1. ' CH. RAHIM DAD KHAN, J.--- A case for offences under sections 307, 324 read with 34, P.P.C. Was registered at Police Station Afzalpur on 13-1-1973 against Zahoor Akhtar and others on the report lodged by Muhammad Sadiq, non-petitioner; whereupon police started investigation. Thereupon the accused moved the District Magistrate, Mirpur, on 31-1-1973 for directing magisterial enquiry alleging that the police was not conducting the investigation impartially. The District Magistrate sent for a report from the Superintendent of Police on the same day who informed the D.M. That he had no objection if a judicial enquiry was conducted. The D.M. Thereafter directed the Assistant Commissioner, Magistrate 1st Class, Mirpur, to hold an enquiry and furnish a report. The Assistant Commissioner on 3rd February, 1973, asked the police to send the police file to him and also directed them to stop the investigation. Muhammad Sadiq filed a revision petition against that order which was heard by our learned colleague Mr. Justice Muhammad Yusuf Saraf. Two points seem to have been debated before him:--
(1) Whether the District Magistrate could pass an order of judicial enquiry in the circumstances of the case?
(2) Whether the Assistant Commissioner could stop police investigation?
2. ' On point No,1, relying on. PLD 1971 SC 677, the learned Single Judge came to the conclusion that 'the type of a total and overall judicial inquiry as ordered by the District Magistrate and conducted by the Assistant Commissioner was essentially bad in law'. On point No,2, it was held that the direction given by the Assistant Commissioner, Magistrate 1st Class, to the police to stop inquiry was unwarranted by law.
3. ' The learned Advocate-General does not, contest the finding of the learned Single Judge on point No,2. He frankly conccded that the Assistant Commissioner/Magistrate 1st Class was not competent to stop the police investigation in the case. Nevertheless, his contention is that the authority relied on by the learned Single Judge for deciding point No,1, has no relevancy with the present case. The Supreme Court, while laying down the law in PLD 1971 SC 677, was, in fact, interpreting clause 22 of the Letters Patent of the High Court of West Pakistan and in that context it was held by the learned Judges of the Supreme Court that:- "What is a 'preliminary investigation' has not, of course, been defined in the Letters Patent of the High Court nor has it been defined in the Code of Criminal Procedure although 'investigation' has been defined in clause (1) of subsection (1) of section 4 of the Criminal Procedure Code as including all the proceedings in this Code for the collection of> evidence conducted by a Police Officer or by any person other than a Magistrate who is authorized by a Magistrate in this behalf.
4. Indeed there was no provision in the Criminal Procedure Code for preliminary investigation until section 196-B was introduced therein by an amending Act in 1923 (Act No,18 of 1923). It is however, contended that 'preliminary investigation' means the same thing as 'investigation' or the proceedings contemplated either under section 159 or under section 202 of the same Code. `Preliminary' according to its dictionary meaning, means something preceding or leading up to the main subject, or business. In this view of the matter a 'preliminary investigation' would be something preceding or leading up to the main investigation as contemplated under the Criminal Procedure Code. Every word in the Letters Patent has to be given a meaning and, therefore, we are of the view that the 'preliminary investigation' referred to in the Letters Patent is not the same thing as the 'investigation' contemplated under the Criminal Procedure Code...
5. ' So far as the meaning of the word 'direct' is concerned, it is interesting to note that a Division Bench of the Lahore High Court in the case of the Crown v. Muhammad Sadiq Niaz came to the conclusion that the word `direct' even in section 159 of the Code of Criminal Procedure meant a `command' and could 'only signify something which was not being done that should be done'. In this sense of the word the Division Bench was of the view that the direction contemplated under section 159, Cr.P.C. `would be meaningless in relation to an investigation by the police which is already in progress', because, the police having already started doing something 'no direction from the Court to do that which has already been done would be necessary or called for'.
6. ' We are in respectful agreement with this view and have no difficulty at all in holding that the word 'direct' in clause 22 also bears the same sense and, therefore, the necessity for making a direction can only arise in a case, where no investigation has started. The power to issue a direction cannot, be invoked where investigation has already commenced in accordance with law by authorities competent to investigate under the Criminal Procedure Code nor does the power to 'direct' include the power to 'transfer' from one competent investigating agency to another. This would be unwarranted interference with the investigation which has been disapproved by the Judicial Committee of the Privy Council in the case of Emperor v. Kh. Nazir Ahmad."
7. ' In the instant case, it would appear, clause 22 of the Letters Patent is wholly irrelevant. It is admitted by the learned counsel for the parties that the provisions of law under which the D.M.
8. Presumably ordered inquiry are contained in section 159, Cr.P.C. For comparing these two provisions of the law, namely, section 159, Cr.P.C. And Clause .22 of the Letters Patent of the West Pakistan High Court it will be useful to reproduce them as follows:-- "Such Magistrate, on receiving such report, may direct an investigation or, if he thinks fit at once proceed or depute any magistrate subordinate to him to proceed, to hold a preliminary inquiry into, or otherwise to dispose of, the case in manner provided in this Code."
