SYED MUHAMMAD FAROOQ SHAH, J.---Through the captioned petitions, the common relief as sought by the petitioners for legal determination of this Court is that investigation of Crime/F.I.Rs, Nos.13/2014, 14/2014, 15/2014 and 16/2014, registered at Police Station Abad, Sukkur, may be transferred, on the sole ground that the investigation of aforementioned criminal cases at the behest of respondent SSP Niaz Khoso was entrusted to those police officials, who are neither fair nor impartial but having soft corner for respondent SSP Niaz Khoso.
2. It is an admitted fact that in all aforementioned crimes, the challan has been submitted and now the cases are sub judice for adjudication before competent Court of law, having jurisdiction.
3. Arguments advanced by the learned counsel for the parties are considered with their valuable assistance and record has also been perused in light of the case-law on the subject.
4. Germane facts of the case in hand, as averred in the instant petitions are that Messrs Indus Builder and Developers, a partnership firm, launched a project namely "Sukkur Township", which was to be constructed on the land of Rao Muhammad Shakir, the exclusive owner of the property and one Arif Memon (respondent No, 10) was appointed as attorney in respect of partnership business. Petitioners asserted that the said attorney, misused the power of attorney and blatantly violated the agreements executed with Rao Shakir (owner of the property). Consequently, the owner Rao Shakir filed a Suit No, 48/2012, for `declaration, cancellation, permanent/perpetual injunction and recovery of two million on 22-2-2012, against respondent Muhammad Arif. It is averred that said Arif Memon in collusion with Senior Superintendent of Police, CID, Karachi Niaz Ahmed Khoso, lodged number of F.I.Rs,, through his relatives, friends and servants against Rao Shakir as well as the petitioners. Subsequently, Rao Shakir (owner of the property) filed a Constitutional Petition No, D-3084/2013, at Sukkur Bench, which was disposed of on 14-10-2013 with direction to M. Arif Memon, Niaz Ahmed Khoso beside other official respondents to act strictly in accordance with law, in the manner that the petitioner, his family members and employees shall not be harassed by the respondents at the instance of opponent. Despite the aforesaid order both M. Arif Memon and SSP Niaz Khoso, in collusion with area police, forcibly and illegally dispossessed Rao Shakir from his land and issued threats to the owner of the land and the petitioners as well, resultantly, the owner M. Shakir has filed direct complaint "No,2 of 2014 before Sessions Judge, Sukkur on 23-1-2014, and subsequently four criminal cases have been got registered against the petitioners on false and fabricated grounds. It is further stated that the said four criminal cases were assigned to favorite Police Officers of respondent SSP Niaz Khoso, hence the petitioners have no hope for fair investigation at the hands of said police officials.
5. Learned counsel representing the petitioners in Constitutional Petition No,691/2014, placed reliance on Bahadur Khan's case (2006 SCM R 373), Muhammad Nasir Cheema v. Mazhar Javed (PLD 2007 SC 31) and Zeeshan alias Shani v. The State (2012 SCM R 428). Learned Counsel for petitioner in C.P. No, 622 of 2014, also placed his reliance on the case of Muhammad Yousuf v. The State (2000 SCM R 45,3) PLD 2010 SC 1109 and Ghulam Sarwar Zardari v. Piyar Ali alias Piyaro (2010 SCM R 624).
Dicta as laid down by the Hon'ble apex Court in Bahadur Khan case, reads as follows:-- "Reinvestigation---System of reinvestigation is a recent innovation which is always taken up at the instance of influential people for obtaining favorable reports, which in no way assists the Courts in coming to a correct conclusion, rather they create more complications in the way of administration of justice---Such system of reinvestigation and successive investigation, therefore, was disapproved".
5. In the aforesaid citation, it was also held that police can carry out 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 has been submitted for trial of an offence, on which the accused had been tried and the case was finally decided up to the level of High Court or the Supreme Court, subsequent challan would be entertained, which is submitted as the result of reinvestigation or further investigation of the case by the police on the happening of a subsequent incident and that the Court would proceed with the trial of the case in the normal course oblivious of the facts of the case decided earlier by such Court.
6. There is no cavil with the proposition that the Police Investigating Officer is not debarred for reinvestigating and submitting a fresh report in supprsession of his earlier one either on his initiative or on direction of superior police official but the facts of the instant case are quite distinguishable, as admittedly, the challan has already been submitted in the instant case and thereafter in supersession of the charge sheet, the successive investigation cannot be carried out under the orders of this Court. In the case of Muhammad Yousuf v. The State (2000 SCM R 453), in paragraph 7, it is held that there is no legal bar of investigation of the case even after the submission of final report under section 173, Cr.P.C, the police may carry out fresh investigation and submit its report to the Court. In such context, the relevant portion from a judgment delivered in the case of Atta Muhammad v. Inspector General of Police (PLD 1965 W.P. Lahore 735), wherein it has been reported that:- "The Magistrate himself does not have the legal powers to direct a further investigation by the police after he himself has taken cognizance of the case and has himself launched an inquiry or trial but there is no bar on the police to pursue its own investigation and submits their results to the Court to found the guilt or innocence of the accused persons before it becomes too late".
7. In the case of Ghulam Sarwar Zardari's case (2010 SCM R 624), the principle as laid down by the apex Court in paragraph 14 of the judgment is that 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".
