Common questions of law and facts are involved in these two writ petitions wherein quashment at registration stage of criminal cases and investigation thereon by Special Police Establishmentis sought on the main ground that the entire action is mala fide.
2. The petitioner is brother of for former President General Yahya Khan who, as a result of the recent national calamity, is stated to be in. Detention. The particulars about the serious mala fide mentioned in the petition, however, do not directly relate to General Yahya Khar. The assertions made by the petitioner revolve round his alleged enmity with Mr. Saeed Ahmad Khan, at present Chief Security Officer to the President of Pakistan.
3. When the case came up before me in motion hearing, learned counsel for the petitioner relied on the observations of their Lordships of the Supreme Court in the case of Shahnaz Begum (PLD 1971 SC 677) to contend that this Court had. In exercise of its writ jurisdiction, power to interfere with police investigavor if the same "is launched mala fide or is clearly beyond the jurisdiction of the investigating agencies". He also relied upon Messrs Ebrahim Paper Mart Lid. v. The Assistant Collector of Customs (PLD 1956 Kar. 348Kazi Abdul Maiid v. Pakistan (PLD 1960 Kar. 921) and MuhammadHussain v. Inspector-General of Police (PLD 1967 Lab. 1123). He, had some difficulty in distinguishing two subsequent rulings. Namely, Ghulam Muhammad v. Muzammal Khan (PLD 1967 SC 317and Muhammad Hayat v. Chief Settlement Commissioner (PLD 1970 Lab. 679). However, as the latest case on the subject was of Shahnaz Begum, keeping in view some of the observations of their Lordships in this rating ; wherefrom it could he gathered that even though, purely legally speaking, writ jurisdiction was available for such like action yet it would have to be very rarely exercised, I was reluctant to admit the petitions to hearing unless prima facie it was a naked case of mala fides. Learned counsel for the petitioner then made positive assertion that he would hr; able to satisfy the Court on this question. HP in this behalf also made reference to certain communications in writing by Mr. Saeed Ahmad Khan which he claimed were available in the police files.
4. By my order dated 30-4-1973, it was directed that Maulvi Ihsanul Haq, learned Standing Counsel for the Central Government. "be asked to procure the files so as to make them available on the next hearing". When the case was again taken up for motion hearing, Maulvi Ihsanul Haq stated than the files were available in the Court but he had been instructed to raise an objection that they could not be perused by the High Court. Reference was made by him to some remarks (which did not help him) at page 691 of the report of Shahnaz Begum's case; but no other substantial reason was advanced by him in support of his objection to the perusal of the file. So much so that even privilege was not claimed. The learned counsel felt some difficulty in substantiating his objection. In the interest of justice. On his request, I adjourned the case for seven days but in the meanwhile, as serious allegations of mala fides had been made and the question was also relevant with regard to certain documents which were allegedly on the files and might have been furnished proof of mala fides, I directed that even though the High Court would not in the meanwhile peruse the files the same would remain in sealed cover with the Registrar of this Court. It needs to be noted that the respondents had initially not produced that part of the police files which contained the correspondence. The same, on my further directions, was produced and all the files were sealed and kept with the Registrar of this Court. After hearing the learned counsel, I admitted both the petitions to regular hearing and stayed further proceedings as an interim measure. Maulvi Ihsanul Haq accepted notice on behalf of the respondents and I adjourned the case to 9-5-1973 with the direction that on that day "the ,question of confirmation or otherwise of the stay order shall also be considered".
5. On 9-5-1973 due to scarcity of time, the case could not be heard. It was adjourned to 10-5-1973 when I pointed out to the learned counsel for -both the parties that the following three questions were to be resolved;
(i) Whether the High Court can peruse the police files in its writ jurisdiction when the prayer is for quashment of the registration of a criminal case and investigation thereon ;
(ii) Whether even if the High Court is competent to peruse the files and does so, the stay order granted earlier should be confirmed ;
(iii) Whether the writ petition should not be heard because the respondents, due to insufficient time, had not been able to file written statements.
6. With regard to the last question, I told the learned counsel that ,even though the main petitions were fixed for hearing in the notice list, I would grant adjournment if both the parties felt some difficulty in arguing the main case without filing written statements. On the first question, Maulvi Ihsanul Haq took the following position (which it may be remarked is absolutely contrary to what he had urged on 2-5-1973 when he raised the objection with regard to the perusal of the police files by the High Court);---- The High Court has jurisdiction, while dealing with a writ petition, to ,examine police files provided;-- "(a) they should be examined in such a way which does not result in any .Conflict with Criminal Procedure Code or Evidence Act because that might prejudice the case of either party before the criminal Court in case the writ petition is dismissed" ;
(b) that in view of some of the observations made by the Supreme Court in the case of Shahnaz Begum, "the examination should be conducted in such a manner that the comment which might be made by the High Court should not prejudice either party";
(c) that if there is some sensitive material, "care should be taken qua the publicity of such material", and, if need be, the proceedings may be held in cam era.
Mr. Saeed Akhtar, learned counsel for the petitioner, agreed on the question of propriety of all the propositions put forward by the learned counsel for the respondents but vehemently contended that the writ jurisdiction of the High Court in the context of the allegations and prayer made in these writ petitions being in the nature of certiorari, and the power to summon record for examination being an integral part of this constitutional jurisdiction, the same (power to remove to the High Court the records and examine them cannot be denied to the High Court on the basis of any technical bar in a subordinate legislative measure like the Criminal Procedure Code and/or Evidence Act.
