1992 PLP 1556 (MLD)

5. In his view, "as the Presiding Officer allegedly through mala fide added the missing 839 votes in favour of Sardar Muhammad without any lawful authority and Haji Sardar Muhammad apparently does not represent the voters of the constituency", the petitioner would have suffered irreparable loss "along with voters of the constituency, if Haji Sardar Muhammad takes oath and continues working as a Councillor".

6. It is admitted that on a petition under Article 199 of the Constitution filed by Haji Sardar Muhammad, that order has been set at naught.

7. Learned counsel for the petitioner referred me to the statements of the Presiding Officer, Akbar Ali, and the members of his staff, namely, Muhammad Ashraf, Muhammad Yousaf and Muhammad Idrees, made before a Magistrate on 12‑1‑1992 under section 164 of the Cr.P.C. Copies of those statements arc Annexures B, C, D and E. The purport of those statements is that though the incident referred to in the FIR had occurred, yet the petitioner was not one of the culprits. They had not known the petitioner and they had named him in the FIR at the instance of the polling agents of Sardar Muhammad etc. Later, the petitioner met them; they then learnt that Ch. Muhammad Aslam, petitioner, had not participated in the commission of the offence.

8. Learned counsel for the petitioner maintained that in view of the statements under section 16.1 of the Cr.P.C. of the Presiding Officer and his staff, the case against the petitioner was obviously false; that the order of the learned Election Tribunal showed clearly that the action of the Presiding Officer was mala fide and that the alleged offences fell under rule 73(5) of the Punjab Local Councils (Election) Rules, 1979 and the Police were, therefore, not competent to take their cognizance and investigate them. He, therefore, invited me to hold that the case is mala fide and is liable to be quashed.

9. The first question that must be asked in such a case is whether there is power in this Court in the exercise of its jurisdiction under Article 199 of the Constitution to interfere with the investigation of a case by the police and if so, whether it should, in the proper exercise of its discretion, grant it.

10. The relief sought by the petitioner is in the nature of the English writ of certiorari, which is now called judicial review. This relief falls under clause (1) (a) (ii) of Article 199 of the Constitution, and the jurisdiction under that clause is to declare "that any act dons or proceeding taken has been done or taken without lawful authority and is of no legal effect". An act is an act without lawful authority if the person doing it had no authority to do it under the law under which he purported to act; it‑is an act ultra vires or without or in excess of jurisdiction. It is obvious that the question whether an act or order is or is not an act or order without lawful authority must turn upon the terms of the law under which the act was done or the order was made. (See Abdul Sami v. Abdul Ghaffar PLD 1990 Lahore 378).

11. The question whether there is power under Article 199 of the Constitution in this Court to make such a declaration when the case is at the investigation stage was considered in .the well‑known case of Shahnaz Begum (PLD 1971 SC 677, 693). It was held: "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 a proper proceeding either under Article 98 of the Constitution of 1962 or under the provisions of section 491 of the Criminal Procedure Code, if 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:" This question was again considered in Wali Muhammad's case (1971 SCMR 717) and it was held that the High Court does not possess the power to interfere with the investigation of a case by a police officer "either under clause 22 of the Letters Patent of the High Court of West Pakistan or under any other law or under the Constitution".

12. Learned counsel for the petitioner referred to The State v. Hamtho (1971 SCMR 686). That was, however, not a case in this Court's writ jurisdiction. There the respondent had been acquitted by the Sessions Judge and the acquittal had been upheld by the High Court. The offence, with which the respondent therein was charged, was special offence and there was special procedure for the trial of that offence and it was held that that procedure must be followed.

13. I am tempted in this behalf also to refer to a case from the English jurisdiction namely Imperial Tobacco Ltd. and another v. Attorney‑General (1981 A.C. 718). In that case, the Imperial Tobacco Ltd. started a " `Spot Cash' advertising scheme. Cards each with six small plastic covered boxes or spaces were placed in packets of a brand of their cigarettes without any additional charge. When uncovered each box described a prize, ranging from L 5;000 to L 1 or a free packet of cigarettes, which could be won. If when the covers were removed three of the spaces were found to contain the same prize, that prize could be claimed. The plaintiffs inserted some 260,000,000 `Spot Cash' cards into cigarette packets which were then sold at the same price as before the scheme started. A further million cards were sent to retailers for display in their shops so that they could be taken by customers free of charge whether or not a purchase was made. A further 250,000 were available to be sent to anyone who wrote to the plaintiffs asking for a card. After the scheme had been started, competitors of the plaintiffs sought the Attorney‑General's consent for a realtor action to test the scheme's legality. Such consent was refused and the competitors' complaint was passed to the Director of Public Prosecution who considered that the scheme was illegal. On November 24, 1978, summonses were issued by the Nottingham justices against the plaintiffs and four of their directors or managers alleging that in furtherance of the scheme they had distributed tickets in an unlawful lottery contrary to section 2(1)(b) of the Lotteries and Amusemants Act, 1976 and had conducted a competition in‑ which success did not `depend . to a substantial degree on the exercise of skill' contrary to section 14 (1)(b) of that Act. On the same day the Director requested the Plaintiffs' assurance that the scheme would be discontinued pending the outcome of the trial and said that it was his intention to proceed on indictment on the summonses. The plaintiff Imperial Tobacco Ltd. claimed a declaration that the scheme was lawful and did not contravene the provisions of the Act 1976 as being a lottery or an unlawful competition. In these facts, two questions fell for determination; (i) whether the Civil Court had the jurisdiction to grant the declaration and (ii) that if the Court had the jurisdiction, it should, in the proper exercise of its discretion grant it. Donaldson, J. who tried the suit, held that the scheme was lottery and an unlawful competition; The Court of appeal holding that it was neither, granted the declaration. The House of Lords held that the decision of the Court of appeal, if allowed to stand, "will form a precedent for the Commercial Court and other Civil Courts usurping the functions of the Criminal Courts". The course, which the Court of appeal took, it was observed, was unusual and unprecedented. It was argued that "the administration of justice would belie its name if Civil Courts refused to answer reasonable questions on whether certain conduct was or was not lawful". Dismissing this contention, Viscount Dilhorne observed: "I think that the administration of justice would become chaotic, if after the start of a prosecution, declarations of innocence could be obtained from a Civil Court."

