This is a petition under section 561-A, of the Code of Criminal Procedure read with clause 22 of the Letters Patent, praying this Court that the allegations disclose no offence under -section 167, items 8 and 9 of the Sea Customs Act, or in the alternative to transfer the investigation of the case to some other .Impartial police agency.
2. The facts gathered from the application, briefly stated, are these. The petitioner, Mian Fazal Ahmad of Baghbanpura, Lahore, happened to be the former owner of Jeep No. LED-253, from which the local Cantonment Police had seized contraband during the course of investigation of road accident in which the -jeep had been involved. It is stated in the petition that actually the petitioner had sold the jeep in question to one Mazhar A.I -son of Aziz-ud-Din, Director Sartaj Engineering Company Limited, Gulberg, Lahore, on the 13th of November 1967, and while handing over the jeep to Mazhar A.I, he had executed a receipt for a sum of Rs. 7,500, which he had received from him and a written authority to enable him to get the jeep transferred in his name from the Registering authority (Vehicles), Lahore. Mazhar A.I, it is alleged, sold the jeep to one Ijaz Ahmad on the 16th of July 1969, and while handing over the documents of the registration of the jeep to Ijaz Ahmad be too gave him a written authority to enable him to get the jeep transferred in his name, and that in the aforesaid authority, Mazhar A.I had clearly stated that he had purchased the jeep from the petitioner and was selling it to Ijaz Ahmad. But it so happened that neither Mazhar A.I nor Ijaz Ahmad got the registration of the jeep transferred against their names with the result that when the jeep met an accident and the police seized contraband for it, not only the police arrested Ijaz Ahmad, but also found a chance to establish the case against the petitioner on the ground that the jeep belonged to him. It is emphatically alleged in the petition that the local police has implicated the petitioner falsely, because the petitioner's elder brother, Mian Meraj-ud-Din had come in the bad books of the local police due to his efforts to expose certain local police officers. The petitioner alleged that Mian Meraj-ud-Din had bean instrumental in arranging a raid of the-- Anti-Corruption against the D. S. P., Lahore Cantt., Station House Officer and Assistant Sub-Inspector of Police of Police Station Baghbanpura, Lahore. It is also alleged that Mian Meraj-ud-Din had also exposed the fraud of the S. H. O., Baghbanpura, which he had played to get a reward of Rs. 1,000 from the Inspector-General of Police, which was awarded on the ground that he had arrested a proclaimed offender after armed conflict with him, this story was challenged and the investigation" proved that the S. H. O. Arrested that person while he was sitting in a hotel. Narrating the cause of D. S. P., taking the offence against the petitioner, it was stated that Mian Meraj-ud--Din had informed the Anti- Corruption Police that the S. H. O. And the A. S. I. Of Baghbanpura Police Station were asking: for Rs.
2,000 in the form of bribe. When the Anti-Corruption Police conducted the raid it arrested the son of the A. S. I. With marked currency worth Rs. 2,000; this had offended the D. S. P. As it was alleged that he too had a share in the proposed bribe.
3. The prosecution admits the story of accident alleging that the jeep, LED-253, had a collision with the car of Brig. Hamid Asghar Kayani on Abdul Majid Road, Lahore, and on the search of the jeep cardamum weighing 629 pounds of the value of Rs. 22,930 were recovered from it. It was stated that the result of the investigation was that the jeep in question vested with Mian Fazal Ahmad.
4. On examining the police file it transpired that on the 13th of December 1969, Mian Fazal Ahmad when contacted by the investigating officer, stated that he had sold the jeep to Messrs Sartaj Industries Limited, Gulberg, Lahore, and that he would produce evidence in support of his assertion.
On the 17th of December 1969, Maqbul Ahmad, Sub-Inspector Police wrote to the D. S. P. That Mian Fazal Ahmad was an influential person, therefore, he should be arrayed as an accused under Martial Law Regulation No. 23, for trial before a Military Court. This proposal of the Sub-Inspector was forwarded by the D. S. P., Lahore Cantt. To the Senior Superintendent of Police; Lahore, who in turn forwarded it to the D. I.-G., Lahore Range. The correspondence that transpired between the D. I.
