' ZAFAR IQBAL CHAUDHRY, J.--- This single judgment will dispose of W.P.No,10587 of 2008 filed by Ashiq Ali, D.S.P. Seeking quashment of F.I.R. No,854 dated 21-8-2008, registered under Articles 155-C, 136 of Police Order, 2002 at Police Station Hanjarwal, Lahore; Writ Petition No,10852 of 2008 filed by Tariq Mahmood, Ex-Inspector for quashment of F.I.R. No,850 dated 21-8-2008, registered under Article 155-C, 156 of Police Order, 2002 at Police Station Hanjarwal, Lahore; Writ Petition No,10784 of 2008 filed by Ijaz Ahmad, Sub-Inspector to quash F.I.R. No,851 dated 21-8-2008, registered under Articles 155-C, 156 of Police Order, 2002 at Police Station Hanjarwal, Lahore, and Writ Petition No,10855 of 2008 preferred by Ansar Hussain, Sub-Inspector (Retd.) for quashing of F.I.R. No,853 dated 21-8-2008, registered under Articles 155-C, 156 of Police Order, 2002 at Police Station Hanjarwal, Lahore as all these F.I.Rs, were registered against the Police Officers with the allegation that they had conducted investigation of a murder case on different occasions illegally and impartially and common questions of law and facts are involved.
2. The facts giving rise to these writ petitions are that a case F.I.R. No,884 was registered at Police Station Hanjarwal, Lahore on 14-12-2006 in respect of offences under sections 302/324/109/148/149, P.P.0 and section 7 of the Anti-Terrorism Act, 1997 and originally the case was investigated by Qaisar Mushtaq, Inspector, Tariq Mahmood, inspector petitioner, Ijaz Ahmad, S.-I. Petitioner and Ansar Hussain, S.-I. Petitioner while Ashiq Ali petitioner being S.P.O., Sabzazar Circle verified the investigation conducted by the said police officers.
3. The learned counsel for the petitioners have argued:---
(i) that all the F.I.Rs, have been registered illegally and with mala fide intentions on the part of. D.S.P.
(Legal) as well as D.I.-G. (Investigation) who without any evidence had passed the order in this regard, which is not warranted by law,
(ii) that the competent Court has already taken the jurisdiction of the said case and during that period no objection regarding defective investigation was raised by any of the authorities;
(iii) that in the light of the comments given by the C.C.P.O., Lahore and S.S.P, Lahore, D.S.P. (Legal) had no authority to override their opinion;
(iv) that all the accused persons except one who is absconder are facing the trial before the learned trial Court;
(v) that the impugned order on which F.I.Rs, have been registered is against Articles 171 and 172 of Police Order, 2002 under which protection has been given to the acts done by the Police Officers in good faith;
(vi) that F.I.R. No,852 of 2008 registered against Qaisar Mushtaq has been cancelled after investigation who was opponent and the investigation and subsequent investigations were conducted in continuation of his investigation;
(vii) that no case can be registered under Article 156 of Police Order, 2002 in anticipation of the verdict of the Court or any subsequent investigation;
(viii) that keeping in view the material with the prosecution there is no probability of the conviction of the petitioners; ' and prayed for quashment of the F.I.Rs,, which were registered malafidely without any basis while misusing the authority only to create departmental harassment and the same are liable to be quashed as further proceedings therewith will be abuse of process of law and sheer wastage of time. Relies upon:-- ' 1997 P.Cr.L.J.974, 1997 P.Cr.L.J.1503, 1994 P.Cr.L.J.2391, and 2008 SCM R 76.
4. On the other hand, learned Additional Advocate-General submits that the two accused persons who were declared innocent during the investigation by the petitioners have been summoned vide order dated 11-6-2007 passed by learned Judge Anti-Terrorist Court IV, Lahore and it shows that they were illegally declared so by the petitioners as Investigating Officers, who have been rightly proceeded under the provisions of Police Order, 2002.
5. I have heard the learned counsel for the parties and perused the record with due care and caution with their assistance. Briefly the allegation is that after the investigation in the aforesaid murder case, Muhammad Asim and Muhammad Sarwar accused had been declared P.Os., who after the grant of interim pre-arrest bail from the Court joined the investigation and they were declared innocent by Qaisar Mushtaq, Incharge Investigation within 15 days vide Zimni No,45 dated 25-3-2007, which was verified by Ashiq Ali D.S.P. Petitioner. Muhammad Aslani accused was also declared P.O., who on coming back from France and after the grant of interim pre-arrest bail was joined in the investigation by Ijaz Ahmad S.-I. Petitioner and was declared innocent, which opinion of the said Investigating Officer was also verified by Ashiq Ali D.S.P, petitioner. Moreover, on 25-3- 2007 Malik Muhammad Ashraf Lambardar had given a writing about the innocence of Asim and Muntzir Mehdi accused, which was found fictitious, but no notice thereof was taken by Ashiq Ali D.S.P. Then on 22-4-2007 Tabassum Ali accused was declared innocent by Ijaz Ahmad S.-I. After the investigation, which was verified by the D.S.P., but the learned Judicial Magistrate while disagreeing with the discharge report ordered for committal of Tabassum accused to jail, who was sent there by Ijaz Ahmad S.-I. Petitioner without effecting any recovery from him. However, the pistol was shown to be produced through Malik Zafar so that it could not be connected with the accused.