14. Dealing with the question of discretion, Lord Fraser of Tullybelton held (at page 746 of the Report) that by exercising the discretion in favour of making the declaration, the Court "improperly intruded into the domain of the Criminal Court, notwithstanding that Criminal proceedings had already been begun". And Lord Lane had the following observations to make on the subject (at page 752): "It would be strange if a defendant to proper criminal proceedings were able to pre‑empt those proceedings by application to a Judge of the High Court whether sitting in the Commercial Court or elsewhere:" and that: "Where, however, criminal proceedings have been properly instituted and are not vexatious or an abuse of the process of the Court it is not a proper exercise of the Court's discretion to grant to the defendant in those proceedings a declaration that the facts to be alleged by the prosecution do not in law prove the offence charged."

15. It is obvious that the first contention of the petitioner's counsel amounts to an invitation to decide the question whether the petitioner had or had not committed the offences in the light of the statements under section 164 of the Cr.P.C. of the Presiding Officer and his staff. I decline the invitation. There can be no doubt that the police have the power under the Code of Criminal Procedure to investigate into the allegtion5 made in the FIR, and then to challan or not to challan the accused persons. For that purpose, the police can certainly take into consideration the‑statements under section 164, Cr.P.C. referred to above. It is also beyond question that if the matter goes to the Court, the deponents will be called as prosecution witnesses, will be examined‑in‑chief and cross‑examined, and that it will be for the Court to determine their trust‑worthiness in the light of their section 164 statements, and the other evidence and to get at the truth as to the petitioner's guilt of innocence. To accept the invitation will, therefore, amount to this Court assuming the roles of the investigating officer and the trial Court. I can see no justification to do so.

16. As to the second contention, the election petition is pending decision. All that the learned Election Tribunal had done was to decide the petitioner's temporary injunction application. It is well‑known that the findings recorded in disposing of such matters are tentative in nature. However that may be, the learned Election Tribunal was careful enough to say that "the Presiding Officer allegedly through mala fide. added the missing 839 votes in favour of Haji Sardar Muhammad without any lawful authority". Learned counsel for the petitioner argued that the question whether the petitioner and his co‑accused had committed the offences will also fall for decision in the election petition. I am not sure, if this question directly arises in the election petition, for the parties' pleadings are not before me. From the order of the learned Election Tribunal dated 20‑1‑1992, however, 1 find that if the Presiding Officer had no authority in law to count the 839 missing votes for Haji Sardar Muhammad, then that may prove to be the decisive factor in the decision of the election petition.

17. Learned counsel for the petitioner then referred to rule 73 of the Punjab Local Councils (Election) Rules, 1979 (hereinafter to be called the Rules); that rule, by its clause (5), provides that a person is guilty of illegal practice punishable with fine which may extend to five hundred rupees, if he removes a ballot paper or a ballot box from a Polling Station or destroys, damages or tampers with a ballot box used at a Polling Statiod'. He also called my attention to rule 85 of the said Rules, which empowers a police officer to arrest without warrant a person who commits personation or an offence under rule 78, sub‑rule (1) of rule 79, or rule 80 and to rule 86, which says that offences under clause (1) of rule 72 shall be cognizable offences to contend that an act contrary to rule.73 is not a cognizable offence. He also referred to rule 87, which says that no Court shall take cognizance of an‑offence under sub‑rule (2) of rule 79, rules 81, 82, 83 or rule 84 except upon complaint in writing made by order of, or under authority from election authority and rule 88, which says that no prosecution for an offence under rule 72 or rule 73 shall be commenced except (a) within six months of the commission of the offence or (b) if the election at which the offence was committed is subject to an election petition and Election Tribunal has made an order in respect of such offence within three months of the date of such order. The essential question, therefore, is whether the acts which the petitioner and his co‑accused are alleged to have committed are acts contrary to rule 73(5) of the Rules. As observed above, under clause (5) of rule 73, it is an illegal practice to remove a ballot paper or ballot box from a polling station or to destroy, damage or tamper with a ballot box. Here, what the petitioner and his co‑accused had allegedly done was not a mere removing of ballot paper or a ballot box; they had entered into the polling station armed with loaded pistols and had, at pistol point, removed the ballot papers. They had also wrongfully confined the Presiding Officer and his staff; later they had fired shots, which was obviously for the purpose of scaring away people. It is for that reason that the petitioner and his co‑accused are being proceeded against under sections 382 and 186 of the P.P.C. Rules 85, 86 and 87 therefore, appear to have no relevance to this case. Rule 88 provides for limitation for the commencement of prosecution for an offence under rule 72 or rule 73 but as the prosecution here is not a prosecution under those rules, that rule. too does not apply.

18. For these reasons, I am led and led ineluctably to the conclusion that the investigation of the case by the police is not without lawful authority and also that it will not be proper exercise of this Court's discretion under Article 199 of the Constitution to interfere with the investigation of the case by the Police. '

19. In the result I find no merit in the petition and dismiss it with costs.

20. I had heard learned counsel for Haji Sardar Muhammad in C.M.850/92, by which he prays for being made party to this writ petition. As the writ petition has been dismissed on its merits, it is not necessary to decide this C.M. N.H.Q./M‑349/L Petition dismissed.