1. ' SALAHUDDIN PANHWAR, J.---The petitioners Syed Shariq Hussain and others have filed this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 on the following'prayers:- "(I) That the Hon'ble Court may be pleased to direct the respondents Nos.1, 2, 3, 4, 5 & 6 to provide legal protection to the petitioners as per constitution and law.
(H) That the Hon'ble Court may be pleased to declare that the impugned orders for transfer of investigation of F.I.R. No,224 of 2012 are illegal, mala fide, non-speaking orders violative of the fundamental rights of the petitioners and violative of the principles of natural justice and the same be set aside.
(III) That the Hon'ble Court may be pleased to direct that the investigation of the F.I.R. No,224 of 2012 lodged with Police Station Tipu Sultan may be conducted under the supervision of this. Hon'ble Court.
(IV) That the Hon'ble Court may be pleased to direct the respondents Nos.1, 2, 3, 4, 5 and 6. Not to register any F.I.R. Against the, petitioners without seeking prior permission of this Hon'ble Court.
(V) That the. Hon'ble Court may be pleased to direct the respondents Nos.1, 2, 3, 4, 5 and 6 not to harass, threat, pressurize or coerce the petitioners and their family in any manner.
(VI) That the Hon'ble Court may be pleased to punish the respondents in accordance with law for harassing and threatening the petitioners and their family members.
2. ' Succinctly, the facts of the case are that the petitioner No,1 is working as Senior Captain/Pilot in Pakistan International Airlines (PIAC), whereas the petitioner No,2 is an enrolled Advocate of Supreme Court of Pakistan and the petitioner No,3 is a teacher by profession; that on 9-12-2002 the petitioner No,1 entered into marriage contract with the respondent No,7 namely Mst. Naima Anees Goraya. Out of this wedlock one child namely Master Rayan Syed Shariq Hussain was born on 15-11- 2003. Since April 2002, right from inception of the marriage the petitioner No,1 was sending monthly stipend of Rs,4,000 to the father of the respondent No,7. As there was a dispute between the petitioner No,1 and the respondent No,7 on various issues, therefore, they started to live separately.
3. Subsequently, the respondent No,7 filed Suit for Dissolution of Marriage by way of Khulla against the petitioner No,1 but later on the same was withdrawn. The respondent No,7 filed Guardianship Application bearing No,98 of 2012, before the learned Family Court, South Karachi. The petitioner No,1 also filed two Misc. Applications for temporary custody of .The minor. On 12-5-2012 the respondent No,7 on her own motion handed over the custody of the minor to the petitioner No,1 before the Court. The petitioner No,1 lodged F.I.R. Being No,224 of 2012 at Police Station Tipu Sultan, Karachi stating therein that two persons intruded in the house of the petitioners, severely beaten the minor child, stolen various items. After lodging of said F.I.R., investigation was transferred on the application of the respondent No,7 to the S.H.O., Police Station Gulshan-e-Iqbal, Karachi; after two days again the, investigation was transferred to the crime branch on the application of the respondent No,7. Simultaneously, the respondent No,7 filed an application under section 22-A, Cr.P.C. For lodging of F.I.R. Against the petitioners; that the petitioners have challenged the transfer Order of investigation and proceedings under section 22-A, Cr.P.C. Pending adjudication before the learned Sessions Court, Karachi. The crime branch police submitted its report in respect of the case under "A" Class in the Court of learned Magistrate.
4. ' Mr. Muhammad Haseeb Jamali, counsel appearing on behalf of the petitioners has, inter-alia, contended that the custody of the minor was given to the petitioner No,1. Voluntarily by the respondent No,7, the conduct of respondent No, 7 with minor kid was very cruel; the Crime Branch Police has not investigated their case of dacoity independently, and on the contrary the respondent No,3 at the behest of the respondent No,7 has transferred the investigation to various police stations, investigation officer has not recorded the statements of witnesses of the petitioners nor has inspected the place of incident, has spoiled the case of petitioner deliberately, transfer orders are illegal, managed, motivated and on the bases of mala fide and ulterior motive; under given circumstances it will be in the interest of justice to declare transfer orders as illegal and void; application under section 22-A, Cr.P.C., filed by respondent is false, baseless, incorrect thus directions may be issued against police authorities, restraining them from lodging F.I.R. Against the petitioners. The petitioners are innocent and they have apprehension that they will be dragged in false case to be lodged by the respondent No,7. He has relied upon the case of Ghulam Sarwar Zardari v. Piaro Ali alias Piaro reported in 2010 SCMR 624, Choudhary Shah Muhammad v. Mst.
