The petitioners have filed Writ Petition No. 1530 of 1971 under Article 98 of the 1962-Constitution for the quashment of a portion of police investigation conducted against them Criminal Miscellaneous No. 78/Q of 1972 under section 561-A, Cr. P. C. For the quashment of criminal proceedings in the form of a complaint case filed by Shahab Din respondent under section 302/34, P. P. C. Against the petitioners pending at present in the Court of Mr. Jawad Ahmad, Magistrate 1st Class, Lahore and Criminal Miscellaneous No. 598/13 of 1972 under section 498, Cr. P. C. For the confirmation of pre- arrest bail already granted to them vide order dated the 24th of March 1972, of this Court. Since the aforementioned three petitions arise from the same facts, these are being taken up and disposed of together.
2. The facts are that Muhammad Nazir who was employed as a Mistri in the S. & T. Workshop, Ichhra, Lahore, belonging to the petitioners, started vomiting and fell unconscious within the premises of the aforesaid workshop at 12-00 noon on the 19th of February 1971. He was immediately taken to Ganga Ram Hospital in a taxi by Taj Din petitioner (one of the proprietors of the workshop) and one Pira, an employee. According to the report of Dr. Nasima Nisar, his condition was as follows "Patient came with definite history of taking chromic acid abort 20 minutes before he was brought to the Hospital. He was semiconscious at that time vomiting out bright red coloured blood.
Respiration was very feeble cyonsis was present. B. P. 80/50 minute of pupils were widely dilated not responding to light. Tongue and the oral muscosa were white blanched. Tongue was swollen.
Marked conjunctival congestion."
He died in Ganga Ram Hospital at 1-30 p. m. On the same day due to Cardaic arrest and Respiratory Failure caused by Corrosive Acid Poisoning. Shahab Din respondent, father and Muhammad Bashir brother of Muhammad Nazir deceased reached the hospital in the meantime and took charge of the dead body of Muhammad Nazir.
First Investigation
3. On the same date i.e. The 19th of February 1971, at 1-48 p.m, on the basis of the recorded statement Of Shahah Din respondent, Nazar Hussain, Muharrir A. S. I. At Police Station Ichhra, Lahore, made entry No. 25 in the daily diary to the effect that according to the statement of Shahab Din respondent, his son Muhammad Nazir worked as a moulding-mistri in the workshop of Taj Din and Muhammad Shafi petitioners. Shahab Din respondent received an information that while Muhammad Nazir was working, Sher Muhammad, Foreman, petitioner along with the proprietors of the factory asked him to remove a heavy chest and to take it inside. On his refusal to carry the said chest Muhammad Nazir was abused and beaten up by Sher Muhammad, Taj Din and Muhammad Shafi petitioners. Thereafter, at about 12-00 noon, while Muhammad Nazir was having his meals, he stood up and went to drink water but shortly after, he started vomiting. Shahab Din respondent subsequently learnt that Muhammad Nazir had drunk a glass of Chromium water in protest against the behaviour of these tyrants. He was taken to Ganga Ram Hospital in an unconscious state, but he expired on reaching there.
On this report Ghulam Sarwar A. S. I. Police Station Ichhra, Lahore, investigated the matter under section 174, Cr. P. C. On the 19th of February 1971 and 20th of February 1972. He despatched the dead body of Muhammad Nazir for post-mortem examination on the 20th of February 1971. The post- mortem examination was conducted at 3-00 p. m. On the same day and the report is as follows: -- "The following injuries are present on the dead body :-
(1) Abrasion -- ' x 1/8' left forearm out aspect upper'.
(2) Abrasion --' x 1/8' near left wrist medial aspect.
(3) Abrasion -- ' x --' right elbow inner aspect.
All the injuries are simple, blunt, anti-mortem and inflicted few hours prior to death. Cause of death Chromium poison--ing."
Four articles, namely, (1) one sealed bottle containing stomach and its contents (2) one sealed bottle containing small intestine and its contents ; (3) one sealed bottle containing pieces of liver, spleen and (4) on sealed bottle containing saline, were sent to the Chemical examiner for detection of poison. According to the Chemical Examiner's report (dated the 27th of February 1971)
Achromium salt (highly poisoning) was detected in articles Nos. (1), (2) and (3) mentioned above.
Ghulam Sarwar A. S. I. Also inspected the site and took into possession titan carrier of Muhammad Nazir deceased. He recorded the statements of Shahab Din respondent, father, Muhammad Bashir and Ibrahim brothers, Ghulam Muhammad brother-in-law of the deceased, the petitioners and about 17 employees of the aforementioned workshop.
Second Investigation
4. However, on the 20th of February 1971, Shahab Din respondent and Muhammad Bashir filed an application before Deputy Martial Law Administrator, Lahore to the effect that the petitioner had forcibly put some sort of acid in the mouth of Muhammad Nazir deceased but the police investigating the case as well as the doctor who conducted the post-mortem examination had been bribed by the petitioners and that, therefore, proper action should be taken in the matter. It was further stated in this application that on the 14th of April 1970, another son of Shahab Din respondent, namely, Muhammad Munir who worked in the same factory was murdered by the petitioners, but they were made to believe that he had died of heart failure. This application was forwarded to the S. S. P., Lahore, who marked it to Muhammad Saleem Khan, S. H. O. Police Station Ichhra, Lahore. Consequently, on the 20th of February 1971, at 4-30 p. m. a case was registered under section 302, P. P. C. Against the petitioners on the basis of the statement of Shahab Din respon--dent recorded on the 19th of February 1971, at the same police station by Nazar Hussain Muharrir A. S. I. The formal F. I. R. According to Muhammad Saleem Khan, S. H. O. Under section 302, P. P. C. Against the petitioners, was recorded under the orders of the higher authorities.