7. The arguments could not be concluded on 10-5-1973. The case was adjourned as part-heard to I1-5-1973 when the learned counsel for the petitioner stated: "he has been informed that the cases which are subject matter of these petitions are likely to be withdrawn and orders have already been passed that investigation stands frozen and no further steps are to be taken". He also stated that "if this position is confirmed from the side of the respondents, he would not press the petitions".
In this behalf, I questioned Mr. Nisar A.I Agha, Public Prosecutor, Special Police Establish--ment who was present in Court on behalf of the respondents, who replied that he "confirms the statement made by the learned counsel in so far as it relates to the attitude of the respondents in these matters". As I had directed the retention of the police files in the High Court, and order for their disposal was to be passed, therefore, I asked the learned counsel to conclude their arguments. Mr. Saeed Akhtar then, sought support for his contention, from Fundamental Law of Pakistan by Mr: A.
K. Brohi, pages 474---475. He also relied on the analogy of power of the High Court under section 115, C. P. C., and section 435, Cr. P. C. Reliance was also placed on;----- Fundamental Rights and Constitutional Remedies in Pakistan by S. Sharifun7din Pirzada, pp. 420 to 424 ; Halsbury's Laws of England, Third Edition, Volume 11, Notes 230, 244 & 249 ; Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmir! PLD 1969 SC 14; New Goal Cloth Market Union (Regd.), Lyallpur v. Municipal Committee, Lyallpur PLD 1955 Lah. 149; S. M. Yousaf v.
Collector of Customs PLD 1968 Kar. 599 ; and a case from foreign jurisdiction, namely, P. Joseph John v. The State AIR 1953 Cochin 363.
Maulvi Ihsanul Haq, in elaboration of his earlier stand, further contended that while dealing with a writ petition in the nature of certiorari, the Court was competent to summon and peruse the police files but only when the allegations as to mold fides show that the police action is only a cloak for some ulterior purpose. He however, maintained the position that it was not possible for the High Court, while deciding a case in its writ jurisdiction, to contravene any mandatory statutory (sub- constitutional) Law. In particular, he referred to the prohibitory provisions in the Criminal Procedure Code and the Evidence Act but at the same time he thought that the record, which related to the assertion of mala fides, could be an exception to the above proposition.
8. The provisions in the Criminal Procedure Code, which would need careful examination, amongst others are sections 162 and 172. Study of similar other provisions in Criminal Procedure Code, Evidence Act, Police Acts, High Court Rules and Orders and Police Rules and certain other laws would also be necessary to decide the questions raised in this case. There is not much of case-law on this subject particularly in the context in which it has arisen in this case, namely, "what is the effect of such like barring provisions on the constitutional (writ) jurisdiction of the High Court in the nature of certiorari". However, I remember only one case in which the question raised was whether a defense counsel could have seen and used the case diaries in a manner otherwise than provided in the Criminal Procedure Code. It is Criminal Miscellaneous No. 470/Q of 1971, Khushi Muhammad v. Muhammad Yousaf decided on 15-11-1971. But in that case also, the--m after was not fully put in context nor was finally decided. In the circumstances of this case and the situation that has developed after the statements made by the parties with regard to the continuance or otherwise of police investigation against the petitioner, I do appreciate that the interest of the learned counsel on both the sides, particularly the learned counsel for the State, in resolving the constitutional/legal questions involved herein, is not the same as it would have been in a fully contested case. I, therefore, feel that at least from one side the assistance is not complete. Thus it would not be possible to give a fully considered view on the questions raised.
9. For the purpose of disposal of these writ petitions, I agree with the general proposition that this Court, when exercising the constitutional (writ) jurisdiction in the nature of certiorari has powers not only to examine the police records including case diaries but also to comment upon them, if n be, in the order/judgment disposing of the writ petition. The main reason for this approach is that the constitutional jurisdiction and the procedure involved therein would have precedence over and necessarily override the subordinate laws and procedural bars contained therein. However, while doing so and keeping intact inviolate the superior constitutional jurisdic--petition of this Court in this behalf, it would be neither un-constitutional no illegal nor improper to keep the spirit of the provisions contained in the subordinate legislation. Except in some cases, which might be absolute, rare, I assume that a synthesis would be possible to achieve out of the conflict, which appears only on the surface; and it would thus be possible to a void real clash. These observations have been necessitated so as t decide the earlier objection that this Court had no jurisdiction to summon and peruse the police files in a matter like the present one. The objection having been repelled, I hold that that the summoning of the police files in this case was neither illegal nor improper and was within the jurisdiction o this Court. In view of the statements made by the parties' counsel, the learned counsel for the petitioner has not pressed for the perusal of the files and, on my own, I do not consider it necessary to do so. Therefore, all the files, which were earlier directed to be summoned and retained in the High Court in sealed cover, have been returned to the police, with out perusal.
10. As these petitions are not being pressed in so far as the merits involved therein are concerned, therefore the same (W. P. Nos. 879 and 880 of 1973) are disposed of accordingly. There shall be no order as to costs.