' SALEEM AKHTAR, J.---The petitioner seeks leave to appeal against the orders passed by learned Judges of the High Court in Constitution listition No,2182/93 praying that adverse orders passed therein may be set aside and the proceedings initiated in the Constitution Petition may be declared illegal, unwarranted and without jurisdiction.
2. The proceedings were initiated by the learned Chief Justice on a letter dated 4-8-1993, received from one Haji Umar, respondent No,2; a fisherman, residing at Kharadar, Lyari, Karachi, complaining that his son Nazir Ahmed had been taken away by Malik Sarwar, ASI of Kharadar Police Station. Who as tortured and has been killed. The letter is reproduced to give a correct picture of the complaint:- "The Honorable Chief Justice High Court of Sindh. Karachi.
' Sir, ' Respectfully it is submitted that on 19-7-1993 at 9-30 a.m. One ASI Malik Sarwar of Kharadar Police Station had captured my son named Nazeer Ahmed and taken him away from the house. For eight days my son was kept in wrongful confinement at Police Station. On 26-7-1993, on the basis of an F.I.R. Lodged in a, theft case, they obtained remand from a Magistrate for seven days. Up to 31-7- 1993, the police officials intensely tortured my son. His both the ears were pulled with plass. They cut hip of my son with blade and sprinkled petrol on it. Skin of both the arms was pealed with saw and blade. His male organ was also pulled with plass. Half portion of body of my son was rendered useless and he could not stand. Police had demanded rupees one lac from me for release of my son, but I could not pay the said amount as I am very poor man. Thereupon, on 31-7-1993, police officials took my son to Magistrate of South Nos.7 and 10 for taking further remand, but the Magistrate refused to give further remand. Due to severe torture, the condition of my son was very bad and he was bleeding. The Magistrate sent my son to Landhi Jail and directed the Jail Superintendent to get my son treated in Hospital. The Magistrate directed to the aforesaid ASI of Kharadar Police Station to take my son to Landhi Jail. After seeing the condition of my son, the officials of Landhi Jail refused to keep him in Jail. Police Officials of Kharadar instead of taking him to Hospital, confined my son in a Police Station adjacent to Landhi Jail and handed over him to the personnel of that Police Station. In the same Police Station, my son succumbed to his injuries. The official of the said Police Station informed the officials of the Kharadar P.S. About the death of my son. A.S.I. Sarwar of Kharadar Police Station alongwith his staff members went to the said Police Station, near Landhi Jail and brought the dead body of my son at Kharadar Police Station. In order to save their lives, the officials of Kharadar Police Station cut the hair of my dead son, put nails on his head and cut his entire body with blade and thereafter handed over the dead body of my son to the Civil Hospital stating that my son was Heroin addict and was lying dead on pavement and to keep the dead body of unclaimed. Later, ASI Sarwar of Kharadar Police Station alongwith full mobile force came at my house, caught my elder son named Haji Aziz, gave beating to him and forcibly obtained his signature on a paper. The said police official told Haji Aziz that his brother had died and his dead body can be collected from Civil Hospital. We brought the dead body. At the time of burial, his body was bleeding. No judicial enquiry was conducted about the death of my son. A.S.I.
Of Kharadar lives in my Muhallah. He has absconded after the death of my son. Officials of the Police Station are not registering the F.I.R. The officials of Kharadar Police Station have tortured and killed my son aged 25 years. I am an old man of 73 years and I am also a weak man. There is no one to hear my complaint. I request your Honour that judicial enquiry in the cause of death of my son may kindly be ordered. A.S.I. Sarwar and staff members of Kharadar Police Station are murderers of my son. Legal action may be taken against them. Fisherman and grief stricken father.
(Sd.)
Haji Umar s/o Haji Muhammad."
3. On receipt of this letter, the learned Chief Justice ordered it to be registered as a Constitution Petition and fixed it in Court on 11-8-1993 with notices to the Advocate-General, Sindh and the petitioner. This letter was thus converted into Constitution Petition and proceedings were started by issuing notices to the concerned persons. Haji Umar, respondent No,2, ASI Malik Sarwar of Kharadar Police Station and SHO Anwar Ahmad Khan of the same Police Station, were present. SHO Anwar Ahmed Khan submitted a report which referred to remand report of ACM/FCM, South Karachi, which had clearly mentioned that Nair Ahmed deceased had been tortured by the Investigating Officer. The learned Judges passed the following orders:- "A report has been filed by S.H.O. Anwar Ahmed which shows remand report of A.C.M./FCM, South Karachi in which the ACM has clearly mentioned that the deceased had been tortured by Investigating Officer. There are four cases against deceased Nazir Ahmad and there were two I.Os.
One is Malik Sarwar and the other is Abdul Jabbar. A.S.I. Malik Sarwar is present, but ASI Abdul Jabbar is on leave as according to the S.H.O., his father had died. Against ASI Abdul Jabbar also there are serious observations by remanding Magistrate that he had tortured the deceased.
Request of police remand by the I.Os was refused and the detenu Was sent to judicial custody.
' S. Sarfraz Ahmed, AA.-G. States that S.D.M. Raisuddin Piracha has been appointed as Magistrate to hold enquiry. He states that instead of S.D.M. a Judicial Magistrate will hold the enquiry. The appointment of Judicial Magistrate instead of S.D.M. Raisuddin will be notified in the next 48 hours.
As soon as the judicial enquiry has been completed, the Judicial Magistrate will submit a copy of the report in this case.
' Adjourned to a date in office, to be fixed after 15 days. The enquiry may be completed within 15 days. To come up on 2-9-1993."