5. Ramazan Bibi reported in 1998 SCMR 624, Anwar Ahmed Khan v. The State, reported in 1996 SCMR 24, Rustam Ali Khan v. Muhammed Hanif reported in 1997 SCMR 2008, Bahadur Khan v. Muhammad Azam reported in 2006 SCMR 373, Riaz Hussain v. The State reported in 1986 SCMR 1934, Liaqat Ali Virk v. Inspector General of Punjab Police reported in PLD 2010 Lahore 224 and Suo Motu Case No,18 of 2010 reported in PLD 2011 SC 927.
6. ' On the other hand, Mr. Zia Ahmed, Awan, counsel appearing on behalf of the respondent No,7 has argued that this honourable Court has no jurisdiction to interfere in the investigation and to restrain the respondent No,7 from lodging of any F.I.R. Against the petitioners. According to him, the respondent No,7 was not being maintained properly by the petitioner No,1; that Guardianship Application is pending before the Family Court. He has relied upon the case of Muhammad Aslam v. Deputy Commissioner Sialkot reported in 2003 PCr.LJ 56, Muhammad Saleem v. Inspector General of Police reported in PLD 2001 Lahore 474, Messrs Zeenat manufacturing v. The Secretary Survey, Central Board reported in 1999 SCMR 979, Muhammad Akram v. The District Police Officer reported in 2005 MLD 1600, Haji Noor Ahmed v. Collector Custom Lahore reported in 1999 PCr.LJ 1117, Rana Muhammad Farooque v. Aftab Hussain reported in PLD 2003 Karachi 309, Jehangir v. S.H.O.
7. Police Station Ghazi Abad reported in PLD 1996 (sic) 598, Syed Ghulam Abbas Shah v. DIG Police, Rawalpindi(sic) Mst. Bhaitan v. The State reported in PLD 2005 Karachi, 621 and Gul Hassan v. The State reported in PLD 2008 Karachi 567.
8. ' Mr. Saifullah, learned A.A.-G. Appearing for the Official Respondents, has argued that this honourable Court has no jurisdiction to interfere in the investigation; powers of transfer of the investigation are vested to the Ex-Officio Justice of Peace under section 22-A(6) Cr.P.C. The case has been challaned and cancelled under "A" Class, therefore, the petitioners have no locus standi to file this Constitutional petition.
9. ' We have heard the learned counsel for the petitioners, learned counsel for the respondent No,7 and the learned A.A.-G. And perused the entire record and case-law cited by the learned counsel for the respective parties. Both the learned counsel have given much stress upon the welfare of minor and the circumstances, which leads the marriage tie to an end, since this issue is sub judice before Family Court and is not the subject matter of this petition, same may be the bone of contention of the dispute but in the subject matter we will confine ourselves to the prayers of this petition, we will dilate upon the powers of High Court regarding transfer of investigation and passing restraining orders in criminal prosecution.
10. ' Regarding contention of the petitioners' counsel that. High Court has powers to interfere in the investigation, in this regard learned counsel for the petitioners has relied upon the case-laws; in the case of Anwar Ahmed Khan v. The State, reported in 1996 SCMR 24, it is observed as under:-- "It is well settled principle that where the investigation is mala fides 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 fair play. The investigation authorities do not have the entire and total authority of running investigation according to their whims"
11. ' In case of Rustam Ali Khan v. Muhammad Hanif reported in (sic) SCMR 2008, it is observed as under:-- "It would be seen that if an investigation is launched mala fide by investigation agencies, the same is open to correction by invoking the constitutional jurisdiction under. Article 199 of Constitution."