Muhammad Saleem Khan, S. H. O. Investigated the matter between the 20th of February 1971 and the 21st of February 1971. He also inspected the site (but did not get the site plan prepared), recorded the statements of the petitioners again, but included copies in his investigation file of the statements of the witnesses already recorded by Ghulam Sarwar A. S. I.
Third Investigation
5. Before the investigation was completed by Muhammad Saleem Khan, S. H. O. Another application was moved on the 21st of February 1971, by Shahab Din respondent and Muhammad Bashir before the Martial Law authority and as a result under the orders of the S. S. P., Lahore, tie investigation of the case was transferred from Muhammad Saleem Khan, S. H. O. To Sher Ali, Inspector, Gowalmandi Police Station.
Sher Ali Inspector was handed over the investigation at 3-55 p. m. On the 22nd of February 1971, and he conducted it uptill the 24th of April 1971. He inspected the site, recorded the statements of the petitioners as well as 34/35 employees of the workshop out of which the statements of Muhammad Boots. Muhammad Saleem and Muhammad Tufail, employees who had supported the suicide version were recorded separately under section 161, Cr. P. C. He also recorded the statements under section 161, Cr. P. C. Of Shahab Din respondent, Muhammad Bashir and Allah Ditta brothers of Muhammad Nazir deceased Mushtaq son of Jamal Din, Muhammad Sharif son of Balanda and Lal son of Khushi from the complainant side.
But during this period on the 27th of February 1971, another application was filed by Muhammad Bashir brother of the deceased before the Martial Law authority for withdrawing the investigation from Sher Ali Inspector as he was not conducting it properly. As a result Ala-ud-Din, S. I. Crimes Branch was depute on the 3 of March 1971, to enquire as to whether or not Sher Ali Inspector was conducting the investigation properly. Ala-ud-Din S. I. Submitted his report on the 10th of March 1971, to the effect that Sher Ali Inspector was conducting the investiga--tion honestly and that there was no need of taking it over from him.
In the meantime, on the 31st of March 1971, Shahab Din respondent filed complaint case under section 302/34, P. P. Ct against the petitioners. Thereupon the petitioners moved Criminal Miscellaneous No. 1055/B of 1971 on the 29th of April 1971, before this Court and were allowed interim bail before arrest by Muhammad Afzal Khan, Judge as the Sessions Judge had issued notice to the State on the pre-arrest bail application of the petitioners before him but had declined to grant interim bail. Subsequently, when the Sessions Judge rejected the bail applica--tion of the petitioners, the petitioners again moved this Court by way of Criminal Miscellaneous No. 1225/B of 1971. They were granted interim bail on the 17th of May 1971, by my learned brother Muhammad Afzal Cheema, J. Which was subsequently confirmed on the 7th of June 1971, by my learned brother Muhammad Munir Faruqui; J. On the 6th of May 1971, the petitioners also filed Criminal Miscellaneous No. 234/Q of 1971 under section 561-A, Cr. P. C. For the quashment of the complaint case under section 302/34, P. P. C. Against them but it was with--drawn on the 11th of January 1972, as no evidence had been recorded at the time of the filing of the aforesaid petition.
However, the investigation was still being conducted by Sher Ali Inspector. He dug up the record of investigation relating to the death of Muhammad Munir another brother of the deceased who was said to have died of heart failure. Sher Ali Inspector also collected the investigation record pertaining to the death of one Mumtaz son of Ghazi Khan, a Pathan Chowkidar of the aforesaid factory, who was alleged to have died of Chromium poisoning on the 26th of December 1968. But Sher Ali Inspector could not complete the investigation, as according to him, the complainant party kept on taking time for producing an eye--witness who had actually seen the petitioners forcibly administering Chromium acid to Muhammad Nazir deceased.rd Fourth Investigation
6. It has already been pointed out that investigation of the case remained with Sher Ali inspector uptill the 24th of April 1971. But again at the instance of Shahab Din respondent, the investiga--tion was taken over from him and handed over to Ala-ud-Din, S. I. Crimes Branch. Ala-ud-Din, S. I.
Retained the investigation record of this case from the 27th of April 1971 to the 12th of May 1971, but it appears that during this period he did not add anything more to it.
Fifth Investigation
7. On the 15th of May 1971, Shahab Din respondent filed an application before the Governor for the transfer of investiga--tion, this application was marked to the Inspector-General of Police and 4s a result the investigation was again transferred from Ala-ud-Din, S. I. To Aftab Ali Khan, Inspector Crimes Branch.Aftab Ali Khan, Inspector investigated the matter from the 15th of May 971 to the 22nd of July 1971. He inspected the site and examined Shahab Din respondent, Allah Ditta and Muhammad Bashk sans of Shahab Din and brothers of Muhammad Nazir deceased, Muhammad Ashiq, Muhammad Sharif and Kala on the side of the complainant party. He also examined the petitioners. According to the record of the factory, as stated in the report dated the 5th of July 1971, of Aftab Ali Khan, Inspector, 31 employees were present on duty on the day of occurrence and 30 out of them joined investigation while the remaining one could not as he had left the job. Jut of these 30 employees, according to Aftab Ali Khan, Inspector, five had witnessed Muhammad Nazir deceased drinking Chromium water and not a single employee of the workshop examined by him supported the version of the complainant party. According to him, the allegation against the petitioners to the effect that a few days prior to his death Muhammad Nazir was compelled to mould stolen copper wire could not be proved. After completing investigation Aftab Ali Khan, Inspector concluded that the charge against the petitioners was false, Muhammad Nazir had committed suicide and the complainant party wanted to blackmail the petitioners in order to extort money from them. In his report dated the 5th of July 1971, he gave the following reasons for the cancellation of the case under section 302, P. P. C. Against the petitioners :--- "(1) Five eye-witnesses had seen' the deceased drinking Chromium Salt.