4. On 2-9-1993, the Additional Advocate-General stated that the Judicial Magistrate would complete the inquiry within three weeks' time. The Court adjourned the hearing to 8-9-1993, noting the statement of respondent No,2 that he and his relations are being forced in a highhanded manner to compound the offence and for this reason a short date was given, directing the DSP Eid Gah, Mr. Khursheed Alam, to be present in the Court. On 8-9-1993 the case was adjourned to 9-9- 1993. On this date the Additional Advocate-General appeared with the DSP and request was made for time to complete the Judicial Inquiry. The hearing was thus adjourned to 29-9-1993, when Mr. Khursheed Alam, DSP, informed the Court that the inquiry conducted by him in the cause of death was almost over. He filed his report stating therein that "it has also been proved that deceased was miserably beaten up at P.S. Kharadar which may have resulted in his death." He requested for time to investigate on certain points which he could complete within two days and would further decide as to what action lite would take against the concerned officer. The case was adjourned to 4-10- 1994. On this date, the DSP complained that the complainant party was not cooperating with him for the purpose of identifying accused persons. Mr. Zia Ahmad Awan, Advocate appearing for respondent No,2, undertook that full cooperation would be provided and the case was adjourned to 26-10-1993. The DSP submitted his report on that date when the learned Court also noted the grievance of Mr. Muhammad Iqbal. Advocate, regarding the manner in which the investigation had taken place and also that the real culprits were not shown as accused in the F.I.R. It was also noted that the Judicial Magistrate was also holding an inquiry under section 176, Cr.P.C. And report would be available very shortly. Hearing was thus adjourned to 24-11-1993 expecting that by that time Judicial Inquiry Report of the Magistrate would be available. On 24-11-1993 it seems that the judicial ipquiry report had been completed and the following order was passed:- "Mr. M. A. Awan and Mr. Saifuddin, Advocates for the petitioner with the petitioner Haji Umar present in person. Mr. Abdul Haleem Pirzada A.-G. And Raja M. Irshad, AA.-G. Present.
' The Advocate-General has been apprised of the salient findings of the enquiry conducted by the Enquiry Officer, Dy. Secretary (Police) of the Home Department, appointed by the Home Secretary, in regard to very serious allegations of torture and harassment of peaceful citizens against S.H.O.
Anwar Ahmad Khan of P.S Kharadar The report is dated 21-9-1993. Apart from this, there is also a report of the Judicial Enquiry about the death of the son of thy; petitioner while in custody at the hands of police of P.S. Kharadar, while Anwar A. Khan was the S.H.O. According to Judicial Enquiry Report. Sometimes back Anwar/A. Khan was suspended but now it is reported that he has been reinstated and posted as SHO Gadap Police Station.
' Mr. Zia Awan makes grievance that despite the report of the judicial enquiry, only one ASI was arrested and that also very reluctantly, but no action has been taken against others who are prima facie responsible for the death of Nazir Ahmad in police custody.
' At the request of learned A.-G. Sindh, the hearing is adjourned to 2-12-1993, when a statement be made by the learned A.-G. The case will be taken up at 12-00 noon."
5. On 2-12-1993, the learned Advocate-General requested for time which was granted up to 13-12- 1993. However, the Court further recorded the statement of the learned counsel for the petitioner in the following manner:-- "It may be observed that according to the learned counsel for the petitioner, the judicial enquiry was held into the death of Na7ir son of the petitioner Haji Umar and despite the findings in the judicial enquiry under sections 174, 176, Cr.P.C., the deceased having died in police custody, only one ASI was arrested after a complaint of murder had been registered in connection with the death of Na7ir, but the other ASI has still not been arrested. It is further pointed out that there is an enquiry report in this case also of Deputy Secretary of Home Department (Police) and despite such enquiry report, the SHO of P.S. Kharadar has been reinstated and posted at P.S. Gadap. It is further pointed out by the learned counsel for the petitioner that the DSP who was the officer in the case against the deceased Nazir has been promoted as S.P. Crimes.
' A copy of this order may be supplied to the learned Advocate-General, Sindh."
6. On 13-12-103 it was noticed that the judicial inquiry had not been completed as recorded in the order dated 2-12-1993 and only statements of witnesses had been recorded. The case was adorned to 16-12-1993. On this 'date the report of the Judicial Magistrate in respect of the death of Nazir Ahmed was made available, copies of which were supplied to Advocate-General and to the Advocate for respondent No,2. The learned Judges noted that the police officers were not present and they were not giving due importance to the case which it deserved. While adjourning the case to 20-12-1993, the following order was passed:-- "To come up on 20-12-1993 at 1-00 p.m. When S.S.P. (South) should be present along with the then Investigating Officer of the case against the police officers, which was registered, pursuant to order passed in this Constitutional petition for the death of the deceased Nazir in police custody. It is informed by Mr. Zia Ahmed Awan that the Investigating Officer in this case of death of Nazir was a DSP at that time but he has since been promoted as S.P. Anti-Corruption, but no interest is being taken either by him or any other Investigating Officer to whom the investigation might have been transferred. It is reiterated that, despite five police officers who are alleged to have been involved in the torture, only one ASI has been arrested and no action has been taken for apprehension of the other four police officers. A copy of this order may be supplied to the office of the Advocate- General, Sindh."
7. On 20-12-1993 the Additional Advocate-General appeared and showed his ignorance about the receipt of the order and the .Case was adjourned to 26-12-1993. On that date Assistant Advocate- General stated that the interim challenged had been filed before the Volta Additional District/Sessions Judge, Karachi South; Mr. Akhtar Siddiqui, DSP CIA/Incharge of the investigation would be completing the remaining investigation and would submit official report within one week.
The case was adjourned to 4-1-1994, directing the three police officers to be present on the date of hearing. On 4-1-1994 SSP District South, Karachi, filed a report. The DSP CIA also filed the report and at the request of Mr. Zia Ahmed Awan, the hearing was adjourned. The matter was again taken up on 19-1-1994 when the Additional Advocate-General stated that the petition had served its purpose. However, the learned Judges, constituting the Bench, ordered that the matter may be placed before the learned Chief Justice, with the following observations:-- "According to the learned Additional Advocate-General Sindh, this petition has served its purpose.
However, we find that the Bench presided over by the Humble Chief Justice had applied its mind to the controversy in some details. Adjourned, to be placed before such Bench.
' Meanwhile, learned counsel for the petitioner states that the petitioner may also take steps for filing a suit for compensation at the behest of the aggrieved parties against the alleged offenders as well as against the Government of Sindh. If necessary, a private complaint may also be filed."
8. On 10-2-1994 when the matter was taken-up for hearing, the following order was passed:-- "M/s. Zia Ahmed Awan and Muhammad Iqbal Aqeel, Advocate for petitioner Haji Umar, father of deceased Nazir Ahmed.
' Mr. A.-G. Mangi, Additional Advocate-General has placed on record .The report of SSP (South). It is pointed out by learned counsel for the petitioner that the Judicial Inquiry Report places responsibility on the two ASIs, namely ASI Sarwar Ali and ASI Abdul Jabbar and also the then SHO Police Station Kharadar, Anwar Ahmed Khan. Further, officials of the Police Station Kharadar have also been found to be responsible according to the Judicial Enquiry Reports who are:--
(1) ASI Shaikh Shoib Ali,
(2) FC Mumtaz Ali.