12. ' In case of Choudhary Shah Muhammad, Inspector v. Mst. Ramzan Bibi, it is observed as under:- "High court has jurisdiction under Article 199 of the Constitution and is competent to correct such proceedings and pass necessary orders to ensure justice and fair play. Investigating authorities don't have entire and total authority of running investigation to their whims, if investigation is launched mala fide or beyond jurisdiction of investigating agency, then same can be corrected and appropriate order can be passed".
13. ' In case of Ghulam Rasool Zardari v. Piar Ali alias Piaro reported in 2010 SCMR 624,it is observed as under:-- "Investigation can be corrected and necessary orders can be passed, if aggrieved party alleges and proves one or other of the following conditions:
(i) Investigation initiated beyond jurisdiction of investigating agencies;
(ii) Investigation initiated with mala fide intention;
(iii) In bad faith out of personal motives either to hurt the person against whom action is taken or to benefit oneself;
(iv) In colourable exercise of powers;
(v) Not authorized by law under which action is taken;
(vi) Action taken is fraud of law;
(vii) Abuse of process of law.
14. ' In case of SUO MOTU CASE NO. 18 of 2012, reported in PLD 2011 SC 821, and reported on page 927, the honourable Supreme Court of Pakistan has exercised Suo Motu Proceedings and directed the FIA Authorities to conduct the investigation, as major financial scam of NICL was detected. In this case the investigation was supervised by the honourable Supreme Court of Pakistan. Next he has relied upon the case of Liaqat Ali Virk v. Inspector General of Punjab Police, Lahore (supra). In this case the petitioner challenged the transfer of investigation in a murder case. The High Court allowed the Constitutional Petition and Authorities were directed to conduct fresh investigation. Next he has relied upon the case of Bahadur Khan v. Muhammad Azam (supra), in this matter the honourable Supreme Court of Pakistan has held:-- "that no legal bar exists for reinvestigation of the criminal case . After submission of final report under Section 173 Cr.P.C. Police can carry out the fresh investigation and submit its report to the Court, but this would 'not mean that in a case in which earlier after completion of investigation challan was submitted for trial of an offence, on which the accused had been tried finally upto the Honourable Supreme Court of Pakistan"
15. ' Next he has relied upon the case of Riaz Hussain v. The State (supra). This is a murder case, three appeals against the conviction were decided, the honourable Supreme Court of Pakistan on one place has observed as under:- ' The system of reinvestigation in criminal cases a recent innovation always taken up at instance of influential people and favourable reports obtained in no way assists Courts in coming to correct conclusion".
16. ' Learned counsel for respondent No,7, while contradicting this plea, has relied upon the case of Muhammad Aslam v. Deputy Commissioner, Sialkot reported in 2003 PCr.LJ 56.. In this case, it is observed asunder:- "That the High Court has jurisdiction only to interpret the law, but has no jurisdiction whatsoever to take the role of an Investigating Agency.
17. ' In the case of Syed Ghulam Abbas Shah v. D.I.G of Police, Rawalpindi reported in 2001 YLR 186, it is observed as under:- "The law laid down by the Superior Courts would show that the Superior Courts cannot control investigations and reinvestigations, but are empowered, to strike down any order of reinvestigation if the same is based on mala fides or is ulterior motivated. The Court cannot stop the investigation and cannot strike down an order of reinvestigation merely on the ground that previously a police officer has finalized the investigation. No mala fide was seen in that case and the Petition was dismissed."
18. ' In the case of Jehangir v. SHO Police Station Ghaziabad., Sahiwal, it is observed as under:- "Police had a statutory right under section 156, Cr.P.C. To investigate a cognizable offence, to quash the police investigation on the ground that the case was false would have been to tread on treacherous grounds and could tantamount to an uncalled for interference by the Court with the duties of the police. Constitutional Petition was dismissed."
19. ' In the case of Rana Muhammad Farooque v. Aftab Hussain reported in PLD 2003 Karachi 309, it is observed as under:-- "The High Court has no powers of supervision or control over investigation agencies, which power is vested in the High Court in respect of Court subordinate to it. The conduct and manner of investigation is not to be scrutinized under Constitutional jurisdiction which might amount to interference in police investigation as the same could not be substituted by the Court".
