' RAJA AFRASIAB KHAN, J.--- On 11-8-1994, a case under sections 124-A, 120-B, 161, 166, 172, 173, 174, 465, 468, 469, 471, P.P.C. And Article 6 of the Constitution of the Islamic Republic of Pakistan, 1973 was registered on the statement of Nasir Masood, Assistant Security Officer, Punjab Assembly, Lahore, against Ch. Habib Ullah, Ex-Secretary, Punjab Assembly and others, who are alleged to have committed criminal conspiracy, seditious acts, defiance of law with intent to cause injury, absconding and preventing service by deliberately concealing and not answering to the lawful process, forgeries for the purpose of cheating, harming the reputation of a pariy, using as genuine the forged documents for illegal gratification and thereby bringing a Constitutional crisis in the country and thus attempting to subvert the Constitution through unconstitutional means amounting to high-treason.
2. The facts, in brief, are that "No Confidence Motion" was carried out with an overwhelming majority against the then Chief Minister, Punjab (Mr. Ghulam Haider Wyne) and as a result thereof, Mian Manzoor Ahmad Wattoo was elected as Chief Minister for the Province of Punjab. Despite the fact that a lawfully elected person was brought in power, steps were taken to pull down the elected Government and, af such, the Chief Minister considered it appropriate to dissolve the Provincial Assembly of Punjab. On 29-5-1993, at 8-45 p.m. Ch. Habib Ullah, the Secretary, Punjab Assembly was taken away by deceitful means by Ch. Wajahat Hussain and some other members of the Assembly with ulterior motives. An information in respect of this incident of abduction of Ch. Habib Ullah was given to the police by Tariq Masood and accordingly F.I.R. No,118/93 was registered with Police Station Race Course Road, Lahore on 29-5-1993. During the investigation, efforts were made to recover Ch. Habib Ullah and a proclamation in the press was also made for the aforesaid purpose. A heavy amount of prize was also fixed for his recovery. During the hearing of a Constitutional petition, Lahore High Court, also issued directions through electronic as well as Press Media directing the abductee to appear before it. It was widely published in the press that anybody who knew his whereabouts should inform the nearest Sessions Judge or Registrar of Lahore High Court, who would, in turn, ensure his safe appearance before the Court. However, he deliberately failed to appear and as a matter of fact, he entered into, a criminal conspiracy with the other accused to commit offences. They prepared a false No Confidence Motion to be used against the then Chief Minister. This document was received by Ch. Habib Ullah on 29-5-1993 at 12-00 noon and was used by the opponents of the then Government in order to defame it. The result was that the smooth functioning of the Government was brought to a standstill. Ch. Habib Ullah intentionally did not bother knowing fully well that he was summoned to appear before this Court. On the contrary, it is alleged that he was present and enjoyed the hospitality of opposition leaders in Islamabad. All of a sudden, he appeared before the Assistant Commissioner, Islamabad, on 13-6- 1993 and made a statement before him. He also appeared before the High Court on 26-7-1993 for a similar purpose. In the meantime, a petition under section 561-A, Cr.P.C. Vide Criminal Miscellaneous No,182-Q of 1993 was instituted by Ch. Wajahat Hussain before the High Court, praying for quashment of the F.I.R. No,118 of 1993, dated 29-5-1993, registered with Police Station Race Course, Lahore. The ground was that on 13-6-1993, Ch. Habib Ullah appeared before the Assistant Commissioner, Islamabad, and made a voluntary statement before him under section 164, Cr.P.C. Disclosing that he was not abducted by anybody. On 26-7-1993, he appeared before this Court and made a statement to the same effect. His explanation for remaining underground was that on account of prevailing political situation at that time he, of his own accord, left Lahore and stayed at Rawalpindi and Islamabad with his daughter and friends to avoid any harm to his life. He stated that "No Confidence Motion", against the then Chief Minister, was given to him by 20 to 30 members of the Assembly on 29-5-1993 at about 12-00 noon. According to the allegations, the said document was fake. It is alleged that Ch. Habib Ullah deliberately absconded and violated the law thereby facilitating the collapse of Constitutional rule in the country. He was also responsible for bringing the lawfully established Government into hatred and contempt because of his wilful disappearance. Being a public servant, he was guilty of misconduct and he did so in order to secure a wrongful gain. As a result of such like activities, the National and Provincial Assemblies were dissolved and re-elections were held.
