This petition is arising out of somewhat unfortunate circumstances. One Jameel, husband of the petitioner, is an accused in case F.I.R. No,144 of 1997 under section 395, P.P.C. Registered at Police Station Dhera Nawab Sahib. With a view to effect his arrest, respondent No,8 along with other police officials (respondents Nos. 9 to 12) raided the house of the petitioner during the night between 9/10th of December, 1997 at about 2-30 a.m. Jameel was not available but the respondent No,8 Sub-Inspector Police forcibly took Waqar Ehsan, aged 12 years, son of the petitioner and said Jameel, in custody and removed him to Bahawalpur. The petitioner's further allegations are that the police also took into possession cash in the sum of Rs,1,07,000, 6 golden bangles and some other ornaments. Failing to prevail on the police to restore her son, the petitioner filed a Writ Petition No,762 of 1998 in the nature of habeas corpus. The record of the said petition reveals that after notice, respondent-Sub-Inspector denied the allegation and this Court had to involve the senior police officers like the Senior Superintendent of Police, Bahawalpur. It was with great difficulty and on account of proceedings spread over at least two months that the minor was ultimately produced in this Court and restored to the mother-petitioner. Vide order dated 17-3-1998, this Court found respondent-Sub-Inspector of Police to have transgressed the limits. Of law and opinion that prima facie criminal offences under section 365-A/342, P.P.C. Seem to have been committed. In forming this opinion this Court also took into view the report of the Superintendent of Police, Bahawalpur. Consequently, case F.I.R. No,99 of 1998 under section 365-A/342/452/382/148/149, P.P.C. Was registered at Police Station Gujarpura on 19-3-1998 on the statement of the petitioner.
2. Apparently the investigation was not conducted expeditiously which led the petitioner to file some more petitions in this Court, the details of which need not be reproduced. The petitions, however, pertain to unsatisfactory investigation on the allegation that the Investigator always wanted to favour and protect the accused as they were the police officials. On their own or under observations made by this Court, the senior police officers like the Deputy Inspector-General of Police/Senior Superintendent of Police have been directing transfer of investigation. It has been claimed/shown in this petition that in the opinion of the various Investigators, only offences under section 342/344/345 seem to have been committed. The last of the Investigators, however, directed addition of section 347, P.P.C. Also. The petitioner feels dissatisfied and in this Constitutional petition, prays that deletion of original section 365-A/382/452/148/149 be declared illegal and that a direction be issued for submission of challan under the above-noted sections to the proper Court. Further prayer is that the Punjab Chief Minister be also directed to take appropriate action against the police officers who have failed to correctly investigate the case.
3. Learned Assistant Advocate-General, Punjab, has of course argued that keeping in view the age- old principle this Court cannot pass directions like the one being prayed for. He has argued that the matter is within the province of the trial Court which is not bound by the opinion of the police officers and that if on the basis of evidence produced before it the Court concludes that some more offences are committed it can try those offences and also punish the accused. He has also urged that the petitioner can file a private complaint in the proper Court insisting that some more offences stand committed and that the private complaint as well as police challan will be tried together and it will be for the trial Court to decide the rival claims.
4. On the contrary, learned counsel for the petitioner has highlighted what he described as dishonest investigation with a view to protect respondent as well as the other police officers accompanying him at the time of raid. He has cited few judgments like Anwar Ahmad Khan v. The State and another 1996 SCM R 24 to substantiate his submission that in case of mala fide investigation, this Court can pass corrective orders in exercise of its Constitutional jurisdiction.
5. Mr. Zahid Hussain Bukhari, Advocate, appearing on behalf of respondent No,8 has vehemently argued on the lines of the learned Assistant Advocate-General, Punjab. He categorically urged that any opinion expressed by this Court as to the nature of offence committed is likely to prejudice the trial.
