' The petitioner seeks a direction to withdraw the file of the case from respondent No,3 and to entrust the investigation of the case to some Gazette Officer of the Crimes Branch, Dear Ghazi Khan as in the local police the petitioner has got no confidence.
2. Briefly stated the facts of the case giving rise to this Constitutional petition are that paternal- nephew of the petitioner, namely, Manzoor Ahmad was allegedly murdered by the accused persons, namely, Shabbier, Rashid Ahmad and Muhammad Laal on 27-12-1997 and report was made by the petitioner to the concerned Police Station Dajal vide F.I.R. No,338 of 1997, dated 27-12- 1997 under section 302/34, P.P.C. And the investigation was conducted by the S.H.O. Of the concerned police station and the above named accused were challenged but later on the investigation was transferred to respondent No,3 who declared the two accused innocent.
3. Learned counsel for the petitioner has submitted that the respondent No,3 in league with the accused party and with mala fide intention has declared the two accused innocent on the same evidence and got them discharged from the Court of Assistant Commissioner and that there is a consistent view of the Superior Courts of Pakistan that police has no final authority to exonerate the accused persons who have been named by the complainant and witnesses and the function of the Investigating Officer is to collect the facts and figures from both the parties and present the same before the Court of competent jurisdiction and ultimately the trial Court is competent forum to decide the fate of the accused persons and that by getting discharged from the case by respondent No,3, D.S.P., Jampur has shown his highhandedness and connivance with the accused party which is unwarranted by law and that the petitioner has submitted applications to the respondents Nos.1 and 2 for the transfer of the case but of no avail, therefore, having dishearten from the attitude of police functionaries the petitioner is seeking the indulgence of this Court.
Learned counsel for the petitioner has relied upon Muhammad Latif v. Mst. Sharifan Bibi 1998 SCMR 666, Raja Rustam Ali Khan v. Muhammad Hanif 1997 SCMR 2008, Muhammad Yusuf v. I.-G. Police, Punjab PLD 1997 Lah. 135, Anwar Haamid Khan v. The State 1996 SCMR 24, Naeem and others v. D.I.- G. And others 1995 PCr.LJ 961, Liaquat Ali v. The State 1994 PCr.LJ 2572 and Mst. Riaz Begum v. S.H.O.
4. The learned Assistant Advocate-General has submitted that the transfer of the investigation is the prerogative of the Inspector-General of Police, Punjab, as such, if a chance is given in the first instance to the respondent No,1 to pass an order within his discretion, it would be in accordance with the law and the rules and also in line with the various rulings produced by the learned counsel for the petitioner.
6. In the case of Anwaar Ahmad Khan v. The State 1996 SCMR 24, their Lordships of the Honorable Supreme Court discussing the case of Emperor v. Kh. Nazir Ahmad AIR 1945 PC 18 and Shahnaz Begum's case PLD 1971 SC 667 came to the following conclusion:-- "It is well-settled principle that where investigation is mala fide or without jurisdiction the High Court in exercise of its Constitutional jurisdiction under Article 199 is competent to correct such proceedings and pass a necessary order to ensure justice and fair play. The Investigating Authorities do not have the entire and total authority of running investigation according to their whis."
' ' Similarly in Raja Rustam Ali Khan v. Muhammad Hanif and 6 others 1997 SCMR 2008 the Honorable Judges of the Supreme Court with advantage made a reference to the case of Shahnaz Begum v. Honorable Judges of the High Courts of Sindh and Baluchistan PLD 1971 SC 667 wherein a five members Bench presided by Hamoodur Rahman, C.J. As he then was, after examining the case-law on the subject including the case of Kh. Nazir Ahmad had observed:-- "If an investigation is launched with mala fide or is clearly beyond the jurisdiction of the Investigating Agencies concerned then it may be possible for the action of the Investigating Agencies to be corrected by a proper proceedings either under Article 98 of the Constitution of 1962 or under the provisions of section 491 of the Code of Criminal Procedure, if applicant in the latter case in detention, but not by invoking the inherent power under section 561-A of the Code of Criminal Procedure." ' and ruled as under:-- "It would, therefore, be seen that if an investigation is launched mala fide by the Investigating Agency, the same is open to correction by invoking the Constitutional jurisdiction of the High Court under Article 199 of the Constitution."
' Similarly in Muhammad Latif v. Sharifan Bibi 1988 SCMR 666 the learned Judges of the Honorable Supreme Court approved the law laid down in Anwaar Ahmad Khan v. The State 1996 SCMR 24 (supra). It was a case where a lady filed a habeas petition in the High Court for the recovery of one Amjad Ali from the unlawful custody of an Assistant Sub-Inspector. The A.S.-I. Failed to produce the detent and took the stand that the detent was required in a criminal case but his whereabouts were not known. A Deputy Superintendent of Police stated that the detent was falsely involved in the case by the A.S.-I. For ulterior motive. The High Court ordered for forfeiture of one year approved service of the A.S.-I. So far as detent's prayer for abashment of the F.I.R. Was concerned, the High Court declined to grant relief in the summary proceedings pending before her and in the interest of justice the Senior Superintendent of Police was directed to register a case and get the same investigated by an honest Gazette Police Officer. It was also observed by the High Court that the S.S.P. Would also consider the desirability of taking departmental action against one Head Constable who attested the fake recovery. The grievance made before the Honorable Supreme Court by the A.S.-I. Was against the direction of investigation by a Gazette Police Officer as well as the direction that the investigation should be brought to the notice of the High Court. It was also urged that the observation that the retention of such a Police Officer in the Police Department is a stigma to the police force and he is deserved to be dealt with severely will prejudice the case, inasmuch as, pursuant to the aforesaid direction of the High Court that the petitioner will ultimately be punished by the trial Court.
' Their Lordships of the Honorable Supreme Court found the apprehension expressed to be unfounded and observed that it is true that it is not an appropriate for the High Court to start a parallel inquiry at investigation stage but as the impugned order of the High Court was for investigation of the case by a Gazette Police Officer, as such, it did not amount to interference with the investigation and that the High Court in exercise of its Constitutional jurisdiction was right in issuing the aforesaid direction in order to ensure justice and fair play.
7. From the above enunciation of law declared by the Honorable Supreme Court, the inference which can be drawn is that where the investigation is mala fide or without jurisdiction, the High Court has certainly the jurisdiction to intervene in the interest of justice, equity and fair play and pass an appropriate order. As such, this petition is allowed and the respondent No,1, Deputy Inspector-General of Police, Dera Ghazi Khan, is directed to pass an appropriate order for transfer of the investigation to a Gazette Police Officer of integrity in which both the parties have confidence in the Range Crimes Branch, D.G. Khan.
8. Copy Dasti on payment of usual charges.