Superintendent Landhi Jail, Abdul Majeed Siddiqui and also Chief Warden Chulam Rabbani, Medico-Legal Officer Dr. J. Ramdas have also been found to be responsible according to the Judicial Inquiry ' Report, for the killing of deceased Nazir Ahmad while in custody in a theft case.
' Mr. Zia Ahmad Awan points out that an enquiry was also conducted by the Deputy Secretary of the Home Department (Police) who alio found SHO Anwar Ahmed Khan responsible for the killing of deceased Nazir Ahmed.
' Reference may also be made to the orders passed in this case on 24-11-1993, when Mr. Abdul Haleem Pirzada, A.-G. And Raja M. Irshad, Addl. A.-G. Were present. On that date, Mr. Zia Ahmed Awan had made a grievance that despite the report of the Judicial Enquiry, only one ASI had been arrested and that also very reluctantly but no action had been taken against others who are prima facie responsible for the death of deceased Nazir Ahmed in the police custody. Learned Additional Advocate-General took time to make a statement. The matter again came up before this Court on 2-12-1993, but then again he took time. No statement has been made by the Additional Advocate- General.
' Mr. Zia Ahmed Awan points out that the then SHO Kharadar, during whose tenure Nazir Ahmad died in police custody, had been suspended but, later on, for reasons best known to the Government, specially to the Home Department, the SHO was. Posted as SHO, Police Station Gardap but then again he was suspended but then he was posted for one day at Police Station Kharadar and now he has been posted again back to Gadap P.S. As SHO.
' Despite the report of the Judicial Enquiry and the report of the Enquiry Officer (Deputy Secretary in the Home Department), SSP South had made a statement in writing that the SHO was not involved in connection with the torture on deceased Nazir Ahmad. Mr. Zia Awan complains that only ASI Sarwar Ali and ASI Abdul Jabbar have been made accused in the case and only ASI Sarwar All is in custody, whereas ASI Abdul Jabbar is reported to have absconded. No further Police or Jail Official has been named as an accused in the case.
' Mr. A.G. Mangi may either ask the learned A.-G. To make a positive statement as to why other police officials have not been made accused and arrested in this case including SHO Anwar Ahmed Khan and secondly, why SHO Anwar Ahmed Khan after having been suspended twice, has again been posted as an SHO of Gadap Police Station. In case, the learned Advocate-General is not available, Mr. Abdul Ghafoor Mangi may obtain instructions from the Home Secretary and make a statement in writing signed by the Home Secretary, on the next date, in connection with the clarification required by this Court.
' This case will come up for hearing on 14-2-1994. On the next date, SSP South, Karachi should also be present.
' At this stage, Mr. Arshad Lodhi, Advocate appears stating that the counsel for the petitioner have made an incorrect statement that ASI Abdul Jabbar is an absconder. He states that ASI Abdul Jabbar had surrendered himself before the trial Court on 9-1-1994. It is further informed that the case has been challaned under section 302, P.P.C. Against ASI Sarwar Ali and ASI Abdul Jabbar and he is defending Abdul Jabbar. The statement made by Mr. Arshad Lodhi is taken on record. It is reported that SHO Anwar Ahmed Khan was at one time posted at North Nazimabad and during his tenure, one undertrial prisoner died in custody and this Court directed that a case may be registered against him for killing of the undertrial prisoner in custody. Learned Addl. A.-G. May also make enquiries in this regard.
' A copy of this order may be supplied to the learned Additional Advocate-General."
9. On 14-2-1993 when the matter came up for hearing, it was argued by the learned counsel for the parties when SSP Mr. Muhammad Ramzan Channa stated that the report submitted by him was without going through the inquiry reports as the same were not made available to him in spite of the efforts made by him. The case was adjourned to 23-2-1994. After that it was adjourned to 7-3- 1994 and immediately thereafter this petition was filed.
10. Mr. Azizullah K. Shaikh, learned counsel for the petitioner, contended that the High Court had no jurisdiction to interfere with the investigation of the case and further actions taken by the High Court, suo mote, were also without jurisdiction and all orders passed after 19-1-1994 are illegal and without jurisdiction. Reliance was placed on Shahnaz Begum v. The Honorable Judges of the High Court of Sindh and Baluchistan PLD 1971 Supreme Court 677.
It was further contended that from the orders passed by the High Court, the entire exercise seems to be to get Anwar Ahmad arrested and registration of a murder case against him, whether there is any evidence or not. It was in view of these contentions that we have reproduced the major part of the orders which have been challenged by the learned counsel for the petitioner. According to the learned counsel, orders passed after 19-1-1994 and other orders from 10-2-1994 to 23-2-1994 are illegal and without jurisdiction. The High Court had initiated the action on the complaint of the father of the deceased Nazir Ahmed, who had alleged illegal arrest and torture leading to his son's death. Under these circumstances and in the facts stated in the complaint, the Court treated it a Constitution petition and issued notices to the concerned parties. This has not been objected to by the petitioner as without jurisdiction because his entire effort seems to be to challenge orders passed after 19-1-1994. From these orders it seems that the judicial inquiry had been instituted and side-by-side Mr. Khursheed Alam, DSP, was also conducting the inquiry into the cause of death. In his report as is reflected from order dated 29-9-1993, he had concluded that "it has also been proved that the deceased was miserably beaten at Police Station Kharadar, which may have resulted the cause of death". Then came judicial inquiry in which the inquiry officer had examined 28 witnesses and in his report, running in 59 pages, concluded as follows:- "In view of the foregoing discussion of the evidence placed before the judicial enquiry, I am of the opinion that: ' A. Deceased Nazeer Ahmed @ Nujo was apprehended from the house between the night of 19-7- 1993, and his brother Haji Abdul Aziz was also apprehended from the house between the night on 19/20-7-1993, and ASI Sarwar Ali, ASI Abdul Jabbar, ASI Sheikh Shoaib Ali and PC Mumtaz Ali are responsible for causing torture/maltreatment, which resulted into his death in Landhi Jail, Karachi, on 3-8-1993 and SHO SI Anwar Ahmad Khan is also equally responsible for this sorrowful incident as the deceased Nazeer Ahmad @ Nujo was tortured/maltreated by said Police personnel with his connivance.
