' RAHMAT HUSSAIN JAFFERI, J.---On 22-10-2009, a learned Judge of the High Court of Sindh visited District Jail Shaheed Benazirabad, where he received an application from respondent No,1, which is as under:-- "Applicant Piyaro Khan son of Habibullah Khokhar submits that while going on my own motorcycle, I was intercepted by S.H.O. Daur Ghulam Sarwar Zardari, A.S.-I. Shabbir, Shahan Shah and constables Khadim Machi and Nazim on Dau Nawabshah Road on the pretext of checking of documents of the motorcycles. Despite availability of all the documents, they took me to PS. There they snatched RS.5300 and one cell phone set of Nokia from me. They also tortured and implicated me in two false cases and sent me to jail. Civil Judge Leghari Sahib had issued directions for my treatment."
' On the said application, the learned Judge passed the following order:-- "Converted into Criminal Miscellaneous Application. Office to number it. Applicant submits that S.H.O. Ghulam Sarwar Zardari Police Station Daur, S.-I. Shabbir Shah, Shahanshah and Khadim Machi have tortured him. We have noticed injuries on his person which fact has been recorded in the remand order. The Jail doctor failed to show the injury to injury register of the jail. District Police Officer shall produce the above officials on 23-10-2009 along with record. Issue P.O. Call Jail Roll."
' On the next date viz. 23-10-2009, the impugned order was passed. A relevant portion of the impugned order reads as under-- "There are serious allegations of maltreatment against the present S.H.O. And during my visit in District Jail Shaheed Benazirabad one police constable had also stated that the S.H.O. Has maltreated him. The S.H.O. Could not offer plausible explanation as to why he has not mentioned these injuries when the applicant was arrested by the A.S.-I or when he was brought to the Police Station. It therefore, reflects adversely on his part. Normally, if a person is arrested with injury, it is obligatory on the police to get such person examined from the Medical Officer or at least keep an entry of such injury, which has not been done in the present case. The S.H.O., if he has not caused injury has flouted the law in this regard and therefore, I in the given circumstances direct the D.I.G. Concerned to post him out from the Police Station. He should not be assigned field posting for one year. The applicant may avail the remedy from the competent Court."
2. The petitioner, who is a Police Inspector, has challenged the last part of the impugned order, under which a punitive order has been passed against him.
3. The learned counsel for the petitioner has stated that respondent Piyar Ali was involved in F.I.R.
No,99 of 2009 of Police Station Daur; that he was arrested and beaten by P. Ws and public while he was committing the offence of robbery of motorcycle; that such facts are narrated in the F.I.R. And memo of arrest; that the petitioner, who is S.H.O., had explained the above position in his statement filed before the High Court further adding that he did not arrest the respondent; that such punishment is an abuse of the process of the Court; that the learned Judge has misread the material produced before him and that the learned Judge without holding proper inquiry has punished the petitioner, which is not the function of the High Court in exercise of powers under section 561-A, Cr.P.C.; that the learned Judge had no jurisdiction to pass such an order, as it is the function of the competent authrity, in the police department to award such punishment and that too after holding proper enquiry as per rules.
4. The learned Advocate General, Sindh has not supported the impugned order and has stated that such powers are not vested with the learned Judge in the present circumstances of the case, particularly, in view of Article 4(1)(c) read with Articles 113 and 155 of Police Order. He has further argued that the application moved before the learned Judge by the accused of a crime was treated as Miscellaneous Application under section 561-A, Cr.P.C., but said section does not authorize the learned Judge to punish a Police Officer in the manner under the impugned order and that it is an abuse of the process of law.
5. Having heard the learned counsel for the petitioner, the learned State counsel and perusing the record, we find that on 18-10-2009 at 3-00 p.m. The respondent, on whose application the impugned order was passed was apprehended and beaten by the public, complainant and P. Ws of F.I.R. No,99 of 2009, while committing the robbery of motorcycle of said complainant. Such facts are mentioned in the F.I.R. And memo of arrest of the respondent and memo of recovery. On the information of the complainant, A.S.-I Syed Shabbir Shah reached the place of incident, made arrest of the respondent and recovered the articles. The petitioner did not arrest the respondent.
The petitioner submitted written explanation before the High Court mentioning therein all the facts and further added that the respondent was hardened criminal as he was also challaned in cases of robbery and possession of unlicensed weapon in the year, 2008.
6. From the above position, it appears that the allegation of the respondent needed a thorough probe keeping in view the allegations in the relevant F.I.R. And other circumstances related in the foregoing para. Besides, there was no independent evidence to corroborate the allegation of respondent that he received injury at the hands of petitioner. Even then, the learned judge directed the respondent to seek remedy from a competent Court of law and the petitioner was penalized in the above manner.
7. Coming to the legal position, it may be seen whether the learned High Court is competent to pass an order penalizing a police officer in the circumstances of the present case by exercising powers under section 561-A, Cr.P.C. The said section reads as under:-- "561-A. Saving of inherent power of High Court.--- Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code; or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
8. Admittedly, no Challan in F.I.R. No,99 of 2009 was submitted before the Court, when the learned Judge received the application and passed the impugned order. The F.I.R. Was lodged on 19-10- 2009 whereas the complaint was received on 22-10-2009 and impugned order was passed on 23- 10-2009. Thus the case was at the stage of investigation and no order of any Court was challenged before the High Court. The section 561-A, Cr.P.C. Empowers the High Court to pass any order as may be necessary to give effect to any order under the Code so as to prevent abuse of process of any Court or otherwise td meet the ends of justice. There is a plethora of decisions of this Court on the above subject but we will just refer to only one judgment delivered in the case of Shahnaz Begum v.
