PLJ 2025 Civil (Note) 86
[Islamabad High Court, Islamabad]
Present:
Arbab Muhammad Tahir, J.
MUHAMMAD
USMAN ALI--Petitioner
versus
FEDERAL
INVESTIGATING AGENCY through Director General and others--Respondents
W.P. No.
1150 of 2023, decided on 15.7.2024.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 22-A--Constitution
of Pakistan, 1973, Art. 199--Petition for registration of case--Disposed
of--Writ petition--Allegation of embazzlement of funds PNC--Recognition of
nursing college unauthorizely--Ghost nursing college--Regulatory domain of PNC--Failed
to provide material of allegation--Delay in conclusion of inquiry--Independent
statutory body--Habitual litigant--Self contradictory stance--Concealment of facts--Upon
receipt of complaint or information, Agency shall act in accordance with provisions
of FIA Act and Rules of 2002 and it was not mandatory for Agency to register an
FIR before completing process mandated under Rules of 2002--It was essential
for petitioner to make a full and honest disclosure of all relevant facts--That
include providing accurate and complete information about case, including any
material facts that may affect outcome--The Court had a discretionary and
equitable jurisdiction, and as such, it expects petitioner to come with “clean
hands”--The petitioner had failed to disclose source from where documents were
lawfully obtained--He failed to show as to how these documents are relevant to
him--High Court would not allow its process to be abused through petitions
filed by a surrogate for extraneous considerations--High Court would exercise
restraint and leave it to Council to inquire as to how petitioner came in
possession of official documents, which are not related to him--The stance of petitioner
before High Court was self-contradictory--He, while claiming himself
well-wisher of nursing profession, filed instant petition for action due to alleged
illegal practices in PN&MC, however, when it started conducting inspections
of nursing colleges, he filed a W.P.--The petitioner concealed from High Court filing
of referred petition and appeal throughout proceedings--He agitated
contradictory claims before different Benches of High Court in relation to
affairs of PN&MC--He failed to establish his bonafides in pursuing instant
petition--The conduct demonstrated by petitioner warrants imposition of costs--Petition
dismissed. [Para
19, 21 & 22] A, B, C, D & E
Ch. Osama Tariq, Advocate for Petitioner.
Khalid Mehmood Dhoon, Assistant Attorney General for
Respondents.
Mr Zia-ur-Rehman, Advocate/PNC.
Ms. Farzana Zulfiqar, President,
PNC.
Ms Yasmin Azad, Assistant Registrar, PNC.
Mr. Qamar Mehmood Ch., Dy. Director (L), M/o NHSR&C.
Mr. Afzal Khan Niazi, Dy. Director, FIA-ACC.
Mr. Kashif Rashid,
SI, FIA.
Date of hearing: 30.4.2024.
Order
The petitioner, Muhammad Usman Ali, through the instant
petition under Article 199 of the Constitution of the Islamic Republic of
Pakistan, 1973 (hereinafter the “Constitution”) has sought the following prayer.-
“In view of the
aforementioned submission made, it is humbly prayed that on acceptance of this
petition, the respondent no. 01 may graciously be directed to register an FIR
on the basis of the complaints and in the interest of justice.”
2. The facts narrated
in the petition are that the petitioner has filed series of complaints before
the Federal Investigation Agency (hereinafter the “Agency”) alleging
commission of offences in performance of duties, inter alia, by
Respondents No. 4 to 7. In the first paragraph of the petition, that he is
complainant of FIA Inquiry No. 258/2022. As per the petitioner’s own version,
the complaints relate to corruption, unauthorized approvals/recognition of
nursing colleges, engineered corruption by in Pakistan Nursing & Midwifery
Council (hereinafter the “PN&MC”) by the Federal Government, registration
of ghost nursing colleges, non-promulgation of rules/ regulations for discharge
of PNC official business, issuance of fake cheque books, etc. The petitioner
had earlier filed a petition under Section 22-A, Cr.P.C., which was disposed-of
by the learned Additional Sessions Judge, Islamabad (West) vide order,
dated 25.02.2022, in the following terms:
“Perusal of record
reveals that petitioner has filed series of complaints wherein he highlighted
allegedly different crimes by Former Registrar Mrs. Fozia Mushtaq and Mr.
Fareed Ullah Director Nursing KPK, Yasir Azad Nurse with the current Charge
Assistant Incharge P&NC. The petitioner contended that the offences are
heinous in nature but FIA refused to register the FIR. Comments of the FIA was
requisitioned and it is found that it has registered FIR No. 3/2023 under
Section 420, 468/471/109, PPC read with Section 5(2) 47 PECA on inquiry No.