' B. Following staff of Juvenile Jail are responsible for not providing the proper medical treatment to deceased Nazeer Ahmed @ Najo s/o Haji Umar:--
(1) Abdul Majeed Siddiqui, Superintendent Jail.
(2) Ghulam Rabbani, Chief Warden.
C. MLO Dr. Jai Ram Das is also liable for departmental action for his not preparing the Post-Mortem Report carefully and with full attention and has not mentioned two vital natures of injuries in his Post-Mortem report.
' From the above sorrowful incident which resulted into death of a young man due to torture/maltreatment of police staff of Kharadar Police Station, it appears that some Police Stations are being used as torture cell, not for safety of lives and property of citizens, but to take their lives, which is entirely against the human rights."
11. It may be mentioned that this inquiry was held under the directive of Government of Sindh, Home Department, Karachi, dated '19-8-1993 by which Mr. Muhammad Afzal, Judicial Magistrate-II South, Karachi, was appointed Inquiry Officer to hold judicial inquiry into the alleged maltreatment of Nazeer Ahmad @ Najo by Kharadar Police, resulting into his death in Landhi Jail and the alleged negligence of Jail authorities by not providing medical treatment to the deceased.
12. After this report was submitted, the learned Advocate-General stated that the purpose of the proceedings had been served meaning thereby that further proceedings could not be taken and - matter should be closed. This was recorded in the order dated 19-1-1994 but the learned Judges did not agree with this request and put off the matter for consideration by the Bench presided over by the learned Chief Justice mainly for the reason that he had been hearing the matter and passed most of the orders in the proceedings. It is this order which, according to learned counsel for the petitioner, should be the end of the matter. The learned Judges had not passed any such order that on submission of the inquiry report the purpose of the petition was served and proceeding be terminated. The petitioner had prayed for due and proper action to be taken against the persons found guilty and causing death of his son by torturing him in the Police Station.
It was a serious allegation touching the freedom of citizens and fundamental rights including the dignity of man which had been violated as alleged by the petitioner in his complaint. The purpose of the complaint was not that a judicial inquiry should be held and put the case in the cold storage but his prayer was that guilty should be punished. The learned Judges have exercised their jurisdiction under Article 199 of the Constitution under which proper direction can be given to any person performing functions in connection with the affairs of the Federation or Province to refrain from doing anything he is not permitted by law to do, or to do anything he is by law required to do and also to examine the legality of any action or proceedings taken on a complaint alleging violation of fundamental rights. It was not a habeas corpus petition or proceedings under 491, Cr.P.C. Where on the report of the police, which involves the detent in a criminal case registered against him, the proceeding is sought to be dropped. Even in such case this cannot be made a rule to terminate the proceedings. If the Court comes to the conclusion that the prosecution is mala fide or for ulterior motive or the false and fabricated criminal case has been instituted against the detent, the Court will be competent to step in and examine the validity and legality of such proceedings.
1.3. In the present case the son of respondent No,2 has died while in custody. The inquiry report made by DSP and also by the Judicial Magistrate confirmed that the deceased had been victim of torture during detention which caused his death. The judicial inquiry even pin-pointed the police officers who were responsible for such brutalities.
14. On the other hand the SSP had submitted a report, in which persons who are charged with liability under the judicial inquiry had been exonerated. During the proceedings there was a constant complaint that all such persons Who were found guilty by the Inquiry Officer were not prosecuted. In this state of affairs when the charge is leveled against the police officer investigating the offence for ignoring the material facts and exonerating accused persons against whom complaint had been made, the Court cannot remain silent because the opinion of the Investigating Officer is not absolute or binding on any Court. It may be of great value at the inquiry stage but where prejudice and mala fide intention to protect their colleagues or any accused has been exhibited, such report of Investigating Officer will be of no value at all.
15. The orders sought to be quashed are nothing but an effort on the part of the learned Judges to obtain information and ensure that inquiry is held and report is submitted by the inquiry officers in proper time. It has been observed in that case involving offences of serious and sensational nature, often inquiry officers are appointed leading to no result at all. The proceedings suffer from delays, laches and unnecessary adjournments and non-cooperation by the officers and public alike.
When the case under investigations is under judicial scrutiny by a superior Court, it can direct concerned authorities to finalize their reports within a reasonable time. The High Court in passing the impugned order did not interfere with the investigation. It merely required the concerned officer to be more alert, vigilant, prompt and dutiful. There had been complaint of harassment by the police of the relations of the deceased forcing them to compound. If the matter had been allowed to be delayed, such tactics may have succeeded.
16. The learned counsel's contention that the High Court has been supervising the inquiry is completely misconceived. The High Court had given time to the Advocate-General to get information about the progress made by the inquiry officer appointed by the Government. It also noted how far the Investigating Officer was at variance with the opinion of the judicial inquiries and whether any action was taken in pursuance of the judicial inquiry, if not, for what reason. The learned counsel has referred to Shahnaz Begum v. The Honorable Judges of High Court of Sindh and Baluchistan PLD 1971 Supreme Court 677. The facts of that case were completely different and the principles laid down there do not apply in the present case. In that case the High Court had taken somite action and called upon the Inspector-General of Police to produce before it all investigation papers relating to a criminal case which had created stir and sensation in the city, so that the learned Judge may examine "if the conduct of the investigation has been fair or impartial or the ends of justice require that further investigation of this case be entrusted to any other officer or a Court of Law". This order was challenged and this Court held that the High Court has no power to take somite action under Article 98 of the Constitution of 1962 nor has it power to supervise and control the investigation under Article 102. However, it was further observed that "If an investigation is launched mala fide or is clearly beyond the jurisdiction of the investigating agency concerned that it may be possible for the action of the investigating agencies to be corrected by a proper proceeding either under Article 98 of the Constitution of 1962 or under the provisions of section 491 of the Criminal Procedure Code, if the applicant is in the latter case in detention, but not by invoking the inherent power under section 561-A of the Criminal Procedure Code".
17. It is well-settled principle that where investigation is mala fide or without jurisdiction, the High Court in exercise of its Constitution jurisdiction under Article 199 is competent to correct such proceedings and pass necessary order to ensure justice and fairplay. The investigating authorities do not have the entire and total authority of running investigation according to their whims.
