Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, Maqsood Yamin, petitioner has called in question validity of two orders dated 6-6-2014 both passed by Superintendent of Police (Investigation)/respondent No.3, vide which two Joint Investigation Teams one after the other were constituted to investigate case FIR No.124 dated 5-6- 2014 under sections 302/324/148/149/109, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997 registered at Police Station Dehli Gate, Multan.
2. Brief facts of the case are that one Abdul Sattar son of Muhammad Ramzan got registered the above mentioned FIR on 5-6-2014 at Police Station Dehli Gate, Multan. The S.P.
Investigation/respondent No. 3 vide impugned orders dated 6-6-2014 constituted Joint Investigation Team to conduct investigation. During investigation of the said case the Joint Investigation Team opined that nominated accused persons were not found involved. The complainant also made a statement in favour of said nominated accused persons who were consequently declared innocent. The Joint Investigating Team further opined that the present petitioner, his brother and others were involved in the commission of crime. Feeling aggrieved of constitution of Joint Investigation Team the petitioner has challenged the orders dated 6-6-2014 of the Superintendent of Police (Investigation) through this petition.
3. Learned counsel for the petitioner while reiterating his grounds mentioned in the constitutional petition submits that the S.P. Investigation Multan/respondent No.3 was not competent to constitute a joint investigation team rather it was the Provincial Government who could constitute a joint investigation team and that the impugned order passed by respondent No. 3 is alien to law and as such liable to be set aside. Further submits that the joint investigation team joined hands with the nominated accused persons and unlawfully declared them innocent and in their place the petitioner and his family members have been made scapegoat and even the complainant of the FIR has joined hands in glove with the said accused person and that the said joint investigation team is not backed by law as such any opinion formed by them is not sustainable under the law and is liable to be declared illegal.
4. Conversely, learned Law Officer vehemently opposed the petition and submits that the orders dated 6-6-2014 were rightly passed by respondent No.3 and finally prayed for dismissal of this petition.
5. Report and parawise comments were called for from Superintendent of Police Investigation, Multan/respondent No. 3 which have been received and perused. It has been reported by the S.P.
That since the offence punishable under the Anti-Terrorism Act, 1997 was also committed, so he constituted a Joint Investigation Team vide his office letter No. 872-75/PA dated 6-6-2014 consisting on D.S.P./S.D.P.O. Dehli Gate and an Inspector of C.T.D. The S.P. Further reported that investigation was not yet started by the said J.I.T. When the accused party submitted an application to the Addl. S.P. City Division, Multan requesting therein that the J.I.T. May be constituted under the headship of any Gazetted police officer outside the Circle Dehli Gate upon which the said Additional S.P. Reported the matter to him vide letter No. 2998-5A dated 6-6-2014 requesting that since there was high conflict between both the parties as such J.I.T. May be constituted under the supervision of any officer of the Investigation Center. Consequently, vide order No. 887/PA dated 6- 6-2014 he constituted another J.I.T. Comprising D.S.P. Investigation No. II, Multan and Inspector C.T.D., Multan.
6. As noted above, case FIR No.124 of 2014 was registered under the provisions of Pakistan Penal Code as also under section 7 of the Anti-Terrorism Act, 1997. Section 19 of the Anti-Terrorism Act, 1997 inter alia provides procedure to carry out investigation of a case registered under the said Act.
Relevant portion of this provision is as follow: "19. Procedure and powers of (Anti-Terrorism Court.)---The offences under this Act shall be investigated by a police officer not below the rank of inspector. The Government, if deems necessary may constitute a Joint Investigation Team (JIT) of the officers from other law enforcement agencies including intelligence agencies for assisting the Investigating Officer. The Investigating Officer or the JIT shall complete the investigation in respect of cases triable by the court within thirty working days and forward a report under section 173 of the Code directly to the Court."
(emphasis and underlining are ours)
A bare perusal of this provision of law would reveal that the offences punishable under this Act have to be investigated by a police officer not below the rank of inspector. It further unveils that keeping in view facts and circumstances of a case, if the Government feels necessitated that the case should be investigated not by an inspector or higher police officer alone, it may constitute a Joint Investigation Team of the officers who shall not be from the police force but from other law enforcement agencies including intelligence agencies and the said JIT shall assist the investigating officer. Now the question arises as to whether the Superintendent of Police (Investigation) was a "Government" within the meaning of this provision of law and was competent to constitute a JIT and whether the members of JIT constituted by him were from the law enforcement agencies other than the Police Force.
