' AJMAL MIAN, C.J.--By this common order we intend to dispose of the above nine petitions as they involve common questions of fact and law.
2. The brief facts leading to the filing of the above petitions are that the respondent upon receipt of a written complaint issued notices in or about March, 1989 to the petitioners companies, which are engaged in insurance business other than life insurance, directing them to produce all insurance claims amounting to Rs,50,000 (Rupees fifty thousand) and above awarded by them during the period 01-01-1988 to date complete with the survey report/F.I.R./cheque numbers etc. Except in the case of C.P. No,D-339/1989 (Adamjee Insurance Company Ltd. v. Assistant Director, Economic Enquiry Wing, Federal Investigation Agency), the notice contained direction to furnish all the Marine Insurance Cover Notes issued for the amount of Rs,5,00,000 (Rupees five lacs) and above during the period 01-01-1988 to date substantiated by the reports/statements submitted to P.I.C. And also copies of all the claims paid during the above period with the copies of insurance policies, Fire- Bridage reports, F.I.R., Survey Reports of the authorised Surveyors along with cheque numbers against which the payment was made. The above notices are impugned in the above petitions. We had issued pre-admission notice to the learned Deputy Attorney General through the Standing Counsel to assist the Court. We have heard the arguments of Mr. Khalid M. Ishaque and Mr. Hussain Adil Khatri.
3. Mr. Khalid M. Ishaque in support of the above petitions has urged as follows:-
(i) That since the respondent enjoys the same power under the Federal Investigation Agency Act, 1974, (Act VIII of 1975) (hereinafter referred to as the Act), as exerciseable by an officer-in-charge of a Police Station in any area, the respondent could not have initiated investigation/inquiry without first recording F.I.R., if the alleged offence is cognizable and in case the alleged offence is non- cognizable, without the permission of the Magistrate.
(ii) That the direction to produce the above informations/records violates Article 13 of the Constitution.
(iii) That the respondent's action is also violative of Article 14 of the Constitution.
4. On the other hand Mr. Hussain Adil Khatri, learned Standin Counsel has contended as under:--
(i) That there is no legal requirement either first to record F .I.R. Or to obtain permission of a Magistrate before initiating enquiry.
(ii) That the information's/documents asked for do not violate Article 13 or 14 of the Constitution,
5. Before taking up the above contentions of the lefamed counsel for the parties, it may be pertinent to point out that the Act was enacted for the constitution of a Federal Investigation Agency for the investigation of certain offences committed in connection with matters concerning the Federal Government and for matters connected therewith. It may also be pointed out that section 3 of the Act provides that "notwithstanding anything contained in any other law for the time being in force, the Federal Government may constitute an Agency to be called the Federal Investigation Agency for inquiry into, and investigation of the offences specified in the schedule, including an attempt or conspiracy to commit, and abetment of, any such offence." Whereas subsection (2) of above section 3 provides that "the Agency shall consist of a Director General to be appointed by the Federal Government and such number of other officers as the Federal Government may, from time to time, appoint to be members of the Agency." It may further be pointed out that the Schedule to the Act specifies the offences which are to be investigated or inquired into by the Agency. The Act also repealed the Pakistan Special Police Establishment Ordinance, 1948 (VIII of 1948) and the Special Police and Provincial Police (Amalgamation) Order, 1962 (P.O. No,1 of 1962).
6. Mr. Khalid M.Ishaque, in support of his first submission that since the respondent enjoys the same power under the Federal Investigation Agency Act, 1974, (Act VIII of 1975), as exercisable by an officer-in-charge of a police station in any area, the respondent could not have initiated investigation/inquiry without first recording F.I.R, if the alleged offence is cognizable and in case the alleged offence is non-cognizable, without the permission of the Magistrate, it may be observed that, he has referred to section 5 of the Act which reads as follows:-- "5. Powers of the members of the Agency.--(1) Subject to any order which the Federal Government may make in this behalf, the members of the Agency shall, for the purpose of an inquiry or investigation under this Act have throughout Pakistan such owers, including powers relating to search, arrest of persons and seizure of property, and such duties, privileges and liabilities as the officers of a Provincial Police have in relation to the investigation of offences under the Code or any other law for the time being in force.
