of hearing: 12.02.202s

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AURANGZEB. J.- Shaukat Ali Shah and Muhammad Saleem ("the petitioners") have invoked the judicial review powers of this Court over administrative actions under Article 199 of the Constitution by filing Writ Petitions No.134 and244-B of 2023.

They contend that FIR No.02, dated 12.12.2022, under sections 161 I 34 PPC, read with section 5(2) of the Prevention of Comrption Act, 1947 , was registered against them by the Anti- Comrption Establishment (ACE) without lawful authority and is, therefore, liable to be quashed.

2.The facts, in brief, leading to the filing of these writ petitions are that the respondent / complainant Noorma Gul reported to the ACE police station in Lakki Marwat that the (Ghafoor Zaman) (D.B.) Hon'ble Mr. Justice Dr. Khurshid lqbal Hon'ble Mr. Justice Aurangzeb

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petitioner / accused Shaukat Ali Shah, DEO, Passport Office, had been demanding a bribe of Rs.20,000 for the renewal of a passport of Noor Jalat Khan. Expressing his unwillingness to pay the bribe, the respondent / complainant instead agreed to act as a trap agent for the ACE to register a criminal case against the said official. The official was contacted through the mobile number of petitioner I accused Muhammad Saleem (Security Guard at the Passport Office), where the demand for the bribe was reiterated. Consequently, after conducting the trap proceedings, the captioned FIR was registered against DEO Shaukat Ali Shah and the Security Guard Muhammad Saleem.

3.Now, both the petitioners moved this Court by filing the captioned writ petitions, contending that they were not subject to the jurisdiction of the ACE, but to that of the Federal Investigation Agency (FIA), therefore, the impugned FIR was registered against them by the ACE without jurisdiction or lawful authority and is liable to be quashed. Since both the petitions involve identical questions of law and facts, therefore, they are being taken up for disposal through this single judgment.

4.We have heard the learned counsel for the petitioners, the learned Assistant Attorney General for the Federation of Pakistan, and the learned A.A.G. for the State / Provincial (Ghafoor Zaman) (D.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

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Government with patience and perused the material on record in light of law on the subject.

5.The learned counsel for the petitioners submitted that petitioner Shaukat Ali Shah is an employee of the Passport Office, which is a subordinate office of the Directorate General of Immigration & Passports, an attached department of the Ministry of Interior, Government of Pakistan. The petitioner Muhammad Saleem is a Security Guard at that office and, therefore, it is clear that both the petitioners were alleged to have committed the alleged comrption and comrpt practices in connection with the affairs of the federation, the learned counsel argued, adding that the authority rests with the FIA to inquire into and investigate such offences by virtue of sub- section (1) of section 3 of the Federal Investigation Agency Act, 1974. This, to the learned counsel, manifests that the ACE acted beyond its jurisdiction and, thus, the impugned FIR, having been registered without lawful authority, is liable to be quashed.

6.The learned Assistant Attorney-General conceded at the bar that when it comes to the commission of an offence that falls under the Schedule to the 1974 Act by a person in connection with the affairs of the federation, the provincial ACE would have no authority to register an FIR, rather it is the (Ghafoor Zaman) (D.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

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FIA that has the jurisdiction to inquire into and investigate the offence under the provisions contemplated in section 3(1) of the 1974 Act.

7.The learned Additional Advocate-General produced a copy of a letter, dated 21.12.2022, from the Director of ACE, Khyber Pakhtunkhwa, to the Director of FIA, Khyber Pakhtunkhwa, and submitted that the matter has already been referred to the FIA for further courses of action. He was, however, unable to defend the authority of the ACE to have lawfully registered the impugned FIR when the offence was committed in connection with the affairs of the federation.