(2) There were no marks of violence on the face and hands of the deceased.
(3) If the deceased was forced to drink Chromium Salt, his clothes must have been torn out.
(4) The statement of the complainant that after hearing the cries of his son (deceased) he went to his other sons to inform them. It is an unnatural thing that a father seeing his son being killed did not raise alarm to save his son but he went to far off places to convey this information.
(5) P. W. Allah Ditta stated that when he reached Sir Ganga Ram Hospital, the deceased was saying that Taj, Shafi and Sher had forcibly given him Chromium Salt. His statement is not believable because according to the report of the Medical Officer of Ganga Ram Hospital, the deceased was unconscious and not answering questions. (6) P. W. Muhammad Sharif is the-real brother of one Ghulam Muhammad, son-in-law of the complainant. P. W. Kala's father is the real brother of one Hakim Ali, brother-in-law of the complainant. P. W. Ashiq is reported to be a fast friend of P. W. Allah Ditta son of friend of the com--plainant. They are interested persons and their evidence is not trustworthy.
(7) There are material discrepancies in the, statements of the P. Ws.
(8) The accused could easily select a suitable time to commit such an heinous offence, had they intended to do so.
(9) No marks of violence were found on the body of the deceased.
(10) Previously on the report of the proprietors of the work--shop, Mr., Muhammad Aslam Khan, Labour Officer, was arrested ad since, then the relations of the proprietors and Labour Officer were strained. The Labour Officer is instigating the complainant party to depose against the proprietors.
(11) The allegation of the complainant that his other son Munir had also been killed by the proprietors, is absolutely false and baseless. As at the time of his death, he and his sons were fully satisfied about the cause of his death which was due to heart failure.
(12) The defence version is fully supported by -so many independent and impartial witnesses."
Sixth Investigation The above was the first complete investigation report made by an Investigating Officer in this matter. But since Chaudhury Muhammad Aslam Bajwa, D. S. P., Crimes Branch, disagreed with the conclusions arrived at by Aftab Ali Khan, Inspector and also the complainant party was not satisfied with it, be transferred the investigation to Muhammad Shafi Abbasi, S. I. Crimes Branch.
Muhammad Shafi Abbasi, S. I. Then investigated the matter from the 16th of August 1971 to the 20th of January 1972. He inspected the site and got the site plan prepared. In addition to the witnesses of the complainant party already examined, he re --examined Shahab Din respondent, Allah Ditta and Muhammad Bashir his sons and brothers of Muhammad Nazir deceased, Mst. Zainab his wife and mother of Muhammad Nazir deceased, Muhammad Sharif, Muhammad Ashiq and Kala. He also examined the petitioners and further tried to collect evidence in respect of the death of Muhammad Munir another son of Shahab Din respondent but no evidence came forth by open or secret investigation. After conducting re-investigation he came to the following conclusions vide his report dated the 20th of January 1972:--- "(1) All the three accused, namely, Muhammad Shafi, Taj Din and Sher Muhammad may be sent up under section 302, P. P. C. As there are four independent eye-witnesses. They have not been rebutted by the defence evidence. Allah Ditta and Muhammad Bashir supported the version of their father in toto.
(2) Mst. Zainab mother of the deceased deposed that her son prior to his death used to complain against the attitude and the behaviour of the owners of the factory. He also told her that the owners compelled him to mould the stolen copper wire. Munir also used to complain the same before her. Her both sons were murdered by the accused-party to conceal their nefarious activities.
(3) Muhammad Ashiq, Muhammad Sharif and Kala eye--witnesses supported their previous statements made before our I. O. They laid accusation against Shafi, Taj and Sher accused.
(4) According to the record of the factory thirty-one employees were present in the factory, on the day of occurrence. The I.O. Has examined 21 employees, namely, (1) Muhammad Ramzan, (2)
Muhammad Tufail, (3) Muhammad Siddique, (4) . . . . . , (5) Muhammad Afzal, (6) Muhammad Amin, (7) Muhammad Sharif, (8) Muhammad Nazir son of Fateh Muhammad, (9) Muhammad Ishaque, (10) Muhammad Aslam, (11) Muhammad Latif, (12) Gul Zaman, (13) Muhammad Javed, (14)
Fayyaz Ali, (15) Muhammad Zubair, (16) Faqir Muhammad, (17) Muhammad Anis, (18) Muhammad Zubair son of Muhammad Tufail, (19) Muhammad Zamir, (20) Ashfaq and (21) Allah Ditta.
Muhammad Ashfaq, Muhammad Zubair, Muhammad Aslam, Muhammad Tufail and Zamir deposed that Nazir deceased took Chromium water in their presence. Ashfaq tried to snatch the container but was pushed back by the deceased.