258/22. The learned counsel for the petitioner contended that there is another
inquiry No. 70/20 which is also pending before FIA but it has not concluded the
same. Comments in this regard again requisitioned from FIA and it is found that
it has not finalized the said inquiry after lapse of almost 02 years which is
in contravention of provision of standing order (SO) No. 05/20 dated 04.11.2020
which provides timeline to FIA for disposal and registration of the complaints.
Therefore, the FIA is directed to proceed in accordance with the law to conclude
the said inquiry positively within the span of one month.”
3. Learned counsel
for the petitioner has argued that; the petitioner in his complaints has
alleged commission of cognizable offences; the Agency is bound to register an
FIR on the complaint of the petitioner; the delay in registration of FIR is
violative of the provisions of Section 154 of the Code of Criminal Procedure,
1898 (hereinafter the “Cr.P.C.”); the earlier inquiries were closed by the
Agency under mysterious circumstances; no progress has been made by the Agency
despite lapse of considerable time; the delay in conclusion of the inquiry is
in violation of the standing orders issued by the Agency.
4. Conversely, the
learned Assistant Attorney General has argued that; under the statutory scheme i.e.
the Federal Investigation Agency Act, 1974 (hereinafter the “FIA Act”),
the Agency is bound to conduct inquiry and then register the FIR; the
allegations leveled in the FIR mostly relates to regulatory domain of the PNC;
the petitioner has been time and again requested to provide material in support
of his allegations, but he failed to do so; the Agency is not obligated to
record version of the complainant under Section 154, Cr.P.C. without conducting
an inquiry; the delay in conclusion of the inquiry is due to the nature of
allegations, inquiry whereof is time consuming; the Agency has submitted
progress reports before this Court which shows that substantial progress in the
pending inquiries has been made.
5. Learned counsel
representing the PNC has argued that; the PNC is an independent statutory
regulatory body; its functions cannot be made subservient to the proceedings in
an inquiry initiated on vague allegations; the PNC has multi-tier statutory
administrative hierarchy i.e. the Council, Executive Committee,
President and Vice-President; each and every step is taken after
approval/permission of the statutory forums; the officers/officials of the PNC
are answerable to the Council and the Executive Committee in relation to any
alleged misconduct or financial mismanagement; the allegations leveled against
the respondents are outside their delegated authority; even otherwise report
has been submitted before this Court to show that PNC is discharging its
obligations diligently; surprise inspections are being conducted to enforce the
provisions of the Pakistan Nursing Council Act, 1973 (hereinafter the “PNC
Act”); the petitioner could not substantiate his allegations before the inquiry
officer; almost all the documents attached with the instant petition are
official documents and the petitioner could not show as to how they came in
possession of the petitioner; admittedly, no petition under the law was ever
filed by the petitioner to obtain the documents attached with the petition; the
petitioner has failed to show on the basis of record that he is an aggrieved
party; the petitioner is in the habit of filing applications before various
forums including the Senate Standing Committee; the petitioners acts are based
on malafide; the petition is aimed at blackmailing the respondents for
extraneous considerations.
6. Heard. Record
perused.
7. The petitioner
has asserted in in the memo of petition that he has filed series of complaints
before the Agency on the allegations of mismanagement/corrupt practices in discharge
of the official functions of PN&MC. He has further asserted that upon his
complaint, Inquiry No. 258/2022 was initiated by the Agency, however, formal
FIR has not yet been registered. He has, therefore, prayed for a direction to
the Agency to register an FIR against the proposed accused persons. The
proposed accused persons are officials of PNC. Although, the petitioner has not
annexed his complaint which he has filed before the Agency, however, the gist
of allegations leveled in the memo of petition is as follows.-
a) Embezzlement of
USD 30 million i.e. the grant awarded to PN&MC by the United Nations
Population Fund (UNFPA).
b) Unauthorized
approvals/recognition of nursing colleges for extraneous consideration.
c) Engineered
corruption in PN&MC in connivance with the Federal Government.
d) Unauthorized
promotion of Ms Fouzia Mushtaq and alteration of her date of birth.
e) Registration of
ghost nursing institutes.
f) Maintaining of
bank accounts with no audit.
g) Absence of rules
and regulations for discharge of statutory functions.
h) Issuance of fake
cheque books and demand drafts.
i) Unlawful favour
of politicians and bureaucrats to the respondents in criminal matters.
8. During the course
of proceedings, multiple progress reports besides written comments have been
sought from the Agency and the PN&MC, which can be summarized as follows.-
• A project was
announced by the UNFPA for which USD 30 million was to be allocated to the
PN&MC in 2016. However, the said project never materialized and the amount
never disbursed to PN&MC.
