1. CH. IJAZ AHMAD, J.- The brief facts out of which the present writ petition arises are that case F.I.R.
2. No. 609 of 1996, was registered on the complaint of Javed Ahmad regarding murder of his brother Faruq. The contents of the F.I.R, revealed that the complainant did not mention name of any accused person.
2. The learned counsel of the petitioner contended that the respondents tried their level best to involve the petitioner as an accused person in the aforesaid case under the directions of the local MPAs and MNAs hence the petitioner find this writ petition. He relied upon Abdul Ghafoor's case (1995 PCr.LJ. 1514). The learned counsel of the petitioner further contended that successive investigations are prohibited by virtue of Article 13 of the Constitution.
3. The learned Assistant Advocate General appeared on Court call and contended that the writ petition is not maintainable. It is the prerogative of the Investigating Agency to investigate the matter to bring the truth on the surface. He further contended that the petitioner failed to bring any malice qua the official. He further contended that law permits successive investigations.
4. I have given my anxious consideration io the contentions of the learned counsel for the parties and perused the record. It is pertinent to mention here. That Section 12 of the Police Act. 1861 prescribed powers of I.G. To make Rules. Section 12-A prescribed powers of I.G. Qua investigation and regulation of Police accounts. Chapter 25 of the police Rules 1934 relates to investigation and powers of the police officer to investigate the matter. The memorandum No. 1544-1614/Legal dated 3.5.1990 from IGP Punjab Lahore to all DIG and SPS in Punjab issued regarding successive investigation to the following effect:- ^ It has also been observed rather with regret that in some cases where the investigation were completed and challan sent to Court for judicial verdict, the D.I.Gs. And SSP were entertaining applications for transfer of investigation and entrusting the same to one police officer or another.
3. No doubt there is no bar to the number of investigations to be carried out before the judgment is announced in case, but reinvestigation should only be allowed when new evidence comes in to / prove the innocence or guilt of the accused and not on flimsy grounds to appease one party or the other. It is, therefore, directed that this practice of frequent transfer of investigations must cease forthwith and further it may please be noted that cases once sent to the Court the investigation of such cases shall not be entrusted to any police officer without the express orders of the Inspector General of Police."
4. Chapter. 14 of Criminal Procedure Code also contained information to the Police and their powers to investigate. Section 173 of the Criminal Procedure Code is amended by Act, 25 of 1992 and added proviso to Section. Kh) which is to the following effect:- "Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first, information report under Section 154 the officer-in-charge of the police station shall, three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reason to be recorded, the Court decides that the trial should not so commence."
5. The bare reading of the aforesaid provisions of law, re-investigation is not prohibited, therefore, contention of the learned counsel for the petitioner; that once the challan has been submitted before the Competent Court and the trial has been commenced, re-investigation is not permissible has no force. 1 am fortified by the following judgments:- (1993 P.Crl.J. 97) Safia Begum's case; Atta Muhammad' case (P.L.D. 1956 1956 Lah. 734); (1975 P.Cr.'L.J. 120); Muhammad Khan's case (P.L.D. (978 Lahore 731); and Syed Saad Bin Zafar's case (NLR 1993 Crl. 470).
6. Mr. Justice Khalil-ur-Rehman, the then Chief Justice of Lahore High Court has considered the historical background of police department in Muhammad Anwar's case P.L.D. 1997 Lahore 15) in the following terms:- "In the colonial era police was under bureaucratic control. Since the bureaucracy was largely foreign and had no local political interest the police remained neutral. It therefore, functioned effectively. At independence control was shifted from bureaucratic to political control.