Rest of the employees deposed that they did not see the occurrence as it was lunch time and they were outside the factory. On return they went in the factory and heard that Nazir took Chromium water and was taken to the hospital.
The, D. Ws. Are the employees of the accused-party and had been won over by them.
(5). The Chromium Salt has been detected by the Chemical Examiner, in one of the parts of the Tiffen Carrier.
(6) P. I. Has Also examined the file and opined that from the evidence-on-record and the final report of our I. O. Prima facie an offence under section 302, P. P. C. Is made out against the accused.
(7) The complaint is pending in the Court against the accused and a few witnesses have been examined by the learned Magistrate, as verbally told by our I. O. The accused were granted bail before arrest by the Hon'ble High Court on 30 April 1971. Under such circumstances, a warrant for their arrest be applied for by the I. O. From the Court of Mr. Javed Mufti, M. I. C., Lahore.
(8) If approved action may be taken as suggested by the I.O. And P. I. Although it is a very weak case yet permission may please be given to put up a challan against all the three accused under section 301, P. P. C."
The report of Muhammad Shafi Abbasi, S. I. Was approved by the Inspector-General of Police on the 18th of March 1972, and it was finally decided to put up the challan against the, petitioners under section 302, P. P. C.
(9) While the investigation was still with Muhammad Shah Abbasi, S. I. The petitioners filed Writ Petition No. 1530/71 on the 21st of December 1971 under Article 98 of the 1952-Constitution for the quashment of the investigation being conducted by Muhammad Shafi Abbasi, S. I. It was admitted for hearing by this Court on the 11 of January 1972 and by my order dated the 27th of March 1972 the respondents were restrained from putting up the challan against the petitioners in the Court of Mr. Jawad Ahmad, Magistrate 1st Class, Lahore, who had already taken cognizance of the complaint case under section 302/34, P. P. C. Against the petitioners.
10. In the meantime, since the statements of Shahab Din respondent, Muhammad Ashiq, Muhammad Sharif and Kala P. Ws. Had already been recorded in the complaint case against the petitioners, by Mr. Jawad Ahmad, Magistrate 1st Class, Lahore, the petitioners filed Criminal Miscellaneous No. 78/Q of 1972 on the 17th of February 1972, under section 561-A, Cr. P. C. For the quashment of1he proceedings before him on the ground that the recorded statements of the aforementioned P. Ws. Were incon--sistent with their statements made from time to time before the Police Investigating Officer. The aforesaid petition was admitted for hearing by this Court on the 21st of February 1972, and by my order dated the 28th of March 1972, the record of the case pending in the Court of Mr. Jawad Ahmad. Magistrate 1 Class, Lahore, was summoned.
11. It has already been noted that the petitioners were granted pre-arrest bail in the complaint case against them by order of this Court dated the 7th of June 1971, in Criminal Miscellaneous No. 1225/B of 1971. But at this stage, since investigation had been completed against them and the challan was about to be put up, the petitioners apprehending arrest in the challan case filed Criminal Miscellaneous No. 598/B-72 under section 498, Cr. P. C. For the grant of bail before arrest. They were allowed interim bail by order of this Court dated the 24th of March 1972.
With this background the aforementioned three petitions may now be considered.
Writ Petition No. 1330/1971
12. The contention is this peon in substance is that Aftab Ali Khan. Inspector in his report had arrived at the con--clusion that Muhammad Nazir deceased had committed suicide and that the case against the petitioners under section 302, P. P.C, should be cancelled. Nevertheless, the S. S. P., Lahore, in a mala fide manner deputed Muhammad Shafi Abbasi S. I. (An officer of lower rank than Aftab Ali Khan, Inspector) to conduct re-investigation against the petitioners. It is submitted on their behalf by learned counsel that the allegations against the petitioners had been investigated and re-investigated five times by five different investigating Officers over a period of almost one year and the final conclusion arrived at by Aftab Ali Khan Inspector was to the effect that the petitioners were innocent. But since S. S. P., Lahore, wanted the petitioners to make a statement against Sher Ali; Inspector of Gowalmandi Police Station, to which they did not accede, the S. S. P., Lahore instead of approving the report of Aftab Ali Khan. Inspector; deputed Muhammad Shafi Abbasi, S. I. To re-investigate the matter against them. It is, therefore, urged that the investigation conducted against the petitioners for the sixth time and the conclusion arrived at by Muhammad Shaft Abbasi S. I. Should be quashed on the ground not only that this investigation had beenth th st conducted in a hula fide manner but also that the respondents with male fide intention proposed to put up the challan against the petitioners only on the basis of the sixth investigation concluded by Muhammad Shafi Abbasi S. I. It is further urged that a mala fide act is by its nature an act without jurisdiction. It is also sub--mitted that in all the previous five investigations conducted against the petitioners, at no stage did the respondents submit a report to the Magistrate as required under section 173, Cr. P. C. And that, therefore, putting up of the challan against the petitioners now on the basis of the sixth investigation concludes by Muhammad Shaft Abbasi S. I.
Was beyond the jurisdiction of Investigating Agency.
13. There are three questions which require determination in this petition and these are :-
(i) Whether this Court under Article 98 of the 1962-Constitution has power to quash police investigation or part thereof into a criminal offence ;
(ii) Whether the sixth investigation concluded, by Muhammad Shafi Abbasi S. I. Against the petitioners had been conducted in a male fide manner and further the proposal on the part of the respondents of putting up challan against the petitioners only on the basis of the sixth investigation was motivated by a mala fide intention; and
(iii) Whether non-observance of the requirements of section 173, Cr. P. C. For almost one year by the Investigating Officers in the instant case would have the effect of making entire investigation conducted so far, as beyond the jurisdiction of Investigating Agency.
