Dr Jahanzeb & others Vs Govt of KP

V

IUDGMENTSHEET

PESHAWAR HIGH COURT, PESHAWAR

uuDrcrAL DEPARTMENTI Revlew Pcddon 1{o.261-lI ln

Dr. lehanzcb end ohers vs- Govt of !(PK

Date of hearin

Pedtioner G) Oy) Muhammad Famoq Afrldl. Advocate.

The Respondents (by) Mallk akhter Hussain Awan. AAG l.uDs.lLEN-r 9If*slmf.rt ,OtrtJ. t- This petition has been filed by Dr.

Jehanzeb Khalil and others, the petitioners, under section I 14 read with Order )(LVII of the Code of Civil Procedure, 1908, for review of the judgment of this Court dated l4.l 1.2018 passed in Writ Petition No. 2640-P12015.

2.Facts of the case, concisely, are that petitioners No. I & 2 were serving in lftyber Pakhtunkhwa Text Book Board while petitioners No. 3 & 4 were working in the Board on deputation' They were members of the Committee, constituted by the h competent authority, to frame and settle guidelines for implementation of Supplementary Reading Material scheme. The Textbook Board advertised tender in which five publishing firms applied. out of them, the committee awarded contract to IWS ummee (Socio Educational services). During audit proceedings, conducted by the Audit General, the auditor raised audit Para

v regarding loss of Rs. 3.861 million to the government due to acceptance of high rates to IWS Ummee, Socio-Educational Services, consequently, the matter went to Anti-Comrption establishment. Since the petitioners were the members of the Committee, therefore, a notice dated 12.07.2015, herein impugned, was served upon them by the Anti-comrption deparfinent, wherein they were informed to deposit the misappropriated amount within five (05) days, failing which legal action will be taken against them. The petitioners challenged the above referred notice before this court by filing writ petition No.

2640-Pt2Ol5 on the ground of being illegal and without jurisdiction, however, the writ petition was dismissed by this court, vide judgment dated l4.l1.2018, in the following terms:- "Petitioner could not be prosecuted for denial ofpayment of the loss allegedly occasioned to the government; however, he would be proceeded in accordance with law for an offence, if any, after proper inquiry/investigation and petitioner would be at liberty to defend himself in accordance with law' (t Therefore, this petition being premature is dismissed"

3.Feeling aggrieved the petitioners have now filed the instant review petition.

4.Arguments heard and record perused.

5.It has now been well settled that the right to claim review of any decision of a Court of law, like the right of appeal is a substantive right and not mere matter of procedure. Ref:

(PLD

v 2007 Supreme Court l2ll, Section I 14 C.P.C deals with jurisdiction of Courts to review its judgments, according to which any person considering himself aggrieved from the decree or order from which an appeal allowed, but no appeal has been prefened or where no such appeal is allowed or by a decision on a reference from a Court of Small Causes may be applied for review of the judgment of the Court which passed the decree or order, the Court may make such order thereon as it think fit, while ttre grounds on which a review can be sought are enumerated under Order XLV[, Rule l, C.P.C. Perusal of the above referred provisions of law would reveal that power of review can be exercised to correct the errors and the main aim of power to review is to prevent injustice being done by a court and the key requirement for invoking the review is that an error or mistake which is manifestly float on face of record, which is patent that if it allow to intact would perpetuate illegality and gross injustice.

6.The key question in the present case is that whether the Anti-Comlption departurent (respondents No' 6 and 7) has the powefti to issue the impugned notice dated 12.07.2015. Perusal of section 3 of the Khyber Pakhtunkhwa Anti-comrption Establishment Rule, 1999, would reveal that the Anti-comrption Establishment can investigate offences set forth in the schedule and hold preliminary inquiries for determining whether such

offences, which are enumerated under Rule 5, shall be investigated or deparrnental inquiries into the conduct of any public serant concerned in such offences shall be held and, thereafter, if found that a criminal case under the schedule offence is made out, a case is to be registered in the manner as prescribed under Rules 4 and 5 of Rules, 1999. If, on completion of investigation, allegations are not established then under Rule 8 of the Rule, 1999, the case shall be dropped. We have perused the entire Rules but nowhere it has been provided ttrat before initiating preliminary inquiry or after completion of the inquiry or registation of a criminal case a notice, like the one issued to the petitioners, is required to be issued for deposit of the embezzled afirount and even othenvise, once it is proved that the offence is committed, then any payment made subsequent thereto, will not absolve the accused of criminal liability and in this respect /t procedure as to investigation and dropping of the proceedings, as stated earlier, has been provided under Rule 8 of the Rule, 1999. It

is well settled that every court of law is under obligation to apply the correct law and if it is established that same has not been applied by Court, then, a review application in this regard is

maintainable. Similarly, where by some inadvertence an important statutory provision has escaped notice which, if had been noticed, might materially have affected the judgrnent of the court. Hon'ble

the apex court in the case reported as (PLD 1962 Suoreme court

@ has held ttrat 'the indulgence by way of review may no being done doubt be granted to prevent irremediable in injustice an by a Court of last resort, as where by some inadvertence which' if had important statutory provisions have escaped notice the judgment of the been noticed, might materially have affected be allowed upon Court, but in no case should be a rehearing merits".Thus,onthefaceofit,issuanceoftheimpugnednotice tothePetitionerstodeposittheamountisnotinaccordancewith set aside' law; therefore, the same is liable to be impugned notice

7.For what has been discussed above' the datedl2.0T.20l5issuedtothepetitionersissetasidebeing jurisdiction' however' they illegal, unlawful and without with law' (petitioners) can be Proce eded in accordance The review Petition is disposed of in the above terms'

Announced

2E.092022

'M2rtd C'S' )r^t-

JUDGE

(oB)Hon'ble lusticc Musamt Hilali & ' tlon'btc Mr. tusicc ljaz Anwar'