' The two petitioners have challenged separately the same Order dated 23-11-1985 of the learned Additional Sessions Judge, Rawalpindi; whereby, while disposing of a bail application filed by one Muhammad Saeed in a case under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979, (hereinafter referred to as the said Order), observed that the case instituted at the instance of the petitioners against Muhammad Saeed was false and, therefore, Muhammad Saeed was entitled to bail. The Additional Sessions Judge after passing the above order gave further direction that the petitioners, on whose instance the case under Articles 3 and 4 of the said Order was prepared, should be prosecuted for offences under sections 220, 465 and 471, P. P. C.
2. Only petitioner Siddique Gohar had challenged the above order of the Additional Sessions Judge before the High Court in W. P. Bearing No, 523 of 1985. But it was withdrawn on 3-3-1986 on the ground that such revision petition was competent before the Federal Shariat Court only. Thereafter, the present two petitions were filed challenging the same order.
3. It would be necessary to state briefly the facts underlying these revision petitions. The two petitioners are officers attached with the Pakistan Narcotics Control Board. On 11-10-1985 they received spy information that one Muhammad Saeed was dealing in narcotics and was present near the graveyard, within the area of Police Station Civil Lines, Rawalpindi. Ch. Khalid Rashid then formed a raiding party consisting of Shah Nawaz Akhtar, Inspector Narcotics, Muhammad Asghar, Liaqat Ali and Manzoor Hussain, constables of the said Board and Ali Baig Kiani, Inspector Joint Narcotics Task Force and went to the graveyard under the supervision of petitioner Siddique Gohar.
In the way, it is alleged, Raja Sadaqat Ali, a public man not concerned with the police or P.N C.B., also joined the party. It is alleged that when they reached the graveyard they found Muhammad Saeed there. On seeing the raiding party he started running away, but he was chased and over- powered and one bag is alleged to have been secured from him containing Heroin and opium. The Heroin was weighed and found to be 300 grams in weight, while opium 1120 grams. Mr. Khalid Rashid then prepared recovery memo, which has been signed by Shah Nawaz Akhtar, Raja Sadaqat All and Manzoor Hussain, members of the raiding party. Ch. Khalid Rashid petitioner also prepared a complaint in the form of `Murasla', which was duly registered as F. I. R. No, 686 of 1985 under Article 3/4 of the said Order at the Police Station concerned. Muhammad Saeed was arrested and investigation was in progress.
4, During investigation statements of the members of the raiding party including the thiee witnesses, who had signed the recovery memo. Were recorded by Khalid Rashid under section 161, Cr. P. C., in which they supported the prosecution case. It appears that Muhammad Saeed while in prison made an application to the D. I.-G., Rawalpindi for fresh investigation of the case by higher police officer. On this request of Muhammad Saeed the case as re-investigated by Mr. Nawazish Ali, D. S. P. He recorded fresh statements under section 161, Cr. P. C. Of the recovery witnesses, who did not support the case against Muhammad Saeed. It further appears that Mr. Nawazish All had not yet prepared any tribal report under section 173, Cr. P. C, for submission before the Court regarding innocence or guilt of the accused I. e. Muhammad Saeed, when an application for bail was tiled before the Additional Sessions Judge, Rawalpindi. While deciding this application the learned'
Additional Sessions Judge sent for Mr. Nawazish Ali alongwith record of the case and granted bail to Muhammad Saeed and with reference to the finding of the Investigating Officer, passed the following order:- "Before parting with this order, I must observe that, as per investigation of the D. S. P. Khalid Rashid Inspector and Siddique Gohar Khan Tareen (Group Leader) are both responsible for registering a false case against the petitioner with ulterior motive. Khalid Rashid 'Inspector is further responsible for preparing a recovery memo. Containing forged signatures of Shah Nawaz Akhtar Inspector.
Both Siddique Gohar Khan Tareen and Ch. Khalid Rashid Inspector are liable under section 220, P.P.C. Whereas Khalid Rashid Inspector is further liable under section 465/471, P. P. C. It is, therefore, directed that a case be registered and officers responsible for bringing a false charge be dealt with in accordance with law. A copy of this order shall be sent each to D. I.-G. Rawalpindi Range and Chairman Narcotics Control Board, Islamabad, for information and necessary action."
5. The above order has been challenged by the two petitioners on the ground:-
(i) that while passing an order under section 497, Cr. P. C. The learned Judge could not have held that the case was false and that the petitioners were liable to be prosecuted;
(ii) that the petitioners have not been given opportunity of hearing; and
(iii) that all the offences for which prosecution had been ordered are non-cognizable, hence the Court should have left the investigating agency to approach the Court under section 190. Cr. P. C.
