Through the under consideration Constitutional petition, Mst. Riaz Begum, wife of Naseer Ahmad Bhatti, one of the accused in case vide F.I.R. No,563/89, dated 17-12-1989, under sections 302/307/149 and 148, P.P.C. Prays for the issuance of a direction to respondents Nos. 2 to 4, for the transfer of investigation of the aforesaid case from respondent No.1 to some other independent officer of the rank of Deputy Superintendent of Police.
2. Briefly stated, the facts giving rise to the present petition are that on 17-12-1989, at about 4-30 a.m. The petitioner alongwith her son Abid Naseer and daughters, was asleep in her House No.6, Imamia Colony, Main Bazar, when they were awakened because of indiscriminate firing at their house. Abid Naseer, apprehending danger to his life and property, picked up the licensed gun of his father, went on the roof of the house, and there in the scuffle Waqar Ahmed and Ghulam Jaffar lost their lives. According to the petitioner, the police in connivance with the complainant party, by suppressing the real facts, recorded F.I.R. No.563/89, against the petitioner and others at Police Station Ferozewala.
' According to the averments made in the petition, Waqar Ahmad deceased was armed with mouser and .12 bore carbine, whereas Ghulam Jafar deceased was armed with .12 bore gun. Both of them came to the spot on Motor Cycle No.KS-3433. At the time of his death Waqar Ahmad was holding mouser in his hand and revolver was recovered from his pocket and gun was-lying near the motor cycle. The police also recovered from the spot mouser .30 bore, .32 bore revolver, .12 bore gun and the aforesaid motor cycle.
3. The grievance of the petitioner is that the police by ignoring the real facts and with mala fide intention for obliging the complainant party registered the aforesaid case on one-sided version, without taking into consideration the most important piece of evidence, why the deceased along with their companions came to the house of the accused party fully armed. The police did not conduct the investigation- from this angle and has deprived the accused party of the possible right of self-defence available to them on the basis of the circumstances mentioned above.
' The learned counsel for the petitioner has also placed on record, photographs showing the marks of fireshots on the doors of their house and house too. He submitted that in view of this overwhelming evidence, referred to above, the Investigating Officer has failed to perform his legal duty in accordance with law by not taking into consideration all the evidence available at the spot, hence the present investigation is against the dictates of law. He has referred to the definition of 'investigation' as given in section 4(1) of the Code of Criminal Procedure, which is reproduced in extenso:- "'Investigation' includes all the proceedings under this Code for the collection of evidence conducted by a Police Officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf."
4. This Court vide its order dated 7-1-1990, called for a report and paradise comments from respondent No.1 and also directed the Law Officer to assist this Court at the preliminary hearing of this petition.
Respondent No.1 has submitted an evasive and incomplete report and comments. He has not categorically denied or accepted the assertion as to what happened to the arms recovered at the spot, whether they belonged to the complainant party or the accused party, and what was the object for which the deceased went to the house of the petitioner while fully armed with deadly weapons.
' Due to this negligence on the part of the Investigating Officer, the petitioner moved various applications to the higher authorities for the transfer of the investigation, apprehending that they will not get a fair and honest investigation at the hands of the local police, although copies of those petitions, have not been placed on the record.
5. The learned Law Officer, who is appearing for the respondents frankly conceded that in view of certain circumstances, referred to above, he would not oppose the prayer of the petitioner for the transfer of investigation from respondent No.1 to some other Police Officer.
' On the admission of the Law Officer, the petition was formally admitted to hearing, but as only a short law point was involved and the factual position was not controverted by either of the parties, it was decided to dispose of the writ petition today.
6. At this stage, Mr. R.A. Awan, put in appearance on behalf of the complainant, though he is not a party to the proceedings. He submitted that he should be heard before passing any final order. The learned counsel for the petitioner and the Law Officer did not oppose the request of the learned counsel for the complainant and agreed that he should he given Opportunity to put forth the case of the complainant party before this Court in the interest of justice and fairplay.
7. The learned counsel for the complainant urged that the present Constitutional petition is incompetent, as the investigation is being carried out by the local police under the lawful authority, hence there is no justification for transferring the investigation from the local police to some other officer and even this Court has no jurisdiction to interfere in the investigation which is being conducted by the local police lawfully. He has placed reliance on Shahnaz Begum v. The Honourable Judges of the High Court of Sindh and Balochistan PLD 1971 SC 677 in support of his contention.
8. The learned counsel for the petitioner urged that the above-mentioned case is not applicable to the facts and circumstances of the present case and is distinguishable. He submitted that in the present case, the petitioner has invoked the Constitutional jurisdiction of this Court as the Investigating Officer has ignored the most important and vital piece of evidence i.e, why the Deceased persons came fully armed to the house of the accused party and opened the fire and how the actual occurrence took place, hence the whole investigation conducted by the local police is against the provision of law and this Court can transfer the investigation as the action of the Investigating Officer is without lawful authority. He further submitted that this Court is competent to issue direction to the public authorities if they are not doing what they are required under the law to do. Elaborating his point he submitted that in the present case, as mentioned above, it was the duty of the Investigating Officer to collect all the evidence which is available whether it supports the prosecution or goes against it, but by ignoring this aspect of the case, he has not conducted the investigation fairly and impartially, hence his action is amenable to the Constitutional jurisdiction of this Court and this Court is competent to direct that the investigation should be carried out lawfully by some independent agency.
9. 1 do not want to comment upon the quality and legality of the evidence so far collected by the local police, lest it may prejudice the case of either party, suffice it to say that this Court while exercising Constitutional jurisdiction can give direction to any authority to do what they are required under the law to do. In view of the definition of 'investigation' referred to above, I find that the local police has not conducted the investigation properly and in accordance with law.
The behavior of the Investigating Officer has created a reasonable apprehension in the mind of the accused party that they will not get fair and honest investigation at his hand. The prayer is only for the transfer of the investigation which is not even opposed by the learned Law Officer.
10. In view of the above discussion, I find no substance in the preliminary objection taken by the learned counsel for the complainant, because when the action of an authority is illegal, then this Court can issue a direction that he should conduct things in a lawful manner and refrain from doing which is not permissible under the law. The writ petition is accordingly accepted and a direction is given to respondent No.2, as prayed for, that he should withdraw the investigation of the instant case from respondent No.1 and entrust the same to some other superior officer of his own choice, preferably of the rank of Deputy Superintendent of Police, in order to ensure impartiality and fairness of the investigation which is the requirement of law. As intricate question of law, is involved, hence the parties are left to bear their own costs.