9. 'Clause 22 of the Letters Patent of the High Court of West Pakistan reads as under:- "And we do further ordain that the High Court of Judicature at Lahore shall have power to direct the transfer of any criminal case or appeal from any Court to any other Court of equal or superior jurisdiction, and also to direct the preliminary investigation or trial of any criminal case by any officer or Court otherwise competent to investigate or try it, though such case belongs in ordinary course to the jurisdiction of some other officer or Court."
10. The comparative reading of section 159, Cr.P.C. And clause 22 of the Letters Patent would reveal that there is marked difference between the power vested in a Magistrate under section 159, Cr.P.C.
11. And High Court under Clause 22 of the Letters Patent. A Magistrate, under section 159, Cr.P.C. On receiving a police report submitted to him under section 157, Cr.P.C., may decide as he thinks fit.Either to take no further steps or to take cognizance of the offence under section 190(1)(b) or proceed under section 203, Cr.P.C. Section 159, Cr.P.C. Does not confer any original power on a Judge of the High Court. Thus, it is quite clear that in that case the learned Judges of the Supreme Court came to the conclusion that it is not within the jurisdiction of the High Court either under the Constitution or the Criminal Procedure Code or Letters Patent or even otherwise to interfere with the investigation conducted by an officer authorised under the Criminal Procedure Code on that behalf nor the High Court had the authority to transfer the investigation from one officer to another police officer. What happened in that case was that death of Mustafa Zaidi created some sensation on account of the fact that Mst. Shahnaz Gul -- a married woman -- was found lying unconscious in the house of the deceased in suspicious circumstances and a great publicity was given in local newspapers; whereupon a senior Judge of the High Court reading the newspaper thought it fit to take action suo motu in what he described to be, 'the exercise of supervisory jurisdiction vested in the Court under the Constitution, Letters Patent and otherwise'. The learned Judges, while deciding PLD 1971 SC 677, were interpreting clause 22 of the Letters Patent and Constitution of the Pakistan. In the circumstances of that case, the learned Judge of the High Court had suo motu transferred the investigation from one officer to another police officer, but where in a case like the one before it, a Magistrate had taken action under the provisions of section 159, Cr.P.C.
12. PLD 1971 SC 677 would have no application and it would he fallacious to interpret the provisions of section 159, Cr.P.C. In the light of interpretation of Clause 22 of the Letters Patent given by the Supreme Court when action was taken by a Judge of the High Court in exercise of that power. The learned Advocate for the respondent when faced with this situation, also conceded that PLD 1971 SC 677 would not apply.
13. ' The learned Advocate for the respondent, however, in support of the order of the learned Single Judge, cited 1972 P Cr. L J 626. The facts of that case were that after evening prayer on 18-1-1971 three persons armed with guns attacked the petitioner and his father and fired at them resulting in death of Muhammad, father of Shera. After the registration of the case, police arrested the accused and started investigation. The investigation in that case was almost over when the accused moved an application before the District Magistrate alleging that Shera himself had put his father to death and falsely implicated them. They prayed for re-examination of the dead body of Muhammad deceased by a Board of Medical Officers. This application was marked over by the District Magistrate to the Assistant Commissioner, Chiniot, who after going through the relevant police files, directed Ilaqa Magistrate to proceed to the spot and hold an enquiry under section 159, Cr.P.C. The Ilaqa Magistrate then made an enquiry and submitted his report stating that Shera complainant had, in fact murdered the deceased. Shera thereupon filed a revision petition which was heard by Mr. Justice Aslam Riaz Hussain. PLD 1956 Lah. 448 was also cited before him but the learned Judge did not follow that and relying on PLD 1971 SC 677 accepted the revision petition and held that an order directing enquiry by a Maistrate under section 159, Cr.P.C. While police was already investigating the case, is bad in law and secondly that the finding given by Mr. Bashir Hussain Tahir M.I.C., Chiniot as to the persons who were guilty of committing the offence in question is also bad in law as being beyond his powers under section 176, Cr.P.C. And so he quashed the proceedings. The learned Judge made a reference to PLD 1956 Lah. 448 as well as to PLD 1949 Lah. 562 and has given no reason of his own in support of his decision except that he was relying on Supreme Court decision. In our view if we have correctly understood PLD 1971 SC 677, the law laid down therein being in reference to the power of a Judge of High Court under Clase 22 of the Letters Patent or Constitution of Pakistan or otherwise, would not deprive a Magistrate of the jurisdiction which he has been invested with under the provisions of section 159, Cr.P.C.