18. The contention that the High Court has been directing to register criminal case against Anwar Ahmed, S.H.O., is not correct. There is no such direction in any of the orders passed by the learned Judges. It is true that certain statements were placed on record about the conduct of this officer and considering result of the inquiry report, the Additional Advocate-General was asked whether any action had so far been taken against him. Such inquiry was made only to ascertain whether the Government has any intention to implement the recommendations and conclusions of the inquiry report or it would merely put it into the cold storage. While referring to order dated 10-2- 1994, the learned counsel for the petitioner pointed out that it was a direction for arrest of SHO Anwar Ahmad Khan or for registration of the case against him. A perusal of the order makes it clear that on the verbal complaint of Mr. Zia Ahmed Awan that except two ASIs, no other person had been named as an accused in the inquiry report, the learned Judges asked the Advocate-General to obtain instruction from the Home Department, why other pblice officers including petitioner have not been prosecuted and it was for the Government to explain the stand taken by it. Such querry made by the Court cannot tentamount to be a direction to arrest and prosecute the petitioner.
After the reply by the Government has been submitted, the High Court on due consideration passed such necessary order and direction as provided by law.
Leave is refused.
(Sd.)
Saleem Akhtar, J.
' I have appended herewith my signed dissenting note, (Sd.)
Sajjad Ali Shah, J.
(Sd.)
Ajmal Mian, J.
' SAJJAD ALI SHAH, J.---After hearing this petition for leave to appeal on 7-3-1994, the order upon it was reserved. After some time draft order proposed to be delivered was sent to me authored by my learned brother Saleem Akhtar, J. In a sealed envelope, which was lying with me unopened.
Meanwhile application was sent to me by the Advocate-on-Record of the petitioner requesting allowance by the Court to withdraw the petition. Similar application was sent to my learned brother Ajmal Mian, J. Who was pleased to direct on the said application that request would be considered by the three Judges of the Bench, who heard the petition, when and wherever they are together.
Such occasion arose in Lahore and the request was considered. My two learned brothers of the Bench expressed the view that request should not be granted for withdrawal of petition as order is written and my other learned brother has concurred in it and has signed the order. Later I opened the envelope and perused the order whereby leave is refused. With respect I regret to say that I am unable to agree with this view. I am of the view that it is a fit case in which leave should be granted.
In these circumstances I am writing my dissenting note.
2. On 4-8-1993, an application was addressed to the learned Chief Justice of Sindh High Court, Karachi, by one Haji Umer, who claimed that his son Nazir Ahmad was taken away from his house on 19-7-1993 by A.S.I. Malik Sarwar of Kharadar Police Station. Later he learnt that his son was involved in the investigation of theft case, regarding which F.I.R. Had been filed and his remand had been obtained from the Magistrate. Details are given that his son was subjected to torture while in police custody and finally he was informed that his son had died and his body was lying in Civil Hospital which he secured and found that blood was flowing from the dead body and there were marks of violence. At the foot of the application, prayer is worded as under:- "Judicial enquiry may be ordered in the cause of death of my son as personnel of Kharadar Police Station and A.S.I. Sarwar are murderers of my son, hence orders may be passed for initiating legal proceedings against them."
3. Learned Chief Justice of the High Court on this application passed the following order:-- "Register as C.P. Fix in the Court on 11-8-1993 with notice to A.-G. And applicant."
4. On the date fixed, applicant appeared in the Court (Division Bench comprising learned Chief Justice and Mr. Justice Ahmad Yar Khan) and also A.S.I. Malik Sarwar and S.H.O. Anwar Ahmad of - P.S. Kharadar. SHO submitted remand report of A.C.M., which indicated that deceased was tortured.
SHO further submitted to the Court that four cases were pending against deceased Nazir Ahmad from which two were being investigated by ASI Malik Sarwar and the other two by ASI Abdul Jabbar.
Mr. Sarfraz Ahmad, A.A.-G. Informed the Court that SDM Mr. Raeesuddin Piracha had been appointed as Magistrate to hold enquiry and he also suggested that instead of SDM, Judicial Magistrate will hold the enquiry. Relevant portion from the order-sheet is reproduced as under:-- "S. Sarfraz Ahmed, AA.-G. States that S.D.M. Raisuddin Piracha has been appointed as Magistrate to hold enquiry. He states that instead of S.D.M. a JudiCial Magistrate will hold the enquiry. The appointment of Judicial Magistrate instead of S.D.M. Raisuddin will be notified in the next 48 hours.
As soon as the judicial enquiry has been completed, the Judicial Magistrate will submit a copy of the report in this case. Adjourned to a date in office, to be fixed after 15 days. The enquiry may be completed within 15 days."
5. It is not clear from the extract reproduced above, whether Judicial Magistrate was appointed by the Government or by the High Court but indications are available that in this regard directions and restricti Pas have been imposed by the High Court. Perusal of subsequent order F.:6c,- by the High Court as indicated in the order-sheet shows that extensions were allowed to the Judicial Magistrate to complete the enquiry under section 176, Cr.P.C. And meanwhile DSP Khurshid Alam was directed by the Court to appear, who did so on 29-9-1993 and illumed the Court that enquiry conducted by him was almost over and his finding was that deceased was miserably beaten at P.S. Kharadar, which may have resulted in his death. He requested for further time to cover some other aspects of the investigation which was granted on his durance that he would take action against the delinquent officers.
6. On 24-11-1993, Advocate-General was informed by the Court about the report of the Enquiry Officer appointed by the Home Secretary against SHO Anwar Ahmed in connection with some other complaints, not connected with the subject-matter in hand. Order passed by the Court on 24-11-1993 is rep; induced hereunder in extensor for the reason that petitioner has claimed in !-1),- Memorandum of petition for leave to appeal filed in this Court in dragge 11 and 12 that report in a different case was obtained and used against him to make him accused in the murder case of Nazir in the absence of material to show his connection with that offence, in spite of the fact that none of the witnesses examined in the judicial enquiry named him as culprit to have dealt with deceased Nazir when he was in police custody for investigation:-- "Mr. Zia A. Awan and Mr. Saifuddin, Advocates for the petitioner; with petitioner Haji Umar present in person.
' Mr. Abdul Haleem Pirzada, A.-G. And Raja M. Irshad, AA.-G. Present.
' The Advocate-General has been appraised of the salient findings of the enquiry conducted by the Enquiry Officer, Dy. Secretary (Police) of the Home Department, appointed by the Home Secretary, in regard to very serious allegations of torture and harassment of peaceful citizens against S.H.O.
