Inayat-ur-Rehman, petitioner, has come up for quashment of the case registered against him under Article 3/4 of the Prohibition (Enforcement of Hadd)_ Order, 1979 (hereinafter called as the Order) at Police Station, Mingora vide F.I.R. No.962 dated 21-7-1991.
2. Facts of the case are that Rasool Khan `an unwitting brother of Purdil Khan, respondent No.5' was arrested at the Heathrow Airport, London after 463 grams of heroin powder was recovered from his brief-case which had been allegedly given by Inayat-ur-Rehman petitioner and his accomplice Amanullah who is not traceable. Purdil Khan, respondent No.5, therefore, riled a complaint under sections 417 and 500, P.P.C. In the Court of Assistant Commissioner, Swat (respondent No.1) accusing the petitioner and Amanullah aforesaid for criminal conspiracy to smuggle heroin through duping Rasool Khan brother of Purdil Khan respondent No.5. Respondent No.1 had directed an inquiry to be conducted by the S.H.O., under section 202, Cr.P.C. On receipt of the report from S.H.O., Police Station, Mingora on 27-8-1990, respondent No.l while taking cognizance of the complaint tiled by respondent No.5, summoned the petitioner and Amanullah for 5-9-1990. The petitioner attended the Court of respondent No.1 whereas due to absence of Amanullah non- bailable warrant of arrest was issued against him for .4-11-1990. This process was repeated for 20- 12-190, 27-1-1991 and 25-2-1991. In the meantime, the petitioner `made a clean breast confession of the conspiracy and fraud thereby smuggling narcotics to London in a brief-case presented to Rasool Khan aforesaid as a gift'. Thereafter Inayat-ur-Rehman petitioner did not attend the Court whereas Amanullah his so-called co-accused had already gone into hiding. Respondent No.5, therefore, `filed' the complaint aforesaid. It appears that Rasool Khan; the so-called unwitting brother of Purdil Khan complainant in that complaint and respondent No.5 herein were acquitted on account of the confessional statement of Inayat-ur-Rchman petitioner. On a secret information from our Mission, perhaps, the local administration of Swat District was astonished to notice the ingenuity of the petitioner in lodging the complaint and making ,'confessional statement with a view to securing the acquittal of Rasool Khan by a competent Drugs-Court in London. It is queer to note that thereafter the petitioner also failed to attend the Court of respondent No.l, therefore, it dropped the proceedings under the private complaint filed by respondent No.5. The Deputy Commissioner, Swat was perhaps apprised of, this fraudulent complaint and consequential acquittal of Rasool Khan aforesaid who directed on 13-7-1991 respondent No.1 to take action against all those involved who in turn directed the Superintendent of Police, Swat to initiate criminal proceedings against the petitioner, Amanullah and others. On the basis of this letter FIR No.962 dated 21-7-1991 has been drawn up wherein Amanullah absconder and the petitioner had been assigned as accused under Article 3/4 of the Order. The proceedings so initiated are now being sought to be quashed on the following grounds:-- (a)That respondent No.l who had taken cognizance of the ,criminal complaint and had ordered investigation under section 202, Cr.P.C. Had no authority to direct the registration of Police case on the same facts which were the subject-matter of the complaint.
(b)That having ordered investigation under section 202, Cr.P.C., respondent No.l had no further authority to direct the police to carry out investigation under section 150, Cr.P.C.
(c)That since respondent No.l had taken cognizance of the complaint and was acting as a Criminal Court he had illegally obeyed the administrative instructions of respondent No:1 to register a police case.
(d)That without prejudice to the ground taken up as ground No.(c) the. Respondent No.l had not applied his mind independently when deciding to order registration of the case but had acted on the direction of respondent No.2.
(e)That FIR in question has been allegedly and improperly registered in that it was filed without the knowledge of respondent No.5 although he has been mentioned as complainant in the case.
(f)That respondent No.4 had acted illegally in registering the FIR on sheer direction of respondent No.l and respondent No.3 in that had he found the commission of cognizable offence while investigating the criminal complaint he would have made a police case as well.
3. Mr. Nasirul Mulk, Bar-at-Law, appearing on behalf of the petitioner on the authorities of: (1) Azizur Rahman and others v. The State PLD 1960 Dacca 1054, Ghulam Ahmad v. The State PLD 1962 Lah.