• The Agency has
reported that the petitioner was time and again requested to furnish material
in support of his allegations of unlawful recognition of nursing institutes
against illegal gratification by Respondent No. 4, but in vain.
• On the allegation
of engineered corruption in PN&MC, the Secretary, Ministry of National
health Services, Regulations and Coordination had earlier initiated an inquiry,
however, the same has now been closed. But the Agency has addressed a letter to
the Ministry to follow the due process under Article 10A of the Constitution.
• As per the
Agency’s report, the matter of promotion of Respondent No. 4 relates to the
terms and conditions of service and exercise of statutory authority by the
Council, therefore, is outside the scope of powers of the Agency.
• Audit of other
funds donated to the PN&MC by the UNFPA amounting to USD 550,000 has been
duly conducted by the donor.
• The matter of
registration of ghost colleges is under process and multiple FIRs have been
registered by the Agency. The report of the PN&MC also mentions that the
regulator has taken action against such colleges.
• The Agency has
raised legal objection with regard to the prayer sought by the petitioner as
under the FIA Act and the Federal Investigation Agency (Enquiries and
Investigation) Rules, 2002, the Agency before registering an FIR, is bound to
conduct an inquiry.
9. In the above
facts and circumstances, the following legal question which needs to be
considered.-
• Can independence
of a statutory regulator be undermined by allowing the petitioner to invite the
Agency to search for criminality in discharge of its routine statutory
functions by the PN&MC on the basis of vague allegations? In other words
can this Court allow the Agency to act as supervisor over a statutory regulator
against the spirit of the PNC Act?
• Can a direction
be issued to the Agency to register an FIR?
• Can this Court
pass a writ on the basis of official documents procured by a stranger through
unlawful means?
10. Before delving
upon above legal questions, it is necessary to briefly discuss the provisions
of the PNC Act.
PNC Act.
PNC Act has been promulgated with the object of amending and
consolidating the laws relating to registration and training of nurses,
midwives and health visitors and to provide for matters ancillary thereto.
Section 2(d) defines the expression “Council” as meaning the Pakistan Nursing
& Midwifery Council established under Section 3 of the PNC Act, whereas,
the expression “member” has been defined in Section 2(h) as meaning the member
of the Council. Section 2(l) defines the expression “Nurse” as meaning the
registrant of PN&MC licenced to practice as nurse. Section 2A provides for
the following purposes of PN&MC.-
a) To protect, promote,
and maintain the public health and wellbeing.
b) To serve the
public of Pakistan with regards to healthcare services in general, but nursing
and Midwifery services in particular,
c) To ensure
competence of registered professionals of PN&MC, and
d) To liaison with
all stakeholders about nursing and Midwifery education professional conduct and
practice within and outside the Republic of Pakistan.
Section 3 provides for establishment of the Council. The
Council consists of two ex-officio members, six elected/nominated members,
three members to be appointed by the Prime Minister on recommendations of the
concerned Division, one legal professional of known integrity and eminence and
one Chartered Accountant. The Council is vested with extensive & exclusive powers
under Section 3A of the PNC Act, which inter alia include the power to
licence and regulate and register nurse, nurse specialist, nurse practitioner,
midwife and lady health visitor practice in Pakistan; to regulate nursing
education; to carry out licensure examination for grant of licence to practice;
to evaluate and accredit institutions that provide education and training in
nursing, midwifery and LHV; to designate new nursing and midwifery programs; to
determine scope of practice for registrants; to set, monitor and update the
standards for education, clinical practice, etc, conditions/policies for
registration/licence to practice, enrollment into nursing programs and
institutions offering nursing programs; to determine and receive fees, donations,
grants or any other financial benefits or assistance; to elect the Executive
Committee of the Council, etc. Section 4 deals with term of office of the
members of the Council. Section 8 provides that President and the Vice
President shall be appointed by the Prime Minister on recommendation of the
concerned Division from amongst members specified in clause (c) and (d) of sub
section (1) of Section 3, who shall hold office for a period of three years.
Section 9 provides that the Council will, for efficient functioning, form an
Executive Committee to meet more frequently than the Council and oversee day to
day functions. The Executive Committee is comprised of President and four other
members of the Council. The duties and authority of the Executive Committee is
determined by the Council. Section 9A provides that the President shall be the
head of the Council, Executive Committee and shall also convene the meetings,
whereas, under Section 9B, in absence of the President, the Vice-President is
empowered to act as President and perform other functions assigned to him by
the President.
