P L D 1997 Lahore 15 (PLP)

3. Khawaja Muhammad Sharif, Advocate, in reply submitted that this Court had not entrusted the investigation on its own to a team headed by Ghulam Muhammad Kalyar, S.S.P., Crimes Branch, as this team of the Crimes Branch was selected by the parties themselves. In addition, he argued that in the facts and circumstances of the present case, the Court legitimately gave necessary direction to the police to conduct investigation in accordance with law. It was urged that due to the political-influence operating to the district, the S.H.O. had recorded a version of the incident contrary to facts and the incident as it had actually occurred and being described by the complainant. He emphasized that actual version of the gruesome murders was being ruthlessly ignored and the local police was made to abuse the statutory power vesting in it and as such the duty enjoined by law was not being performed. Learned counsel referred to the cases of Anwar Ahmad Khan v. The State and another 1996 SCMR 24 and Saeed Hussain Shah v. The State 1996 SCMR 504 and contended that the abuse of statutory power vesting in the police as well as failure to perform the duty enjoined by law in the matter of investigation of a cognizable case can legitimately be scrutinized in exercise of Constitutional jurisdiction. Learned counsel for the complainant added that this Court was, therefore, right in taking notice of the instant murder case in which nine innocent persons had been butchered and the local police on account of political. pressure of a Federal Minister was tending itself helpless to perform its statutory duty freely, independently and in accordance with law. He pointed out that even the team of the Crimes Branch to which investigation was entrusted with the consent of the parties is not being allowed to work effectively as the accused are being harboured and given protection by politically influential persons of the district. Learned counsel further submitted that allegation of personal bias attributed to Ghulam Muhammad Kalyar, S. S. P. and his team is baseless as this team has not arrested Munawar and Rashid accused till date and they were able to slip-away from the- Court when on 13th of June, 1996, their bail was not confirmed. Likewise, Sharafat, Sabir, Naeern and Sadiq accused have not been arrested. He pointed out that this position of the progress made in the investigation speaks for itself as to the bias of the team against the accused party. Learned counsel argued that this Court should take effective steps to ensure performance of statutory duty by the police to ensure justice maintaining law and order in the Province. ,

4. I have given serious consideration to the respective contentions of the parties. The question raised is of the scope and limitations of the power of this Court to intervene in the investigation of a cognizable case by the police. Learned counsel for the accused-applicable argued that there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable case without requiring any authority from judicial hierarchy-,to intervene in exercise of inherent power or extraordinary Constitutional jurisdiction. The principles laid down in the precedents noted above are that the High Court ordinarily does neither nominate the Investigating Officer nor control the investigation as the statutory power vesting in any officer or authority is allowed to be exercised without any undue interference from any outside authority or agency. The statutory authority is to be allowed to be exercised by the authority/officer with which or in whom the same vests. The judiciary equally should not interfere with the Police in matters which are within their Province and into which the law imposes upon them the duty of an enquiry. This is what has been held and stated by the Courts themselves since the time of the case of Nazir Ahmad. See Emperor v. Nazir Ahmad AIR (32) 1945 Privy Council 18). The view expressed in Nazir Ahmad's case has been followed in the other cases cited by the learned counsel for the complainant. In Malik Shaukat Dogar's case (supra), Mr. Justice Shafiur Rehn.an quoting, the observations recorded in Khawaja Nazir Ahmad's case held that the continued control over the investigation exercised by the Court as in the case before his Lordship was. prejudicial to the accused and detrimental to the fairness of the procedure span from being without jurisdiction. The view of the Privy Council that 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 an enquiry was reiterated in the case of Brig. (Retd.) Imtiaz Ahmad (supra). Late Mr. Justice Hamoodur Rehman, the then Chief Justice of Pakistan, in the case of Shahnaz Begum v. Hon'ble Judges of the High Court of Sindh and Balochistan PLD 1971 SC 677 after surveying the judicial opinions recorded the conclusion that the High Court has no power under section 561-A, Cr.P.C. to quash an investigation or transfer an investigation and that the ends of justice to secure which the inherent power may be invoked, "have reference to the purposes which the judicial process is intended to secure, and it is difficult to include actions of investigating agencies within the scope of judicial process". Learned Chief Justice added a note of wisdom and caution by observing:

?"If an investigation is launched mala fide or is clearly beyond the jurisdiction of the investigating agencies concerned then it may be possible for the action of the investigating agencies to be corrected by proper proceeding either under Article 98 of the Constitution of 1962 o under the provisions of section 491 of the Criminal Procedure Code; i the applicant is in the latter case in detention, but not by invoking the inherent power under section 561-A of the Criminal Procedure Code." The power of judicial review, however, must be exercised within the Constitutional limits set by the Parliamentary system and the judicial, restraint i essential to the continuance and preservation of 'rule of law' and properly instituted criminal action or proceedings especially at the investigation stag cannot be allowed to be pre-empted by having resort to civil proceedings in the Civil Court or High Court. In the case of Imperial Tobacco Ltd. and another v Attorney-General (1981 AC 718) it was though held that, administration o justice would become chaotic if after the start of prosecution, declaration o innocence could be obtained from a Civil Court, but Lord Lane also observed "where however criminal proceedings have been properly instituted and are no vexatious or abuse of process of Court, it is not proper exercise of the Court': discretion to grant the defendant in those proceedings a declaration that the fact; to be alleged by prosecution do not in law prove the offence charged". With respect, I will venture to say that grievance may have to be redressed if it i: shown that prosecution of a citizen is being carried out by abusing the statutory power or " machinery -of criminal law is being used mala fide or for ulterior purpose. The High Court will also be entitled to interfere wherever the statutory authority is shown to have been abused or there is failure to exercise statutory power. The Supreme Court in the case of Anwar Ahmad Khan (supra) in para. 17 observed as:

?"It is well-settled principle that where investigation is mala fide vi 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 fair play. The investigating authorities do not have the entire and total authority o1 running investigation according to their whims " The learned Judges of the Supreme Court in the case of Saeed Hussain Shah (supra), observed that since the Police Officers-in-Charge of the case were not found to be acting honestly and bona fidely High Court had suggested to the Deputy Inspector-General of Police to entrust the investigation to senior police officers recommending the name of the S.P., but option was left to D.I.-G. to do so. This in any manner did not amount to interference by High Court with the investigation or to take charge of the investigation itself or to appoint an officer for carrying out the investigation.

5. The aforesaid two cases do show that the superior Courts interfere in the matter of investigation of the cognizable crime where the police officers are not found to be acting honestly and bona fidely or there is failure to exercise the statutory power or that the statutory power is being abused or used for ulterior purpose. The complaints against the police of not registering the cognizable criminal cases, or of diverting course of justice by conducting the investigation in order to appease or please politically influential persons are on the increase. Such complaints are being ventilated by filing Constitutional petitions. Mr. Muhammad Abbas Khan, the Inspector-General of Police, Punjab, till last week, in his report "Problems of Law and Order and Police Reforms" answered the question, "Who controls the police?" as under:

" ... ... ... .. ... ... .. ... ... ... ... ... ...In the colonial era police was under bureaucratic control. Since the bureaucracy was largely foreign and had no local political interest the police remained neutral. It, therefore, functioned effectively. At independence control was shifted from bureaucratic to political control. Consequently, political influence came into play in law enforcement. This compromised the neutrality of the Police." The author of this report dealing with the situation in Pakistan observed at page 36, that, in Pakistan, in the post colonial era, the bureaucracy first started misusing its power of patronage then the politician instead of using the power of patronage in the interest of the State, hesitantly and later aggressively sought a share of the spoils as he has wrested more authority from the bureaucracy, a system of spoils began to take root. One of its manifestation is interference in the working of the various departments. The levels of interference escalated erratically but in the mid eighties a new phase of "no holds barred" interference was initiated. Now, it has become a tradition that no area of Police administration is sacrosanct. Persons of privilege may as of right interfere into every conceivable aspect of policing, thus destroying the essentials of command and control". The report also cites examples of the levels of interference by pointing out that between 1985 and 1993 more than 25,000 persons were recruited in various departments in relaxation. of rules. This included approximately 1,000 Inspectors and A.S.Is. and thousands of constables. All these vacancies were divided between influential persons supporting the Government and were filled in by their nomination by holding in abeyance all rules and procedures. It is also noted that there are reports that some of the appointment orders were issued on blank papers and some of the posts of A.S.Is. and of Constables had been sold and in this process a number of criminals have also been inducted as A.S.Is. and Inspectors. 6.. The senior police officers also complain that posting of the S.H.Os., A.S.Is. and Constables are being maneuvered through politicians and the said situation is creating indiscipline in the department as these officers do not feel the necessity of obeying the orders of their commanding officers as their, loyalty lies somewhere else.

7. In cases where abuse of statutory power or failure to exercise statutory? power or mala fide exercise of statutory power is brought to the notice of the? Court, intervention or judicial scrutiny cannot be refused merely for the reason that in the colonial era the police was under bureaucratic control which used that control, unless the imperial interest demanded otherwise, for. doing even-handed justice amongst subjects as the purpose was to maintain law and order.