14. ' The facts of PLD 1949 Lah. 562 that was relied in P Cr. L J 1972 626, were that one Muhammad Sadiq Niaz was accused of offences under sections 420 and 380 Penal Code. The accused was remanded to the police custody for one week by the Additional District Magistrate, Rawalpindi. On the 4th of March, 1948, two applications for bail were moved before the Magistrate in which serious allegations were made against special staff of the C.I.D. That was investigating the case. It was alleged that the accused were being tortured whereupon the learned District Magistrate passed a composite order. He released the accused on bail and stopped the investigation of the case which was being conducted by the special staff of the C.I.D. He further directed and authorised Pir Salah- ud-Din M.I.C. To hold an enquiry into the case. Against that order the State filed a revision Petition in the Court of the Sessions Judge. The main ground on which the revision petition was based was that the learned Additional District Magistrate had no jurisdiction to pass the impugned order under section 159, Cr.P.C. In these circumstances it was held by Justice Muhammad Sharif that the order was not legal and valid. It was further held:- "That in the exercise of their powers to investigate a cognisable case the police should receive no interference from the judiciary and that this would lead to the inevitable consequence that the investigation by the police under section 156, Criminal Procedure Code, could not be stopped.
15. ' The word 'direct' which means 'command' could only signify that something which was not being done, should be done and in section 159 the word 'direct' would connote that the police are not engaged in the investigation and the Magistrate orders them to do so. The word 'direct', therefore, would be meaningless in relation to an investigation by the police which is already in progress. The police themselves are doing a thing and no direction from the Court to do that which is already being done would be necessary or called for. It would, therefore, cover only those cases where the investigation is not done by the police and the Court directs them to investigate."
16. ' It would appear that the order was held to be illegal and invalid because the Magistrate had no power to transfer investigation from one Police Officer to another. The question that is involved in the present case which requires determination is whether the District Magistrate could or could not pass an order for magisterial enquiry under section 159, Cr.P.C. Which was not involved in that case.
17. Therefore, the law laid down in PLD 1949 Lah. 562 would not apply to the facts of the present case.
18. With due deference for the learned Judge deciding 1972 P Cr. L J 626, in view of the above, we are unable to follow it.
19. ' Raja Muhammad Khurshid Khan, learned Advocate-General, relying on PLD 1956 Lah. 448 contended that the District Magistrate was within his powers in directing a magisterial enquiry by the Assistant Commissioner Mr. Justice B.Z. Kaikaus, the learned Judge of the Lahore High Court, as he then was, held that:- "Under section 159, the Additional District Magistrate had authority to depute a Magistrate subordinate to him to make an inquiry and a power to direct a full inquiry would include a power to make a partial inquiry as to the location of the place of occurrence."
20. It was further held at page 449 that:- "Once a Magistrate takes cognizance of a case he is entitled to make a full inquiry into the facts.
21. There is no provision suspending his jurisdiction to take cognizance when the police begins investigation into a case.
22. ' The facts of that case were that while the police were investigating a case under section 307, P.P.C.
23. The accused moved an application before the Ilaqa Magistrate alleging that the place of occurrence was in the Ihata of the accused where blood was still lying, that the Investigating Officer had, however, refused to record the report made by the accused and that in the interest of justice it was essential that the place of occurrence be fixed by an inspection of the spot through some Magistrate. The Ilaqa Magistrate, who was also A.D.M. Directed a Magistrate to inspect the spot and make a report. Mr. Muhammad Saeed-ulHassan, the Magistrate, who was asked by the A.D.M. Proceeded to the spot and found that the allegation of the accused in the revision petition as to the place of occurrence, was correct. The Public Prosecutor then moved a revision petition before the Sessions Judge, who relying on PLD 1949 Lah. 562, wherein it is laid down that Magistrate cannot interfere with the police investigation, submitted his recommendation to the High Court that the order of the A.D.M. Should be set aside. In these circumstances Mr. Justice B.Z.
24. Kaikaus, disagreeing with the recommendation of the Sessions Judge, held:-- "That it cannot be said that the order of the A.D.M. Was unwarranted in law."
25. The facts of that case are quite similar to the facts of the present case. The interpretation of section 159, Cr.P.C. Was directly involved in that case as it is in the present case. The plain meaning of section 159, Cr.P.C. In clear manner, invests jurisdiction in the Magistrate to hold inquiry himself or through other Magistrate. Therefore, we respectfully agree with PLD 1956 Lah.
26. 448.
27. ' The Assistant Commissioner, of course, was not competent to stop the investigation but it cannot be said that the order of the learned District Magistrate directing Assistant Commissioner to hold inquiry was not warranted by law. Section 159, Cr.P.C.Cicarly empowers a Magistrate to hold an inquiry if he considers it fit.
28. ' Therefore, accepting the appeal we hold that the order of the District Magistrate for a magisterial inquiry is quite legal. However, the order of the A.C. For stopping the investigation is not warranted by law. The order of the learned Single Judge so far as it relates to the order of the A.C. Stopping investigation is maintained but so far as it relates to the order of the District Magistrate directing the A.C. To hold an inquiry, is set aside because the District Magistrate is competent to pass such orders under the provisions of section 159, Cr.P.C. Both inquiry and investigation can go on side by side. Simply because the order was C passed in haste, it cannot be said that such an order is without jurisdiction.