Section 9D empowers the Council to appoint a full time
Secretary, who shall under the direction of and report to the President and
Council, responsible for the efficient management of the office of the
PN&MC, etc. Section 9E and 9F empowers the Council to appoint Finance
Director and other staff to meet the requirements of the PNC Act.
Section 9G prescribes the functions of the Council, inter
alia, to administer, manage and run the affairs of PN&MC; to properly
maintain records, minutes and other documentation; to administer the finance
and maintain accounts of PN&MC; to hire staff to positions necessary for
the efficient administration and management of PN&MC, etc. Section 10
empowers the Council to appoint professional, administrative and support staff
on contract for carrying out the purpose of the PNC Act.
Section 11 provides for constitution of the Nursing Examination
Board. Section 12 deals with recognition of nursing institutes and empowers the
Council to hold such inquiries as it may think fit for such purpose. Sections
17 and 18 deal with inspection and withdrawal of recognition of recognized
institutes, respectively. Sections 19 and 20 deal with registration and
de-registration of nurses, midwives, health visitors and nursing auxiliaries
possessing recognized qualifications. Certain acts/omissions i.e.
procuring or attempting to procure registration of name by any person in the
register maintained under Section 19 or impersonation by anyone as registered
person or practicing as a nurse, midwife, health visitor or nursing auxiliary
in contravention of the regulations made under the PNC Act, have been made
punishable under Section 24 to imprisonment of either description for a term
which may extend to one year or with fine or with both. Section 26 empowers the
council to make regulations for carrying out the purpose of the PNC Act,
particularly on the subjects mentioned in sub section (2) thereof. In exercise
of powers under Section 26, the PN&MC has made the following regulations:-
i. Pakistan Nursing
& Midwifery Council Code of Professional Conduct and Standards for Practice
and Education for Nurses, Midwives and Lady Health Visitors
ii. Pakistan Nursing
and Midwifery Council Members (Completion of Term and Removal from Office)
Regulations, 2024
iii. Pakistan Nursing
and Midwifery Council Best Practices, Scope of Practice, Competencies and
Professional Ethics Committee Regulations, 2024
iv. Pakistan Nursing
and Midwifery Council Academic Committee (Appointment, Procedure and Functions)
Regulations, 2024
v. Pakistan Nursing
and Midwifery Council Appointment of Inspectors and Coordinators (Procedure)
Regulations, 2024
vi. Pakistan Nursing
and Midwifery Council Accreditation Committee (Composition and Procedure)
Regulations, 2024
vii. Pakistan Nursing
and Midwifery Council Executive Committee (Election, Procedure and Functions)
Regulations, 2024
viii. Pakistan Nursing
and Midwifery Council Election, Nomination, Recommendation and Appointment of
Members of the Council Regulations, 2024
ix. Pakistan Nursing
and Midwifery Council Employees Service Regulations, 2024
The purpose of highlighting the statutory framework under the
PNC Act is to demonstrate that under the referred statute, the sole authority
to exercise powers is the “Council” established under Section 3. All the
regulatory and administrative powers under the PNC Act are vested in the
Council. Such powers can further be exercised under the direction and control
of the Council in accordance with PNC Act.
11. The statutory
framework under the PNC Act has been discussed in detail above. The PNC Act
bestows upon the Council established under Section 3 of the PNC Act, wide
regulatory, supervisory and administrative powers. Even the PNC Act does not
empower the Federal Government to interfere with the matters falling within the
regulatory framework of the Council. The PNC Act envisages that the decisions
of the Council in matters falling within its competence to be final, unless
modified or altered by the Council itself. The Council is empowered to delegate
certain functions to the Executive Committee or other persons to be performed
strictly under supervision and control of the Council. Recognition of
institutes to impart recognized education/qualification is one of the statutory
regulatory functions of the Council and it is empowered to conduct inquiries
and inspections to satisfy itself whether an institute intended to be
recognized for such purposes qualifies the minimum threshold. Maintaining bank
accounts, audit of the expenditure and promotion of employees are all matters
which fall within the competence of the Council under the PNC Act. It is for
the Council to decide where to maintain its bank accounts and the frequency to
conduct the audit of its financial matters, including any inquiry in financial
irregularity.