(2) Subject to rules, if a member of the Agency not below the rank of a Sub-Inspector may, for the purposes of any inquiry or investigation under this Act, exercises any of the powers of an officer-in- charge of a police station in any area in which he is for the time being and, when so exercising such powers, he shall be deemed to be an officer-in-charge of a police-station discharging his functions as such within the limits of his station.
(3) Without prejudice to the generality of the provisions of subsection (1) and subsection (2), any member of the Agency not below the rank of Sub-Inspector authorised by the Director-General in this behalf may arrest without warrant any person who has committed, or against whom a reasonable suspicion exists that he has committed, any of the offences referred to in subsection (1) of section 3.
(4) For the purpose of the exercise by the members of the Agency of the powers of an officer-in- charge of a police-station, "Police station" includes any place declared, generally or specially, by the Federal Government to be a police station within the meaning of the Code.
(5) If, in the opinion of a member of the Agency conducting an investigation, any property which is the subject matter of the investigation is likely to be removed, transferred or otherwise disposed of before an order of the appropriate authority for its seizure is obtained, such member may, by order in writing direct the owner or any person who is, for the time being, in possession thereof not to remove, transfer or otherwise dispose of such property in any manner except with the previous permission of that member and such order shall be subject to any order made by the Court having jurisdiction in the matter.
(6) Any contravention of an order made under subsection (5) shall be punishable with rigorous imprisonment for a term which may extend to one year, or with fine or both."
7. It may be observed that subsection (1) of section 5 subject to any order which the Federal Government may make in this behalf, has empowered the members of the Agency to exercise the same powers throughout Pakistan which are exercisable by the officers of a Provincial Police subject to such duties, privileges and liabilities as the said Police Officers have in relation to the investigation of offences under the Code or any other law for the time being in force, including powers relating to search, arrest of person and seizure of property. It may also be noticed that under subsection (2) of the above section 5 it has been provided that "subject to rules, if any, a member of the Agency not below the rank of Sub-Inspector may, for the purposes of any inquiry or investigation under the Act exercise any of the power of an officer-in-charge of a police station in any area in which he is for the time being and, when so exercising such powers, shall be deemed to be an officer-in-charge of a police station, discharging his functions as such within the limits of his station.
8. It may further be noticed that under subsection (3), any member of the Agency not below the rank of a Sub-Inspector authorized by the Director General in this behalf, has been empowered to arrest without warrant any person, who has committed or against whom a reasonable suspicion exists that he has committed any of the offences referred to in subsection (1) of section 3. It may also be pointed out that under subsection (4) for the purposes of exercising the powers of an officer-in-charge of a Police Station, it has been provided that 1 the police station includes any place declared, generally or specially, I by the Federal Government to be a police station within the meaning of the Code. It may also be pointed out that under subsection (5), it has been provided that if in the opinion of a member of the 1 Agency conducting an investigation, any property which is the subject matter of the investigation is likely to be removed, transferred or otherwise disposed of before an order of the appropriate authority for its seizure is obtained, such member may, by order in writing direct the owner or any person, who is for the time being in possession thereof not to remove, transfer or otherwise dispose of such property in any manner except with the previous permission of that member and such order shall be subject to any order made by the Court having jurisdiction in the matter. Whereas subsection (6) provides punishment for the contravention of the above provision of subsection (5) of section 5 by providing rigorous imprisonment for a term, which may extend to one year, or with fine or both.
9. On the basis of above section 5 of the Act Mr. Khalid M.Ishaque, then referred to sections 155 to 160 of Criminal Procedure Code (here-in-after referred to as the Code). It may be observed that section 155 relates to the information of non-cognizable offence and provides that no police officer shall investigate a non-cognizable case without the order of a Magistrate of first class or second class having power to try such case or send the same for trial to the Court of Sessions, whereas section 156 pertains to investigation of cognizable offence. It provides that any officer-in-charge of a police station may without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction with local areas within the limits of such station would have power to inquire into or try under the provisions of Chapter - XV relating to the place of inquiry or trial. It may also be noticed that subsection (2) of above section 156 provides that "no proceedings of a police station in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate". The other subsections of the above section 156 need not be referred to. It may also be pertinent to refer to section 157 which provides procedure for investigation where a cognizable offence is suspected to have been committed. It provides that "If, from information received or otherwise, an officer incharge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report, and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the Provincial Government may, by general or special order, prescribe in this behalf to proceed, to the spot, to investigate the facts and circumstances of the case and if necessary, to take measures for the discovery and arrest of the offender; Provided (a) when any information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer-in-charge of police station need not proceed in person or depute a subordinate officer to make an investigation on the spot; (b) if it appears to the officer incharge of a police-station that there is no sufficient ground for entering on an investigation, he shall not investigate the case."
