1999SCMR828 (PLP)

SH. IJAZ NISAR, J.

This appeal by leave to the Court is directed against the judgment, dated 26-1-1994, passed by the Lahore High Court, in Criminal Appeal No.709 of 1991.

2. The relevant facts are that on the report of Superintendent Government Printing Press, Punjab, Lahore Case F.I.R. No.81 of 1986 was registered on 1-3-1986 under section 409, P.P.C. against Bashir Arshad, Senior Clerk/Cashier for the shortage of Rs.1,25,207.15 in the cash box. After the investigation, Bashir Arshad was sent up to face trial in the Court of Senior Special Judge, Anti-Corruption, Punjab Lahore. Mazhar Naeem Qureshi appellant was cited as one of the prosecution witness and was examined as P.W.6 by the trial Court. On conclusion of the trial, the learned Senior Special Judge, Anti-Corruption, Punjab, Lahore convicted Bashir Arshad under section 409, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947, and sentenced him to undergo R.f. for three years plus fine of Rs.1,70,000 or in default to undergo further R.I. for one year.

3. Challenging his conviction and sentence Bashir Arshad filed an appeal in the Lahore High Court, which came up for hearing on 26-1-1994. A learned Judge of the High Court set aside the conviction and sentence of Bashir Arshad and remanded the case to the learned trial Court for its retrial after obtaining necessary sanction for the prosecution which had not been obtained earlier. The learned Court was further pleased to order as under:-- "Before parting with this judgment I would like to observe that Mr. Mazhar Naeem Qureshi, Accounts Officer/Drawing and Disbursing Officer, who figured materially in this case as a supervisory officer, because out of two keys of the chest containing money one was to be with him and the other with the appellant, appears to have been let off by the police during the investigation and even the learned trial Judge does not seem to have adverted to this aspect of the matter. It is, therefore, directed that the case shall be thoroughly reinvestigated this time by the Anti-Corruption Department and Mr. Mazhar Naeem Qureshi Accounts Officer/Drawing and Disbursing Officer of the Government Printing Press, Government of the Punjab, Lahore, shall be associated with the investigation besides all others concerned with the commission of the crime and the Anti-Corruption Department shall submit a challan to the learned Senior Special Judge (Prov.) Anti- Corruption, Lahore, within two months against those who are found guilty and he shall commence the trial thereafter in accordance with law. Besides remitting the record alongwith the copy of the judgment to the learned Senior Special Judge (Prov.) Anti-Corruption, Lahore, a copy of this order shall also be sent to the Director, Anti-Corruption Establishment, Lahore, for compliance. He shall get the investigation finalized within two months, under intimation to the Deputy Registrar (Judi.) of this Court."

4. Mazhar Naeem Qureshi appellant approached this Court challenging the above impugned order so far as the same concerned him. Leave was granted to him on 6-3-1995 to consider the legality of the order passed by the High Court.

5. It is contended that the learned High Court, while disposing of the criminal appeal filed by Bashir Arshad convict, could not pass the above order which was a son of direction to the Anti-Corruption Department to array the appellant as well, as accused, alongwith Bashir Arshad. Subsection (b) of section 423, Cr.P.C. provides that an Appellate Court, while disposing of an appeal from a conviction, may:-- reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or (sent) for trial, or (2) after the finding, maintaining the sentence, or, with or without altering the finding, reduce the sentence, or, (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, but subject to, the provisions of section 106, subsection (3), not so as to enhance the same." The bare reading of the above provision makes it clear that the Appellate Court 8 has no power to order re-investigation, or to direct its manner or mode.

6. It would not be out of place to mention here that reportedly a departmental inquiry was also held in addition to the criminal trial and the appellant had appeared as a witness against Bashir Arshad in both the forums and at no stage he was found involved in the short-fall of the cash. There was no revision filed in the High Court against the judgment of the learned Trial Court, nor was any oral prayer made by the learned State Counsel to order re-investigation of the case, and the High Court in its own wisdom issued the above directions. The order of the learned High Court tantamounts to interfering with the investigation already conducted by the competent Authority, which will not be in. consonance with the rule laid down by this Court in Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another (PLD 1971 SC 677). The illuminating observation made by the Privy Council in, Emperor v. Khawaja Nazir Ahmad (AIR 1955 SC 18) may be advantageously re-produced:-- "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 important 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 begins when a charge is preferred before it and not until then."

7. For the foregoing reasons, we accept the appeal and set aside the impugned judgment to the extent of the appellant. M.B.A./M-272/S Appeal accepted.