12. PN&MC is the
regulator of nursing profession and midwifery, which are two of the most vital
and respected professions in the healthcare industry. Nurses play an essential
role in today’s society. They are advocates for health and wellness,
participants in to acknowledge how the nursing profession has evolved, and how
nurses have advanced their careers to decipher the role to be far more than it
had been at inception. The work of nurses to consistently influence the nursing
concepts not only includes caring for the sick and the public, but being
advocates for wellbeing and impacting positive patient outcomes. Florence
Nightingale is regarded as the founder of modern nursing as she laid a
foundation of strong nursing principles like the importance of patient
observation, rejecting stagnant industry practices and implementing
patient-first care practices.[1]
Nurses and midwives are central to primary healthcare and are often the first
and sometimes the only health professional that people see and the quality of
their initial assessment, care and treatment is vital. As per the recent report
of the World Health Organization[2],
there are an estimated 29 million nurses worldwide and 2.2 million midwives.
WHO estimates a shortage of 4.5 million nurses and 0.31 million midwives by the
year 2030. The gap/shortage is found in the countries in Africa, South-East
Asia and the WHO Eastern Mediterranean Region as well as some parts of Latin America.
The report recommends that investing in the nursing and midwifery is imperative
to achieve efficient, effective, resilient and sustainable health system as
they not only provide essential care but also play a critical role in shaping
health policies and driving primary health care. The WHO Global Strategic
Directions for Nursing and Midwifery (SDNM 2021-2025) include four strategic
directions (i) educating enough midwives and nurses with competencies to meet
population health needs, (ii) creating jobs, managing migration, and recruiting
and retaining midwives and nurses where they are most needed, (iii)
strengthening nursing and midwifery leadership throughout health and academic
system and (iv) ensuring midwives and nurses are supported, respected, protected,
motivated and equipped to safely and optimally contribute in their service
delivery settings.
13. Thousands of
nurses registered with the PN&MC are employed abroad. They work under the
licence/recognition of their education issued by the PN&MC. Intervention of
the Agency in the affairs of the PN&MC, that too to dig for any possible
irregularity in discharge of its statutory functions, on the basis of frivolous
complaints, not only adversely affects the standing of our nurses working
abroad, but compromises the statutory autonomy of the PNC Act bestowed upon the
PN&MC and the Council. Any recklessness in dealing with matters relating to
the PN&MC may jeopardize the future of millions of Pakistanis looking for
overseas employment. We may not forget that in the recent past our national
flag carrier airline faced restrictions worldwide due to a reckless statement
about qualification of the pilots. In the instant case, the allegations leveled
by the petitioner against the PN&MC are also on similar pedestal. They have
the potential to endanger the whole nursing profession in Pakistan, licenced by
the sole statutory regulator i.e. PN&MC.
14. The PN&MC is
an independent, autonomous statutory regulator. The legislature, through the
PNC Act has envisaged finality of the decisions of the Council. The Council
consists of eminent nursing professionals, representatives of the Federal
Government, legal professional and a Chartered Accountant. The decisions of the
Councils are taken after considering each and every aspect of the matter
keeping in view the needs of the nursing and midwifery professions in light of
collective wisdom of the Council. The decisions of the Council and its
execution cannot become the subject matter of criminal investigations in search
of possible criminality. Obviously, the Agency and its officials cannot
substitute the collective wisdom of the Council. In order to provide healthy
environment for growth of the nursing and midwifery professions, the Council
needs to be protected from harassment, humiliation and interference so that its
decisions are free and taken without the fear of future possible prosecution.
When the PNC Act does not provide for confirmation of the decisions of the
Council from any other body, including the Federal Government, then allowing
the Agency to supervise/control affairs of the PN&MC under the garb of
inquiry/investigation would be contrary to the spirit of the PN&MC Act.
This Court is not prohibiting the Agency from taking cognizance of the matters
relating to PN&MC. There is one exception. When a matter is referred to and
is considered by the Council and the Council is of the view that it is a fit
case to be referred to the Agency for criminal proceedings, only then the
Agency can take cognizance of a matter and start inquiry/investigations under
the applicable legal framework. Any reckless exercise of authority by the
officials of the Agency, in relation to affairs of the PN&MC shall
definitely affect the profession adversely at the cost of innocent registrants
performing functions nationwide and abroad. The expertise of an investigator of
crime cannot supersede the collective wisdom of the Council nor can he command
the Council to explain the reasons of its decisions taken in exercise of its
statutory powers and domain. It is the domain of the Council to consider and
decide whether any act or omission of its officials is in line with the
statutory framework or aimed at execution of its decisions. Even if the Council
arrives at a conclusion that certain acts of the officials of PN&MC were in
contravention of statutory framework or its decision, even then the Council is
empowered to see whether disciplinary proceedings against the employee are to
be initiated. It is when the Council concludes that the acts/omission of a
person are in contravention of the PNC Act, particularly Section 24, and its
decisions and the Council decides that matter needs to be investigated and a
reference in this regard is sent to the Agency, only then the Agency will take
cognizance of such matter and proceed further in accordance with law. This will
guarantee autonomy of the statutory regulator i.e. PN&MC and save
the authority of the Agency from being misused. This is further in line with
Section 24(2) of the PNC Act, which provides that “No suit prosecution or
other legal proceedings shall lie against the Government, the Council or any
committee thereof, or any officer or staff of the Government or Council for
anything which is in good faith done or intended to be done under the PNC Act.”