It may also be mentioned that subsection (2) of above section 157 imposes an obligation on the part of the officer-incharge of the police station to inform the informant in case he intends to adopt any of the courses mentioned in the above clauses (a) and (b) of subsection (1) of section 157.
10. In the instant case it is an admitted position that no F .I.R. Has been recorded in respect of any cognizable offence, nor permission has been obtained from the Magistrate for the investigation of any non-cognizable offence. The respondent after the receipt of the aforesaid written complaint has initiated the inquiry into the matter by issuing the impugned notices. We had directed the learned Standing Counsel to show us the material on the basis of which the above inquiry has been initiated. He has produced the relevant file before us with the request that the same may not be shown to the learned counsel for the petitioners or to the petitioners. Since the matter is at the initial stage of inquiry, we have not shown the above record to the petitioners or to their counsel.
However, it will suffice to mention that the complainant in his complaint has stated that he wants to highlight the frauds committed by Insurance Companies/ P.I.C./N.I.C./Bank.s/importers and exporters and thus crores of rupees are mis-appropriated and big loss is caused to the Government exchequer. He has given the modus-operandi of the commission of the alleged fraud.
In the complaint he has particularly mentioned the names of four companies, which are petitioners in C.P. No, D-339/1989, C.P. No,D-385/1989, C.P. No,D-388/1989 and C.P. No,D-389/1989. It has also been stated in the complaint that he has handed over certain photocopies of false claims in order to substantiate his above allegation.
11. The question which requires consideration is, as to whether the factum that neither any F.I.R. Has been recorded by the respondent in respect of a cognizable offence, nor permission has been obtained from a Magistrate for initiating the inquiry/investigation in respect of any non-cognizable offence, renders the respondent's action illegal.
12. Mr. Khalid M.Ishaque in furtherance of his above submission has referred "to the following cases:--
(i) The State of Madhya Pradesh v. Mubarak Ali AIR 1959 SC 707 in which the Indian Supreme Court has held that "where an officer, other than the designated officer, seeks to make an investigation, he should get the order of a Magistrate empowering him to do so". The various steps which are involved in an investigation of a corruption case have also been high-lighted with reference to section 5-5, of the Prevention of Corruption Act, 1947 namely, (i) oceeding to the spot;
(ii) ascertainment of the facts and the circumstances of the case; (iii) discovery and arrest of the suspected offender; (iv) collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial, and (v) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under 5.173.
(ii) Ram Rijhumal Kriplani v. The State AIR 1958 Bombay 125, in which a Division Bench of the Bombay High Court, while construing section 5-A of the Prevention of Corruption Act, 1947, has held that the provisions of the above section are attracted only when the stage of investigation is reached and that too in the Presidency town of Bombay and that they have no application at the stage of the first information which precedes the commencement of the investigation. It has also been held that the information is the basis upon which investigation under Chapter XIV of the Code commences.
(iii) Chan Shah alias Muhammad Hanif Shah v. The State PLD 1969 Pesh. 109, in which a learned Single Judge has held that it was obligatory on the part of a Police Officer to have registered a case on receipt of the information contained in the application received by him in which it was alleged that an A.S.I. Of Police had taken Rs,100 from the applicant under the threat of opening history sheet against him.
(iv) Bajrangi Gope v. Emperor ILR Calcutta Vol. 38, 1911 p.304. In the above case it has been held that section 165 of the Code does not authorise a general search for stolen property in the house of the absconding offender, against whom an information has been laid of having committed a dacoity.
It was held that since the search was made without a search warrant, the same was illegal.
