' This order will dispose of both the abovementioned Constitutional petitions as common questions of law and facts are involved in both of them.
2. Petitioners are aggrieved by the acts of respondent No,2, Riaz Gondal, Inspector, Crime Circle-I, Federal Investigation Agency (hereinafter referred to as the F.I.A.), Karachi inasmuch as they were called by him and were harassed and humiliated with no reasonable cause or justification. Both the petitioners have alleged that they were pressurized by the F.I.A. Either to produce Sayed Adeeb Ahmad or to arrange Rs,6,00,000 for making payment to Irfan, Rizwan and Imran. It was further alleged that their family members are also being harassed and humiliated by the F.I.A. Officers.
According to the petitioner, the alleged acts of the respondents are volatile of their fundamental rights and based on mala fides and ill will of the respondents. They have prayed for the following reliefs:-- "It is, therefore, most respectfully prayed that this Honorable Court may be pleased to direct the respondents not to take any adverse action against the petitioner and not to call the petitioner to their office without any notice in writing and without due process of law.
' This Honorable Court may be pleased to grant any other relief which is deemed fit and proper in the circumstances of the case."
3. On 24-12-1998, notices were issued to the respondents as well as to the Deputy Attorney- General-I, Karachi, for this date. Now, respondent No,2 has filed his statement to the following effect:--
(1) That an inquiry No,38 of 1998 was registered in F.I.A. Crime Circle-I, Karachi on 15-12-1998 on receipt of complaint of Mr. Irfan Ahmed Khan resident of Nawabshah (Sindh) received from the Prime Minister Secretariat Islamabad through F.I.A. Hqrs Islamabad, against one Adeeb Ahmed. The complainant spoke to the Prime Minister on telephone. The Prime Minister directed to recover the money taken fraudulently from the complainant and to return him.
(2) That in view of the above direction and compliance thereof I personally went to the office of the petitioner Humayun Mansoor and requested him to join enquiry proceeding of the complaint. For the inquiry purpose no notice is required unless F.I.R. Is registered as per . Knowledge.
(3) That the petitioner cooperated in the enquiry and willingly got recorded his statement as such at this stage the petitioners are no more required in the above inquiry. The enquiry will be finalized accordingly to process of the law.
' Statement under the directions of this Honorable Court is hereby submitted respectively."
4. In ordr to justify his acts, the respondent No,2 has also filed a copy of letter, dated 2-12-1998 (bearing No,4(3) PS-Pol.Secy/PM/98) issued by the Political Secretary to the Prime Minister where after action was initiated by the F.I.A. It will be advantageous to reproduce the same which reads as follows:-- "Subject: Recovery of money taken fraudulently. Dear Director-General ' I am enclosing herewith a fax message of Mr. Irfan Ahmed Khan of District Nawabshah, received in this office on the captioned subject.
(2) The petitioner, Mr. Irfan 'Ahmed Khan spoke to the Honorable Prime Minister on telephone. As per directions of the Prime Minister, the money taken fraudulently may be recovered and returned to the petitioner within 15 days and confirmation regarding action taken be sent to this office for information of the Honorable Prime Minister.
' With best wishes. Yours sincerely, (Mushtaq Ali Tahir Kheli), Lt.-Col. (R.)"
5. I have heard Mr. Nooruddin Sarki, Advocate for the petitioners and Mr. S. Mamnoon Hasan, Dy.A.- G. For the respondents. It is stated by Mr. Sarki that he has instructions from the petitioners not to press these petitions after the above statement made by the respondent No,2 but he further states that some clarification be made to the extent of the statement of respondent No,2 that in such circumstances no notice is required to be issued under section 160, Cr.P.C. For holding an investigation of a cognizable offence. There is no need of making such observation as it is a settled law. In the case of Haji Dilshad Islam v. Punjab Province etc. PLD 1975 Lah. 521 the provision of section 160, Cr.P.C. Was considered by the former Chief Justice of the Lahore High Court, Sardar Muhammad lqbal, J. (as he then was) in the following manner. It is regrettable to note that despite passage of nearly 24 years the situation in the police stations has not been improved. Following is the relevant observation in the case 'of Haji Dilshad Islam (ibid):-- "4. However, I may observe that when a Police Officer is investigating a case, he cannot act arbitrarily, capriciously and whimsically. He is as much bound by law as any other person and if his actions are not warranted by law, they can be declared as without lawful authority. He takes his authority to investigate under the Criminal Procedure Code, the Police Act and the Rules made thereunder. He cannot summon a witness just by verbal orders and ask him to be present before him or in the police station. The law has taken care of such a situation and has ensured that the persons may not be harassed by the Police Officers... I have, however, noticed in a number of cases that the Investigating Officers do not act in conformity with the provisions of this rule. They just detail a constable and ask anybody to be present before them. The fear of the policeman is so enormous in the mind of the people that they without protesting and reacting to such verbal orders readily obey them. The dignity of the man is ensured in the Constitution and if the Police Officers were to conduct an inquiry in a manner which causes a witness an unnecessary worry or humiliation, it will be an act contrary to law and the Constitution. A Police Officer has to observe the Police Rules strictly, otherwise he becomes liable for damages to the person who may be subjected by him to any illegal act. In the circumstances, the petitioner should have no worry on the score that he is being called in the police station off and on, and at 'odd hours. He should insist on the police official who comes to call him to produce an order in writing, as required under Rule 25.2 of the Police Rules. If such an order is not shown, the petitioner will be under no obligation to go to the police station. "
' I am in respectful agreement with the above views of the Lahore High Court. It will be fully applicable in the matters where investigations or even enquiries are being conducted by the members of the F.I.A.
6. However, from the copies of the documents filed by the respondent No,2, it appears that the F.I.A.
Officials have acted under the directions of the Political Secretary to the Prime Minister in a complaint pertaining to some civil dispute regarding recovery of amount involved in a partnership business. At the first instance, the respondents should have returned the complaint to the Prime Minister Secretariat on the ground that F.I.A. Had no jurisdiction in a civil dispute between the two civilians. The F.I.A. Was established by the Act VIIJ of 1975, namely the Federal Investigation Agency Act, 1974, for the purpose of the investigation of certain offences committed in connection with matters concerning the Federal Government and for other connected matters. Vide section 3(1) of the said Act, the F.I.A. Has been empowered for enquiry and investigation of the offences specified in the Schedule to the Act including an attempt or conspiracy to commit and abet any of the scheduled offence. The powers of the members of the F.I.A. Are, thus, limited to that extent. (see Zafar lqbal and 3 others v. Ghulam Abid and 2 others 1995 MLD 1285). It was held by a Division Bench of the Lahore High Court in the case Amjad Hussain v. The State PLD 1995 Lah. 250 that "the offences otherwise non-cognizable do not become cognizable merely because the Federal Investigation Agency can enquire into or investigate such offences." It was further held that the initial arrest of the petitioner by the F.I.A. For the non-cognizable offences was void a initio and beyond the Province of the officer concerned. Another Division Bench of Lahore High Court had also considered the scope and authority of the F.I.A. In Iftikhar Hussain etc. v. Government of Pakistan etc. NLR 1996 AC 193 in the following manner:- "13. Having given our consideration to the contention of the learned counsel for the parties, we are not persuaded to agree with the wide interpretation being placed by the learned Deputy Attorney- General and Mr. M. Saleem Sahgal, Advocate on the provision's of Federal Investigation Agency Act, 1974 that in respect of offences falling within the Schedule to the aforesaid Act, the Agency set up under the Act has the jurisdiction and power to investigate and register a case notwithstanding that the Federal Government may not be connected with the dispute. If such an interpretation is accepted, it would lead to various anomalies pointed out by the learned counsel for the appellants which need not be discussed in detail for, the intention for which the Federal Investigation Agency was set up is clearly spelt out in the Preamble to the Act itself which reads as under-- ' Whereas it is expedient to provide for the Constitution of a Federal Investigation Agency for the investigation of certain offences committed in connection with matters concerning the Federal Government, and for mattes connected therewith'.
14. From a reading of the above, it becomes obvious that the object in framing the law was to set up an Investigation Agency to investigate into the offences committed in connection with matters concerning the Federal Government and matters connected therewith. Although it is true, as has been contended by the learned counsel for the respondents that the preamble is not an operative part of the Statute but nevertheless it is now well-established that the preamble does provide a useful guide for finding out the intention of the Legislature and cannot, therefore, be ignored while interpreting the law. (see The Murree Brewery Co. Ltd. v. Pakistan through The Secretary to Government of Pakistan etc. PLD 1972 SC 279), Muhammad Hussain Patel v. Gaffar Wali Muhammad and others PLD 1972 Kar. 421 and Syed Akhlaque Hussain v. Habib Ismail Bajwa PLD 1969 Lah.
563. We, therefore, agi ee with Dr. A Basit, Advocate that there must be some nexus even thoigh remote and indirect, between the acts complaint of and the Federal Government in order to attract jurisdiction of the F.I.A."
7. It is regrettable to note that now a days the Government functionaries do not act strictly in accordance with law. A Police Officer or any other member of a law enforcing agency is not legally obliged to perform or to comply with the order of his superior if such order is illegal or beyond his authority. At this stage, I would like to quote an observation of the former Chief Justice of Pakistan Justice Anwarul Haq (as his Lordship then was) in the famous case of Mr. Zulfikar Ali Bhutto v. The State PLD 1979 SC 53 which observation became the majority view of the Full Court and would be relevant in this case also. In that case, one of the defiance of the co-accused namely Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad was that they being in the service of Federal Security Force, had protection of sections 9 and 22 of the Federal. Security Force Act, 1973, read with sections 76 and 94 of P.P.C. This contention was not upheld and was disapproved in the following manner:-- "951. It will be seen, therefore, that the obligation as spelt out in the Form of Affirmation does not extend to obeying illegal or unlawful commands of Superior Officers. Even if section 9 had not been included in the Act, it is clear, on general principles, that no member of the Federal Security Force could be under an obligation to obey the unlawful commands of his superiors, especially if they directly involve the commission of criminal offences like murder and attempted murder, etc. ..
956. In order, therefore, to come within the purview of this section, the appellants have to show that they were bound in law, or by reason of a mistake of fact and not by reason of a mistake of law, they, in good faith, believed themselves to be so bound, to obey the orders of their superiors whose object was to embark upon a criminal venture for taking the life of a member of the National Assembly. The only explanation offered by them is that they were acting under the orders of their superiors, but they do not show as to how they regarded these orders as being binding on them in terms of sections 9 and 12 of the Act by which they were clearly governed, or by the Form of al Security Force. It is clear, therefore, that the case of the appellants does not fall within the ambit of section 76 of the Pakistan Penal Code."
8. Be that as it may, since the petitioners are satisfied with the statement made by respondent No,2, these petitions stand disposed of with the above observations and with no order as to costs.
The members of the F.I.A. Are warned to be more careful and vigilant in future. Office is directed to forward a c;)py of this order to the Director-General F.I.A., Islamabad who shall ensure distribution of the same amongst all responsible members of the F.I.A.