1999 P Cr (PLP)

Art. 199

Constitutional jurisdiction of High Court

Scope

Statutory functionary exercising power not for the purpose for which it was conferred or his findings being vitiated by bias

Effect

Constitutional jurisdiction could always be exercised to require a statutory functionary to carry out the mandate of law or restrain the functionary from acting unlawfully. Shakeel Ahmad for Petitioner. Muhammad Saleem Samoo, Addl. A.-G. for the State. Gul Zaman Khan for Respondent No.2. The petitioner through this petition has prayed that the respondent No. l (I.-G. Police Official Sindh) be directed to transfer the investigation in an F.I.R. No.432 of 1996 from respondents Nos.2 and 3 to some other police officials. Basically the petitioner's case is that on account of some personal feud one Jamil Akhtar Kiyani, the then D.S.P., got him bodily lifted caused his detention in a dark room at Police Station New Karachi for 30 hours. The petitioner attempted to report the matter to police, but they refused to register a case (accused being Police Officer himself) and an F.I.R. No.432 of 1996 was registered only on the direction of this Court. The bias of the respondents Nos.2 and 3, according to the petitioner, was also evident in the investigation. Investigations were conducted by different Officers, but they were partial and absolved the accused. Resultantly the petitioner has asked for reinvestigation through "honest Investigating Agency" and submission Police Report under section 193, Cr.P.C. to the Illaqa Magistrate. I had requested the Additional Advocate-General to make Police papers available. At the same time Mr. Gul Zaman Khan, Advocate requested for permission to appear on behalf of accused Jamil Akhtar Kiyani, though the later was not impleaded as respondent and I granted him permission in the interest of justice. Having seen the police papers it appears that some of the persons examined under section 161, Cr.P.C. have clearly stated that the arrest and detention of the petitioner was caused by the abovementioned D.S.P. It may be pertinent to mention that initially the matter, after having been investigated by different Police Officers was sent to the prosecution Branch which observed that statement of three (3) Police Officers namely, S.-I. Rehmat, A.S.-I. Muhammad Ashraf and H.C. Nadeem Akhtar ought to be recorded. Thereafter, they were so examined and incidentally each one of them had involved the accused. Thereafter, D.S.P. Incharge Gul Hameed Sammo appears to have referred the matter to the Prosecution Branch, but no outcome has been reported. Mr. Gul Zaman Khan learned counsel for the accused vehemently argued that alternate remedy by way of private complaint was available to the petitioner and that this Court does not interfere in the process of police investigation. Both the above principles are not disputed. Nevertheless, it is equally well-settled that when a statutory functionary exercised power not for the purpose for which it is conferred or when his findings are vitiated by bias Constitutional jurisdiction can always be exercised to require him to carry out the mandate of law or restrain him from acting unlawfully. Much that that I would like not to comment on merit, it does appear, prima facie, that closing of investigation particularly when recording the statements of those persons who had directly implicated the accused did not reflect strict impartiality and learned Additional Advocate-General did not assign any reason for not re-investigating the matter after consistent incriminating statements made by Police Officers themselves against the accused were recorded. The facts that the accused was a senior Police Official cannot be together ignored with and gives rise to a suspicion on the part of the petitioner that justice was not done. Keeping the circumstances in view, I would direct the S.S.P. South Karachi to depute an honest and competent police official to reinvestigate the matter and submit a reasoned report. It is, however, clarified that any observation made herein will not prejudice the Inquiry Officer and the accused would be entitled to all defence available under the law. The petition stands disposed of. Q.M.H./M.A.K./M-358/K ????????????????????????????????????????????????????????????????? Petition allowed.