13. On the other hand Mr. Hussain Adil Khatri has referred to the case of Emperor v. Khawaja Nazir Ahmad AIR 1945 Privy Council 18 in which the Privy Council has held that recording of F.I.R. In respect of cognizable offences is not a pre-condition for the commencement of the investigation. It may be pertinent to reproduce the relevant observations on the above aspect: "But in any case, the receipt and recording of an information report is not a condition precedent to the setting in motion of a criminal investigation. No doubt in the great majority of cases, criminal prosecutions are undertaken as a result of information received and recorded in this way but their Lordships see no reason why the police, if in possession through their own knowledge or by means of credible though informal intelligence which genuinely leads them to the belief that a cognizable offence has been committed, should not of their own motion undertake an investigation into the truth of the matters alleged. Section 157, Criminal P.C., when directing that a police officer, who has reason to suspect from information or otherwise that an offence which he is empowered to investigate under section 156 has been committed shall proceed to investigate the facts and circumstances, supports this view. In truth the provisions as to an information report (commonly called a first information report) are enacted for other reasons. Its object is to obtain early information of alleged criminal activity, to record the circumstances before there is time for them to be forgotten or embellished."
' The above Privy Council case has been relied upon by full bench of the Lahore High Court in the case of Ghulam Abbas v. The State PLD 1968 Lah. 101 and by a Division Bench of this Court in the case of Faiz Muhammad v. The State PLD 1979 Kar.
513.
14. We are inclined to hold that the fact that the respondent has not recorded the F.I.R., upon the receipt of written complaint containing allegation of commission of a cognizable offence, does not render the initiation of the inquiry as illegal. We are in respectful agreement with the view expressed in the above cited Privy Counril case namely, that an investigation may commence even without recording F.I.R. We may also point out that subsection (1) of section 5 refers to two terms, i,e, 'inquiry' or 'investigation'. The use of the above two terms in the above subsection indicates that they connote two D different meanings. In our view inquiry can be to fried as the first step towards investigation.
15. We are mindful of the fact that the task of the F.I.A. To unearth concealed offences of the nature in question is difficult one and, therefore, one cannot expect that even at the initial stage of inquiry/investigation there would be definite evidence as to the commission of the offence.
Because of the very nature of the offences some roving inquiry or probe is bound to be made/conducted. But at the same time, we cannot be unmindful of the fact that for smooth running of business, which is of paramount importance, for the national economic growth, there should not be any un-warranted and uncalled for interference in it by a Government functionary like one, the respondent. Any unfounded inquiry/probe as to the criminal involvement of a company/firm or a businessm an may cause irreparable pecuniary loss to it/him besides harassm ent and, therefore, the least which is required of the respondent is that he should be satisfied as to the allegation before initiating inquiry/investigation against any one and, therefore, there must be at least some definite allegation against the company/firm/individual before it or he is to be subjected to inquiry or investigation or is made to divulge its or his business dealings.
' We may also observe that subsection (2) of section 156 of the Code prohibits questioning of proceeding of a police officer at any stage on the ground that the case was one which such officer was not empowered under the above section as pointed out at the earlier part of this order. The object seems to be to facilitate completion of investigation of an offence un-interrupted, and, therefore, at the stage of investigation proceedings inter alia under scction 561-A of the Code are not entertained. But a proceeding under Article 199 of the Constitution will be competent against even inquiry/investigation, if it encroaches upon any fundamental right as guaranteed by the Constitution or it violates some other law or is motivated for male fide reasons.
16. In the well-known case of Shahnaz Begum v. The Hon'ble Judges of the High Court of Sind and Baluchistan reported in PLD 1971 SC 677, the Hon'bie Supreme Court allowed the appeal against the order of the High Court passed by a learned Single Judge in exercise of suo-moto revisional power, whereby the learned Single Judge intervened at the stage of investigation of the case. But the Supreme Court has also observed that under Article 98 of the late Constitution of 1962 the proceedings to challenge the investigation can be initiated, if launched mala fide or without jurisdiction and not under section 561-A, Cr.P.C. The relevant observations are as follows: - ' 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."