8. Coming to the instant case, the grievance of the complainant as well as that of the accused disclosed in their respective petitions may now be scrutinized in the light of the afore-noted factors and the principles deducible from the case ?law. In this case on account of the political influence operating the Station House Officer of the Police Station within whose jurisdiction nine persons were brutally murdered, seems to have been either paralysed or was made to act on the basis of particular version of the incident which version was disowned by the complainant. After the filing of the Constitutional petition by the complainant. Amjad Iqbal accused also filed a writ petition complaining the manner in which the investigation was being conducted by the local police. The grievance of the complainant was that the version contained in the F.I.R. recorded by the police 'did not reflect factual events of the occurrence in which nine people were brutally murdered and that the S.H.O. on account of the political influence operating in the district was not performing his statutory duty in accordance with law. This Court instructed the learned Advocate-General, Punjab, to receive instructions on the question whether the Inspector-General of Police, Punjab, was agreeable to assign the investigation to the Crimes Branch, Punjab or to the senior officers of F.I.A. to be nominated by the Court. The Inspector-General of Police, Punjab, in his comments submitted that he had no objection to the transfer of investigation to the Crimes Branch or another other Agency and in. case the investigation was to be entrusted to the Crimes Branch, a penal of officers could be formed under the direct supervision of the Deputy Inspector General (Crimes), Punjab, to finalize the investigation of the case on merits. At this stage, reference may also be made to a writ petition (W.P. No.8638/96) filed by the present applicant (Muhammad Attijad Iqbal Butt). The order, dated 30th of May, 1996, passed in the said writ petition reads:-=- ?The version given by the petitioner itself shows that the accused as well as the deceased and the complainant party all were the voters of? Pakistan People's Party. It is unfortunate that political dimension was added to this most heinous murder case. Learned counsel, however, state that the petitioner who. is accused in the case also wants that the investigation be entrusted to an independent officer so that truth may prevail. This is what the complainant party also wants as is apparent from the writ petition filed by him. The investigation as per agreement of the parties is to be now conducted by Mr. Ghulam Muhammad Kalyar, S.S.P., Crimes Branch, Punjab, Lahore, who will select his own team and hold the investigation after recording the statement of the? complainant:. This petition is disposed of in terms of the above order and the directions made in the connected writ petition (W.P. No. 8015 of 1996)."

9. The instant writ petition was also fixed on the same date and was heard alongwith the aforesaid writ petition. The observations noted in this writ petition in the, order of 30th of May, 1996, being relevant, are reproduced as under:

????????????? ":.-Learned Additional Advocate-General after receiving instructions has given the list of officers to whom the Inspector-General of Police.? Punjab, is ready to transfer the investigation. The officer to whom-the investigation is to be transferred will, however. conduct the investigation under tile general supervision of Mr. Saadatullah Khan,? Deputy Inspector-General of Police, Crimes Branch, Punjab. The officers named are Mr. Ghulam Muhammad Kalyar, S.S.P., Riaz Naeem, S. P., Mukhtar Hussain Shirazi, S. P. and Ali Zulnoorain, S. P." The two orders noted above clearly bear out that the Inspector-General of Police had provided the panel of the officers to whom he was ready to transfer. the investigation. The selection of Mr. Ghulam Muhammad Kalyar, S.S.P., to investigate alongwith his team was made by the parties themselves. It is,? therefore, not correct to say that this Court had either transferred the investigation to the Crimes Branch or had nominated on its own the officer or the Crimes Branch to investigate the matter. Moreover, the investigation to be conducted by the team of the officers of the Crimes Branch, Punjab, so selected by the parties, was to be supervised by Mr. Saadat Ullah, D.I.G. (Crimes). Even this team has not been able to arrest the two accused, namely, Munawar and Rashid when their bail was not confirmed by the Court. Four other accused, namely, Sharafat, Sabir, Sadiq and Naeem who were absconders even in cases earlier registered against them have also not been so far arrested by this team which was stated to be partial against the accused party. Even the former Inspector-General of Police seemed to be helpless to take corrective measures and to improve the efficiency of the police officers. No action was taken by the I.-G. P. against the S.H.O. within whose jurisdiction nine innocent persons were brutally murdered and against whom the complainant party was crying hoarse. The S.H.O. was transferred from the-Police Station only when this Court took notice of the manner in which the investigation was being conducted by him. L-G.P. could transfer him to another Police Station of the same district, i.e., Police Station, Saddar, Gujrat. This transfer was just an eyewash. The transfer to another Police Station of the same district further confirms the report that the privileged remain above the law by nominating their own S.H.Os. despite the fact that this murder case had hit headlines in the national Press in view of the serious and sensational nature of the crime wantonly and brutally committed allegedly by,persons who had backing of the political personalities.,

10. In view of the sensational and serious nature of the case and the grievance that the accused were not being brought to book, this Court required the police investigating team to' report progress to the Court lest it may also fail to act in accordance with law on account of the situation prevailing in the, district. The providing of shelter and protection of law to such officers by this? Court was considered imperative in the circumstances. The purpose was not to control the investigation but was to make the officer to perform his duty and? act in accordance with law. Even, now, if the new Inspector-General of Police Punjab, finds that these officers are not acting in accordance with law and are not producing results by bringing to book the actual culprits he will be free to take such measures which will prove effective and will result in bringing to book the culprits. This is the challenge to be met by the new I.-G.P. as the ability of his team to arrest the nominated accused would show how effective the police is to curb the crime.

11. For the foregoing reasons and with the above observations, this petitioner is dismissed being without merit.

12. Progress made in the investigation may now be reported on the next date of hearing.

13. To come up for further proceedings on 29th of September, 1996.

14. A copy of this order shall be sent to the Inspector-General of Police Punjab, Lahore, for his information. N.H.Q./M-177/L ????????????????????????????????????????????????????????? Petition dismissed