' The petitioner seeks quashment of F.I.R. No,212- of 1996, dated 7-9-1996 under section 302/148/149, P.P.C. Registered at Police Station Ghalib Market, Lahore, against the petitioner and other Police Officers/officials for the murder of Fawad Riaz and for declaring the investigation of the said case conducted by respondents Nos.2 to 4 as mala fide and of no legal effect. Further, prayer has also been made for the transfer of investigation of cases F.I.R. No,211 of 1996 and F.I.R. No,212 of 1996 to the Deputy Inspector-General of Police, Crimes Branch, Punjab, Lahore, for his personal investigation.
2. The petitioner is a Inspector of Police. At the relevant time, the petitioner was posted as S.H.O., Police Station Shad Bagh, Lahore. A case F.I.R. No,276 of 1996, dated 5-9-1996 under section 302/324/148/149, P.P.C. Was registered at Police Station Defence Area, Lahore, at the instance of Mst. Maryam Samar Tiwana for the murder of her husband Samar Hayat Tiwana. According to the learned counsel, the petitioner and other Police Officers were directed by Major Mubashar, Superintendent of Police, to constitute a raiding party for the arrest of the accused named in F.I.R.
No,276 of 1996. The petitioner received an information that the accused in the aforesaid case were present at the residence of Muhammad Riaz, 45-Main Gulberg, Lahore. The raid was allegedly conducted by the petitioner and other police Officers/officials on the same day i,e, 5-9-1996 at 9- 00 p.m. According to the learned counsel for the petitioner, there was an exchange of fire between the police party and from inside the house. One Fawad Riaz residing in the said house lost his life as a result of firing. The petitioner got F.I.R. No,211 of 1996, dated 5-9-1996 under section 324/148/149/186, P.P.C. Registered at Police Station Ghalib Market, Lahore, in regard to the occurrence showing that the deceased Fawad Riaz (incorrectly mentioned as Muhammad Ijaz in the FIR.) had been found injured and fallen with a Mauser in his and who, according to the petitioner, had been injured by the firing of the accused mentioned in F.I.R. No,276 of 1996.
3. Subsequently, another F.I.R. No,212 of 1996, dated 7-9-1996 under section 302/148/149, P.P.C. Was registered at Police Station, Ghalib Market, Lahore, at the instance of Raja Muhammad Riaz against the petitioner and other Police Officers/officials for the murder of his son Fawad Riaz. A joint Investigating Team comprising Mr. Tariq Saleem Dogar, Senior Superintendent of Police, Lahore (then an Assistant Inspector-General of Police), Mr. Muhammad Amlash, Superintendent of Police, Range Crimes, Lahore and Mr. Muhammad Aslam Khan, Deputy Superintendent of Police, Crimes Branch, Punjab, Lahore, was constituted under the orders of the then Inspector-General of Police Punjab, Lahore. According to the police record which I have perused the Investigating Team have found F.I.R. No,211 of 1996 registered at the instance of the petitioner to be false and found the petitioner and some other Police Officers/officials to be guilty of offence of murder of Raja Fawad Riaz. According to the S.H.O., Police Station, Ghalib Market, Lahore and the members of the Investigating Team who had appeared on 7-3-1997, the investigation is complete and the challan is ready for being submitted to the Court of competent jurisdiction against the petitioner and other Police Officers/officials after fulfilment of necessary formalities.
4. The learned counsel for the petitioner has contended that the investigation of the case has been conducted mala fide by the Investigating Team at the behest of the present Inspector-General of Police, Punjab, Lahore. The petitioner and other co-accused who are all Police Officers/officials were not heard nor their statements were recorded by the Investigating Team. The case F.I.R. No,211 of 1996 registered at the instance of the petitioner has wrongly been ordered to be cancelled by the Investigating Team under the pressure of the present Inspector-General of Police, Punjab. He further submitted that under the law the second F.I.R. Could not be registered. He relied on the case of Ghulam Siddique v. The S.H.O. PLD 1979 Lah. 263, Mushtaq Ahmad v. S.H.O. 1984 PCr.LJ 1454, Malik Anjum Farooq Piracha v. Manzoor-ul-Haq Chohan 1993 PCr.LJ 1056, Syed Saeed Muhammad Shah v. The State 1993 SCMR 550 in support of his contention. He further relied on the judgment, dated 11- 7-1995 by a learned Single Judge of this Court in the case of Muhammad Nadeem v. Additional Sessions Judge, Lahore and others in Writ Petition No,3471 of 1995 which was affirmed by the Honourable Supreme Court of Pakistan vide order, dated 17-4-1996 passed in Criminal Petition for Special Leave to Appeal No,1034 of 1995 for the same proposition. The learned counsel also pointed out that a private complaint had also been filed by the complainant of F.I.R. No,212 of 1996 respondent No,7 herein who is father of the deceased before the Special Court No,IV constituted under the Suppression of Terrorist Activities Act, 1975 and the said Court had also taken cognizance of the offence. He further pointed out that three writ petitions in regard to the investigation of the case were filedby respondent No3/complainant in this Court two of which were dismissed/ disposed of and one writ petition was pending. The learned counsel took up a positive position that the petitioner was protected from any criminal prosecution in view of section 46/47/48/49, Cr.P.C as the action taken by the petitioner was as a public servant in the performance of official duties with the object of arresting the accused in F.I.R. No,276 of 1996 registered at Police Station, Defence Area, Lahore, which was a cognizable case. He further argued that there was no motive on the part of the petitioner to kill the deceased Fawad Riaz. He also contended that the petitioner had acted in exercise of the self-defence as provided for in sections 76, 79 and 99, P.P.C. Which gave complete immunity to the petitioner.