8.As a rule, this Court exercises judicial restraint in interfering with ongoing investigations while adhering to the well embedded principle that the functions of the Judiciary and t Investigating Agencies are complementary rather than overlapping. However, there are certain exceptions to this general principle, as the law does not impose an absolute bar on the jurisdiction of this Court to judicially review actions taken by Investigating Agencies under Article 199 of the Constitution. This Court ndy, in appropriate cases, quash an FIR where it is registered without lawful authority, suffers from jurisdictional defects, or constitutes an abuse of process. We are also cognizant of the fact that such power is not exercised in a (Ghafoor Zaman) (D.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

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casual manner, but onty where the continuation of criminal proceedings would result in grave injustice or violate fundamental rights.

g. It is well settled that the quashment of an FIR falls within the extraordinary jurisdiction of this Court and is warranted only in exceptional cases. The Superior Courts have consistently held that an FIR may be quashed where it is based on mala fidr, frivolous, or the result of an ulterior motive.

Likewise, where an FIR discloses no cognizable offence, is barred by law, or is lodged by an authority lacking jurisdiction, the Court may intervene to prevent the misuse of criminal law.

In early 1971, this principle was reaffirmed by the Supreme court shohnaz Begum v. Hon',ble rud.ge of the High court of Sindh and Balochistan (PLD l97l SC 677), holding that:

If an investigation is launched mala fide or is clearly beyond the jurisdiction of the investigating agencies concerned then it may be possible for the action of the Investigating Agencies to be corrected by proper proceedings either under Article 98 of the Constitution of 1962 or under the provisions of section 491 of the Criminal Procedure Code, if the applicant is in the latter case in detention, but not by invoking the inherent power under section 561-A of the Criminal Procedure Code.

10.Similarly, in the case of Anwar Ahmad Khan v. The State (1996 SCMR 24),the Supreme Court ruled:

(Ghafoor Zaman) (D.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

It is well settled principle that where investigation is mala fide or without the High Court in exercise of its Constitutional jurisdiction under Article 199 is competent to correct such proceedings and pass necessary order to ensure justice and fair play. The Investigating Authorities do not have the entire and total authority of running investigation according to their whims.

11.Likewise, in yet another case, tiled Raia Rusnm Ali Khon v.Muhammad Hanif (1997 SCMR 2008), the Supreme Court observed:

It would, therefore, be seen that if an investigation is launched mala fide by the Investigating Agencies, the same is open to correction by invoking the constitutional jurisdiction of the High Court under Article 199 of the

12.On the authority of the aforesaid rationale, a leamed Division Bench of the High Court of Sindh in Muhammod Irshad Khan v. Chsirman, National Accountabili$ Bureau and 2 others (2007 P Cr. LJ 1957 Karachi), ruled:

Thus the consensus of the Honourable Supreme Court of Pakistan from the year l97l and onward is that High Court has jurisdiction under Article 199 of the Constitution and competent to correct such proceedings and pass necessaly orders to ensure justice and fair play. The Investigating Authorities do not have the entire and total authority of running investigation according to their whims, if the investigation is launched malafidely or beyond the jurisdiction of investigating agency, then the same can be corrected and appropriate orders can be passed.

13.Recently, in the case of Director Geneml, FIA, and otherc v. Syed Hamid Ali Shah and others (PLD 2023 SC (Ghafoor Zaman) (D.B.) Hon'blc Mr. Justice Dr. Khurshid lqbal Hon'ble Mr. Justicc Aurangzeb

n 265), the Supreme Court handed down yet another authoritative ruling on the subject, holding that:

Article 199 (l)(a)(ii) of the Constitution empowers the High Courts to judicially review the acts done or proceedings taken by the persons performing functions in connection with the affairs of the Federation, a Province or a local authority and if find such acts or proceedings to have been done or taken without lawful authority, to declare them to be so and of no legal effect. The registration of an FIR and the doing of an investigation are the acts of officials of the police department (a provincial law enforcement agency) who perform functions in connection with the affairs of a Province and are thus amenable to the jurisdiction of the High Court under Article 199 (lXa)(ii) of the Constitution. The High Courts can declare such acts of the police officers, to have been made without lawful authority and of no legal effect if they are found to be so and can also make appropriate incidental or consequential order to effectuate its decision, such as quashing the FIR and investigation proceedings.