' This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, has been instituted by Mian Yaseen Wattoo, M.N.A. And 8 others for obtaining a declaration that registration of F.I.R. No,496/94, dated 11-8-1994 with Police Station Qilla Gujjar Singh, Lahore, was without lawful authority and of no legal consequence.
3. Mr. Maqbool Elahi Malik, learned counsel contends that registration of the impugned F.I.R. Was illegal because on the same controversy, another F.I.R. No,118/93, dated 29-5-1993 had already been registered with Police Station Race Course Road, Lahore. The argument is that on the basis of same set of allegations, the Police Officer had no lawful authority to register the impugned F.I.R.
Learned counsel argues that even if the contents of the second F.I.R. Are admitted to be correct as a whole, no offence whatsoever would be constituted. It is submitted that without a validly constituted complaint, no case could be registered under section 124-B, P.P.C. And Article 6 of the Constitution against the accused under section 196, Cr.P.C. He adds that earlier Ch. Habib Ullah had made a statement before the High Court saying that he was never abducted and that he, with his own free-will went to Rawalpindi and Islamabad just to avoid any untoward incident or harm to him. According to the learned counsel, in view of the said statement, it was not possible for the police to have registered the second F.I.R. In respect of the same occurrence. Learned counsel states that Ch. Habib Ullah had denied that he was abducted or some offence relating to his abduction was committed. Learned counsel states that there would be no moral or legal justification to register the F.I.R. After one year of the incident. Learned counsel. Has relied upon the following judgments Maulana Dost Muhammad v. The State 1976 PCr.LJ 184, Muhammad Hand v.
Abdul Qayyum and 4 others 1970 PCr.LJ 283, Wali Muhammad and 4 others v. The State and another 1985 PCr.LJ 1342, Ghulam Siddique v. Station House Officer, Dera Ghazi Khan and others PLD 1979 Lah. 263, Dr. Abdul Jabbar Khattak v. The State 1990 PCr.LJ 1708, Neelam Mawaz v. The State PLD 1991 SC 640, Muhammad Sharif v. The State 1992 PCr.LJ 127, Ghulam Shabbir and 37 others v. Punjab Special Court (Suppression of Terrorist Activities) No,5, Faisalabad and another 1992 PCr.LJ 1932 and Salman Taseer v. Judge SpeCial Court 1993 SCMR 71 and Ch. Pervaiz Elahi v. Province of Punjab and another PLD 1993 Lah.
595. In reply, Mian Abdul Sattar Najam learned Advocate-General forcefully contends that there is no bar to register the second F.I.R. Because the allegations in both the F.I.Rs, are altogether different.
According to him, an offence of high treason is also alleged to have been committed by the accused in the 2nd F.I.R. He maintains that the case is still being investigated by the police and that being so, it is not possible for this Court to interfere while the investigation is in progress. In support of the plea, he relies upon Malik Shaukat Ali Dogar v. Ghulam Qasim Khakwani PLD 1994 SC 281, Shahnaz Begum v. The Honourable Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677 and Emperor v. Khawaja Nazir Ahmad AIR 1955 PC 18.
4. We have heard the learned counsel for the parties at some length and have also gone through the record with their assistance. There is no substance in the arguments of learned counsel for the petitioners and as such they are repelled. There is no bar under the law to register second F.I.R.
Because the allegations having been levelled in the F.I.R. On the face of them, are different from those of the first F.I.R. The allegation of high treason has been leveled in the second which was missing from the first report. We are not satisfied with the conduct of the accused, Ch. Habib Ullah.