14. As regards the first question, it is an established rule that this Court has no power under section 561-A, Cr. P. C. To interfere with police investigation into a criminal offence. The reason for it has been clearly stated in Emperor v. Khawaja Nazir Ahmad (AIR 1945 PQ 18) as follows: --- "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. In India as has been shown there is statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the jurisdiction of the Court. The functions of the 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, Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before ft and not until them."
This view has been consistently followed by the supreme Court of Pakistan. In Ghulam and 4 Muhammad v. Muzammal Khan others (PLD 1967 SC 317) the High Court of West Pakistan in quashing proceedings in the Additional District. Magistrate's Court had set out among others the following grounds in support of its order;--
(1) That it was not the business of the police to submit any challan for the commission of offences not disclosed in the First Information Report ;
(2) That the police had given a twist to the case and instead of reporting that the allegations made by the appellant were not true came to the conclusion other offences; that the accused had committed other offences;
(3) Whether the police acted rightly or not it was the duty of the Court to scrutinise the cases carefully before framing charges in view of the fact that the conclusions arrived at lay the police ran counter to the allegations contained in the report and this the Court framing the charges had not done."
15. Although it was sot a case for quashing at investigation simplicitor because their challans had already been submitted by the police before a competent Court and the High Court had quashed those proceedings, it was observed by their Lordships of the Supreme Court that the power given by section 561-A Cr. P. C. Could not be so utilized as to interrupt or divert: the ordinary course of criminal procedure as laid down in the pro--cedural statute. Therefore setting aside the judgment of the High Court it eras observed by the Lordships of the Supreme Court:--- "The reasons given by the High Court were, by no means, cogent. If, in fact, an offence had been committed justice required that it should be enquired into and tried. If the respondents are not guilty they have a right to be declared honourably acquitted by a competent Court. On the her hand, if the evidence against the respondents discloses a prima facie case then justice clearly requires that the trial could proceed according to law."
In Sher Khan and others v. The State (1968 SCM R 62) the petitioner sought quashment of a case registered against them by the police under sections 149, 452/149, P. P. C. Invoking section 561-A, Cr.
P. C. And a learned Single Judge of the High Court of West Pakistan dismissed the petition holding that power could not be derived from that section to make the desired order. It was held by their Lordships of the Supreme Court that the decision was plainly correct, In Yaqoob Khan and another v. The State and 3 others (1971 P Cr. L J 266) proceedings were quashed at the investigation stage under section, 561-A, Cr. P. C. By High Court of West Pakistan on the basis of the following observation in Emperor v. Khawaja Nazir Ahmad:"
" No doubt, if no cognizable offence is disclosed, and still more if no offence of any kind is disclosed the police would have no authority to undertake an investigation and for this reason Newsam, J.
May well have decided rightly in AIR 193 Mad. 129 (M. M. S. T. Chidambaram Chettiar v.
Shanmugham Pillai)." and it was held that this Court had the power "in a suitable case, to quash the proceedings even at the investigation stage". But their Lordships of the Supreme Court in Shahnaz Begum v. The Hon'ble Judges of the High Court of Sind & Baluchistan and an--other (PLD 1971 SC 677) did not approve of the aforesaid decision and overruled the same. It was pointed out by their Lordships that the Madras case seas not a case of interference with a police investigation but the proceeding that was quashed was the proceeding initiated on the basis of d complaint filed before a criminal Court. It was, therefore, held that the High Court had no power under section 561-A, Cr. P. C. To quash the investigation. However, it was observed by their Lordships in Shahnaz Begum's case :- "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 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."
16. Mr. Asghar Ali Bhatti, learned Assistant Advocate General, representing the State argued that in the light of the law laid down by the Supreme Court of Pakistan in Shahnaz Begum's case, the High Court in the exercise of its extraordinary jurisdic--tion under Article 98 may only correct the action of Investigating Agency if an investigation had been launched male fide or was clearly beyond the jurisdiction of such agency but just as it is not competent to quash an investigation under the inherent power given by section 561-A, Cr. P. C. It is not competent to quash the same under the extraordinary jurisdiction granted by Article 98 According to learned Assistant Advocate-General, the power to correct under Article 98 does not mean/include the power to quash, for if their Lordships of the Supreme Court had desired, the word "quash" could have, been used in place of the word "correct". It is submitted that meanings 'of the word "correct" as given in the Shorter Oxford English Dictionary, Vo1Gme I are as follows :- "To set right amend . . . . . . To point out or mark the errors or faults in . . . . . . Rectify (an error or fault)."
It is argued that to quash is to obliterate or to make that what has been subjected to quashing cease to exist whereas to correct is only to set right or amend the error, defect; mistake or fault from what has been subjected to correcting. Therefore, accord--ing to learned Assistant Advocate-General that what has been subjected to correction is not obliterated altogether, but it survives or remains in existence in the corrected form. The argument of learned Assistant Advocate-General is that this Court in the exercise of its extraordinary power can only correct an investiga--tion if it is launched mala fide or is beyond the jurisdiction of the Investigating Agency but it had no power to quash the same for that which cannot be done under the inherent power (for the reasons stated in Khawaja Nazir Ahmad's case) can also not be done under the extraordinary power.