14.Examining the case on the touchstone of the afore-noted rationale, we find that there is no denial of the fact that the petitioner / accused Shaukat Ali Shah is an employee of the Passport Office, which is a subordinate office of the Directorate General of Immigration and Passports, an attached department of the Ministry of Interior, Government of Pakistan, as per Schedule-Ill to the Rules of Business 1973. Similarly, it is also not in dispute that the petitioner / co-accused Muhammad Saleem was a Security Guard at the said office. Therefore, for all intents and purposes, the alleged comrption and comrpt practices were ex facie committed by them in connection with (Ghafoor Zaman) (D.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

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the affairs of the federation.

15.Now, the moot question before this Court is whether the provincial ACE was authorized to register the impugned FIR?

In order to properly address this question, we would like to refer to the relevant provisions of the West Pakistan Anti- Comrption Establishment Ordinance, 1961 ("the Ordinance") and the Act of 1974. As per its preamble, the Ordinance was promulgated to provide for the constitution of a special agency for the investigation of certain offences relating to comrption by public servants and for holding preliminary inquiries against such servants in West Pakistan in late 1961. Section 3(1) of the Ordinance is relevant, which we would like to reproduce hereunder for ready reference:

3.Constitution and power of the Anti-Corruption Establishment:---( I ) Notrvithstanding anything contained in any other law for the time being in force, Government may constitute an establishment to be known as the Anti- Corruption Establishment, 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:

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16.The language of the above quoted provision is plain and well conceivable, therefore, it leaves nothing ambiguous. It clearly postulates that notwithstanding anything contained in (Ghafoor Zaman) (D.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

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any other law for the time being in force, the Government is empowered to establish the ACE, which is vested with the authority to investigate offences specified in the Schedule to the Ordinance. The ACE, so established, is entrusted with conducting preliminary inquiries to determine whether an offence warrants investigation or if a departmental inquiry should be initiated against a public servant accused of committing such offences. The Schedule to the Ordinance indicates that the ACE has the authority to inquire into and investigate cases of comrption and comrpt practices, among others, as is the case before us. We, therefore, are of the view that the Ordinance does not contain any bar or limitation, express or implied, whereby, the ACE would lack jurisdiction when it comes to the commission of the offences as per its Schedule in connection with the affairs of the federation.

17.Nevertheless, upon examination of the Act of 1974, we find that it was enacted with the object of providing for the constitution of the FIA for the investigation of certain offences committed in connection with matters concerning the Federal Government and for matters connected therewith. Section 3 of the Act is relevant, which reads as under:

3.Constitution of the Agency.--(1) Notwithstanding anything contained in any other law for the time being in force, the Federal Government may constitute an Agency to (Ghafoor Zaman) (D.8.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

n be called the Federal Investigation Agency for inquiry into, and investigation ol the offences specified in the Schedule, including an attempt or conspiracy to commit, and abetment of, any such offence.

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18.The plain reading of the aforesaid provision is also well conceivable and leaves nothing in doubt regarding the establishment and jurisdiction of the FIA to inquire into and investigate the offences specified in the Schedule to the Act of 1974. On its bare perusal, the Schedule to the Act includes, among others, the offences mentioned in the Schedule to the Ordinance. Now, the question that needs to be considered is which authority, the ACE or the FIA, should have registered the present case when both the Ordinance and the Act have respectively empowered the ACE and the FIA to inquire into and investigate such cases. In our view, the Ordinance is a Provincial Statute, having been adopted by virtue of the Khyber Pakhtunkhwa Adaptation of Laws Order, 1975, whereas, the Act is a Federal Statute specifically enacted for the investigation of offences committed in connection with matters concerning the federation, as per its Schedule. Therefore, the two provisions are seemingly similar and/or overlapping and in such eventuality, the legislative intent may be discemed by examining the preamble, legislative history, doctrine of pith and substance, incidental encroachment, and occupied field to (Ghafoor Zaman) (D.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

n adjudge their coexistence in their respective domains or for one to nudge out and claim dominance over the other.