G. Lahore Range, and the Martial Law Authorities is not on the record, but from a letter addressed by the Martial Law Authorities to the D.I.G., Lahore Range, it can be gathered that on the recommend--ation of the police, the Martial Law Authorities agreed that the cases under section 279, P. P. C. And under section 167, items 8 and 9 of the Sea Customs Act were to be tried by a Military Court. The police file further reveals that Mian Meraj-ud-Din, brother of Mian Fazal Ahmad applicant, presented an application to the D. I. G., Lahore Range, Camp Sialkot, stating therein that the jeep in question was sold on the 13th of November 1967 to Mazhar A.I, Director, Sartaj Industries Limited, Gulberg, Lahore, and that he was in possession of documentary evidence to show that his brother, Mian Fazal Ahmad, had no concern with the jeep. A grievance was also made out that the local police, investigating the case, was chary to entertain the documentary evidence. Along with the applica--petition photostat copies of the documents were also placed to show that the vehicle was no longer of Fazal Ahmad. The D. I. G., Lahore Range, endorsed this application to the Senior Superinten--dent of Police, Lahore, on the 29th of December 1969, and passed the following order:- - "Please look into this case. This is new evidence which has probably not been examined so far."
The Senior Superintendent of Police, Lahore, endorsed this application to the D. S. P., Lahore Cantt.
5. Mr. M. B. Zaman, learned Advocate-General stoutly urged that though initially the cases were registered under section 167, items 8 and 9 of the Sea Customs Act and section 279 of the Pakistan Penal Code, but now these were to be tried under Martial Law Regulations Nos. 23 and 16-A, and had been bled in a Summary Military Court at Lahore. He urged that in view of Proclamation of the Martial Law of the 25th March 1969 read with the Provisional Constitution Order, Martial Law Regulations Nos. 2 and 3 and in view of Jurisdiction of Courts (Removal of Doubts) Order, 1969 (President's Order No. 3 of 1969), this Court has no jurisdiction to entertain this petition. Without answering this objection at this stage, particularly when on identical questions, other writ petitions have been admitted by a Bench of this Court, I in view of Article 4 of President's Order 3 of 1969, would like to refer this matter-to the Martial Law Administrator, Zone `A'. I would like to say at this stage, that I have examined the original documents carefully. Mazhar A.I in his statement to the police admitted his signature on the sale-receipt of the jeep. The original receipt shows that the name of the vendee has been carved out, but yet the word `I' is obvious. The other documents and the attending circumstances prima facie show that Fazal Ahmad sold the jeep to Mazhar A.I on the 13th of November 1967, while Mazhar A.I sold it to Ijaz Ahmad, on the 16th of July 1969. If Mazhar A.I or Ijaz Ahmad, for reasons known to them, did not get the jeep transferred in their names, Fazal Ahmad cannot be made, responsible for their laches. Mazhar A.I has made a hotch potch statement before the police. It does not appeal to sense and it is hard to believe his statement in force of the documentary evidence in possession of Fazal Ahmad. It is well-known that "prevention is always better than cure", and it is obligatory for all those who act as arbiters to prevent specious and spiteful criminal prosecutions. No executive authority would think it expedient in the safe administration of justice to refer a case' for trial on facts which do not constitute a case at all.
6. There is no denying the fact that the police of out country possess wide powers, therefore, one would expect that the police in exercise of these functions should be honest and fair. Those who are responsible for the administration of the police should see that no arbitrary or mala fide attitude or excess zeal on the part of the police should interfere with the proper rights or liberties of the individual citizens. No responsible person would suggest that the police should be unnecessarily hampered in the performance of the essential duty of bringing criminals to justice, but in the case in hand, I am constrained to remark that the police by distorting facts and not collecting the correct evidence was successful in securing orders for the prosecution of Fazal Ahmad. Let this order be transmitted to the Governor of West Pakistan and Martial Law Administrator Zone `A'. The learned Advocate-General has been handed over the original documents, and has been directed to bring this matter to the notice of the Martial Law Authorities.
7. To come up on the 26th of January 1970.