For the similarity of the facts and commonality of the law applicable the two Writ Petition Nos, 55/2008 and 179/2008 filed by Muhammad Aslam (Aamer Aslam) and others against the District Police Officer, Rawalpindi shall be decided by this single order.
2. The petitioners seem to be involved in multiple litigation with the police. It has been stated in the writ petitions that the house of the petitioners was raided on 28.5.2005 at about 11.00 p.m by the Civil Lines Police and violated the privacy of the house. Muhammad Imran. petitioner, was mercilessly beaten and his right leg was fractured, against which Writ Petition No, 1508/05 was filed before this Court for the registration of a criminal case against the police officials. This writ petition was disposed of for approaching the Court of Sessions in the first instance. Therefore a petition under Section 22-A of the Cr.P.C. was brought before the Justice of Peace/learned Additional Sessions Judge Rawalpindi who by order dated 28.06.2005 referred the matter to DPO, Rawalpindi for proceeding in accordance with law in the light of the averments made in the said petition under Section 22-A Cr.P.C. According to the petitioners, nothing came out of the reference of the matter to the DPO and the petitioners were constrained to file W.P. No, 3293/Q/05 which was admitted to regular hearing and is pending adjudication.
3. According the petitioners, Civil Lines Police has constantly been threatening the petitioners of dire consequences and pressing them hard to withdraw the said writ petition but as a sequel to the refusal of the petitioners the police apprehended Muhammad Aslam, petitioner, subjected him to physical torture and to avoid the consequences of its unlawful designs lodged two FIRs Bearing No, 951 and 952, dated 9.12.2007, u/S. 9-c of the Control of Narcotic Substances Act, 1997, at Police Station, Civil Lines, Rawalpindi against the petitioners Muhammad Aslam and Muhammad Imran, the allegation being that they were respectively in possession of charas weighing 1150 grams and 1111 grams.
4. It has been pointed out by the petitioners that when Muhammad Aslam, petitioner was produced before the learned Magistrate, Section 30, Rawalpindi, he submitted an application for medical examination whereupon he was medically examined by the Medical Board of DHQ Hospital, Rawalpindi on 10.11.2007 and multiple injuries were found on his person. According to the petitioners, the specimen sent for chemical analysis of the `charas' which was subject-matter of the said FIRs No, 951 and 952 did not bear the traces of `charas' and the Chemical Examiner instead of giving a negative report asked for fresh samples. The petitioners have alleged that Petitioner No, 1 has been sent to judicial lock up and ever since the other petitioners are being illegally harassed and threatened not to prosecute the police personnel. The petitioners have accordingly prayed that:--
(i) the Respondent No, 1 i,e, DPO, Rawalpindi may be directed to register a case upon the complaint of the petitioner against the culprits responsible for the criminal acts which are cognizable in nature and to have the same investigated through some superior outside authority and in the interregnum the culprits be suspended; and
(ii) the aforementioned Criminal Report Nos, 951 and 952 of 2005, registered at Police Station, Civil Lines, Rawalpindi, u/S. 9-C of the CNSA, 1997 may be quashed and the respondents be directed not to harass the petitioners in any manner whatsoever.
5. The learned counsel for the petitioners referred to the provisions of Articles 4, 9, 10 and of 14 of the Constitution and argued that every citizen has an inalienable right to be treated in accordance with law and to enjoy the protection of law, no person shall be deprive of life and liberty save in accordance with law; safeguards are provided in the Constitution against their arrest; and detention without being informed of the grounds for such arrest not only that but every person who is arrested and detained in custody has to be produced before a Magistrate within 24 hours of such arrest and no such person can be detained in custody beyond the prescribed period without the authority of a Magistrate.
6. According to the learned counsel none of the petitioners is required for preventive detention, hence, the protection provided under Articles 4, 9 and 10 of the Constitution must be made available to them. With reference to Art. 14 of the Constitution the learned counsel asserted that the dignity of man and subject to law the privacy of home is inviolable and in clear term prohibit that no person shall be subjected to torture for the purpose of extracting evidence. The learned counsel, thus, concluded that these provisions which confer fundamental rights on the citizens whenever violated and a complaint is lodged before a High Court for the violation the same, Court must\ step in to investigation such violation under the discretionary jurisdiction conferred on it under Art. 199 and pass such orders as being found just, legal and equitable in the facts and circumstances of the case.
7. The petitioners' learned counsel further submitted that the Courts have to safeguard the fundamental rights of every citizen and to protect the life and liberty from illegal, unauthorized and mala fide acts of omission or commission by an authority or person. With reference to his prayer for registration of the case, the learned counsel maintained that in the cases where the liberty of a citizen was involved, the action initiated by the police when found to be mala fide, the Court should not hesitate to step in and grant relief to the citizens. At this juncture, the learned counsel once again referred to the facts of the case and relied upon the aforementioned report of the Chemical Examiner to maintain that the case lodged against the Petitioners No, 1 and 2 being deficient and devoid of substance a direction for registration of a case against the concerned police officials was inevitable. In the same context he also referred to the report of the Medical Examination of Muhammad Aslam, Petitioner wherein a number of injuries were found on his person. It was thus submitted that the allegation of physical mal treatment and torture to Muhammad Aslam, petitioner, at the hands of the 'police officials was established beyond any shadow of doubt.