15. The Supreme Court
in a recent judgment in the case titled “Vice Chancellor Agriculture
University, Peshawar and others v. Muhammad Shafiq and others” [2024 SCMR
527] while dealing with the question of regularization of employees of a
University has held that “It does not befit the Courts to design or
formulate policy for any institution, they can, however, judicially review a
policy if it is in violation of the fundamental rights guaranteed under the
Constitution. The wisdom behind non-interference of Courts in policy matters is
based on the concept of institutional autonomy which is defined as “a degree of
self-governance, necessary for effective decision making by institutions of
higher education regarding their academic work, standards, management, and related
activities … Institutional autonomy is usually determined by the level of
capability and the right of an institution to decide its course of action about
institutional policy, planning, financial and staff management, compensation,
students, and academic freedom, without interference from outside authorities”.
Keeping in view the statutory regulatory framework of the PN&MC, the impact
of interference in its decisions from the outside on the future of students
pursuing nursing education and the nursing and midwifery professions, its
institutional autonomy needs to be protected.
16. Now, this Court
will advert to the question whether a direction can be issued to the Agency to
register an FIR. The Agency has been established through the FIA Act with the
object of investigation of certain offences committed in connection with
matters concerning the Federal Government. Section 3(1) of the FIA Act deals
with the jurisdiction of the Agency and empowers it to conduct
inquires/investigations of offences specified in the Schedule and adds that it
would include an attempt or conspiracy to commit any such offence and the
abetment thereof. Section 4(2) stipulates that administration of the FIA shall
vest in the Director General who shall have the same powers as the Inspector
General of Police under the Police Act, 1861. Section 5(1) invests the members
of the Agency with all the powers that the provincial police may have in
relation to search, arrest of person and seizure of property and investigation
of offences and states that, subject to any order of the Federal Government,
they may exercise them throughout the country. Section 5(2) empowers a member
of the Agency, who is not below the rank of a Sub-Inspector to exercise any of
the powers of an officer incharge of a police station for the purposes of any
inquiry or investigation under the Act. The Agency is, therefore, fully covered
by the expression “the police authorities” occurring in Section 22-A(6),
Cr.P.C. and amenable to the jurisdiction of the Ex-officio Justice of Peace,
however, to ensure that an FIR is registered is not the only duty of the
Justice of Peace, rather it includes transfer of investigation from one police
officer to another and to issue appropriate directions on a complaint regarding
neglect, failure or excess committed by a police authority in relation to its
functions and duties. Section 9 empowers the Federal Government to make rules
for carrying out the purpose of the FIA Act.
17. In exercise of
powers conferred under sub section (1) of Section 9 of the FIA Act, the Federal
Government has made the Federal Investigating Agency (Inquiries and
Investigation) Rules, 2002 (hereinafter the “Rules of 2002”). Sub rule
(1) of rule 3 of the Rules of 2002 empowers the Agency to initiate action
either on its own motion or on written complainant or oral or written
information. Sub rule (2) of rule 3 provides that after registration of an
inquiry or investigation, the same shall proceed with care and no undue
publicity shall be given to it. It has been emphasized that it shall be ensured
that no unnecessary damage is caused to the prestige, reputation and dignity of
any public servant involved in the case. Rule 4 envisages verification of the
complaint in order to ascertain identity of the complainant or informant and
genuineness of the complaint. Rule 5 provides for approval of appropriate
officers before initiating inquiry and registering a criminal case. Sub rule
(3) of rule 5, however, dispenses with the conduct of inquiry before
registration of a criminal case, if a public servant is caught as a result of
the trap arranged by the Agency under the supervision of a Magistrate of the
first class. Rule 8(1) empowers the Agency to drop a case and recommend
departmental proceedings against the public servant. Sub rule (2) of rule 8
provides that when the decision to hold departmental proceedings against a
public servant is taken, the Agency shall forward the facts of the case,
statement of allegations, list of witnesses and documents if any, to the
concerned competent authority of the accused public servant for initiating
departmental proceedings.
