This petition by Muhammad Abbas/Complainant, under Article 199 of the Constitution of Pakistan (1973) calls in question the order passed by the learned District Magistrate Bahawalnagar dated 6- 3-1995 which reads as under: "Whereas it has been made to appear tome that gone F.I.R No.30/95. Under section 302/324/148/149, P.P.C., P.S. City Haroonabad has been registered against Rao Farhat Ali S/o Rao Shaukat Ali Khan r/o Haroonabad and five others. And whereas the said Rao Farhat Ali has been nominated as accused of firing with gun and causing death of one of the deceased and whereas he has been so nominated on the basis of dying declaration recorded by Mr. Irshad Mohy-ud-Din, EA.C./M.I.C., Harunabad and whereas the said accused Rao Farhat Ali has tendered an application alleging that the aforementioned Magistrate has falsely recorded dying declaration and that the deceased did not nominate him in his dying declaration. The applicant has also stated in his application that the Doctors who were present during recording of dying declaration would also support the version of the applicant.
Therefore, I, Muhammad Saeed Zafar, District Magistrate, Bahawalnagar convinced that this matter should thoroughly be probed into. Therefore, Mr. Hamid-ud-Din Bhatti, Assistant Commissioner.
Magistrate 1st Class Chistian is appointed as Enquiry Officer who shall enquire into the entire matter and put up his report within a period of two weeks positively after having spot enquiry."
2. A few facts, essential for the disposal of this petition, are that F.I.R. No.30/95 was lodged by the petitioner under section 302/324/148/149, P.P.C. Against Rao Farhat Ali and five others for having committed the murder of his two brothers, namely, Shahbaz and Sher Muhammad. The aforesaid persons were taken to hospital in injured condition and their dying declarations were recorded by Irshad Mohy-ud-Din, Magistrate 1st Class, in the presence of Dr. Muhammad Aslam and Dr. Abdul Hameed/Medical Officers of Tehsil Headquarters Hospital Haroonabad District Bahawalnagar. The investigator recorded the statements of eye-witnesses on the same day. Rao Farhat Ali/one of the accused moved an application to the District Magistrate, Bahawalnagar/complaining therein that the dying declarations were recorded by the Magistrate with material irregularity. Pursuant to this application, the District Magistrate passed the afore-quoted impugned order.
3. Learned counsel for the petitioner assailed the above order on the premises that the District Magistrate had no jurisdiction, whatsoever, to pass the impugned order. The learned Assistant Advocate-General, appearing on behalf of respondent No. 1, supported the impugned order by relying upon section 17 of the Code of Criminal Procedure. Malik Muhammad Farrukh Mahmood, Advocate, appeared on Court's call and supported the learned counsel for the petitioner.
4. After hearing the learned counsel for the parties at considerable length and having attended to their contentions, I find considerable force in this petition. No doubt the investigation of a crime and the legal trial are twins. Next to war, said O.W. Wilson in his famous treatise `Police Administration', criminality offers a greater immediate threat to life, property than other issues. The object of the criminal administration of justice is to apprehend the perpetrators of the crime and get them punished from judicial forums. Investigation, in this system, precedes judicial trial. The principal object of investigation is to discern the truth from circumstances surrounding the crime and then bring the wrong-doers to Court of law for the punishment. Criminal investigation in the words of `Encyclopaedia Britannica' 1768, Edition 1970 (Volume 12) is described: "Investigation criminal.---The principal purpose of criminal investigation is to provide answers to certain questions relating to crime. These include: the identity of the victim; the exact place at which the offence occurred; how the crime was committed and the means employed in its commission; the time of attack; the motive or object of attack; and the identity of the offender or offenders. Criminal investigation is employed also in the search for and interrogation of material witnesses who are able and willing to give competent and relevant testimony against the suspect or offender, and in the ret instruction of all facts connected with the crime in' order that, at the trial of a defendant, a true picture of what occurred may be presented so as to leave no doubt in the minds of the jurors or Judge regarding the guilt or innocence of the accused."
Chapter XIV of the Code of Criminal Procedure deals with the investigation and powers of police to investigate the commission of crimes. This chapter contains 22 sections from 154 to 176. This is followed by chapter pertaining to the jurisdiction of criminal Courts in inquiries and trials. Section 154 speaks about laying of the information in cognizable case. Section 156 empowers any officer- in-charge of a police station to investigate a cognizable case. This section also says that any Magistrate empowered under section 190 of the Code, may order such investigation. The most significant features of section 156 (2) is, that it enacts that no proceedings of police officer in any case shall, at any stage, be called in question on the ground that the case was one in which such officer was not competent to investigate. This section embodies the principle that one the investigation has commenced the police alone has full control over it and neither Magistrate nor even the High Court has power to interfere with such proceedings. (See: Haji Dilshad Islam v. Punjab Province etc. (PLD 1975 Lahore 521). This question came up for consideration as back as in 1945 before Privy Council in Emperor v. Khawaja Nazir Ahmad (AIR 1945 PC 18) and was answered in following golden words:--- "In their Lordships' opinion, however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without` requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of the 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, Criminal P.C., to give direction in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then. It has sometimes been thought that section 561-A has given increased powers to the Court which it did not possess before that section was enacted. But this is not so. The section gives no new powers, it only provides that those which the Court already inherently possess shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only power possessed by the Court or those expressly conferred by the Criminal Procedure Code, and that no inherent power had survived the passing of that Act. No doubt, if no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation and for this reason Newsam, J. May well have decided rightly in AIR 1938 Mad. 129.
But that is not this case."
The rule laid down in Emperor's case (AIR 1945 PC 18) supra was reiterated by the Supreme Court of Pakistan in Shahnaz Begum v.The Hon'ble Judges of the High Court of Sindh and Baluchistan (PLD 1971 SC 677) and Said Mal and 2 others v.The State and another (1972 SCM R 516). The net result of whatever has been stated above is that the police is in full dominion of the investigation in respect of a cognizable case in which investigation process has begun and na other authority, including the High. Court and the Chief Executive of the Province has a power to intermeddle with it. Guided by the above principle, I herein proceed to determine as to whether the District Magistrate Bahawalnagar had the power to pass the impugned order. It was not disputed that dying declarations were recorded by the Magistrate under section 162 of the Criminal Procedure Code at the initiative of the police and during the investigation. Evidently, the recording of dying declaration is a step in the investigatorial process and is relatable to the collection of the necessary material against the perpetrator of Crime. This being the position, the District Magistrate had no jurisdiction, whatsoever, to interfere with the above proceedings. In view of the above, I have no difficulty in holding that the impugned order passed by the District Magistrate is wholly without jurisdiction and is declared as such.
As a result of the foregoing discussions, this Constitutional petition succeeds alongwith the requested reliefs. The concerned Investigating Agency shall continue with the investigation, submit report under section 173 of Criminal Procedure Code before the Court of competent jurisdiction strictly in consonance with law and without being influenced by order of the District Magistrate dated 6-3-1995.