8. In relation to the prayer for quashment of the FIRs it was repeated that the aforementioned facts established the falsehood of the cases against the Petitioners No, 1 and 2 and the mala fide and ulterior motive of the police was also proved. Pursuant to the observations of the Chemical Examiner the police had sent the remaining material for further Chemical examination. The learned counsel argued that the re-examination of the alleged contraband was not warranted under the law.
9. In support of all the aforesaid contentions, the learned counsel for the petitioners relied upon the judgments, namely, Government of Sindh through the Chief Secretary, Karachi and four others v.
Raeesa Farooq and five others (1994 SCMR 1283), Maqbool Rehman v. The State (2002 SCMR 1076), The state v. Amjad Ali (PLD 2007 SC 85), Munawar Khan v. Shakil Ahmed and two others (PLD 1989 Lahore 513) and Syed Allah Dost v. Haji Muhammad Alam and 12 others (PLJ 1988 Quetta 1).
10.The learned AAG representing the respondents stated that the petitioner are renowned drug peddlers who are involved in a number of case and they have often been indulging in frivolous litigation against the police officials with an intent to harass them and with a mala fide purpose to somehow wriggle out of the criminal liability under those cases. According to him, they have also tried to pre-empt any apprehended valid action of the police by the litigation of which the present is one example, rather tip of an iceburg.
11.He further submitted that initial report of the Chemical Examiner was mala fide whereafter the police sent the whole of the seized contraband to the Chemical Examiner whereupon a positive report was received in the matter. As to the prayer of the petitioners for registration of the case he clarified that the injuries found on their person were duly explained in the FIRs, The learned AAG, thus, concluded that no case was made out for criminal liability of the police officials or for registration of case against them.
12.Regarding the prayer for quashment of the FIRs, the learned AAG submitted that both the FIRs involved the determination of questions of fact which could not be gone into by the High Court in the proceedings under Art.199 of the Constitution or even under Section 561-A Cr.P.C. The learned AAG relied upon the case of Col. Shah Sadiq u. Muhammad Ashiq and others (2006 SCMR 276), Allies Book corporation through L.Rs, Versus Sultan Ahmed and others (2006 SCMR 152) and Anwar Ahmed Versus Mst. Faiza Hussan and others (2006 SCMR 76).
13.The proposition advanced by the learned counsel for the petitioners with reference to the provisions of Art. 4, 9, 10 and 14 of the Constitution as such cannot be disputed. At the same time it can hardly be denied that the applicability or otherwise of these provisions depends upon and has to be decided with referenc'e to the relevant facts of the case. The basic thrust of the petitioners has been on the report of the Chemical Examiner relied upon by the learned counsel for the petitioners in his arguments which was to the effect that in the initial report of the Chemical Examiner the traces of `charas' were not found and the Chemical Examiner had asked for fresh sample and; that the reexamination of the alleged contraband was not warranted under the law.
14.The initial report of the Chemical Examiner did not formulate the whole truth. I am conscious of the position that the question of fact is not to be dilated upon in the present proceedings but where the petitioners have asserted their claim for registration of the case specifically with reference to a question of fact based upon the report of the Chemical Examiner, the facts which are relevant to the counter situation cannot be ignored altogether. Moreover, where the facts are undisputed and are available on the record and reference thereto does not need probe or enquiry, there shall be no bar under the law to consider them for arriving at a just conclusion.
15.It is on record that consequent upon the request of the Chemical Examiner the police sent the whole of the quantity of the alleged contraband to the Chemical Examiner Who resultantly gave a positive report. The assertion of the petitioner that the report is false or illegal involves factual enquiry which of course cannot be conducted in the present petition. This questions shall be determined by the Court where the trial is to be held in due course of time. Similarly, the facts flowing from the medical examination are to be thrashed out by the learned trial Court in contradistinction with those given in the very FIRs, 16.The Courts have no doubt a bounden duty to safeguard the legal and constitutional rights of the citizen but this function cannot be performed in aid of an assertion which is to be determined by means of factual enquiry during the trial of a case and the Courts may have to show restraint where the matters seem to be tainted with mala fide. Such a case may better be left to be dealt with in the factual enquiry during the trial before a proper forum. In the given situation, a direction for registration of a case as prayed for by the petitioners is not warranted under the law.
17.As to the quashment requested by the petitioners suffice would it be to say that this matter as agitated by them also involves factual enquiry which again is beyond the domain of these proceedings. By now it is well settled that in a case where prima facie an offence had been committed, ordinary course of trial before the Court should not be allowed to be deflected by resorting to the constitutional jurisdiction of the High Court. Reference in this context may be had to Col. Sadiq Shah Vs. Muhammad Ashiq and others (2006 SCMR 276) The extraordinary jurisdiction of the High Court under Article 199 of the Constitution may be used only in extraordinary circumstances and, it may not be exercised to obviate the normal process of law. The case against the petitioners warrants factual findings as to whether the alleged contraband was recovered from them; whether this contraband is or is not the `charas whether the injuries sustained by the petitioner; Muhammad Aslam, were the result of the circumstances mentioned in the FIR or were caused by physical final-treatment and torture at the hands of police, etc. In my opinion, the petitioners have not been able to make out extraordinary circumstances warranting interference in exercise of the jurisdiction under Article 199 of the Constitution by deflecting the ordinary course of trial before the Court of competent jurisdiction.
18.In view of the above circumstances, the writ petitions fail which are accordingly dismissed in limine.