5. Dr. A. Khalid Ranjha, learned Advocate-General, Punjab, Lahore, assisted by Mr. Tariq Shamim, learned Assistant Advocate-General, Punjab, submitted that in the peculiar facts and circumstances of this case the registration of the second F.I.R. No,212 of 1996 at the instance of the father of the deceased was not only justified but was also the proper and legal course to which no exception could legitimately be taken. The learned.Advocate-General argued that it was not possible for the petitioner to shut out the prosecution of the case merely by making reference to the provisions of sections 74, 79 and 99, P.P.C. Or sections 46, 47, 48 and 49, Cr.P.C. As such a course would make the petitioner, a Police Officer, to be a judge in his own cause. The onus to prove the exceptions to the normal law had to be discharged by the petitioner during the course of trial and not through the Constitutional petition. He submitted that the act of the petitioner in getting registered F.I.R . No,211 of 1996 was a contrivance on his part. He referred to judgments in the case of Wali Muhammad v. Haq Naw. Az 1971 SCMR 717, Shahnaz Begum v. Honourable Judge of the High Court of Sindh and Balochistan PLD 1971 SC 677, Shaukat Ali Dogar v. Ghulam Qasim Khan Khakwani PLD 1994 SC 281 and Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary Interior Division, Islamabad and 2 others 1994 SCMR 2142 that interference during the course of investigation was not to be made by the High Court in exercise of the writ jurisdiction. He relied on the cases of Ghulam Hussain v. Sirajul Hague and others 1987 PCr.LJ 1214 and Muhammad Latif v.
S.H.O., Sadar Duniapur 1993 PCr.LJ 1992 in support of his submission that in certain situations like the preseaL one the recording of second F.I.R. Was permissible.
6. Mr. Munir Ahmad Bhatti, Advocate, learned counsel for respondent No,7/complainant and father of the deceased submitted that it was after hectic efforts, hue and cry that the complainant, the real father of the deceased, was able to get F.I.R. No,212 of 1996 registered with the police for the murder of his son on an application which was promptly made to the police after the occurrence.
7. I have heard the learned counsel for the parties for quite some time. Have also perused the record of the police investigation. In my view, the question as to whether the second F.I.R. Could or could not be registered is not of very much significance. The Courts are not to take a technical view of the matter divorced from the substance of controversy involved. In this case, an Investigating Team comprising senior Police Officers investigated the case and came to a definite finding of fact wherein the petitioner and the other Police Officers/officials have been found guilty and some of Police Officers or officials have been found innocent. The investigation of the case is complete and only necessary requirements are required to be fulfilled for submission of challan before the Court of law, such as, recovery of arms from the petitioner and other Police Officers/officials accused in the case. This Court is not required to conduct a parallel inquiry as to the conduct and manner of investigation of the police. In the case of Muhammad Sharif v. Saifullah Khan Niazi and others 1982 SCMR 17, it was held by the Honourable Supreme Court that the High Court or Supreme Court was not to start parallel inquiry at stage when the investigation was complete and the case was ready to be submitted to Trial Court where the relevant evidence was to be examined. In the case of Emperor v. Kh. Nazir Ahmad AIR 1945 PC 18, it was held that an investigation by the police could take place even without registration of a formal F.I.R.
8. As to the plea of mala fides, suffice it to observe that the mala fides whether factual or legal is not a matter of presumption only and that allegations are to be considered in the context of facts and circumstances of each case. If a case, like the present one, merited investigation by the police, the mere bald allegation of mala fides by the petitioner would not affect the investigation of this case. It is a public duty of the police to take note of a cognizable offence, register the same and after due investigation submit the necessary reports under the Criminal Procedure Code. Moreover, in the case of Muhammad Saeed Azhar v. Martial Law Administrator, Punjab and others 1979 SCMR 484, it was held by the Supreme Court that the question of alleged mala fides on the part of an Investigating Officer requiring factual inquiry could not be undertaken by the High Court in exercise of writ jurisdiction. The plea of the petitioner that his version was not recorded is belied by the record of investigation.
9. The conduct and manner of investigation is normally not to be scrutinised during the course of the Constitutional proceedings which would amount to interference in the police investigation. See the cases of Shaukat Ali Dogar and Brig. (Retd.) Imtiaz Ahmad (supra) . The reliance of the learned counsel for the petitioner on the cases of Anwar Ahmad Khan v. The State and another 1996 SCMR 24 and Saeed Hussain Shah v. The State 1996 SCMR 504 is not apt for the reason that in both these cases no question of any interference of investigation was involved rather a direction was given for the investigation of the case by the police. The other limb of the arguments of the learned counsel for the petitioner for the transfer of this case to the Deputy Inspector-General of Police, Crimes Branch, Punjab, Lahore, requires to be dealt with. This question need not detain me too much for the reason that such a direction has not been approved by the Honourable Supreme Court of Pakistan in the case of Wali Muhammad (supra) and the case of Federation of Pakistan v. Shah Muhammad Khan and others PLD 1960 SC (Pak.) 85.
10. I have deliberately avoided to discuss the merits or demerits, if any, of the case of the respective parties lest this course might cause any prejudice to any of the parties. The findings of fact recorded by the Investigating Team in my view do not call for interference by this Court through the present proceedings as it is not possible for this Court to substitute the same.
11. In this view of the matter, this writ petition fails and is dismissed with no order as to costs.
12. It is, however, clarified that the observations made in this judgment shall not influence, affect or prejudice any other proceeding before any authority, Officer or Court in any manner whatsoever.