lg, The Superior Courts of the land have expounded such doctrines, Elmong others, as interpretative techniques used to adjudge the predominance and constitutionality of a statute or arry provision contained therein. There is now a judicial consensus that where legislative instruments or any provisions contained therein are in competition-one promulgated by the Federal legislature and the other by the Provincial legislatu the test to determine legislative supremacy or dominance is comparatively simple, and the privilege of overriding supremacy is conceded to the federal legislature under Article 143 of the Constitution. In this regard, reference can also be made to Mirpurkhas Sugar Mills Limited and 17 others v.

Federation of Pakistan through Secretary Ministry of Law and Justice and 02 others (2022 CLD 352 Sindh), wherein it was held:

Normally, when there is a conflict, the courts try to construe federal law and provincial law on the same subject harmoniously. But when the Parliament tries to occupy the field, being the supreme law-making body in constitutional scheme, shall prevail over the provincial law regardless of whether it precedes or succeeds the federal law. This rule of propriety and supremacy qua federal law is aptly encoded in Article 143 of the Constitution.

(Ghafoor Zaman) (D.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

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In t case where both the federal and provincial legislatures claim jurisdiction over the same subject and make a law on it, and there is a conflict between the two laws. In terms of Article 143 of the constitution, to the extent of such repugnancy, the federal law shall prevail.

20.Furthermore, neither the learned counsel for the petitioners, nor the learned AAGs could produce case laws where the issue involved in these petitions may have been addressed. However, certain cases were produced and relied upon by the learned counsel for the petitioners, and upon perusal, we found them valuable for the purpose of guidance.

The first in the series is the case of Dilawar Khan v. Station House Olftcer, Police Station FIA/CC, Multan and 03 others (2022 PCrLJ 30 Lahore), wherein it was ruled:

24.A plain reading of section 3, supra, shows that the FIA is empowered to inquire into or investigate the offences specified in the Schedule of the FIA Act (which the Federal Government can amend by a notification in the official Gazette under section 6). Albeit the language of section 3 and the Schedule is quite clear, the preamble has raised problems. There is a consensus of iudicial opinion that the FIA does not have iurisdiction in matters between Government but the courts have differed on what matters concern the Federal Government.

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the Federal Government" no distinction can be drawn on the basis whether it is owned bv the government or an (Ghafoor Zarnan) (D.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

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such classification. Reliance is placed on the ratio of Asif Saigol and 2 others v. Federation of Pakistan through the Interior Secretary, Pakistan Secretariat, Islamabad and 2 others (PLD 2002 Lahore 416) which was approved by the Hon'ble Supreme Court of Pakistan in Criminal Appeals Nos.l4-K and 15-K of 2010. The authorities which hold il il

some way. In Woodland v. Essex County Council, [2013] UKSC 66, the Supreme Court of UK held that words of a judgment cannot be treated like those of a statute.

context.

40.However, this does not conclude the discussion. It was No. it is not so for two reasons: first, section l3(xviii) of the IPO-Pakistan Act ordains that the Organization shall initiate and monitor the enforcement and protection of intellectual property rights through designated law enforcement agencies of the federal or provincial government. The inclusion of the Copyright Ordinance in the Schedule of the FIA Act has the effect of designating the FIA for enforcement in terms of the aforesaid clause. Secondly, it cannot be left to an officer of the Organization to choose between two agencies. Absence of reasonable classification and prescribed parameters impinges on the fundamental right guaranteed under Article 25 of the Constitution.