Honourable Judge of the High Court of Sindh and Balochistan PLD 1971 SC 677, wherein at page 693 it has been observed as under:--- "It will be observed that the power given thereby can be invoked to give effect to any order under the Code to prevent an abuse of the process of any Court or otherwise to secure the ends of justice. The ends of justice necessarily means justice as administered by the Courts and not justice in the abstract sense or justice administered by agencies other than Courts. The words 'otherwise to secure the ends of justice', have to be read along with the earlier objects mentioned in this section and must have some co-relation with them it is in this sense that this Court in the case of M.S. Khawaja v. The State PLD 1965 SC 287 opined that the ends of justice to secure which the inherent power may be invoked 'have reference to the purposes which the judicial process is intended to secure, and it is difficult to include actions of investigation agencies within the scope of judicial process."
9. It is noted that the fact that the respondent had received injuries from the hands of public, complainant and P. Ws of Crime No,99 of 2009 is specifically mentioned in the F.I.R. And memo of arrest of the respondent. However, only the seat and number of injuries were not mentioned in the memo of arrest. This can at the most be treated as irregularity and for that Police Order, 2002 and rules can adequately deal with the situation when any police officer has failed to perform his duties within the scope of Article 4 of Police Order. For such violation, a police officer can be punished by a Magistrate under section 155 of the said Order or disciplinary action can be taken by the competent authority of police department as provided under Article 113 of the said Order and appropriate rules. Thus adequate and alternative remedy was available, therefore, there was no justification for the High Court to pass any punitive order in this manner: Further such order will amount to interfere with the investigation of the case, which the High Court has no A jurisdiction to do so under section 561-A, Cr.P.C. Be that as it may, seen the case of petitioner in the above perspective, it will be premature to hold that the petitioner was responsible for causing injuries to the respondent.
10. As regards the constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the question was examined by this Court in the case of Shahnaz Begum (supra) and it was observed as under:-- "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."
' Again the same point was considered in the case of Anwar Ahmad Khan v. The State 1996 SCM R 24 at page 36 wherein it has been observed as under:-- "It is well-settled principle that where investigation is mala fide or without jurisdiction, the High Court in exercise of its Constitutional jurisdiction under Article 199 is competent to correct such proceedings and pass necessary order to ensure justice and fairplay. The Investigating Authorities do not have the entire and total authority of running investigation according to their whims."
' In the case of Raja Rustam Ali Khan v. Muhammad Hanif 1997 SCM R 2008 at page 2012, it has been observed as under:-- "It would, therefore, be seen that if an investigation is launched mala fide by the Investigating Agencies, the same is open to correction by invoking the constitutional jurisdiction of the High Court under Article 199 of the Constitution."
' Similar view was also expressed in the case of Choudhary Shah Muhammad, Inspector v. Mst.
Ramzan Bibi 1998 SCM R 2415.
11. Thus, the consensus of this Court from the year, 1971 and onward is that the High Court has jurisdiction under Article 199 of the Constitution and competent to correct such proceedings and pass necessary orders to ensure justice and fairplay. The investigating authorities do not have the entire and total authority or running investigation according to their whims, therefore, if the investigation is launched mala fide or beyond the jurisdiction of investigating agency, then the same can be corrected and appropriate orders can be passed.
12. Now the question arises as to what is "mala fide". The word has been interpreted by this Court in the case of The Federation of Pakistan through Secretary Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan PLD 1974 SC 151 at page 170 and it has been defined as under:--- "Mala fides" literally means "in bad faith". Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorized by the law under which the action is taken or action taken in fraud of the law are also mala fide. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been, motivated by any one of the considerations mentioned above."
13. It is clear from the above definition that if the investigation is launched in bad faith out of personal motives either to hurt the accused or to benefit oneself or in colourable exercise of powers not authorized by the law under which the action is taken or action taken in fraud of the law then it comes within the scope of mala fide. The fraud of the law or colourable exercise of powers amounts to abuse of the process of law.
14. In view of the above position, the investigation can be corrected and necessary orders can be passed if the aggrieved party alleges and proves one or other of the following conditions:---
(1) investigation initiated beyond the jurisdiction of Investigating Agencies;
(2) investigation initiated with mala fide intention;
(i) in bad faith out of personal motives either to hurt the person against whom the action is taken or to benefit oneself.
(ii) in colourable exercise of powers;
(iii) not authorized by the law under which the action is taken;
(iv) action taken in fraud of the law; and
(v) abuse of the process of law.
' The application of respondent No,1 does not show that any of the above-mentioned facts were alleged and proved, therefore, the learned High Court under the constitutional jurisdiction had also no jurisdiction to interfere with the investigation or pass the impugned order.
16.(sic) In the light of what has been discussed above, the High Court has exceeded the jurisdiction and the order passed by it is an abuse of process of Court and Law. Consequently, the impugned order is set aside. The petition is converted into appeal, which is allowed.