Anwar Ahmed Khan of P.S. Kharadar. The report is dated 21-9-1993. Apart from this, there is also a report of the Judicial Enquiry about the death of the son of the petitioner, while in custody, at the hands of police of P.S. Kharadar, while Anwar A. Khan was the S.H.O. According to judicial enquiry report. Some times back Anwar A. Khan was suspended but now it is reported that he has been reinstated and posted as SHO Gadap P.S. ' Mr. Zia Awan makes grievance that despite the report of the Judicial Enquiry, only one A.S.I. Was arrested and that also very reluctantly, but no action has been taken against others who are prima facie responsible for the death of Nazir Ahmed in police custody.
' At the request of learned A.-G. Sindh, the hearing is adjourned to 2-12-1993, when a statement be made by the learned A.-G. The case will be taken up at 12-00 noon."
7. The proceedings which took place in the Court on the next date of hearing are also important and it would be pertinent to produce relevant paragraph from the order-sheet of that day which is so reproduced as under:-- "It may be observed that, according to the learned counsel for the petitioner, the judicial enquiry was held into the death of Nazir son of the petitioner Haji Umar and despite the findings in the judicial enquiry under section 174/176, Cr.P.C. The deceased having died in police custody, only one ASI was arrested after a complaint of murder had been registered in connection with the death of Nazir, but the other ASI has still not been arrested. It is further pointed out that there is an enquiry report in this case also of Deputy Secretary of Home Department (Police) and, despite such enquiry report, the SHO of P.S. Kharadar has been re-instated and posted at P.S. Gadap. It is further pointed out by the learned counsel for the petitioner that the DSP who ,41s the Investigating Officer in the case against the deceased Nazir has been promoted as S.P. Crimes.
' A copy of this order may be supplied to the learned Advocate-General, Sindh."
' The order sheet dated 16-12-1993 is reproduced as under:--"For Katcha Peshi. 16-12-1993 ' Mr. Muhammad Iqbal Aqeel, Advocate for the petitioner with petitioner Haji Umar present in person.
' Mr. Zia Ahmad Awan, Advocate also appears for the petitioner.
' The report of the Judicial Magistrate, Mr. Muhammad Afzal, in respect of the death of Nazir, an undertrial prisoner in a theft case, son of petitioner Haji Umer, is available. Copy may be supplied to the office of the Advocate-General, Sindh and so also to the learned counsel for the petitioner. It is informed that a copy has already been received by the office of the Advocate-General.
' It is regretted that no police officer is present. It is a case where one of the most serious allegations has been made against the police that son of the petitioner, who was facing a charge of theft, has died on account of torture committed upon him by the police while he was in police custody. It was expected that the concerned authorities will give it that attention and importance which the case of this nature demands.
' To come up on 20-12-1993 at 1-00 p.m. When S.S.P. (South) should be present alongwith the then Investigating Officer of the case against the police officers, which was registered pursuant to order passed in this , Constitutional petition for the death of the deceased Nazir in police custody. It is informed by Mr. Zia Ahmed Awan that the Investigating Officer in this case of death of Nazir was a DSP at that time but he has since been promoted as S.P. Anti-Corruption, but no interest is being taken either by him or any other Investigating Officer to whom the investigation might have been transferred. It is reiterated that despite five police officers who are alleged to have been involved in the torture, only one ASI has been arrested and no action has been taken for apprehension of the other four police officers.
' A copy of this order may be supplied to the office of the Advocate-General, Sindh."
8. Order-sheet dated 20-12-1993 passed by the Court is also reproduced as under:-- "Mr. Muhammad Iqbal Aqeel, Advocate for the petitioner. Copy of the order is reported to have been supplied by the bailiff at the Office of the Advocate-General, Sindh on 7-12-1993. However, Mr. Raja M. Irshad, Additional Advocate-General who is present states that he has not been made aware of service of such a copy and would like to verify the position. Adjourned to 26-12-1993 by which date in the event copy of the order has not been served on the Advocate-General Office Mr. Raja M. Irshad would obtain such copy at his own instance. Meanwhile office should also put up a note about the service of the order by the bailiff because on our part in spite of the bailiff report we have not been able to find the signatures of acknowledgement from the office of the Advocate- General, Sindh.
' Adjourned as above to 26-12-1993 when no further time should be sought by Mr. Raja M. Irshad."
10. Finally on 44-1994 S.S.P. District South, Karachi, filed a report and so also D.S.P. CIA. The reports were taken on the record and the case was adjourned to a date in office. On 19-1-1994, Additional Advocate-General, Sindh, made a statement before the Court that the Constitutional petition had served its purpose but Division Bench passed the following order, which is reproduced as under:-- "According to the learned Additional, A.-G., Sindh, this petition has served its purpose. However, we find that the Bench presided over by the Humble Chief Justice had applied its mind to the controversy in some details. Adjourned to be placed before such a Bench.
' Meanwhile, learned counsel for the petitioner states that the petitioner may also take steps for filing a suit for compensation at the behest of the aggrieved parties against the alleged offenders as well as against the Government of Sindh. If necessary, a private complaint may also be filed."
11. From what is stated above, it appears that initially in the application addressed by Haji Umar to the learned Chief Justice, prayer was made that judicial enquiry may be ordered in the cause of death of his son and orders may be passed for initiating legal proceedings against them. In the application he had mentioned ASI Malik Sarwar of Kharadar Police Station, who took away his son.
He did not mention the name of S.H.O. Anwar Ahmed Khan in his application. Learned Chief Justice passed order on the application that the smile may be registered as C.P. And fixed in the Court with notice to A.-G and the applicant. On the date fixed in the Court S.H.O., Anwar Ahmed Khan appeared and informed the Court that there were four cases against deceased Nazir Ahmed under investigation by two A.S.Is. Malik Sarwar and Abdul Jabbar. From that point onwards, the Court started exercise of control over the enquiry proceedings and in consequence not only police officer but office of A.-G. Also came under pressure. Perusal of proceedings in the Court gives an impression that the object was that Anwar Ahmad Khan SHO is included in the list of police officers found or to be found involved in the torture of Nazir Ahmad, who died in custody of P.S. Kharadar, seemingly for the reason that he was In charge of police station in spite of the fact that investigations in the cases were being conducted by other A.S.Is. Record shows that on 24-11-1993, the Bench presided over by learned Chief Justice apprised the Advocate-General of the salient findings of enquiry conducted by the Deputy Secretary of Home Department, who was appointed by the Home Secretary with regard to serious allegations of torture and harassment of peaceful citizens against S.H.O. Anwar Ahmad Khan.
