2001 PLP 186 (YLR)

Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others PLD 1994 SC 281 ref. Zulfiqar Khalid Maluka for Petitioner. Sh. Zamir Hussain for Applicant (in C. M. No. 1373 of 2001). . The petitioner, Syed Ghulam Abbas Shah, complainant of case F.I.R. No; 3, dated 15‑1‑2001, registered at Police Station, Talagang, District Chakwal, for the offence under section 436, P.P.C., through this Constitutional petition, has assailed the order, dated 21‑3‑2001, of respondent No.1 /D.I.‑G. of Police, Rawalpindi Range, of reinvestigation of the case by way of entrustment of the same to Mr. Sikandar Hayat, Superintendent of Police, Range Crime.

2. The relevant facts are that in the intervening night of 4th of 5th of September, 2000, the complainant's house was burnt down alongwith the furniture etc. cash and prize bonds, lying in the same and the mother of the petitioner lodged a report to this effect with the local police. The matter was enquired into by the D.S.P., Talagang, and on 8‑12‑2000 he declared that the house was set on fire by the petitioner, Syed Ghulam Abbas Shah, himself and the application was found to be false. However, the criminal case F.I.R. No.3 later on was. registered on 15‑1‑2001, in regard to the same occurrence, at the instance of the petitioner, in which three accused, namely, Naveed Hussain, respondent No.3, Amjad Hussain and Haji Ashiq Ali, were nominated as accused alongwith three unidentified persons, who were alleged to have committed the offence, witnessed by eye‑witnesses, namely, Khalid Mahmood and Nasir Mahmood and the investigation was entrusted to A.S.P., Sadar, Chakwal, who failed to give any finding and thereafter the respondent No.1, under the orders of the Inspector‑General of 'Police, Punjab, entrusted the investigation to Mr. Javed Khan, D.S.P., Range Crime, who, vide Entry No.15, in the Daily Diary, dated 11‑4‑2001, directed the S.H.O to arrest all the accused and submit challan against all of them in Court. He found that the complainant's eye‑witnesses seem to be tutored, however, the occurrence of burning of the house had surely taken place and the complainant had suffered much loss and it did not appeal to reason that the complainant himself put the house on fire and, in these circumstances, he opined that matter be left to Court and accordingly directed the S.H.O. to submit challan in Court against the accused. The findings of the above D.S.P. were verified by Sikandar Hayat, S.P., Range Crime, on 19‑3‑2001, and were approved by respondent No.l on 20‑3‑2001. The accused agitated against the findings of the D.S.P. and appeared before respondent No.l and the respondent No.l, vide his impugned order, has entrusted the investigation to Mr. Sikandar Hayat, S.P., Range Crimes, Rawalpindi, and at present, the investigation is being conducted by him.

3. It is contended by the learned counsel for the petitioner that after the finalization of the investigation by the D.S.P., Range Crimes and its verification by Mr. Sikandar Hayat, S.P., Range Crimes and after its approval by respondent No.l himself, there was no occasion for respondent No.l to order reinvestigation and entrust the same to Mr. Sikandar Hayat, S.P., Range Crimes, who has already verified and confirmed the findings of the abovesaid D.S.P. and the impugned order is based upon mala fide and is ulteriorly motivated and it is an abuse of process of law. It also argued that the investigation was entrusted to Mr. Javed Khan, D.S.P., Range Crimes, by the Inspector‑General of Police, Punjab, who conducted the investigation finally and thereafter the respondent No.1 acted illegally in ordering reinvestigation. Learned counsel for the petitioner has also placed his reliance on Riaz Hussain and others v. The State (1986 SCMR 1934), wherein while dismissing a criminal appeal, the apex Court disapproved the system of re‑investigation in criminal cases taken up at the instance of influential people for obtaining favourable reports. Further reliance is placed on Anwar Ahmad Khan v. The State and another (1996 SCMR 24), wherein the High Court while passing an order did not interfere in the investigation in question, but merely required concerned officers to be more alert, vigilant, prompt and dutiful and the apex Court while dismissing the. Petition for Leave to Appeal against such judicial scrutiny of High Court and while refusing the Leave to Appeal, held that when a congizable case was under investigation and was under judicial scrutiny by a superior Court, it could direct concerned Authorities to finalize their reports within reasonable time. It was, however, observed that: "It is well‑settled principle that where investigation is mala fide or without jurisdiction, the High Court in exercise of its Constitutional jurisdiction, under Article 199 is competent to correct such proceedings and pass necessary order to ensure justice and fairplay. The Investigating Authorities do not have the entire and total authority of running investigation according to their whims." In the end, the learned counsel has referred to guidelines provided by a learned Single Judge of this Court in a similar situation in Abdul Aziz v. S.P. (C.I.A.), Sargodha and 2 others (PLD 1997 Lah. 24), wherein the learned Judge held that the law permits the carrying out of further investigation if the circumstances so warrant which does not mean that the police has unfettered powers in this respect and that re investigation may be carried out if some further material relevant to the case is required but not to cause harassment to the parties or to oblige one party for some ulterior motive. It was also observed that it would be appropriate that instead of re opening the investigation under political pressure, the fate of the case is left to the decision of the Courts of law. In para. 5 of the judgment the learned Judge observed as follows: "The police officer ordering re investigation should keep in mind the difficulties of the affected parties in the production of their witnesses time and again before each Investigating Officer/Agency and hence should exercise this power only to find out the truth for advancement of the cause of justice. Before doing so they should record reasons justifying re‑opening of the investigation. They should not mechanically exercise the power vesting in them but should do so after a careful application of mind only to advance the cause of justice. Officers superior to them or the superior Courts may require them to justify their action, because it not only causes hardship to the parties but also impedes the disposal of the case by Court of law."