18. The FIA Act is a
special law. The general rule of construction is that there is a presumption
against repeal by implication because the legislature has full knowledge of the
existing law on the subject matter while enacting a law. When a repealing
provision is not specifically mentioned in the subsequent statute, there is a
presumption that the intention of the legislature was not to repeal the
provision. The burden to prove that the subsequent enactment has impliedly
repealed the provision of an earlier enactment is on the party asserting the
argument. This presumption against implied repeal is rebutted if the
provision(s) of the subsequent law are so inconsistent and repugnant with the
provision(s) of the earlier statute that the two provisions cannot stand
together. Therefore, the test to be applied for the construction of implied
repeal is; whether the subsequent statute (or provision in the subsequent
statute) is inconsistent and repugnant with the earlier statute (or provision
in the earlier statute) such that both the statutes (or provisions) cannot
stand together, whether the legislature intended to lay down an exhaustive code
in respect of the subject-matter replacing the earlier law and whether the two
laws occupy the same field. (Pradeep S. Wodeyar v. The State of Karnataka,
LL 2021 SC 691, Supreme Court of India).
19. The scheme under
the FIA Act and the Rules of 2002 envisages verification of complainant, identification
of the complainant, prior approvals for registering inquiry and a criminal
case, dropping the case and recommending departmental proceedings against the
accused public servant. On the contrary, under Section 154, Cr.P.C., the
incharge police station is obligated to register a criminal case as soon as
commission of cognizable offence is reported to him. The provisions of the FIA
Act and the Rules of 2002 are inconsistent with Section 154, Cr.P.C. insofar as
they relate to prompt registration of a criminal case. The learned Lahore High
Court, in the case titled “Munir Ahmed Bhatti v. Director FIA Cyber Crime
Wing and others” [PLD 2022 Lahore 664] has held that “Legislature often
refers to possibilities provided “by” or “under” the governing law. When a
statute provides something in its main text, it can be said to be something
prescribed “by” the law. However, if secondary legislation envisaged by the
parent law prescribes something (e.g. through statutory rules) it is “under”
the parent enactment. The use of the word “under” in a parent law clearly
suggests that the legislature left it open for something to be provided either
through an amendment in the main statute or the rules framed thereunder. This
gains support from the Hon’ble Supreme Court’s holding in Commandant,
Frontier Constabulary, KPK, Peshawar v. Gul Raqib Khan (2018 SCMR 903) that
expression “by or under” in Article 240(a) of the Constitution authorized the
terms and conditions of a civil servant to be provided by statute or statutory
rules.” The Rules of 2002 until they remain subservient to the parent statute
are to be read as integral part of the FIA Act and its provisions shall be
deemed to have expressly repealed/modified the corresponding provisions of
Cr.P.C. i.e. Section 154 thereof. It is, therefore, held that the upon
receipt of complaint or information, the Agency shall act in accordance with
the provisions of FIA Act and the Rules of 2002 and it is not mandatory for the
Agency to register an FIR before completing the process mandated under the
Rules of 2002. As noted above, the officials of the Agency are police
authorities for the purposes of Section 22-A(6), Cr.P.C. and amenable to the
jurisdiction of the Ex-officio Justice of Peace under Section
22-A(6)((ii)&(iii), however, a direction for registration of FIR bypassing
the mandatory procedure provided under the FIA Act and the Rules of 2002 cannot
be issued.
20. In the facts and
circumstances of the case in hand, it would not be out of place to refer to the
judgment of Supreme Court in the case titled “FIA through Director General,
FIA and others v. Syed Hamid Ali Shah and others” [PLD 2023 SC 265].
Briefly, the facts involved in Syed Hamid Ali Shah’s case were that pursuant to
news item published in the newspaper that employees of various directorates of
the Capital Development Authority had been upgraded in violation of the
applicable law, the Agency conducted inquiry and concluded that it was a case
of prima facie abuse of authority by the officers of CDA, therefore, FIR was
registered against the officers who had processed the cases of upgradation and
its beneficiaries. The said FIR was assailed in writ jurisdiction before this
Court. This Court while allowing the writ petition, ordered quashment of the
FIR. The order/judgment passed by this Court, whereby quashment of the FIR was
ordered, was assailed by the Agency before the Supreme Court. The Supreme Court
dealt with in detail the power of this Court under Article 199 of the
Constitution and Section 561-A, Cr.P.C. in matters of quashment of FIR. It was
concluded that that “No doubt, the powers of the public servants are like a
trust conferred upon them and they should exercise them fairly, honestly and in
good faith as a trustee; but the entrustment of the power to upgrade his
subordinate officials is not equivalent to the entrustment of property as
mentioned in Section 405, PPC and its misuse, or use in violation of the
relevant rules and regulations, does not constitute the cognizable offences
punishable under Section 409, PPC and Section 5(2) PCA. The misuse of such a
power may constitute misconduct under the service laws, but does not attract
criminal misconduct punishable under the criminal laws”. Since the petition
before the Supreme Court was filed by the Agency, it was observed that the said
petition amounted to continuation of harassment to the respondents by
initiating criminal proceedings against them in relation to service matters.