12. It appears that in the High Court in the proceedings of the Constitution petition, statements of the witnesses were not recorded and there were verbal proceedings. How this report crept into the proceedings and acted upon in conjunction with report of the judicial enquiry about death of Nazir Ahmad. It is evident from the order passed by the Court on 2-12-1993 that reinstatement of S.H.O.
Anwar Ahmad Khan and his posting at P.S. Gadap and promotion of D.S.P. To S.P. Who conducted the investigation, were disapproved by the Court. Haji Umar submitted application to the learned Chief Justice which was registered as Constitution petition. On the first hearing in the Court Haji Umar appeared in person but on subsequent dates, it appears from the order-sheets that he was represented not by one Advocate but in all four Advocates represented him from time to time and their names are M/s. Muhammad Iqbal, Zia Awan, Nisar Ahmed Magsi and Saifuddin. If this matter was to be contested so hotly, then Advocate representing Haji Umar could have been asked to file a proper Constitution petition impleading Anwar Ahmad Khan as respondent so that he could have got an opportunity to defend himself in a proper and legal manner. Order passed by the Court on 20-12-1993 shows strain in respect of service of order on the office of the Advocate-General.
13. In any case judicial enquiry came to an end and the report was submitted, which came on the record of the Court on 4-1-1994. Learned A.A.-G. Informed the Court that Constitution petition has served its purpose but direction was given by the Division Bench for placement of the case before the learned Chief Justice, who had applied his mind to the controversy in some details. It appears from the order passed on 10-2-1994 passed by the Division Bench presided over by learned Chief Justice that Constitution petition did not come to an end with the submission of report of judicial enquiry as other steps had not been completed and S.H.O. Anwar Ahmad Khan was not arrested. In that context relevant paragraphs from order passed by the High Court on that day are reproduced as under:-- "Mr. A.-G. Mangi may either ask the learned A.-G. To make a positive statement as to why other police officials have not been made accused and arrested in this case including S.H.O. Anwar Ahmad Khan and secondly, why S.H.O. Anwar Ahmed Khan after having been suspended twice, has again been posted as an S.H.O. Of Gadap Police Station. In case, the learned Advocate-General is not available, Mr. Abdul Ghafoor Mangi may obtain instructions from the Home Secretary and make a statement in writing signed by the Home Secretary, on the next date, in connection with the clarification required by this Court.
' This case will come up for hearing on 14-2-1994. On the next date, S.S.P. South Karachi should also be present. ' this stage, Mr. Arshad Lodhi, Advocate appears stating that the counsel for the petitioner have made an incorrect statement that A.S.I. Abdul Jabbar is an absconder. He states that A.S.I. Abdul Jabbar had surrendered himself before the trial Court on 9-1-1994. It is further informed that the case has been challenged under section 302, P.P.C. Against A.S.I. Sarwar Ali and A.S.I. Abdul Jabbar and he is defending Abdul Jabbar. The statement made by Mr. Arshad Lodhi is.Taken on record.
' It is reported that S.H.O. Anwar Ahmad Khan was at one time posted at North Nazimabad and during his. Tenure, one undertrial prisoner died-in custody and this Court directed that a case may be registered against him for killing of the undertrial prisoner in custody. Learned Additional A.-G.
May also make enquiries in this regard.
' A copy of this order may be supplied to the learned Additional Advocate-General."
' S.H.O. Anwar Ahmad Khan has filed petition for leave to appeal in this Court feeling aggrieved that in the High Court adverse orders have been passed against him unjustifiably on the basis of very serious prejudice against him in spite of the fact that he had not dealt with investigations of cases in which deceased Na7ir Ahmad was involved, while he was in custody at Kharadar P.S. In that context some extracts from the Memorandum of petition filed in this Court and reproduced as under:-- "Para. 11 ' A Report of Enquiry conducted by the Deputy Secretary, Home Department, Sindh on the orders of the learned Chief Justice against the petitioner in a different case of Muhammad Asif was made basis of action against the petitioner, in this case now.
Para. 12 ' That on the basis of Enquiry Report Annexure 'E' the learned Chief Justice now wanted the petitioner to be made as an accused in the alleged murder case of Nazeer @n Naju.
Para. 14 ' The learned Chief Justice was not satisfied with this statement, he wanted petitioner to be arrested in this murder case without delay.
Para. 18 ' That according to above order dated 19-1-1994 the purpose of petition had been served and aggrieved party was going to file suit for compensation and a direction to file private complaint against the culprits was also given yet the petition was not dismissed or disposed of but continued to remain for Katcha Peshi before the learned Chief Justice."
GROUNDS "Para. 2 ' In the present case the learned Chief Justice is bent upon arrest of the petitioner and registration of murder case whether there is evidence or not.
Para. 3 ' That various orders in Annexure 'A' show that the learned Chief Justice has acquired knowledge from outside sources. The Urdu Press has played up this case so much that there are many Press cuttings on the record of Constitution petition and it is not known as to who submitted the same to the learned Chief Justice. The Urdu Press is playing up these High Court proceedings and remarks of the learned Chief Justice in such a way to bring it down to a level of an encounter between Chief Justice, Sindh and Sub-Inspector of Karachi Police.
' For example in `Quomi Akhbar' (Urdu) dated 13th January, 1994, copy attached marked `.1' a statement of Aftab Shaikh, leader of M.Q.M. Is given with following caption:- ' The B.B.C. Has shown Karachi S.H.Os. Bahadurali and Anwar Ahmad as Heroes'.
' The learned Chief Judge's remarks are reproduced in `fang', Karachi dated 11-2-1994 copy attached and marked 'IC with following caption:-- 'It appears that without Anwar Ahmad, Government cannot run. In spite of allegation of murder against him, he is being presented as Hero on television'."
15. I am of the humble view that proceedings in the Court should be conducted in such a way that both parties pitted against each other in the cause should have faith in the impartiality of the Court and when the decision is rendered, which is against one party, then that party should accept the decision with space on the ground that it is so according to law and merits. In the instant case after hearing about death of his son in police custody, Haji Umar addressed application to the learned Chief Justice on 4-8-1993 in which it is mentioned that officials of the police station were not prepared to lodge the F.I.R. Be that as it may, his complaint was converted into Constitution petition, which could have been allowed and in the result directions could have been issued to the concerned police station to register the F.I.R. Alternatively F.I.R. In writing could have been obtained from the complainant with accused persons named therein specifically, to be handed over to the police station for registration of F.I.R. On that basis. If a particular accused named therein was not proceeded against or the investigation was not properly made, complainant could have applied to the higher police officers for transfer of investigation to a different police station or change of investigating agency. In any case if complainant does not feel satisfied with the conduct of investigation, the law allows him to file a direct complaint in the Court and that is how the machinery of law can come into motion with full force. Law has provided forums for seeking relief and if proceedings are initiated in competent forum then other remedies prescribed therein can also be availed and no party would feel aggrieved on that ground.