17. Raja Muhammad Anwar, learned counsel for the petitioners, contended that the word "correct" used by their Lordships of the Supreme Court in Shahnaz Begum's case should be interpreted in relation to the extraordinary powers given by Article 98 to this Court. According to learned counsel the extraordinary powers of this Court under Article 98 are very wide and include the power to quash when any act done or proceeding taken by any person performing functions in connection with the affairs of the Centre, Province or a local authority had been done or taken without lawful authority. According to learned counsel "to correct" should be interpreted so as to include the power "to quash". It is, therefore, submitted that in accordance with the principle laid down in Shahnaz Begum's case, this Court under Article 98 has the power to quash an investigation if it is con--ducted in a mala fide manner or is beyond the jurisdiction of the Investigating Agency concerned.
18. I doubt if it is necessary for me to determine the question as to whether or not this Court under Article 98 has the power to quash an investigation into a criminal offence until it is established from the facts that the investigation launched against the petitioners in the instant case had been conducted in a mala fide manner or was clearly beyond the jurisdiction of the Investi--gating Agency concerned.
19. According to learned counsel, for the reasons stated above, the sixth investigation had been conducted against the petitioners in a mala fide manner by Muhammad Shafi Abbasi S. I. At the instigation of S. S. P., Lahore, and the proposal to put up challan against the petitioners on the basis of the sixth investigation was motivated by a Mala fide intention of these police officers. Relying on Abdul Rauf and others v. Abdul Hamid Khan an others (PL D 1965 SC 671) and Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14) learned counsel argued that a mala fide act is by its nature an act without jurisdic--tion and that such action is not action in accordance with law. It is submitted that if investigation into criminal offence is a statutory duty of the police officers it must be performed bona fide and in good faith.
20, Anyway, a perusal of the record reveals that investigation of the case against the petitioners remained with Sher Ali Inspector from the 22nd of February 1971 to the 24th of April 1971. Thereafter, at the instance of the complainant party it was transferred to the Crimes Branch and was handed over to Ala-ud- Din S. I. Of that branch on the 27th of April 1971. While the investigation record lay with Ala-ud-Din S. I. The petitioners submitted an application on the 30th of April 1971, to the effect that the investigation may be transferred from Sher Ali Inspector to some other Investigating Officer because Sher Ali Inspector was demanding bribe on behalf of the S. S. P. Lahore. The S. S. P.
Lahore, has stated in his reply that the petitioners appeared before him and submitted a complaint against Sher Ali Inspector, that he did not insist on taking a statement of the petitioners against Sher Ali Inspector but he forwarded that complaint in original to the D. I.-G. Lahore. It is further stated in his reply that the Crimes Branch was neither under the S. S. P. Lahore, nor could the local police influence that agency in any way. It is pointed out that when the investigation in the instant case was transferred to the Crimes Branch, the S. S. P. Lahore, dropped out of the picture and had no knowledge or concern with the progress of the investigation because the officers of the Crimes Branch were not under the S. S. P., Lahore but they worked directly under the supervision of D. I.-G.
Crimes Branch. There fore, once a case is transferred from the Police of a District to the Crimes Branch, the S.S.P. Lahore, cannot interfere in any manner in the investigation conducted by that agency. The record supports the version given by the S. S. P. Lahore in his reply because neither Aftab Ali Khan Inspector was deputed by the S. S. P. Lahore to investigate in the matter nor was Muhammad Shafi Abbasi S.I. Directed by the S. S. P. Lahore to conduct investigation against the petitioners, for these police officers were attached to the Crimes Branch and it was for the D. I.-G.
Crimes Branch to hand over investigation to any officer he deemed fit. The record further reveals that Aftab Ali Khan Inspector's report was not approved by Ch. Muhammad Aslam Bajawa, D. S. P., Crimes Branch who deputed Muhammad Shafi Abbasi S. I. To conduct the sixth investigation against the petitioners on the 16 of August 1971. Hence the allegations made in this petition that Muhammad Shall Abbasi S. I. Conducted the sixth investigation against the petitioners in a mala fide manner on the instigation of the S. S. P., Lahore, because the S. S. P., Lahore, was annoyed with the petitioners for not having made a statement against Sher Ali Inspector are totally belied by the record. Furthermore; it is stated before me by Muhammad Shafi Abbasi S. I. That there was no proposal of submitting the challan against the petitioners on the basis of only the sixth investigation Muhammad Shafi Abbasi S. I. Has further stated that the challan against the petitioners would be put up along with the entire record of investigation and that copies of the statements of prosecution witnesses recorded under section 161, Cr. P. C. By different Investigating Officers during the course of all the six investigations against the petitioners shall be supplied to them as the petitioners are legally entitled to have the same. In the circumstances the apprehension of the petitioners that the challan against them is proposed to be put up only on the basis of the sixth investigation by Muhammad Shag Abbasi S. I. And the S. S. P. Lahore with a mala fide intention, is also baseless. Iii the light of the above facts it as clear that the petitioners have not succeeded to establishing that the investigation launched against them was mala fide and Without jurisdiction.
21. Now I come to the question as to whether non observance of the requirements of section 173, Cr.
P. C. By the Investigating Officers to the instant case would have the effect of making the entire investigation conducted so far as beyond the jurisdiction of the Investigating Agency concerned.