4. That contentions have been opposed and it has been argued that the impugned order is neither mala fide nor ulteriorly motivated and under the circumstances is just and proper. The learned counsel for respondent No.3 the accused while vehemently opposing the petition has submitted that the accused have been falsely involved because respondent No. 3 got registered a criminal case registered at the same Police Station against the present complainant/petitioner and two others. The petitioner ran away from the police custody and his mother, Chanan Bibi, lodged a complaint of the present occurrence to the Incharge Monitoring Cell, Chakwal to the effect that her houses were burnt down and Mst. Aziz Fatima w/o Muhammad Raza used to live in these houses, that Mst. Aziz Fatima was a maid‑servant and the details of cost furniture items and household good including the prize bonds and huge cash amount lying in the room of the maid servant, as given by Mst. Chanan Bibi is unbelievable. Learned counsel has also placed his reliance on Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others (PLD 1994 SC 281), wherein the apex Court quoted the opinion given by the Privy Council in the case of Khawaja Nazir Ahmad (AIR 1945 PC 18) with approval as a word of caution to the Courts in the matter of interfering with the police investigation before submission of challan and the same is relevant to the facts and circumstances of this case and is reproduced below not only for the purpose of convenience but also as a matter of guidance to all concerned: "In their Lordships' opinion, however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. Just as it is essential that every one accused of a crime should have free access to a Court of Justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their Province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always of course, subject to the right of the Court ‑to intervene in an appropriate case when moved under section 491, Criminal Procedure Code, to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then. "

5. On the strength of the judgment, it has been argued by the learned counsel for respondent No.3/accused that the judiciary should not interfere in the matters of investigation. Further reliance has been placed on Muhammad Alain and another v. Additional Secretary to Government of N.‑W.F.P., Home and Tribal Affairs Department and 4 others (PLD 1987 SC 103), to contend that even second challan report can be submitted by the police officer under section 173, Cr.P.C. 'In the 'end, it is submitted that under Chapter XIV of Criminal Procedure Code (V of 1898), police can launch more than one investigations in one case and submit different reports as a result thereof. Reliance in this regard is placed on Sultan Mahmood and 2 others v: Kh. Muhammad Tufail, Superintendent of Police, Lahore and 3 others (PLD 1976 Lahore 1371).

6. The law laid down by the superior Courts, as discussed above, would show that the superior Courts cannot control investigations and re‑investigations but are empowered to strike down any order of re‑investigation if the same is based on mala fide or is ulteriorly motivated and cannot stop the investigation and cannot strike down an order of re‑investigation merely on the ground that previously a police officer has finalized the investigation. In the present case, the investigation was previously conducted by a D.S.P. who was not impressed with the statements of the eye-witnesses and after recording the finding that the occurrence of burning of the house and burning of the' various articles in the house had actually taken place, left the matter of guilt of the accused to the mercy of the Court and the respondent No. 1, on the representation of the accused, has ordered re‑investigation and has entrusted the investigation to the same police officer who previously verified and confirmed the findings of the D.S.P. I do not find any mala fide in the impugned order passed by respondent No.1 and had there been any mala fide or ulterior motive, the respondent No.1 would have entrusted the re‑investigation to some other police officer and not to Mr. Sikandar Hayat, S.P. Range Crimes, who verified the investigation of Mr. Javed Khan, D.S.P., Range Crimes, with whose findings the petitioner/complainant is satisfied and the accused‑side is unhappy. Respectfully following the law laid down by the apex Court in the case of Malik Shaukat Ali Dogar (supra) this petition is dismissed as not maintainable. N.H.Q./G‑84/L Petition dismissed.