7. Consequently, political influence came into play in law enforcement. This compromised the neutrality of the police."
8. The dictum of Muhammad Anwar's case was approved by the Hon'ble Supreme Court reported as 1996 SGMR 24. This proposition of law was also considered bv the Hon'ble Supreme Court in Muhammad Latif's case reported as 1998 SGMR 666 and observed as follows:- 7/i the case of Anwar Ahmad Khan v. The State (1996 SCM R 24) therefore, this Court observed that Investigating Authorities do not have entire and total authority of running investigation according to their whim and the High Court in exercise of its constitutional jurisdiction was competent to pass appropriate orders where investigation was mala fide or without jurisdiction. It could also direct the concerned Authorities to finalize their reports within reasonable time, when a cognizable case under investigation is under its judicial scrutiny. , I have also considered the contentions of the learned counsel of the petitioner that successive investigations are hit by Article 13 of the Constitution, It is pertinent to mention here that the word 'Prosecution' is mentioned in Article 13 of the Constitution which is not synonymous to the word "investigation". According to the Webster's New International Dictionary the prosecution means inter alia, "the process exhibiting formal charges against an offender before a Legal Tribunal, and pursuing them to final judgment on behalf of the State or Government has by indictment or information. This proposition of law has been considered by the Hon'ble Supreme Court in Syed Alamdar Hussain Shah's case P.L.D. 1978 S.C.
9. 121 and observed as follows:- "The marginal heading indicates that this Article is a protection against double punishment, which tends to show that it is only where the prosecution has finally concluded and ended either in acquittal or conviction that a fresh prosecution for the same offence would be barred."
10. This proposition of law was considered by the Hon'ble Supreme Court in Muhammad Abbas's case P.L.D. 1981 S.C, 642. And observed that the word 'Prosecution' means "judicial determination of the guilt or innocence of the accused." Karachi High Court (P.L.D 1990, Karachi 286) also considered ^Article 13 and laid down meaning of word "Prosecution" initiation or starting of proceedings of criminal nature before a Court of law or a a judicial tribunal in accordance with the procedure prescribed in the Statute".
11. "In Ballantines Law Dictionary third edition page 662 Investigation means "in a more complete sense, an inquiry, judicial or otherwise, for the discovery and collection of facts concerning a certain matter or matters". According to Section 4 Cr.P.C. (L)" investigation includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf".
12. It is also settled principle of law that each and every public functionary is bound to act in accordance with law as is envisaged by Articles 4 and 5 of the Constitution. Articles 4 and 5 of the Constitution require each and every citizen of Pakistan to act in accordance with law. Article 5 of the Constitution has been taken into consideration by the Hon'ble Supreme Court in Ch. Zalioor Elahi's case P.L.D. 1975.S.C. 383, the observations is as follows:- "Even the Prime Minister is under clause 2 of Article 5 of the Constitution to obey the Constitution and law, as that is the basic obligation of every citizen. Since Neither Constitution nor any law can possible authorise him to commit a criminal act or do anything which is contrary to law. The immunity cannot extent to illegal or un-constitutional act".
13. It is pertinent to mention here that the Hon'ble Supreme Court has laid down guide lines for the public functionaries to act strictly within the frame work of law and Constitution and did not obey the directions of the polititions which are not in accordance with law and Constitution, as reported in Zahid Akhtar case P.L.D. 1995 S.C. 530. Our Constitution is based on trichotomy as is held by the Hon'ble Supreme Court in Zia-ur-Rehman case PLD 1973 S.C. 49 and Mian Nawaz Sharif's case P.L.D.
14. 1993 S.C. 473. The Constitution of Country is a binded contract which binds a people, society and a State to act within the frame work of the Constitution. The scheme of our Constitution has set up the role of each and every organ. The superior Courts of Pakistan have also laid down a principle as mentioned above, that each and every organ has to function independently, freely, without interference by any other organ of the State. The above mentioned principles coupled with Articles 4,5 (2), 2-A, 37 and 38 of the Constitution lead us to irresistible conclusion that each organ should have to remain within its own. It is essential for the existence of the country and the nation to act and remain within the ambit of its own. It is observed with regrets that respondents allowed their authority to be misused by the MNAs/MPAs who had no such powers under the Constitution. The dictum of the Supreme Court of Pakistan is binding on every organ of the State by virtue of Article 189 of the Constitution. Mushtaq Ahmad Wajdi former Comptroller Auditor General of Pakistan in his Book stated that Sardar Bahadur Khtui being Minister Communication directed him to favour one of the contestant tenders and he did not obey the direction of the late Minister and the relevant passage from his Book is reproduced hereunder:- {{URDU MISS}} This Court has also discussed the powers of Police in detail in Abdul Latif's case (W.P. No. 1884/98) and laid down guidelines for the police to work within the framework of Constitution and law without fear, favour and nepotism which is the basic requirements and mandate of the Constitution and also it is the basic principle of Islam.
15. Before independence the findings of investigation of police was respected by the Courts as well as by the public on account of their intendency; the gradually investigation of Police came under the influence of politicians as was taken note of by the then Mr. Justice Khalil-ur-Rehman Khan in Muhammad Anwar's case supra. This situation creates doubts in the mind of the public in general and also every organ of the State; that the police functionaries are not functioning in accordance with the Constitution. Keeping in view the prevailing situation of the country the Hon'ble Supreme Court has taken into consideration qua the successive investigations in a particular case in Riaz Hussain's case (1986 SCM R 1934) and laid down the following principle:- The system of re-investigation in criminal cases is a recent innovation which is always taken up at the instance of influential-people, and favourable reports obtained. This is in no way assist the Court in coming to a correct conclusion, it rather creates more complications to the Court administering justice. We therefore, disapproved this system altogether."
16. It is settled position of law on the basis of the aforesaid provisions of law that law permits the carrying out of further investigation, if the circumstances so warrant but this does not mean that police has unfattened powers in this respect. Reinvestigation may be carried out if some further material relevant to the case is required but not to cause harassment to the parties or to oblige one party to the detriment of the other party, It may cause hardship to the parties to appear before every Investigating Officer alongwith their witnesses in support of their respective versions. The successive investigation under the influence of the influential persons is created chaos in the Country and fate of case is hanging in the vacuum meaning thereby parties are running from pillar to post to get the decision outside the Courts from the politicians, bureaucratese and investigating officer and due to this interference the basic principle of Constitution stands frustrated automatically which will destroy the spirit of trichotomy of our Constitution. Consequently our social set up will collapsed and Society will run to the law of jungle. For the purpose of stable Society it is necessary for each and every person irrespective of his position must respect Rule of Law and Act in accordance with law without fear, favour and nepotism. In view of these circumstances, it would be better and appropriate that instead of re-opening the investigation under political pressure fate of the case is left to the decision of the Courts of law where the parties are afforded full opportunity to examine the evidence in support of their versions, i.e. Is why the Legislature has amended Section 173 Cr.P.C, by addition of aforesaid Proviso and the I.G. Police issued the aforesaid memorandum keeping in view the dictum laid down by Hon'ble Supreme Court in Riaz Hussain's case supra. The duty of the Investigating officer is not only to set up the case of complainant party with such type of evidence as may enable the Court to record conviction by all means but also to bring out the truth on the surface to reach a just decision. In other words, the purpose of investigation is to find out the truth and to present the same before the Court by way of admissible and acceptable evidence as it is undertaken to protect the innocent and never to let the guilty escape because of carelessness, excess of Zeal of negligence of the police officials/Officers.
17. Keeping in view the above mentioned discussion now I intend to examine the present case in the light of the aforesaid discussion. It is admitted fact that the F.I.R, was registered on 15.9.1996 and the investigation was conducted nine times by different agencies as alleged by the petitioner under the influences of the local MPAs and MNAs. Let a copy of the writ petition be sent to Inspector General of Police respondent No. 6 who shall look into the matter personally and pass an appropriate order strictly in accordance with law without fear, favour and nepotism preferably within fifteen days after receiving the order of this Court. He is further directed to send report to the Deputy Registrar (Judl.) of this Court.
18. With these observations this writ petition is disposed of.