1999 PLP 2002 (MLD)

(c) Criminal Procedure Code (V of 1898)

S: 156

Constitution of Pakistan (1973), Art. 199

Constitutional petition-- Acts and omissions of Executive Authority

Constitutional jurisdiction of High Court

Scope

Interference with investigation

High Court has power of judicial scrutiny into` acts and omissions of Executive Authorities

Such orders do not fall within the ambit of interfering with investigation but it merely requires concerned officers to be more alert and dutiful. M.D. Tahir for Petitioner. Ch. Fazal Haq Gujar for Respondents. Date of hearing: 6th October 1998. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is directed against the order, dated 30-6-1998 passed by respondent No. l whereby he has withdrawn his own earlier order, dated 13-12-1997.

2. Briefly stated the facts are that dispute over land had been going on between Muhammad Rashid, real brother of petitioner and accused persons namely Mushtaq Ahmad, Liaqat, Ali, Shaukat Ali, Fateh Muhammad and Subhan. As a result of said grouse an occurrence took place on 15-6-1997 resulting into the death of Muhammad Rashid real brother of the petitioner. Consequently F.I.R. No. 164 of 1997 dated 15-6-1997 under section 302/148/149, P.P.C. was registered at Police Station Hasilpur District 'Bahawalpur.

3. The investigation of this case was conducted by different police officers. Finally an application was moved by Mushtaq Ahmad accused for the transfer of investigation upon which respondent No.1 transferred the same to respondent No.2 vide order, dated 13-2-1997. Having come to know that respondent No.2 had held applicant-accused Mushtaq Ahmad guilty, he (Mushtaq Ahmad) again made an application with respondent No. l seeking the withdrawal of his application by which investigation was transferred to respondent No.2. Now this order, dated 13-12-1997 has been recalled vide order, dated 30-6-1998 by respondent No. 1.

4. Contention of learned counsel for petitioner is that respondent No.1 he recalled the order with mala fide intention to deprive the petitioner to reap the benefit of findings of a gazetted officer, who conducted investigation for months and held Mushtaq Ahmad guilty of the offence charged against him. In further submitted that with the passing of order, dated 30-6-1998, investigation conducted by respondent No.2 will not be allowed to be brought on record. i.e contended that Investigating Authorities do not have entire and total authority of running investigation according to the whims and High Court in its Constitutional jurisdiction is competent to pass appropriate orders, when investigation is mala fide or without jurisdiction and relied upon Muhammad Latif A.S.I. Police Station Saddar Sheikhupura v. Sharifan Bibi and another (1998 SCMR 666). He further submitted that as the case is under judicial scrutiny of this Court, so the Court can direct concerned authorities to finalise their reports with reasonable time. By passing such order, he argued, this Court, will not be interfering with the investigation in question, but it shall require the concerned officer to be alert, vigilant, prompt and dutiful. He further argued that where investigation is being conducted with malafide, or without jurisdiction, High Court, in exercise of its Constitutional jurisdiction is competent to correct it and relied upon Anwar Ahmad Khan v. The State and another (1996 SCMR 24).

5. Conversely these contentions have been rebutted by the learned counsel for Mushtaq Ahmad. His contention is that as long as investigation conducted by respondent No.2 is not approved by the D.I.-G., it can't be brought on record, that as per statement of respondent No.2, his investigation has not so far been approved by the D.I.-G., as such respondent No. 1 was competent to allow the withdrawal of application made by his client. He, thus, submitted that act of respondent No. 1 in recalling earlier order, dated 13-12-1997 vide order, dated 30-6-1998 is not without jurisdiction as such petition being devoid of any legal force be dismissed.

6. From the facts stated above it is clear that on an application moved by Mushtaq Ahmed accused for the transfer of investigation the same was transferred to respondent No.2 (S. P. Crimes Branch, Lahore) by respondent No. l vide order, dated 13-12-1997. It is also admitted fact that investigation remained pending with S.P. Crimes Branch for about 7 months who, as per his own showing, has found Mushtaq Ahmad accused and others to be guilty for the commission of offence alleged against them,

7. Now the question is if the investigation conducted by respondent No.2 (S:P. Crimes Branch, Lahore) loses its value if it is not approved by D.I.-G. Crimes. I am afraid there is no such provision in the Criminal Procedure Code whereby an investigation conducted by a competent Investigating Officer loses its force merely on the ground that it has not teen v verified by any higher officer. Admittedly S.P. Crimes Branch is an Investigating Officer and his investigation does not require any stamp of approval of his higher officer. The impugned order, dated 30-6-1998 appears to have been passed in violation and in excess of the powers conferred upon respondent No.

1. Investigating Authorities do not have entire and total authority of running investigation according to this own whims and High Court in exercise of its Constitutional jurisdiction is competent to pass appropriate orders where investigation is mala fide or without jurisdiction. High Court in exercise of its Constitutional jurisdiction can issue direction for investigation of the case by a Gazetted Officer to ensure justice and fair play and such directions do not amount to interference with the investigation. In the instant case investigation was entrusted to S.P. Crimes Branch at the instance of Mushtaq Ahmad and now he himself wants to undo an act, as its out come does not favour him. Such a move on the part of Mushtaq Ahmad can't be viewed with favour being clothed with mala fide. High Court has a power of judicial scrutiny into the acts and omissions of Executive Authorities and is also competent to pass appropriate orders. Such orders do not fall within the ambit of interfering with the investigation but it merely requires concerned officers to be more alert and dutiful. If the High Court feels that investigation is being conducted with mala fide or without jurisdiction, in the exercise of its Constitutional, jurisdiction, it is competent to correct the same. Such golden principle has been annunciated by the Apex Court of this Country as reported in 1998 SCMR 666 and 1996 SCMR 24 (supra).

8. Now analysing the impugned order on the touchstone laid down in the esteemed authorities referred above it is clear that order, dated 30-6-1998 has been passed with mala fide intention to deprive the petitioner to avail the benefit of findings of respondent No.2. Consequently, writ petition is accepted, order dated 30-6-1998 is set aside and it is ordered that investigation conducted by respondent No.2 shall form part of investigation of F.I.R. No. 164 of 1997 and Investigating Officer shall annex the same with the report under section 173, Cr.P.C. Q.M.H./T-53/L Petition accepted.