7. Chapter 3 of the Constitution of Islamic Republic of Pakistan, 1973 deals with the formation of Provincial Governments. As per Article 129, the Provincial Government consists of the Chief Minister and Provincial Ministers, who shall exercise executive authority of the Province in the name of the Governor of the Province. Article 139 of the Constitution empowers the Provincial Government to make rules for the allocation and transaction of its business. The Punjab Government Rules of Business, 2011, framed under this provision of the Constitution deal with the business to be carried out by the Punjab Government. According to. Rule 3(3) ibid the business of the Government shall be distributed amongst several Departments in the manner indicated in the Second Schedule.
According to Rule 4, each department of the Provincial Government shall consist of a Minister, a Secretary and such other officers as the Government may nominate. Functions of the Minister have been given in Rule 6 whereas Rule 10 specifies the functions and duties of the Secretary and allocation of business has been given in Schedule-II. According to clause 57(lxiv) of the Second Schedule it is obligation/business of Home Department to deal with administration of the Anti- Terrorism Act, 1997 and the rules framed thereunder on behalf of and in the name of the Government. The business of the Government of Punjab is carried out in accordance with the rules referred above and the Secretary of the concerned Lied department is the person to pass any order on behalf of the Government. Thus, within the meanings of section 19 of the Anti-Terrorism Act, 1997, only the Secretary, Home Department of the Government of Punjab is authorized to pass an order for constituting a joint investigation team in the case registered under the provisions of the Anti-Terrorism Act, 1997.
8. There is nothing on record to show that the Home Department of the Government of Punjab has passed any order to constitute a Joint Investigation Team or for the sake of argument, has delegated powers to the Superintendent of Police (Investigation) to constitute a JIT. Thus by no stretch of imagination the Superintendent of Police (Investigation) can be called to be competent or authorized so as to constitute a Joint Investigation Team and the JIT constituted by him vide orders dated 6-6-2014 is not backed by law. There is chain of authoritative pronouncements of the superior courts based on the famous legal maxim, "A communi observantia non est recedendum" that when law requires a thing to be done in a particular manner, it has to be done in that manner and not otherwise. The Hon'ble Supreme Court in the case titled Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others (PLD 1971 SC 61) observed as under: "It is well settled that the neglect of the plain requirements of a statutory enactment, which prescribes how something is to be done, will invalidate the thing being done in some other manner if the enactement is absolute but not if it is merely directory. The real question which thus arises for consideration is when an enactment is to be considered as absolute and when as merely directory?
It is not possible to lay down a general rule of universal application in this behalf but the one which is suggested by reported authorities in this connection is the affirmative or negative character of the language in which the provision is couched. If it is negative, that is to say, if the statute enacts that certain action shall be taken in a certain manner and in no other manner, it has been held that the requirements are absolute and that neglect to attend them will invalidate the whole procedure. If on the other hand, the language is affirmative, it may be considered as a directory provision.
Reference may also be made to the cases of Tehsil Nazim, T.M.A. Okara v. Abbas Ali and 2 others (2010 PLC 259) and Ignees Maria and another v. District Coordination Officer, District Bahawalnagar and 2 others (2012 PLC (C.S.) 772).
Bearing the principle quoted above in mind, we have reached the conclusion that section 19 of the Anti-Terrorism Act, 1997 is mandatory in character and places a restriction on certain police officers to investigate cases under the said Act and also makes it obligatory only for the Government, if it thinks appropriate, to constitute a joint investigation team and no other person or authority has been vested with such powers. Needless to mention here that if on the basis of a void order, subsequent orders are passed or proceedings are taken, the same must fall to the ground, as such subsequent orders or proceedings have as little legal foundation as the void order on which they are founded.
9. In view of above discussion and observation, this petition is accepted. The impugned order dated 6-6-2014 passed by respondent No.3 whereby he constituted Joint Investigation Team is declared to be illegal and without lawful authority and is consequently, set aside as a result of which the investigation carried out by the Joint Investigating Team is declared to be without lawful authority and is also set aside. The investigation shall be carried out by a police officer not below the rank of Inspector as per mandate of section 19 of the Anti-Terrorism Act, 1997 from the date when the FIR was registered, or by a Joint Investigation Team to be constituted by the Government under section 19 of the Act.
10. We have been informed that in different Districts of Province of Punjab joint investigation teams in the cases registered under the Anti-Terrorism Act, 1997 are being constituted without adhering to section 19 of the Act, so a copy of this judgment be sent to the Inspector-General of Police, Punjab for information and for onward transmission to his subordinates for future guidance.