Mst. Rifat Shaheen, petitioner got registered a case FIR No, 543 dated 30.10.2004 under Sections 337-F(v)/452/420/406/506 PPC read with Section 34 of the same Code at Police Station, Gujar Khan against Raja Muhammad Binaras and Waheed Altaf, respondents.
2. During the course of investigation Raja Muhammad Binaras, respondent/accused, made an application before the District Public Safety Commission, Rawalpindi (hereinafter to be called the Commission) and called in question the correctness of allegation set up in the FIR. The Fact Finding Commission came to the conclusion that the FIR was based on false information and the machinery of law had been moved against the accused dishonestly. The Commission also directed the Investigating Agency to cancel the case and report compliance within a period of fortnight. Mst. Rifat Shaheen, complainant of the case challenged the above said order of the Commission through this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 on the ground that it was beyond the jurisdiction of the Commission to issue an order for cancellation of a criminal case under investigation.
3. The respondents/accused persons supported the direction/order of the Commission with the plea that the complainant, had got registered a false case and that it was within the jurisdiction of the Commission to-prepare facts finding report.
4. I have heard the learned, counsel for parties and have gone through the record.
5. Article 37 of the Police Order, 2002 deals with the establishment of District Public Safety and Police Complaints Commission in every district. Powers and functions of the Commission have been given in Article 44 ibid. Clause (k) to Article 44(i) was invoked by the. respondents/accused person by making a complaint in writing before the Commission. When asked during the course of arguments from which provisions of law the Commission derived authority to issue a direction to the Investigating Agency for cancellation of a criminal case, the learned counsel for the accused persons placed reliance on clause (m)(ii)(iii) of the said Article. For facility of reference the above said provisions are reproduced below verbatim-- "(ii) conduct a fact finding inquiry on its own by two or more of its members or through an officer serving in the District, not below the rank of Basic Pay Scale 18 and, in case the complaint is found correct, sent the inquiry report to the Head of District Police and direct him to take legal action against the delinquent Police Officer;
(iii) report the matter to the Provincial Government through the Provincial Public Safety and Police Complaints Commission for action under the appropriate law where the Head of District Police does not submit a report or take action on the direction given by the District Public Safety and Police Complaints Commission."
A bare perusal of the above said provisions of law would show that after having received the fact finding inquiry report the Commission was required to forward the same to the Head of District Police with a direction to take legal action against the delinquent Police Officer. In case no action is taken as proposed by the Commission then the matter is to be reported to the Provincial Government through the Provincial Public Safety and Police Complaints Commission for action under the appropriate law. It is no where provided in the Police Order, 2002 or the Cr. P. C. or any other law touching the subject of investigation of criminal cases, which may authorize or empower the Commission to direct the Investigating Agency to cancel the case.
6. When confronted with the above said provisions of the Police Order, 2002 and the impugned direction of the Commission, the learned Law Officer very rightly and frankly conceded that the impugned order/direction of the Commission was beyond their allotted sphere.
7. For the sake of arguments if it is admitted that the Investigating Officer seized of the investigation of the case in question mis-conducted or failed to investigate the case on facts, a direction should have been issued to the Head of District Police for a legal action against him. In the case in hand the Commission assumed the role of Investigating Officer rather encroached upon the functions of the Investigator, DSPO and the Head of Investigation. The Commission has no authority to direct the Investigating Agency to cancel a criminal case under investigation.
8. The learned counsel for respondents/accused persons unsuccessfully attempted to support the impugned order of the Commission but could not quote any provision of law in support of the contention.
9. Under the Police Order, 2002 no forum has been provided to challenge or assail the order of the Commission. The complainant is right in his assertion that excepting Constitutional Petition no other appropriate, alternate and efficacious remedy to challenge the order of the Commission is available to her. At the cost of repetition I would say that the Commission passed an order beyond its sphere allotted by law and, therefore, it is a fit case for exercise of Constitutional Jurisdiction in order to keep the functionaries of the Government within their limited scope.
10.For what has been stated above, I accept this petition and set aside the direction of the Commission under challenge with a direction to the Investigating Agency to conclude the investigation on facts in accordance with law without being influenced by the impugned direction. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.