(16)Article 175 of the Constitution of Islamic Republic of Pakistan envisages establishment of Supreme Court of Pakistan and a High Court for each Province and such other Courts as may be established by law. It is further provided therein that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. Under Article 199, Constitutional jurisdiction is conferred upon the High Court to grant relief in the shape of prerogative writs for enforcement of fundamental rights subject to the satisfaction of the High Court that no other adequate remedy is provided by law. Even fundamental rights as are enshrined in the Constitution are subject to law. Article 4 contemplates that to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen.
' In the instant case when High Court took cognizance on the complaint of Haji Umar, proceedings under sections 174 and 176, Cr.P.C. Had already commenced for enquiry into death of Nazir Ahmad while in custody of police or were to commence. Chapter 14 of Criminal Procedure Code containing sections 154 to 176, relate to information to the police and their powers to investigate. Under section 174 Officer In charge of a 'police station or some other police officer specially empowered by the Provincial Government on receiving information can enquire into a case where suicide is committed or a person is killed by another by machinery or by an accident or has died in the circumstances raising a reasonable suspicion that some other person has committed an offence.
In the course of the enquiry, dead body can be examined by Civil Surgeon. Under section 175 a police officer can summon persons for the purposes of the said investigation, who may be acquainted with the facts of the case. If a person died in police custody, then the Magistrate so empowered in this behalf can hold an enquiry into the cause of death, either instead of, or in addition to, the investigation held by the police officer.
18. Law has conferred upon police and other agencies to investigate and with exercise of such powers interference of the Courts is not warranted, unless is so expressly allowed under the law.
Such controversy came up for examination before Privy Council in the case of Emperor v. Khawaja Nazir Ahmed reported in AIR (32) 1945 Privy Council 18. It was held that to investigate the circumstances of an alleged cognizable crime without requiring any authority from judicial authorities is statutory right of police as contemplated under sections 154 and 156, Cr.P.C. The functions of judiciary and police are complementary and not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always of course subject to the right of the Court to intervene in an appropriate case when moved under section 491, Cr.P.C. To give directions in the nature of habeas corpus. It was further held that in the case of cognizable offence, the function of the Court begins when charge is framed and not earlier than that. High Court could interfere under section 561-A, Cr.P.C. Only after the charge was framed.
18. In the case of Ghulam Muhammad v. Muzammal Khan and others reported in PLD 1967 SC 317, proceedings were quashed by the High Court on the ground that police was not competent to file challan in respect of offences . Not alleged in F.I.R. This Court held that High Court had proceeded on an erroneous conception and there is no legal bar to the police submitting a challan in respect of offences not mentioned in F.I.R. This Court further observed that inherent jurisdiction under section 561-A, Cr.P.C. Should not be invoked where another remedy is available and High Court is not vested with powers to make any orders which they are pleased to consider to be in the interest of justice.
19. In the case of Shahnaz Begum v. The Humble Judges of the High Court of Sindh and Balochistan reported in PLD 1970 Supreme Court 677, while investigation of a criminal case was being conducted by polie, High Court took action suo motu in the exercise of supervisory jurisdiction 1) ider the Constitution, Letters Patent and otherwise and called upon I.-G. Of slice to produce investigation papers for examination whether investigation W being made in fair or impartial manner or not. After detailed ex4mir !!Ion Clause 22 of Letters Patent Lahore, to find out the meaning of "preliminary investigation provisions of Constitution of 1962 and case-law on the subject, this Court observed as under:-- "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. Kawaja Nazir Ahmed."
20. Further it was observed that High Court has no power to interfere avid or exercise, supervision or control over the investigation either under section 561-A, Cr.P.C. Or provisions of Letters Patent or Constitution of 1962. In my opinion rule laid down by this Court in the abovementioned case cannot be distinguished and not applied to the facts of the case under consideration on the ground that in the reported case action was taken by the High Court suo mote and in the instant case complaint in writing was filed before the learned Chief Justice which was converted into Constitutional petition.
21. In the case of Wall Muhammad alias Walia v. Haq Nawaz and others (1971 SCM R 717) while investigation was being conducted by police in a criminal case,One of the accused persons moved High Court under Clause 22 of Letters Patent for transfer of the investigation to the Crime Branch on allegations of partiality on the part of the Investigating Officer. High Court stayed the investigation and sent the copy of the petition to I.-G. Police asking him whether he would like to transfer the investigation from the local police to the Crime Branch. Setting aside the impugned order, it was held by this Court that the power assumed by the High Court was not available either under Clause 22 of Letters Patent nor under any other law or Constitution.
22. In view of the legal position enunciated in the case-law mentioned above, I am of the opinion that if father of deceased Nazir Ahmad thought that his son died while in custody due to torture of police officers of that police station, then Criminal Procedure Code forums are provided for seeking redress. He could file F.I.R. Against the police officers and if he met with resistance and was not successful, could file Constitution petition in the High Court for direction to the police station for registration of F.I.R. He could furnish a copy of in writing with names of the police officers as accused persons and High Court could have directed registration of F.I.R. On that basis. High Court had no authority under the law to interfere with the investigation of the criminal case and could exercise no control or supervision over such investigation and could pass no orders or give direction in that context. If police did not take action accused persons named in the F.I.R. Then complainant could file direct complaint in the Court so that law should take its own course. Courts are to impart justice in accordance with law in the forums which are so empowered under the law.
Additionally, there is substance in the contention of petitioner before us that during proceedings in the High Court he was victim of prejudice.
23. For reasons aforementioned I am of the view that it is a fit case in which leave should be granted and I, therefore, grant leave.
(Sd.)
Sajjad Ali Shah, J ORDER OF THE COURT ' By majority the petition is dismissed. ' application, for withdrawal dated 16-4-1994 is dismissed as the order had been signed by one of us and circulated more than two weeks before the application was filed.