Consequently while declining leave to appeal, the Supreme Court held the petition
to be vexatious and imposed a fine of Rs. 100,000/-on the official of the
Agency who registered the FIR and was investigating the case.
21. Lastly, can this
Court grant the prayer sought on the basis of official documents regarding
which the petitioner failed to provide any document that they have been
obtained through lawful means? When seeking relief from a Court, it is
essential for the petitioner to make a full and honest disclosure of all
relevant facts. This includes providing accurate and complete information about
the case, including any material facts that may affect the outcome. The Court
has a discretionary and equitable jurisdiction, and as such, it expects
petitioner to come with “clean hands” -in other words, to be honest and
transparent. The Court will not tolerate attempts to deceive or mislead it, and
if a petitioner fails to disclose all relevant facts or misrepresents the
truth, his petition may be dismissed without further consideration. In essence,
the Court requires honesty and transparency in order to exercise its
jurisdiction fairly and effectively. In the case in hand, almost all the
documents filed by the petitioner with the instant petition are
official/internal documents of the PN&MC. The petitioner has failed to
disclose the source from where these documents were lawfully obtained. He
failed to shows as to how these documents are relevant to him. This Court would
not allow its process to be abused through petitions filed by a surrogate for
extraneous considerations. This Court would exercise restraint and leave it to
the Council to inquire as to how the petitioner came in possession of the
official documents, which are not related to him.
22. The stance of the
petitioner before this Court is self-contradictory. He, while claiming himself
well-wisher of the nursing profession, filed the instant petition for action
due to the alleged illegal practices in the PN&MC, however, when it started
conducting inspections of nursing colleges, he filed a petition i.e.
W.P. No. 120/2024 titled “Muhammad Usman Ali v. Government of Pakistan,
etc.” praying that the said inspections be cancelled, set aside, withdrawn
annulled and undone. His petition was dismissed by another learned Bench of
this Court vide order, dated 12.01.2024. ICA No. 21/2024 filed by the
petitioner against the said order was also dismissed in limine vide order,
dated 24.01.2024. The petitioner concealed from this Court the filing of the
referred petition and the appeal throughout the proceedings. He agitated
contradictory claims before different Benches of this Court in relation to
affairs of the PN&MC. He failed to establish his bonafides in pursuing the
instant petition. The conduct demonstrated by the petitioner warrants
imposition of costs.
23. For what has been
discussed above it is ordered as follows:-
i. The instant
petition is dismissed. A cost of Rs. 100,000/-(rupees one hundred
thousand) is hereby imposed on the petitioner. The cost shall be deposited by
the petitioner with the Deputy Registrar (Judicial) of this Court within a
period of two months, which shall be utilized for payment of fee to counsels
engaged by this Court in criminal appeals of unrepresented incarcerated
prisoners.
ii. During the
proceedings of this petition, the Agency has registered multiple FIRs in relation
to the fake / bogus nursing colleges. Attempting to play with the future of
innocent students and thereby producing unqualified and untrained nurses
through such bogus/ghost nursing institutions is a heinous crime. The
perpetrators of such heinous crime are required to be dealt with sternly. The
proceedings in such FIRs are directed to be concluded at the earliest so that
the actual culprits are tried in accordance with law. The Agency is at liberty
to proceed with such matters in accordance with law.
iii. The PN&MC is
directed to install an effective mechanism to check the standard of nursing
education in its registered institutions including surprise inspections and
opening of online portal to receive complaints regarding ghost nursing
colleges. In case any complaint regarding ghost nursing institution is
received, then such information shall immediately be communicated to the Agency
for proceedings in accordance with law.
iv. The Secretary,
Ministry of National Health Services, Regulations and Coordination is
ex-officio Member of the Council. He may place before the Council,
recommendations to enhance the effectiveness and productivity of the Council.
24. A copy of this
judgment is directed to be served on the Secretary, Ministry of National Health
Services, Regulation and Coordination, Director General, Federal Investigation
Agency, and President, Pakistan Nursing Council for information and compliance.
(J.K.) Petition dismissed