280 and Abdul Haleem v. Raza Qurban Hussain and others PLD 1965 (W.P.) Lahore 570 contended that once the Sub-Divisional Magistrate, Swat (respondent No.l) had already taken cognizance of the criminal complaint filed by respondent No.5 against the petitioner and others he could no longer avail himself of the alternative procedure to have the case registered and investigated over again in order to secure acquittal of Rasool Khan brother of respondent No.5 in London.
4. It was maintained on behalf of the State that copies of the inquiry report and the confessional statement of the petitioner recorded under section 161 read with section 364, Cr.P.C., were secured and sent to London as a defence so that Rasool Khan was proclaimed innocent and that he had nor knowledge of the narcotics being placed in his brief-case. The Office in London, therefore, returned those documents to the Ministry of Interior in the Government of Pakistan to verify if the documents were genuine and that is how the Government of Pakistan came to know of the offence. It was, therefore, contended that the order of the Magistrate under section 202, Cr.P.C.
Does not debar the police from exercising their general powers of arrest and investigation in regard to the same matter as can be formed the subject of the complaint. In support of this proposition the learned counsel appearing on behalf of respondents Nos. 1 and 2 also reiterated the case of Abdul Haleem cited above and also referred to the precedent case of Ghulam Muhammad v.
Muzammal Khan and others PLD 1967 SC 317. The learned counsel for respondents Nos. 1 and 2 then questioned the competency of these proceedings for quashment on the ground that an accused person against whom a case is still under investigation cannot invoke the provisions of section 561- A, Cr.P.C. And in support of this proposition reliance was placed on Abdul Majeed and others v. The State and another PLD 1986 Lah. 293.
5. The proposition surviving for determination is whether the Magistrate who had taken cognizance of a criminal complaint had no authority to direct registration and investigation of a case on the same charge or on different charges-
6. The facts of Abdul Haleem's case relied upon by both the parties were that Mst. Rashidan, her sister, mother and Abdul Haleem petitioner therein went to Sargodha from village Kotla in order to institute a civil suit against Khan Muhammad and stayed in the house of one Gul Muhammad in Sargodha. While they were in Gul Muhammad's house, two constables came there and took them away to City Police Station, Sargodha. Raja Qurban Hussain while arresting Abdul Haleem under section 107/151, Cr.P.C., allowed the sister of the petitioner therein to leave the police station but Mst.
Rashidan and her mother were handed over to Muhammad Khan, Bahawal-- Bakhsh and others mentioned in Mst. Rashidan's petition. Abdul Haleem was released on the following day by a Magistrate Ist Class, Sargodha. Mst. Rashidan and her mother were taken to the house of one Riaz situate in Chak No.92. This happened on the 9th of June, 1964. On the 15th of June, 1964 Mst.
Rashidan submitted an application in the Court of Magistrate of the 1st Class, Sargodha wherein she charged. Qurban Hussain respondent for the offence of rape committed by Riaz and ahawal Bakhsh during her confinement in their house. On the same day, Mst. Rashidan was medically examined and was found to have been subjected to sexual intercourse on her. On 19th June, 1964, she put- in an application along with medico-legal report praying that the local police be directed to register a case against the culprits. The learned Magistrate forwarded that petition to S.H.O, Bhagtanwala for necessary action. On the same day, Raja Qurban Hussain respondent also submitted an application wherein he stated that the allegations against him being false and as a result of conspiracy, the application of Mst. Rashidan be not forwarded to S.H.O., Bhagtanwala. The learned Magistrate on the same day had passed another order to the effect that it was necessary to record the statement of Raja Qurban Hussain before proceeding further in the matter and recorded his statement and ordered that Mst. Rashidan should appear before him on the 2nd of July, 1964 along with her 'witnesses. It was in this background that the Division Bench of West Pakistan High Court, comprising of Abdul Aziz Khan, C.J. And Orteheson, J., as their Lordships then were, had observed that the procedure adopted by the learned Magistrate was contrary to law and that Raja Our ban Hussain had no locus standi to appear before him and the Magistrate acted illegally in recording his statement on 24th June, 1964 and directed Mst. Rashidan to produce her evidence in the presence of Raja Qurban Hussain. The ratio in the case was that a person complained against does not become an accused until it was decided to issue process against him under section 204, Cr.P.C. It was, therefore, observed that after recording the statement of Mst.