17. As regards the above second contention of Mr. Khalid M. Ihaque namely, that the direction to produce the above informations/ records violates Article 13 of the Constitution, it may be observed that he has referred to clause (b) of Article 13 which provides that no person shall when accused of an offence be compelled to be a witness against himself, and has contended that the furnishing of the information/documents asked for will violate the above provisions, if the petitioners are accused of the commission of the offence. In our view, the above contention is untenable. There is a distinction between the investigation stage and the trial stage in a criminal case. The statements which may be recorded by the Police under section 161 at the stage of investigation are not admissible as a piece of evidence and, therefore, the above clause (b) of Article 13 cannot be pressed into service. Mr. Khalid M. Ishaque has referred to the case of State of Gujrat v. Shayamlal Mohanlal Choksi and another AIR 1965 SC 1251 which is, inter alia, on Article 20(3) of the Indian Constitution which corresponds to above Article 13(b) of our Constitution. The above case in fact does not support the submission of Mr. Khalid M. Ishaque as is evident from the following observations: - "It needs, however, to be affirmed that the protection against what is called testimonial compulsion under Art.20(3) is against proceedings in Court; it does not apply to orders which may be made by a police officer in the course of investigation. The Court cannot, therefore, be called upon to consider whether the action of a police officer calling upon a persosn charged with the commission of an offence to produce a document or thing in his possession infringes the guarantee under Art.20(3) of the Constitution."
18. Reverting to the above submission of Mr. Khalid M. Ishaqu, that the impugn ed action also is violative of Article 14 of the Constitution, which provides that the dignity of man and, subject to law, the privacy of home, shall be inviolable, it may be stated that there is no doubt that if a person is subjected to interrogation as an accused person, though there may not be any material against him to indicate that he is accused of an offence, it may impair his dignity. If the interrogation relates to his business or profession, it may also violate Article 18 which provides that "subject to such qualifications. If any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business".
19. The question, therefore, arises whether the impugned action in any way violates the above Article 14 or 18 of the Constitution. As pointed out here-in-above that in the written complaint the names of inter-alia, four of the Insurance Companies, who are petitioners in the aforesaid four petitions have been mentioned, but the names of the other petitioners companies do not figure in the complaint. Further question, therefore, arises whether the respondent is justified in issuing notices even to those Insurance Companies whose names are not mentioned in the complaint. As pointed out here-in-above in the written complaint in question it has been alleged that, inter alia, the exporters/importers are parties to the fraud, does it mean that the respondent is entitled to issue notices in question to all the importers and exporters of Pakistan or should he confine to the importers and exporters against whom there may be some definite information or material. We are inclined to hold that the respondent has no authority to make roving inquiry against all the Insurance Companies even whose names are not mentioned in the complaint, till the time the respondent is able to collect definite information or concrete material against them.
20. It was also contended by Mr. Khalid M. Ishaque that under the Insurance Act the petitioners are obliged to file regular returns as to their business performance with the Controller of Insurance and that there is a regular audit of the working of the Insurance Companies and, therefore, the respondent has no jurisdiction in the matter. In our view, the Insurance Act does not debar the respondent from initiating inquiry/investigation against the Insurance Companies as there is a marked distinction between obligations under the Insurance Act and the criminal liability which an Insurance Company may incur because of the commission of some offence under any special or general law.
21. In the instant case, we are of the view that since even the names of the petitioners in C.P. No,D- 384/1989, C.P. No,D-386/1989, C.P. No,D-387/1989, C.P. No,D-390/1989 and C.P. No,D-396/1989, have not been mentioned in the written complaint and as at present there is no information or material against the above petitioners available with the respondent, the impugned notices against the said petitioners to produce the record, are unjustified and unwarranted by law. It amounts to violation of Article 14 read with Article 18 of the Constitution.
' We would, therefore, dismiss the four petitions i,e, C.P. Nos. D-339/1989, D-385/1989, D-388/1989, and D-389/1989, as the names of the petitioners appear in the written complaint and some overt acts have also been attributed to them, but would allow the aforesaid five petitions, namely, C.P.
Nos. D-384/1989, D-386/1989, D-387/1989, D-390/1989 and D-396/1989 and declare the impugned notices as having been issued without lawful authority. However, it will be open to the respondent to issue fresh notices to the above petitioners, if definite information/material comes in his possession about the above petitioners during the inquiry/investigation.