Learned counsel submitted that over a period of one year on six occasions six different Investigating Officers had conducted investigation against the petitioners and during this period at no stage a report under section 173, Cr. P. C. Was sent up, It is submitted that investigation under section 174, Cr. P. C. Had been completed in the instant case by Ghulam Sarwar A. S. I. On the 20th of February 1971 (the day after the date of occurrence) but no report thereof was submitted under section 173, Cr. P. C. Muhammad Saleem Khan S.H.O. Investigated the matter between the 20th of February 1971, and the 21st of February 1971, then Sher Ali Inspector conducted the investigation between the 22nd of February 1971 and the 24th of April 1971, then Ala-ud-Din S. I. Investigated the matter from the 27th of April 1971, to the 12th of May 1971, then Aftab Ali Khan Inspector conducted the investigation from the 15th of May 1971, to the 22nd of July 1971 and in the meantime also submitted his report dated the 5th of July 1971. But at no stage report under section 173, Cr. P. C. Was put up. According to learned counsel the provisions of sec--tion 173, Cr. P. C. Are mandatory for every investigation must be completed without unnecessary delay and as soon as it i9 completed the Investigating Officer concerned must submit his report to the Magistrate. Since at no stage of investigation a report under section 173, Cr. P. C. Had been put up in the instant case, according to learned counsel the entire investigation conducted was beyond the jurisdiction of the Investigating Agency.th
22. Relying on Atta Muhammad v. Inspector-General of Police, West Pakistan Lahore and others (PLD 1963 Lah. 734) learned counsel argued that the police was competent to carry out multiple investigations in the same case but it must submit a final report under section 173, Cr. p, C.
Although there was no bar to fresh investigation into the same case and the police was competent to file a second report as a result of the subsequent investigation. It was argued that it was the right of the police to submit a charge-sheet even after the submission of the final report under section 173, Cr. P. C. But that did not mean that the superior Police Officers had the right to withhold a charge-sheet and order fresh investigation. Reliance was placed on Ch. Muhammad Asif Ranjha v. Ch. Sultan All Cheema and 7 others (1970 P Cr. L J 837). It was further argued that in the instant case if the evidence against the petitioners was insufficient at different stages of investigation, a report under section 173, Cr. P. C. Should have nevertheless been submitted although the police was competent to hold further investigation and arrive at a different conclusion. For this proposition earned counsel relied on Haji Abdul Rehman v. Sultan and another (1971 P Cr. L J 1164).
23. Anyway, the question which requires determination is are the provisions of section 173, Cr. P. C.
Mandatory or merely directory. It was held in Manu alias Menthar and others v. The State (PLD 1964 Kar. 34) that omission by police to comply fully with the provisions of section 173, Cr. P. C. Did not vitiate the subsequent trial or proceeding because the word "shall" under section 173(1), Cr. P.C. Was directory and not mandatory. In respectful agreement with the view expressed in that ruling my opinion is that non-observance of the requirements of section 173, Cr. P. C. In the instant cast by the police for over one year could not have the effect of making the entire, investigation conducted so far as beyond the jurisdiction of the Investigating Agency. There is no time limit fixed under law for the police to conclude an investigation into criminal offence although it is directed to complete the investi--gation without unnecessary delay, and as soon as it is completed, to put up a report under section 173, Cr. P.C. In the instant case, owing to the dogged and relentless efforts of the complainant party, which was not satisfied with the investigation conducted by a Police Officer, and went on getting it transferred from one Investigating Officer to another through a series of frantic applications, the Investigating Agency appears to have remained continuously busy in conducting one investigation after the other against the petitioners without having been allowed a breathing space in which report under section 173, Cr. P.C. Could be put up. Therefore, delay in submitting a report under section 173, Cr.P.C. By itself cannot by any stretch of imagination have the effect of making the entire investigation conducted in this case as beyond the jurisdiction of investigating Agency.
24. Since the petitioners in the instant case have not been able to establish that the investigation conducted against them was launched mala fide or was clearly beyond the jurisdiction of the Investigating Agency concerned, it is not necessary for me to determine the question as to whether or not in the light of the principle laid down by their Lordhsips of the Supreme Court ins Shahnaz Begum's case, the powers of this Court in the exercise of its extraordinary jurisdiction under Article 98 include the power to quash an investigation into a criminal offence.
25. It is clear that under the Code of Criminal Procedure the eventual decision as to whether a person is guilty or innocent, rests with the Court of law and not with the police. Whatever be the conclusion of the police investigation, it is not sacrosanct and the Magistrate has the right to agree to it or to override it. In the instant case, Muhammad Shafi Abbasi S. I. Has satisfied the petitioners that the challan against them would be put up not only on the basis of the sixth investigation but the entire record of investigation would be submitted. Furthermore, Muhammad Shafi Abbasi S. I.
Has informed this Court that copies of the statements of the prosecution witnesses recorded under section 161, Cr. P. C. By different Investigating Officers at different stages of the investigation shall be supplied to the petitioners within a period of one month from the date of this judgment. In the circumstances, the petitioners have no cause of apprehension. With these observations the petition is disposed of without any order as to costs.