Rashidan and perusing the medico-legal report the learned Magistrate had already ordered on the 19th of June, 1964 that the papers be forwarded to the S.H.O., Bhagtanwala for necessary action and that subsequent order of the 24th June, 1964, after he had recorded the statement of Raja Qurban Hussain that Mst.Rashidan be directed to adduce her evidence on the 2nd July, 1964, amounted to abuse of the previous order which the Criminal Court is not competent to do. It would thus be noticed that this precedent is of no avail to the petitioner. The earlier complaint by Purdil Khan under sections 417 and 500, Cr.P.C., was instituted against, the petitioner and another in the Court of respondent No.l. Due to emergence of new facts after the receipt of information from abroad that it was the result of collusion and conspiracy between the parties thereto and that a cognizable offence had taken place under Article 3/4 of the Order, the directions of respondent No.l to investigate these allegations were issued which were distinct and separate offences from the earlier one unlike the case of Abdul Haleem cited above.
7. On the legal plane it may be observed that in Abdul Haleem's case the law propounded in para. 14 of the report at page 575 reads as under:-- "We may, however, make it clear that if a Magistrate sends a cognizable case to the police to investigate under section 202, Cr.P.C., the police officer making investigation can arrest and send up a charge-sheet. The Magistrate's order under this section does not debar the police from exercising their general powers to arrest and investigate in regard to the same matter as can form the subject of the complaint. In fact in -such a case the police would be failing in their duty if they did not arrest an offender against whom a cognizable offence is made out. Much more so would this be the case where the Magistrate after recording the complaint finds that regular police investigation would be more suitable and intentionally keeps the complaint pending in order that the police may exercise their power of investigation and arrest independently of the Magistrate."
Respectfully subscribing to the view expressed by the learned Division Bench in Abdul Haleem's case I would reiterate the law that ordinarily if a Magistrate sends a cognizable case to the police for investigation under section 202, Cr.P.C., the police officer making investigation can not only send up the charge-sheet but can also arrest the accused and the Magistrate's order does not debar the police from exercising their general powers to arrest and investigate., in regard to the same matter as can form the subject of the complaint. In an illuminating judgment in the case of Ghulam Muhammad cited above Hamoodur Rahman, J., as his Lordship then was, had laid down a very salutary principle in the annals of administration of criminal justice which is to the following effect: "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 as honourably acquitted by a competent Court. On the other hand, if the evidence against the respondents discloses a prima facie case then justice clearly requires that the trial should proceed according to law. The mere fact that a long period has expired since the initiation of proceedings is no' ground for quashing the criminal proceedings as was pointed out in the case of M.S.Khawaja v. The State PLD 1965 SC, 287."
In the instant case, as observed above, the earlier complaint filed by respondent No.5 against the petitioner and another prima facie discloses the offences under sections 417 and 500, P.P.C., which, after having been prima facie found to be the result of collusion and fraud with a view to securing acquittal of Rasool Khan brother of respondent No.5 and the complainant herein was filed and consigned to the record. If it is found subsequently that during the period preceding the criminal complaint some other offences have been committed by the parties to the said complaint or any one else then there is nothing in the Criminal Procedure Code to debar a Magistrate to order initiation of criminal proceedings against the parties to the said complaint. In this situation, the Magistrate would be failing in his duty if he did not take cognizance of such a case and forward it for investigation and registration of a case by the police.
8. Looking from another angle it may be observed that even if the impugned order of the Magistrate is not warranted by law, I cannot see, why the jurisdiction of the police to investigate and register a case against the petitioner and others was ousted. In this context, (1) Rashid Ahmad v. The Crown ILR 14 Lah. 194, (2) King-Emperor v. Bhola Bhagat and others AIR 1923 Pat. 547, (3)
Gopal Naik v. Alagirisami Naick 131 IC 176 and '(4) Crown v. Ghulam Nabi Allahwadhaya 27 SLR 67 are worthy of consideration.
9.Last but not the least, I respectfully find myself in agreement with the dictum laid down in Abdul Majeed's case cited above that an accused person cannot invoke the provisions of section 561-A, Cr.P.C. In a case which is under investigation, the reason being that generally the Criminal Procedure Code does not contemplate such an interruption in the investigation.
10. In the circumstances, the order of respondent No.l directing the police authorities to investigate and register a case against the petitioner and others under Article 3/4 of the Order is unexceptionable. Consequently, this petition having no merit is dismissed.