He was under law, required to appear before this Court in the proceedings of first round of litigation. He remained under cover for known reasons. May be at that time, an attempt was made to hush up the matter. This being so, the possibility that full and correct particulars of the incident were not given by the informant cannot be ruled out. Any person may give an information relating to commission of cognizable offence to the police for its registration and investigation. This has competently been done by Nasir Mahmood, Assistant Security Officer of the Assembly while lodging the second F.I.R. Because there can never be a legal bar in giving further details of the incident disclosing commission of different offences. This being so, the Police Officer could not refuse to receive the information disclosing commission of other set of offences. The said complaint does disclose commission of various cognizable offences. There is even no substance in the second limb of argument that a complaint was required to be made by the competent Authority before a criminal case is registered. This is not the intent or object of section 196, Cr.P.C. It reads as follows:-- "Section 196, Cr.P.C. Prosecution for offences against the State.--- No Court shall take cognizance of any offence punishable under Chapter VI or IX-A of the Pakistan Penal Code (except section 127), or punishable under section 108-A, or section 153-A or section 294-A, or section 295-A or section 505 of the same Code, unless upon complaint made by order of or under authority from, the Central Government or the Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments."
It is evident from the above provisions that no Court shall take cognizance of the offences mentioned in the section unless a complaint in this behalf is made by the Central Government or the Provincial Government concerned. As clearly pointed out above, the case is being thoroughly investigated by the police and the stage of trial of the accused has not yet come. There is, therefore, nothing in section 196, Cr.P.C. To debar the police to investigate this case in order to come to the truth. That provision thus related to a different situation and does not advance the case of the petitioners. The case-law cited by the learned counsel also does not apply to the facts and circumstances of this case. Ch. Pervaiz Elahi's case has no application because that covered a different field inasmuch as the question in respect of registration of second F.I.R. Was not involved in that case. In case of Ghulam Sadiq tentative observations were made by a Division Bench of this Court at limine stage without hearing the view of the State. Similarly, Dr. Abdul Jabbar Khatak's case will not apply because in that case trial was pending before the Court. It is well-settled that the investigation is immune from judicial scrutiny by this Court unless it is being done by a Police Officer who is not competent to do so or is being done with mala fides, or bad faith or on the face of allegations, no offence is made out. In case of Khawaja Nazir Ahmad (supra) a word of caution to the Court in the matter of interfering with the police investigation before submission of challan was put in the following 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 the 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 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 Procedure Code, 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."
' Learned Supreme Court of Pakistan made the following observations on the controversy in case of Shahnaz Begum (supra):-- "So far as the Constitution of 1962 is concerned the powers of the High Courts are such as have been described under the provisions of Article 98 of the Constitution. They are those which have been conferred on them by the Constitution itself or by any law and apart from them they have no other powers, because Article 130 of the same Constitution provided that 'no Court Shall have any jurisdiction that is not conferred on it by this Constitution or by or under the law'. Under this Constitution a High Court has been given the power of judicial review of executive actions by Article 98 in certain specified circumstance but even in such a case the High Court cannot move suo motu for, it is specifically provided in each of the sub-clauses (a), (b), (c) of clause (2) of Article 98 that only 'on the application of an aggrieved party or of any person', the High Court may make the orders or issue the directions therein specified. It is clear, therefore, that under Article 98, there is no scope for any suo motu action by the High Court. The High Court has also no power to supervise or control over Investigating Agencies for the power of superintendence which is given by Article 102 of the Constitution is only in respect of ' all other Courts that are subordinate to it'. This position, as already pointed out, is not also disputed by the learned Advocate-General for the Province of Sindh."
' Reference may also be made to principles laid down in the case of Shaukat Ali Dogar (supra) by the Honorable Supreme Court where it was observed as follows:-- "So far as the question of registration of the case without prior sanction of the competent Authority is concerned, in the case of Emperor v. Khawaja Nazir Ahmad AIR 1955 PC 18 the law laid down was that the prohibition contained in section 197, Cr.P.C. Against a prosecution without the necessary sanction is against the action of taking of cognizance by the Court. It does not prevent, preclude or otherwise interfere with the power of the police in the matter or registration of the case and the investigation thereof. The sanction required under section 197, Cr.P.C. Is even otherwise not required in view of our decision in the case of Zafar Awan PLD 1992 SC 72."
In other words, the police have to perform the functions specifically assigned to them without any outside interference under Chapter XIV, Part V of the Code of Criminal Procedure, 1898. The functions of a Court would commence only when a complete challan is sent to it for the trial of the accused. This being so, respectfully following the above case-law, we have not been persuaded to interfere in the investigation of the case. It is certainly the duty of the Investigating Officer to find out the truth, on the basis of evidence of the parties. There is, therefore, no substance in this petition which is hereby dismissed in limine.