6. It is admitted position that the challan in the murder case was primarily submitted to the Anti- Terrorism Court and after submission of challan an application for transfer of investigation was moved by Tassawar Hussain son of Bao Bashir Ahmad and Abdul Rashid son of Hadayat Ali, which was duly considered by the Senior Superintendent of Police, Discipline and Inspection, Lahore Mr. Sultan Mahmood and Chief City Police Officer, Lahore Malik Muhammad Iqbal, who after going through the record and hearing the parties filed their comments that the investigation was properly conducted and case was not likely to be re-investigated as challan has already been submitted before the Anti-Terrorist Court. Then vide judgment dated 22-10-2007 passed by this Court in Writ Petition No,49486 of 2007 whereby the jurisdiction of Anti-Terrorism Court had been challenged, offence under section 7 of A.T.A. Was deleted by this Court and the case was sent to the Court of ordinary jurisdiction where the case is pending and during this period evidence of 7 witnesses has been recorded. It has also been brought to my notice that when the matter was pending before the C.C.P.O., Lahore two aggrieved persons also filed writ petition claiming therein that they were satisfied with the investigation conducted by the above-said Police Officers. Now the case is sub judice before the learned Additional Sessions Judge, Lahore and during the pendency thereof in the Court of competent jurisdiction the D.S.P. (Legal) on some query on the administrative side gave opinion that the investigation in this case had not been conducted honestly by the above-said petitioners whereupon the aforesaid F.I.Rs, have been registered. When questioned by this Court, the D.S.P (Legal) present in Court has failed to produce any letter/document on which this opinion was sought and he is also not sure that who had sought that opinioh. It is admitted that keeping in view the provisions of Article 155(2) of the Police Order, 2002 the D.S.P. Was not authorized person to recommend for registration of the cases against the petitioners. Moreover, under Articles 171 and 172 of Police Order, 2002, the acts of the police officers done in good faith have been protected and for ready reference the said provisions of Police Order, 2002 are reproduced as under:---
171. No police officer to be liable day penalty or payment of duty. No police officer shall be liable to any penalty or to payment of damages on account of an act done in good faith in pursuance or intended pursuance of any duty imposed or any authority conferred on him by any provision of this order or any other law for the time being in force or any rule, order or direction made or given therein.
172. Suits or prosecutions in respect of acts done under colour of duty not to be entertained if not instituted within the prescribed period. In case of an alleged offence by a Police Officer, or a wrong alleged to have been done by him or by any act done under colour of duty or in exercise of any such duty or authority of this order or when it shall appear to the Court that the offence or wrong if committed or done was of the character afore-said, the prosecution or suit shall not be entertained, or shall be dismissed, of instituted after more than six months from the date of the action complained of.
' Furthermore under subsection (2) of section 156, Cr.P.C., which is the parent law, the investigation conducted by the police officer cannot be called in question in the subsequent proceedings on the ground that he was not competent to do the same. The said subsection reads as follows:--- "(2) No proceedings of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate."
7. It is also not case of the prosecution that the petitioners being the police officers were not competent to investigate the case and it is settled law that the opinion of the police is not binding on the Courts. The aggrieved party had the right to move for reinvestigation. Admittedly the police has not collected any evidence regarding dishonest investigation conducted by the petitioners and it seems that all the F.I.Rs, have been registered only on the opinion of the D.S.P (Legal), who had no authority in this regard when the matter was already sub judice before the Court of competent jurisdiction, which is fully empowered to recommend to the higher authorities in police hierarchy for any action against the Police Officers/Investigating Officers if any lapses are found on their part during the trial. It has also been brought to the notice of this Court that F.I.R. No,852 of 2008 with the such allegation was also registered against Qaisar Mushtaq, but the same has been cancelled after the investigation and the cases registered against the petitioners have no distinct features.
8. In view of the above discussion, I am satisfied that all the afore said F.I.Rs, were result of malice and those do not constitute any offence, rather these are cases of no evidence and further proceedings therewith will be sheer abuse of process of law, which cannot be allowed to continue.
Hence, all the four writ petitions are accepted and the F.I.Rs, called in question therein are quashed.