1. ' The brief facts out of which the present writ petition arises are that case F.I.R. No,609 of 1996 was registered on the complaint of Javed Ahmad regarding murder of his brother Farooq. 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 M.P.As. And M.N.As: hence the petitioner filed 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 respondents. He further contended that law permits successive investigations.
4. I have given my anxious consideration to 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 I.-G.P., Punjab, Lahore to all D.I.-G. And S.S.P. In Punjab issued regarding successive investigation to the following effect:--
(2) 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 S.S.P. Were entertaining applications for transfer of investigation and entrusting the same to one Police Officer or another.
2. No doubt there is no bar to the number of investigations to be carried out before the judgment is announced in a 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."
3. ' 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 1(b) 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, within 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 reasons to be recorded, the Court decides that the trial should not so commence."
4. 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 challah has been submitted before the competent Court and-the trial has been commenced, re-investigation is not permissible has no force. I am fortified by the following judgments:-- ' Safia Begum's case 1993 PCr.LJ 97, Atta Muhammad's case PLD 1956 Lah. 734, 1975 PCr.LJ 120, Muhammad Khan's case PLD 1978 Lah. 731, Syed Saad Bin Zafar's case 1993 PCr.LJ 223.
5. ' 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 PLD 1997 Lah. 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.
6. Consequently, political influence came into play in law enforcement. This compromised the neutrality of the police."
7. ' The dictum of Muhammad Anwar's case was approved by the Honorable Supreme Court reported as 1996 SCMR 24. This proposition of law was also considered by the Honorable Supreme Court in Muhammad Latif's case reported as 1998 SCMR 666 and observed as follows:-- "In the case of Anwar Ahmad Khan v. The State (1996 SCMR 24), therefore, this Court observed that Investigating Authorities do not have entire and total authority of running investigation according to their whims 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."
8. ' 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 Honorable Supreme Court in Syed Alamdar Hussain Shah's case PLD 1978 SC 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."
9. ' This proposition of law was also considered by the Honorable Supreme Court in Muhammad Abbas'.s case PLD 1981 SC 642 and observed that the word "prosecution" means judicial determination of the guilt or innocence of the accused". Karachi High Court (PLD 1990 Kar. 286) also considered Article 13 and laid down meaning of word "prosecution" means initiation or starting of proceedings of criminal nature before a Court of law or a judicial Tribunal in accordance with the procedure prescribed in the Statute."
10. "In Ballantine's Law Dictionary third Edition page 662 investigations 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."
11. 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 Honorable Supreme Court in Ch. Zahoor Elahi's case PLD 1975 SC 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 authorize him to commit a criminal act or do anything which is contrary to law. The immunity cannot extent to illegal or unconstitutional act."
12. ' It is pertinent to mention here that the Honourable Supreme Court has laid down guide lines for the public functionaries to act strictly within the framework of law and Constitution and did not obey the directions of the politicians which are not in accordance with law and Constitution, as reported in Zahid Akhtar's case PLD 1995 SC 530. Our Constitution is based on tracheotomy as is held by the Honorable Supreme Court in Zia-ur-Rehman's case PLD 1973 SC 49 and Mian Nawaz Sharif's case PLD 1993 SC 473. The Constitution of country is a binded social contract which binds a people, society and a State to act within the framework 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 C. Abovementioned principles coupled with Articles 4, 5(2), 2A, 37 and 38 of the Constitution lead us to irresistible conclusion that each organ should have to remain within its own sphere. It is essential for the existence of the country and the nation to act and remain within the ambit of its own sphere. It is observed with regrets that respondents allowed their authority to be misused by the M.N.As./M.P.As.
13. Who had no such power 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 Wajid former Comptroller Auditor-General of Pakistan in his Book "6..41.;c14()./14' " stated that Sardar Bahadur Khan being Minister Communication directed him to favor 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 TEXT}} ' This Court has also discussed the powers of police in detail in Abdul Latif's case (Writ Petition No,,1884 of 1998) and laid down guidelines for the police to work within the framework of Constitution and law without fear, favor and nepotism which is the basic requirement; and mandate of the Constitution and also it is the basic principle of Islam.
14. ' Before Independence the finding of investigation of police was respected by the Court as well as by the public on account of their independence; 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 Honorable Supreme Court has taken into consideration qua the successive investigations in a particular case in Riaz Hussain's case 1986 SCMR 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 favorable reports obtained. This in no way assists the Court in coming to a correct conclusion, it rather creates more complications to the Court administering justice. We, therefore, disapproved this system altogether. "
15. 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 unfettered powers in this respect. Re-investigation 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 along with 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 cases is hanging in the vacuums meaning thereby parties are running from pillar to post to get the decision outside the Courts from the politicians, bureaucrats and Investigating Officer and due to this interference the basic principle of Constitution stands frustrated automatically which will destroy the spirit of tracheotomy of our Constitution.
16. 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, favor 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, 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 Honorable 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 E.
17. 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.
18. ' Keeping in view the abovementioned 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 M.P.As. And M.N.As. 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 (Judi.) of this Court.
19. ' With these observations this writ petition is disposed of.