6. I have heard the learned counsel for the parties namely Malik Muhammad Rafiq Khan and Qazi M. Anwar for the petitioners, Mr. Muhammad Aslam Uns, for the State and Hafiz S. A. Rehman, for the Pakistan Narcotics Control Board. Mr. Muhammad Aslam Uns, the learned counsel for the State, has vehemently argued that the petition is not competent before this Court as it does not fall within the purview of Article 203-DD of the Constitution. The above Article provides that this court is empowered to call and examine the record of any case decided by a criminal Court under any law relating to Enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality and propriety of any finding and sentence etc.
7. From the above provision it would appear that three conditions shall have to be satisfied before revisional jurisdiction is assumed, which are as under:-
(a) That the petitions relate to a case decided by a criminal Court;
(b) that the cases involved the law relating to enforcement of Hudood; and that
(c) correctness, legality and the propriety of the finding and sentence etc. Decided by the Court should be involved in the case.
8. Looking to the facts of the case narrated above, there can be no doubt as to the fact that by passing the impugned order regarding prosecution of the petitioners for certain offences, the learned Additional Sessions Judge had decided a case so far as the prosecution of the petitioners was concerned. Again this order was passed in a case which related to offences under Article 3/4 of the said order i. e. The case pertained to a law relating to enforcement of Hudood. The two petitions also involve questions of legality, propriety and correctness of the impugned order. All the conditions of revisional jurisdiction are, therefore, satisfied. Consequently the present petitions are maintainable.
9. Mr. Muhammad Aslam Uns, the learned counsel for the State, at the very outset conceded that if the revision petition is deemed to be competent, the impugned order cannot be defended. On the face of it the older is having been passed in excess of the jurisdiction by the learned trial Judge, who was seized of bail matter. He could have decided the hail one way or the other. While discussing the bail application it was not upon him to say that the case was false and the persons concerned with the investigation of the case should be prosecuted for having prepared or fabricated a false case. No final report under section 173, Cr. P. C. Was filed before the trial Court. No request even had been made by the Investigating Officer requesting the Court to cancel the case on the ground that it was false.
10. Alongwith the two petitions the petitioners have also filed affidavits of Sadaqat Ali and Manzoor Hussain who are two out of the three witnesses of the recovery memo. In these affidavits they have stated that the recovery of opium and Heroin as stated in the recovery memo. Was actually made by Ch. Khalid Rashid and Siddique Gohar Khan petitioners in their presence and that they have signed the recovery memo. Out of the three witnesses of the recovery one Shah Nawaz. Akhtar is also present today in the Court. He was asked about the factum of recovery and his signature on the recovery memo. He admitted that the recovery was effected and that he had signed the recovery memo. He further stated that he had not supported the factum of recovery before Mr. Nawazish Ali, D. S. P. On account of some pressure from above. The above facts are sufficient to hold that the impugned order of the learned trial Judge was not warranted even on merits.
11. A further development has also been brought to the notice of this Court by Qazi M. Anwar, the learned counsel for petitioner Siddique Gohar Khan Tareen. It is stated that an application was moved to the D. I.-G. By petitioner Khalid Rashid that investigation of the case relating to F. I. R. No, 686 of 1985 should be transferred to some Gazetted Police Officer belonging to a district other than Rawalpindi "because the accused person (Muhammad Saeed) is exercising his influence on the investigation staff of District Rawalpindi." On this application the D. I.-G. Rawaipindi Range, passed the following order on 1-4-1986:- "Pl. Hear Mr. Siddiq Gohar and Khalid Rashid Chaudhry Officers of P. N, C. a (under suspension) and then ensure that the case is investigated strictly on merits. An early reply be sent thereafter."
The above order would show that the investigation of the case is still not complete. This will be a further reason for striking down the impugned order, which has pre-empted the question of innocence or guilt of the accused concerned with the alleged crime. Whether the case is true or false can be said only after conclusion of the investigation. The order of the learned Additional Sessions Judge is thus also premature.
12. Both the petitions are allowed and the impugned order is set aside. However, the investigating agency shall be at liberty to investigate the case thoroughly and submit report to the concerned Court under section 173, Cr. P. C. Regarding trial of the accused or cancellation of the case according to the result of the investigation. Both the petitions stand disposed of accordingly.