21.Similarly, in the case of Director General FIA and others v. Kamran lqbal and others Q0l6 SCMR 447), the Supreme Court, in somewhat similar circumstances, (Ghafoor Zaman) @.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

unequivocally ruled:

Such is discernable from the preamble of The Federal Investigation Agency Act ("The Act"), which reads as follows:-

"Whereas it is expedient to provide for the constitution of a Federal Investigation Agency for the investigation of certain offences committed in connection with matters concerning the Federal Government, and for matters connected therewith".

intention of the leeislature. Reliance in this regard may be placed on, the case of Murree Brewery Company Limited v. Pakistan through the Secretary of Government of Pakistan and others (PLD 1972 SC 279).It is equally well established principle that while interpretitrE t, Statute a purposive approach should be adopted in accord with the objective of the Statute and not in derogation to the same.

6.Keepine in view the intent of the Act as spelt out from the preamble and the fact that throueh the Act the FIA. in terms of the scheduie to the Act has been eranted igrisdiction and power to act in respect of several offences under the P.P.C. which are coenizable by the local police also. and also in order to avoid a conflict of iurisdiction, the onlv conclusion that the Court may draw is that for exercisins iurisdiction in the matter of the offences enumerated in the schedlrle to the Act there has to be some nexus between the offences complained of and the Federal Government or else there shall be overlapping of anomalous situation which certainly is not the intent of the leeislature. Another aspect of concern is that though in terms of notification, bearing SRO 977(l)12003, Section (Ghafoor Zaman) (D.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

n 489-F, P.P.C. has been made a scheduled offence under the FIA Act, but no reasonable classification has been provided for exercising such power and it is left to the discretion of the concerned officer of the FIA to exercise his authority and jurisdiction under the Act in respect of the said offence, which militates against the protection enshrined by Articte 25 of the constitution of Islamic Repubtic of Pakistan. If a citizen is exposed to the proceedings in respect of an offence lodged against him which could be initiated before more than one forums, a reasonable classification is the requirement of the Constitution.

classification was ex facie discretionarv. and violative of Article 25 of the Constitution 1973), although the question then before the Court was of the distretion in the choice of forum for trial, however, the ratio of the case and the principle enunciated therein is equally applicable at the investigation stage as well as the discretion of choice of forum of trial in the matter also lies with FIA.

22.Likewise, the case of Kamran lqhal v. DG FIA and others (PIrD 2009 Lahore 137) involved somewhat similar facts and circumstances, where the Court held:

The petitioner had established a private concern which is neither affiliated with any of the Federal Government (Ghafoor Zaman) (D.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

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iurisdiction. Logic behind incorporating section 489-F, P.P.C. in the schedule offences pertaining to F.I.A. Act, 1974 is that any of the employees of the Federal Government or any Organization attached or affiliated with the Federal Government shall be tried under the said provision of law. Moreover, investigation and submission of challan in the trial court emanating out of the said F.I.R. is also illegal and without jurisdiction.

(Underlines are ours for emphasis)

23.The principles expounded lead us to the unanimous opinion that cases involving scheduled offences conceming the Federal Government fall within the exclusive jurisdiction of the FIA under the Act of 1974. The non-obstante clause in sub- section (1) of section 3 of the Act further puts a seal of endorsement on this view. It is settled law that when the law provides a particular manner of doing things, they must be done in that manner or not at all. Anything done contrary to this would be illegal, ex-facie effoneous, ffid unsustainable in law.

Reliance is placed on Mall Development (Pvf) Lld. v. Waleed (Ghafoor Zaman) (D.B.) Flon'ble Mr. Justice Dr, Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

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Khanzada and others (2022 SCMR 2080).

24.In this state of affairs, the registration of the impugned FIR in a scheduled offence by the ACE fails to meet the test of lawful authority and, as such, it is unsustainable in law and is hereby quashed. However, notwithstanding such quashment, the FIA shall not prejudice in its authority to inquire into and investigate the offence alleged against the petitioners in accordance with law. Both the petitions succeed and ate allowed as such.

Announced

JU

UDGE

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(Ghafoor Zaman\ (D.8.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb