Anti-corruption bodies overstepping authority: court
KARACHI, Nov 11: The function of anti-corruption committees (ACC) has come under the spotlight apparently for extending undue favour to influential government functionaries and civilians while exercising their ‘sanctioning authority’ in graft cases, it emerged on Sunday.
A court, trying graft cases, said the role of the ACCs had already been extravagant in corruption cases and ruled that apparently these provisions of grant of sanction before the commencing of trial was discriminatory.
The judge of special provincial anti-corruption court, Karachi, Rashida Asad, made these observations while striking down a report of the investigating officer seeking dropping of charges against a deputy district officer, assistant Mukhtiarkar, Tapedar and others after getting approval from the ACC-I.
Besides the present case, the committees in the past also had given approval to dropping charges against influential officials and civilians in a number of cases. However, the committees apparently have no time to take up other cases involving ordinary accused as hundreds of complaints/inquiries are pending for sanction.
The ACC-I headed by the chief secretary gives approval or otherwise for graft cases for trial against officials of grade 17 and above while ACC-II, presided over by the chairman of inquiries and anti-corruption establishment, deals with cases of officers of grade 16 and below.
The court observed in the order that it was a well-settled legal principle that the order of sanction was only administrative and not a quasi-judicial act and the sanctioning authority while granting such sanctions was not expected to weigh or examine the evidence collected during investigation meticulously or to record reasons based on legal evidence. But it has to consider only the attending facts and circumstances and has to accord the required sanction.
The court further ruled that the sanctioning authority had to apply its mind to the collected fact and evidence to satisfy that the matter prima facie disclosed the commission of the offence alleged to have committed and it might also indicate with sufficient particulars constituting the offence but while doing so it would not examine the sufficiency and admissibility of the evidence which was the role of the court.
“The object of Section 197 CrPC was to afford protection to public servants against unjustified and unnecessary harassment against frivolous prosecution. However, ostensibly these provisions of grant of sanction before the commencement of trial of an accused was discriminatory and these provisions looked to be arbitrary and archaic,” the court observed.
It added that such provisions were also assailed before the Federal Shariat Court and after hearing the matter in detail the court had directed the authorities to amend the Pakistan Criminal Law Amendment Act 1958 and Section 197 (prosecution of judges and public servants after the sanction of government) of the CrPC by January 1990 failing which these provisions ceased to have effect.
The judgment was challenged, but a five-member bench of the Shariat Court upheld the law laid down by the same court and observed that on one hand these sanctions amounted to stifling the prosecution of a genuine grievance and, on the other hand, protected absolutely the functionaries who committed the wrong or afforded the grievance. The federation filed a review
petition, which was also dismissed in 2004 and the court extended the period for making amendments up to March 2005 failing which these provisions would cease to have effect, it said.
The trial court said that in the light of the Shariat Court rulings, it was no more necessary to have ‘sanction’ before the commencement of the trial. Surprisingly, this practice continues as the interim charge-sheet was submitted in the present case, but the prosecution was not allowed to proceed on the plea that sanction of relevant committee was required.
The court further observed that the role of the committees was already extravagant in ACE cases since Rule 8 of the Sindh Enquiries and Anti-Corruption Rules 1993 said that no preliminary inquiry should be initiated by an officer of the establishment against an accused public servant without prior approval of the competent authority. Further, an approval is again required from the competent authority (ACC-I & ACC-II) before lodging an FIR as per Rule 11(2) of the same rules.
While dismissing the report to drop charges, the court observed cognizance had already been taken on the basis of an interim charge-sheet, the accused had been indicted and a witness was examined, thus the submission of the final report at that stage was not justified and had no legal value.
The prosecution said that an inquiry was initiated on a complaint (58/06) of Imran Qureshi alleging that he purchased land measuring 20 acres from Saleem and Suleman in Gadap Town and it was verified by the then mukhtiarkar, Iqbal Ahmed Mirani, now severing as a deputy district officer in the revenue department.
After completing formalities, the complainant again approached the mukhtiarkar for mutation, but the documents were found fake. On the basis of the witnesses statements and documents, the inquiry officer recommended booking of Mr Mirani, the then mukhtiarkar, Mir Mohammad Gahro, assistant mukhtiarkar, Habibullah Kalwar, Tapedar, and some civilians, including Salman, Moin and Saeeda Begum, by assigning individual liability.
Consequently, a case was registered in 2010 with the permission of the competent authority and the IO in an interim charge-sheet stated that forgery was committed as bogus entries had been made in the record and recommended that all suspects be prosecuted. Before placing it in court, the matter was also forwarded to the director (legal) for approval, who agreed to the IO’s recommendations made in the confidential final report for prosecution.
However, on the basis of comments, referring to the statements of absconding accused, furnished by director (ACE) Javed Baloch, the chairman of inquiries and anti-corruption establishment (E&ACE), Syed Javed Ali Shah Bukhari, proposed to consider such comments and sent a note for the chief secretary (ACC-I) for approval by circulation, to drop the allegations against Mr Mirani, Mr Kalwar and three civilian accused.
Initially, the chief secretary resisted the move and sent the summary back to the authority concerned asking it to file comments that how could only subordinates were panelised while the mukhtiarkar and his assistant, who were the custodian, stood vindicated.
However, compliance was made by furnishing the same comments, neglecting the recommendations of the inquiry officer, IO and assistant director (legal).
The ACC-I granted approval and a final report was submitted in the court requesting it to abolish the charges against two
officials and the civilians.
A case (FIR 26/2010) was registered under Sections 420 (cheating and dishonestly inducing of property), 468 (forgery for purpose of cheating), 471 (using as genuine a forged document) and 34 (common intention) of the Pakistan Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947 at the Anti-Corruption Establishment, Karachi.
In the past, the anti-corruption committees had also approved dropping of charges against “important” persons, including three former directors of the KDA, for fraudulently allotting a 600-square-yard plot in Gulshan-i-Iqbal.
However, the court turned down the same and the directors have been recently convicted in the case.