9. Investigation initiated with mala fide intention was elaborately discussed in the case of the Federation of Pakistan v. Saeed Ahmed Khan and others (PLD 1974 Supreme Court 151), wherein it is observed that 'Mala fides' have to be alleged in the particularity and a mere assertion of a general malice cannot be sufficient in the case. Relevant portion of the mentioned citation reads that:- Mala fides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it, because, there is, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. Mala fides must not be pleaded with particularity, and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched merely on the basis of vague and indefinite allegations, nor should be the person alleging mala fides be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case.
Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 ref.
"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 actions taken in fraud of the law are also mala fides. 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. A mere allegation that an action has been taken wrongly is not sufficient to establish a case of mala fides, nor can a case of mala fide be established on the basis of universal malice against a particular class or section of the people. Thus, action taken, for instance, to acquire lands or take over industries or banks on the basis of a policy intended for introducing a more socialistic - system cannot be characterized as action taken mala fides. But in order to make out a case of mala fides, an individual must establish that his land was taken not for the purposes authorized by the law but for the personal aggrandizement of the person empowered with the power to make the order of acquisition, or because the person so authorized to take action bore any personal grudge against the person in respect of whose lands or properties action has been taken.
In order to establish a case of mala fides, some such specific allegation is necessary and it must be supported by some prima facie proof to justify the Court to call upon the other side to produce evidence in its possession.
Abdul Haq Baluch v. Government of Pakistan PLD 1968 SC 323 .and Lt. Col. Farzand Ali v. Province of West Pakistan PLD 1970 SC 98 ref".
10. In light of the dicta as laid down by the apex Court, one may draw the conclusion that after the submission and acceptance of first and final report, the police may conduct the fresh investigation of the case, if the first investigation is found unsatisfactory, with sound and plausible Reason to say that the same police officers or his superior cannot revive the investigation already done, the additional discovery in shape of evidence and on conclusion of investigation into the crime by the Police officer, another investigation may be begun by the police on further formation received.
Record of the instant case transpires that deniably and undisputedly on submission of charge sheet, no specific rejudice caused to the accused persons has shown, such as the result of investigation is arbitrary, capricious, whimsical or conducted dishonestly Id that the investigation agency has not conducted the investigation in a tanner to bring the truth on the surface to save the innocent person from the agony of trial and if at all, the investigation can only be intervened to we fundamental and legal rights of the parties or where mala fide and excess of jurisdiction is apparent. Suffice is to say that in the instant case, the petitioners could not succeed to demonstrate, before, us that the investigation was neither transparent nor independent and suffers from ay illegality or irregularity or the investigation is being conducted with mala fide or without jurisdiction. Even otherwise, this Court, under the exercise of the Constitutional jurisdiction under Article 199 of the 'Constitution cannot direct the police to change the course of investigation discover the truth or otherwise to transfer the investigation. The [Hon'ble Supreme Court in Brig.
(Rtd) Imtiaz Ahmed v. Government of Pakistan through Secretary Interior Division, Islamabad and 2 others [994 SCM.R 2142) has held as under:-- Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may, be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry., There is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without acquiring any authority from the Judicial Authorities and it would, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always of course, subject to the right of the Court to intervene in an appropriate case."
Similarly views were expressed by the Supreme Court in Malik Shaitkat Ali Dogar and 12 others v.
Ghulam Qasim Khan Khakwani and others PLD 1994 SC 281 in the following words:- "Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. There is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without acquiring any authority from the Judicial Authorities and it would, be an unfortunate result if it should be held possible to interfere with those statutory 'rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always of course, subject to the-right of the Court to intervene in an appropriate case when moved under section 491, Cr. P. C. to give directions in the nature of habeas corpus. In such a case, however, the Court's functions begin when a charge is preferred before it and not until then".
11. In the case of Messrs v. Saifullah Khan Niazi' case (1982 SCM R 17), law laid down by the apex Court is that," It is not possible either for High Court or Supreme Court to start a parallel inquiry into the matter at such stage when the case already submitted to the trial Court, all relevant evidence yet to be examined and held that, " the High Court was, therefore, right in not interfering with such a case and this petition for leave to appeal to challenge this order of the High Court is entirely misconceived". In the case of Shehnaz Begum v. Hon'ble Judge of High Court Sindh and Balochistan, reported as PLD 1971 Supreme Court page 677 and in the case of Wall Muhammad v.
Haq Nawaz (PLD 1971 SC 717), it was observed that during the course of investigation, police has complete domain over the case in a cognizable offence and even High Court has no power to interfere with such investigation.
12. We have considered the lengthy arguments advanced by learned counsel for the petitioners and of the view that the investigation has already been completed and it was not found unsatisfactory or it is alleged that the final report under section 173, Cr.P.C. Is based on false evidence during the investigation due to behavior of the official concerned, who are allegedly under the influence of respondent SSP Niaz Khoso. No instance of availability of better evidence has been shown, therefore, it cannot be said that the police officers being subordinate of respondent SSP Niaz Khoso were in his influence, submitted the charge sheet in arbitrary and capricious manner. Even otherwise, there is no mention that the additional facts and additional circumstances shall improve the investigation in a better manner and culminate on innocence of the accused persons.
13. By our short order dated 17-4-2014, we have dismissed the titled petitions and above are the reasons for the same.