Asad Ullah Khan etc Vs Govt of KPK etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, MINGORA

BENCH

(DAR-UL-QAZA), SWAT

(Judicial Department)

W.P. No.481-M of 2014

JUDGMENT

Date of hearing: 21-11-2014.

Petitioners:- (Asad Ullah Khan & others) by Mr. Amjad Ali, Advocate.

Respondents:- (Govt: of K.P.K & others) by Mr.

Sabir Shah AAG & Mr. Rahimullah DAG.

MALIK MANZOOR HUSSAIN, J.- Through instant Constitutional Petition, the petitioners seek the following reliefs:-

“ It is, therefore, humbly requested that the FIR No. 1 dated 15-9-2014 in PS ACE, Malakand Khas under sections 419, 420,468,471 PPC, 5 (2) PC Act by respondents and arrest/prosecution of petitioners may please be declared as illegal without lawful authority, without jurisdiction in violation of Article 4 and 10 of the Constitution of Pakistan 1973 and consequently may please be set- aside/quashed and declared ineffective upon the rights of petitioners. “ It is further requested that existence of the Police Station Anti- Corruption Establishment in Malakand District at Malakand may please be declared as without lawful authority and jurisdiction and may please be discontinued.”

“ Any other relief deems fit may also be graciously granted.”

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2.Briefly stated the facts giving rise to the instant petition are that an FIR bearing No. 1 dated 15-9-2014 was registered against the petitioners in Police Station ACE, Malakand, “Khas” Under Sections 419/420/468/471 PPC read with 5 (2) P.C. Act. The petitioners preferred bail before arrest, before the learned Special Judge, Anti-Corruption, Khyber Pakhtunkhwa at Peshawar and they are on interim bail before arrest. The petitioners through instant Constitutional Petition have questioned the legality of FIR as well as existence of the Police Station Anti-Corruption Establishment in Malakand, as violative of Constitution on the ground that neither the Prevention of Corruption Act, 1961 nor the West Pakistan Anti-Corruption Establishment Ordinance, 1961 were extended to the Tribal Areas by the President, therefore, the same were functioning without any authority.

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3.Arguments of Mr. Amjad Ali, learned counsel for petitioners and Mr. Sabir Shah AAG & Mr. Rahimullah DAG heard and record perused.

4.First of all we would like to take the question raised by the learned counsel for petitioners with regard to extension of the Prevention Corruption Act, 1947, Anti- Corruption Establishment Ordinance, 1947 as well as the Prevention of Corruption Act, (West Pakistan Extension) Ordinance, 1958.

5.The Prevention of Corruption Act, 1947 (Act II of 1947) was promulgated in the year 1947. The Prevention of Corruption Act (West Pakistan Extension) Ordinance, 1958 (W.P. Ordinance XXXI of 1958) was promulgated on 28th December 1958, whereby the Prevention of Corruption Act, 1947 was extended to the whole of the province of West Pakistan through Regulation No. 1 of 1960. Through West Pakistan Regulation IV of 1963, West Pakistan Anti- Nawab Steno

Corruption Establishment (Extension to Tribal Areas of Quetta, D.I. Khan and Peshawar Divisions) Regulation, 1963 was promulgated, whereby West Pakistan Anti-Corruption Establishment Ordinance, 1961 was extended to the Peshawar Division by the Governor of West Pakistan under clause (2) of Article 223 of the Constitution. Under Section 2 of Regulation, 1963 ibid, West Pakistan Anti-Corruption Establishment, 1961 was extended to the Tribal Areas of Peshawar Division. Similarly, through Regulation No. 1 of 1966, Anti-Corruption Laws (Application to Tribal Areas) Regulation, 1966 was promulgated by the President of Pakistan on 8th March, 1966, whereby it was extended to the Tribal Areas of Peshawar. It is pertinent to mention here that former State of Chitral, Dir & Swat formed part of Tribal Areas attached to the then Peshawar Division, thus, the Act was made applicable to the Tribal Areas of Peshawar Division and in the light of the Regulation No. 1 of 1966 Nawab Steno

Anti-Corruption Establishment was established in this area.

All laws made and ordinances issued were protected by the Constitution of Islamic Republic of Pakistan, 1973, therefore, the law-maker did not feel to promulgate afresh ordinance by the President in this regard.

6.From above referred provisions, it is evident that Anti-Corruption Establishment is functioning in accordance with law and Constitution, in the Tribal Areas of the then Peshawar Division, including Swat, Dir and Chitral.

7.In view of what has been observed above, it is crystal clear that Police Station established under Anti- Corruption Establishment is working under the Constitution having the backing of law of Anti-Corruption and the case registered by them against the petitioners/accused is in accordance with law.

8.So far as the quashment of FIR is concerned, it is well settled by now, that High Court could not control or Nawab Steno

interfere in the matter of investigation, which was sole prerogative of Anti-Corruption Agency. It is settled that factual inquiry could not be made by this Court under exercise of constitutional jurisdiction. Anti-Corruption Establishment had statutory right to investigate, which could not be stepped in under the given circumstances. The petitioners seeking quashing of FIR had an alternate remedy to raise an objection, if any, at the time of framing of charge against them by the learned trial Court or during the trial after recording of some evidence Under Sections 265-K or 249-A Cr.P.C. The learned apex Court through plethora of judgments have discouraged quashing of an FIR at initial stage. Reliance can be placed on “Ghulam Muhammad VS Muzammal Khan & 4 others” (PLD 1967 Supreme Court 317),“Marghoob Alam & another VS Shams Din and another” (1986 SCMR 303) and in the remarkable judgment of “Shehnaz Begum VS Hon’ble Judges of the High Court of Nawab Steno

Sindh & Baluchistan” (PLD 1971 Supreme Court 677) and lastly “Brig. ® Imtiaz Ahmad VS Government of Pakistan through Secretary” (1994 SCMR 2142).

8.It is also well settled that it is for the Investigating Officer to collect all the facts connecting with the commission of offence and if he finds no offence is committed, he may submit a report under section 173, Cr.P.C. If the Investigating Officer/Anti-Corruption Establishment is restrained from investigating the matter, their statutory duty would be curtailed, as the functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with due observance of law. All the judgments in this regard had exhaustively been discussed and dilated upon. In the case of “Col. Shah Sadiq VS Muhammad Ashiq & others” (2006 SCMR 276), wherein the quasment of FIR by the learned High Court was declared not sustainable in the eye of Nawab Steno

law by the Hon’ble apex Court and concerned SHO was directed to proceed with the matter in accordance with law.

In view of what has been discussed above, this petition being bereft of merits is dismissed in “limini”.

Announced.

Dt: 21-11-2014. JUDGE

JUDGE

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