[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