20. ' In the case of Haji. Noor Muhammad v. Collector (Customs), Lahore reported in 1999 PCr.L.J 1117, it is observed as under:- ' That the Court should not interfere with the police or other Investigating agencies in matters which are within their domain and into which the law imposes upon them the duty of inquiry".
21. ' In the case of Muhammad Akram v. The District Police Officer Lodhran reported in 2005 MLD 1600, and Muhammad Saleem v. Inspector General of Police, Punjab reported in PLD 2001 Lahore 474, same view is followed.
22. ' After going through all precedents, we have observed that authoritative proposition of law is that High Court can exercise the writ jurisdiction under Article 199 of the Constitution to check and interfere the investigation, if any condition laid down in dictum of honourable Supreme Court in case of Ghulam Rasool Zardari. v. Piar Ali alias Piaro referred above is being violated by investigating agency, however there is no cavil that High Court cannot supervise the investigation in any case, that is the purely domain of Investigating Agencies.
23. ' The case-law relied by petitioners' counsel in support of his contention that High Court can supervise the jurisdiction in same manner as honourable Supreme Court has exercised in SUO MOTU cases. In this respect, it is pertinent to mention here that, Suo Motu actions taken by honourable Supreme Court in Suo Motu cases are distinguishable to the- facts and circumstances of this case as this is a case between two individuals, whereas Suo Motu actions were taken in the interest of public at large, to save the public money and to punish the culprits, who have misappropriated the public money by misfeasance.
24. ' According to the facts of this case candidly, F.I.R. Was lodged by petitioner No,1 on 6-7-2012 under section 392, P.P.C., but no investigation was carried out. On the other hand on 11-7-2012, investigation was transferred to S.H.O. Gulshan-e-Iqbal Police Station, Karachi. Again on 13-7-2012 investigation was transferred to the Crime Branch Police, same was entrusted to Inspector, Crime Branch, on 16th July, 2012, with the directions to conclude investigation within seven days, but without inspection of the place of incident and recording of the statement of minor/kid and other witnesses, within three days, he submitted report under "A" Class before Magistrate concerhed, with the endorsement that witnesses are not available hence due to lack of evidence summary under "A" Class may be accepted, it proves that I/O, is unaware about the scope of "A" Class, according to Bombay Presidency Police Guide, which is being followed in Sindh, since the days Sindh was part of Bombay presidency, "Police can dispose of only. Those cases. In A class which are true but accused are untraceable", but in this case Investigating Officer has submitted that witnesses are not available therefore, summary is being submitted. Thus conduct of Authorities and Investigating Officer is entirely strange and falls within the ambit of colourable exercise; no reasons were attributed to justify the transfer of investigation from Ordinary Police to Special Police.
25. ' Keeping in view the dicta laid by the honourable Supreme Court of Pakistan, transfer orders passed by Police Authorities in this case have no legal sanctity in the eyes of law, thereby declared as null and void.
26. ' Regarding contention of petitioner's counsel that High Court has powers to direct the respondents restraining them from lodging F.I.R. Against petitioners, on this point learned A.A.-G. Has relied upon the case of Mst. Bhaitan v. The State reported in PLD 2005 Karachi 621; in this case, the powers of Ex-Officio Justice of Peace and duties of S.H.O. Have been defined very comprehensive and it is held that:- "The F.I.R. Is a right and lodging of F.I.R., no accused person was to be heard".
27. ' The ratio of this judgment is that High Court or any other Court has no powers to stop any person from registration of F.I.R. Moreover, accused has no right to be heard before registration of F.I.R., hence contention of counsel carries no weight in this regard.
28. ' As discussed above, we dispose of this Constitutional Petition in the following terms:-
(1) Transfer orders passed by Authorities are illegal and unjust thus declared as null and void.
(2) The respondents Nos. 2 and 3 are hereby directed to appoint any impartial officer to investigate the case in issue and submit report before the competent court, within 15 days from receipt of this order.
(3) That Police Authorities are directed to act strictly in accordance with law and keep themselves to be impartial. If any F.I.R. Is being lodged against the petitioners, petitioners may approach the proper court having jurisdiction to avail remedy provided to them under the law. Petition stands disposed of accordingly.