6. The statement of law on the subject is contained in large number of cases including the cases of Emperor v. Khawaja Nazir Ahmed AIR 1945 PC 18; Ghulam Muhammad v. Muzammal Khan and others PLD 1967 SC 317; Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan PLD 1971 SC 677 and Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCM R 2142 and Anwar Ahmad Khan v. The State and another 1996 SCM R 24. There are large number of judgments from the various High Courts of this country on the subject but all of them by and large follow the parameters and principle laid down in the above-noted judgments. The broad principle is that by and large the High Court will not interfere, control or supervise the investigation. That is the prerogative of the police who happens to be the statutory functionary entrusted with the job of collecting evidence for and against the allegations. In the case of Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan PLD 1971 SC 677 the Court, however, opined that if investigation was mala fide or beyond jurisdiction of Investigating Agencies, recourse could be had to Article 98 of the Constitution for correction or section 491 of the Criminal Procedure Code,. 1898, if the person was in confinement. This view has been reaffirmed in the case of Anwar Ahmed Khan 1996 SCM R 24 (supra). The Court held in para. No,17 as under:-- "It is well-settled principle that where investigation is mala fide or without jurisdiction, the High Court in exercise of its Constitution jurisdiction under Article 199 is competent to correct such proceedings and pass necessary order to ensure justice and fair play. The Investigation Authorities do not have the entire and total authority of running investigation according to their whims."
(Underlining is by me).
7. In the case of Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCM R 2142, the Court held that the High Court cannot assume the role of investigator." In the case of Shaukat Ali PLD 1994 SC 218 the Court set aside and disapproved the direction of the High Court to the. Investigator for submission of periodically reports about the progress of investigation. The Court was clearly of the view that in issuing such a direction the High Court had crossed the permissible limits.
8. In this petition, I asked the learned Assistant Advocate-General, Punjab who was assisted by the Investigating Officer to indicate the material collected during the investigation and further to show the basis of the opinion of the police that section 363, P.P.C. Or other sections touching kidnapping are not attracted. He accepted that all the `Investigators were of the view that respondent No,8 had lifted and took in his custody the minor Waqar at the time of raid when he found that Jameel accused was not available. All the Investigators also agreed that the boy remained in the custody of the respondent and could only be recovered through the intervention of this Court in the above- noted habeas corpus petition. They were also of the opinion that forcible snatching of the boy was for forcing the father to surrender and not for ransom. Learned counsel for the petitioner after calculation, stated that the boy remained with the police officers for 68 days. This calculation has not been contested. Neither the Investigating Officer nor the learned Assistant Advocate-General, Punjab has been able to give any explanation as to why on these reasonably concluded facts, a case of kidnapping is not made out and only a case of wrongful confinement is made out. It may be noted that addition of section 365-A or 363, P.P.C. In challan has assumed importance in this case as this would determine the forum of trial. As it is offences under section 342/344/347, P.P.C.
Are trainable by Judicial Magistrate 1st Class.
9. As held in the case of Shehnaz Begum and Anwar Ahmed Khan cases (supra), this Court can correct proceeding of the Investigator in order to ensure justice and fair play provided the investigation is found to be based on mala fide. Mala fide can be said to be of two types. Mala fide in fact and mala fide in law. In my considered view, the opinion of the Investigating Officers which excludes the offence of kidnapping is at least a case of opinion suffering from mala fide in law. In the circumstances, this Court can pass corrective orders in exercise of Constitutional jurisdiction under Article 199 of the Constitution.
10. I would, therefore, dispose of this Constitutional petition by partially allowing it and directing the Investigating Officer to add section 363, P.P.C. In the challan. The costs of the petitioner in this petition shall be borne by respondent No,8.
11. Before parting I would clarify that the above opinion is entirely tentative and meant to correct error found to have been committed by the Investigation Officers. The opinion does not in any manner bind the trial Court. It is emphasized that trial Court will come to its own conclusion on the basis of evidence produced before it. It is also clarified that it will be open to the petitioner/complainant to prosecute the accused, respondent No,8 and others. Under other sections by filing a private compliant. Such a complaint will again be dealt with strictly in accordance with law and uninfluenced by anything stated in this judgment.
Petition partially accepted. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.