Criminal Miscellaneous No. 78/Q of 1972
26. In this petition under section 561-A, Cr. P. C., it is stated that Shahab Din respondent (complainant in the complaint case under section 302/34, P.P.C., against the petitioners) had himself originally reported on the 19th of February 1971 to the Ichhra Police that his son Muhammad Nazir had committed suicide and that different Investigating Officers conducted investigation in the matter for almost one whole year until Aftab Ali Khan Inspector, Crimes Branch submitted his report to the effect that a false charge of murder had been levelled against the petitioners whereas they were innocent. Nevertheless, Shahab Din respondent after a delay of about 1i months filed a complaint under section 302/34, P. P. C., against the petitioners in which the statements of Shahab Din respondent, Muhammad Ashiq, Muhammad Sharif and Kala son of Khushi Muhammad had already been recorded. It is submitted that these statements were altogether different from those made by them before different Investigating Officers earlier during the course of investigation. It is further submitted that Shahab Din respondent was not only prosecuting the complaint but also forcing the police agency to put up challan against the petitioners. It is argued that the proceedings in the complaint case against the petitioners pending in the Court of Mr. Jawad Ahmad, M. I. C., Lahore, are clearly an abuse of the process of the Court and, therefore, liable to be quashed.
27. It has already been pointed out that the petitioners filed a petition under section 561-A. Cr. P. C., namely, Criminal Miscellaneous No. 234/Q of 1971 before this Court on the 6th of May 1971, for the quashment of the complaint case against them, but the same was withdrawn on the 11th of January 1972 for the reason that no evidence had been recorded at the time when the aforesaid petition was filed. This is, therefore, the petitioners second petition.
28. The record of the complaint case summoned from the Court of Mr. Jawad Ahmad, M. I. C. Does reveal that the statements of four P. Ws. (alleged eye-witnesses) have been recorded. But it is doubtful if this Court is competent to quash the proceedings in the complaint case even at this stage.
It was held in M. S. Khawaja v. The State (PLD 1965 SC 287):-- "Every prosecution for a criminal offence is to be deemed to have been commenced and continued in the public interest, as a duty of the State. It can only be in a very rare case that a superior Court acting under its inherent power' 'to prevent abuse of the process of any Court or otherwise to secure the ends of justice', would deem it appropriate to act so as to place an alleged offence outside the operation of the criminal law, on incidental grounds such as that of delay, or for any reasons other than reasons going to the question whether the allegation is sufficient to constitute an accusation of an offence in law. To quash a judicial proceeding in order to 'secure the ends of justice' would involve a finding that if permitted to continue, that proceeding would defeat the ends of justice, or in other words, would either operate or perpetuate an injustice. To find an 'abuse', it would be necessary to see in the proceeding, a perversion of the purpose of the law such as to cause harassm ent to an innocent party, to bring about delay or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue, and similar perverse results."
It was observed in Ghulam Muhammad v. Muzammal Khan and 4 others (PLD 1967 SC 317): "The High Court, as has repeatedly been pointed out in a number of decisions, should be extremely reluctant to interfere in a case where a competent Court has, after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on it face or the evidence, even if believed, does not disclose an offence."
29. So far from the evidence recorded in the complain case it is difficult to arrive at the conclusion that no offence is disclosed. I have already mentioned while disposing of Writ Petition No. 1530 of 1971 that Muhammad Shafi Abbasi S. Would be putting up the challan against the petitioners along with entire record of investigation and that he would also supplying to the petitioners within one month copies of the statements of the P. Ws. Recorded under section 161, Cr.P.C different Investigating Officers at different stages of investigation The petitioners are legally entitled to move the Court of Mr. Jawad Ahmad, M. I. C., Lahore, in order to recall the P. Ws. Who statements had already been recorded by him and subject them to further cross-examination in the light of the statements they had made earlier under section 161, Cr. P. C. I am certain that Mr. Jawad Ahmad, M.
I. C. Who has taken cognizance of the case and in whose Court the proceedings are pending at present, shall apply his mind in scrutinising the evidence carefully before deciding to frame the charge against the petitioners or otherwise
30. In the light of the above discussion, I am of the view that this petition is premature and it is accordingly disposed of as such.
Criminal Miscellaneous No. 598/B of 1972
31. This petition under section 498, Cr. P. C., is for the grant of bail before arrest to the petitioners in the challan case against them. The petitioners were granted interim bail by the order of this Court on the 24th of March 1972 and it is now fixed before me for confirmation.
32. It has already been pointed out that earlier the petitioners moved a pre-arrest bail petition, namely, Criminal Miscellaneous No. 1225/B of 1971 in the complaint case and it was allowed by my learned brother Muhammad Munir Farukee, J. Vide order dated the 7th of June 1971. The bail was granted to them by Mr. Justice Muhammad Munir Farukee because the case of the petitioners was covered by the observations of their Lordships of the Supreme Court in Rehmat Ullah alias Rehman v. The State and another (1970 SCMR 299). In the present petition the position is the same because the petitioners apprehend arrest in the challan case against them which the police agency proposes to put up, Admittedly the original report lodged by Shahab Din respondent before the police about the circumstances leading to the death of Muhammad Nazir disclosed a case of suicide which was subsequently confirmed through a detailed investigation conduct--ed by Aftab Ali Khan Inspector, Crimes Branch. Even Muhammad Shafi Abbasi S. I. Who re-investigated the matter and recommended that the challan under section 302, P. P. C, against the petitioners should be put up had observed, in hi report dated the 20th of January 1972:--- "Although it is a very weak case yet permission may plea be given to put up a challan against all the three accused under section 302, P. P. C."
Thus, if the petitioners were allowed bail in the complaint case on the basis of Rehmat Ullah alias Rehmen v. The State and another the facts being the same, there is no reason why they should be refused bail in the challan case, because the observations of their Lordships of the Supreme Court made in the aforementioned authority are equally applicable to the challan case against the petitioners. The result is that the interim bail granted to the petitioners is hereby confirmed.