' On 23-1-1999 when Muhammad Sued (Rana Saeed Ahmad) petitioner was posted as Sub- Inspector/SHO, Police Station Lessar Kalan, District Narowal, an encounter took place wherein Muhammad Azhar Khan, Constable No, 185-C from the Police side as well as Muhammad Arif, Muhammad Tariq, Talib Hussain and Maqsood Ahmad from the other side lost their lives. F.I.R. No,11, dated 23-1-1999 was registered under section 302/324/353/186/148/149, Pakistan Penal Code at the instance of Saeed Ahmad, S.H.O. (petitioner). Abdul Rauf brother of Maqsood Ahmad deceased filed Writ Petition No, 2772 of 1999 for the registration of the count encase which was disposed of on 15-10-1999 on the ground that the inquiry was being conducted by the Additional Deputy Commissioner (General), Gujranwala and the matter was under process. A direction was made to the authorities to act in accordance with law. This writ petition was disposed of in the aforesaid terms. The Secretariat of Chief Minister Punjab constituted an Inquiry Committee vide order, dated 2-7-1999 comprising the Additional Deputy Commissioner (General), Gujranwala and a representative of Pakistan Army for investigation of the case within a fortnight. Dr. Wan Tariq, Additional Deputy Commissioner (General), Gujranwala and Major Muhammad Tahir Alvi 106 Engineer Battalion conducted the inquiry/investigation by .Recording statements and collected the photographs. The detailed report was prepared and the recommendations for proceedings against the police officers mentioned therein were made for the murder of three innocent civilians and an Army Havaldar. Feeling aggrieved the petitioner/ S.H.O. Assailed the vires of the same on the grounds that the impugned inquiry was initiated on the direction of the Chief Minister's Secretariate which is not possessed of jurisdiction to appoint an Inquiry Committee, that in the said background the proceedings conducted by the Inquiry Committee are corm non judice, that the occurrence took place within the territorial jurisdiction of Narowal District and the judicial inquiry could be conducted at the direction of the District Magistrate, Narowal within the area of District Narowal, that the conduct of the Inquiry Committee was unilateral, partisan, based upon coercion and that the same was not conducted honestly, justly and fairly. The proposed relief of the petitioner is that the inquiry proceedings and the findings rendered therein may be quashed being illegal and without jurisdiction, that the respondents may be restrained taking any adverse action in view of the impugned inquiry and that fresh inquiry proceedings may be ordered to be held by an independent judicious person/body.
2. The Additional Deputy Commissioner (General), Gujranwala and Abdul Rauf, respondents Nos.3 and 8 submitted their respective reply wherein they took the stand that the Chief Minister had the authority to appoint the Inquiry Committee to hold the investigation and that the findings of the Inquiry Committee are correct. They maintained that the competent forum has passed the order and for that matter no exception can be taken thereto.
3. I have heard the learned counsel for the contesting parties as well as the learned Additional Advocate-General and gone through the record before me. Relying on the dictum enunciated in Masti Khan v. Ahmad Nawaz Khan Niazi, Superintendent of Police, Kasur and 3 others (1987 PCr.LJ 391 (Lahore), the learned counsel for the petitioner argued that the Inquiry Committee for holding the investigation could not be constituted as the Chief Minister, even though was the Chief Executive of the Province, was not empowered to pass the impugned order dated 2-7-1999 for transfer of the investigation to the Inquiry Committee. They maintained that even the Inquiry Committee did not hold the inquiry/investigation in a just and fair manner. They continued that the District Magistrate Narowal issued letter No,RDM/463, dated 3-2-1999 under section 176(1) of the Code of Criminal Procedure directing the Assistant Commissioner, Shakargarh to hold judicial inquiry who recorded the statements of 71 witnesses which was under process when the matter was taken up by the Chief Minister's Secretariat without jurisdiction as well as factual and legal justification. On the contrary the learned Assistant Advocate-General and learned counsel for Abdul Rauf, respondent No,8 laid the emphasis that the Chief Minister Punjab, Lahore was competent to pass the order, dated 2-7-1999 to constitute two members Inquiry Committee which gave its verdict and that the objections raised by the petitioner have no legal force.
3. Before proceeding further it would be proper to reproduce as under the directive, dated 2-7-1999 issued by the Chief Minister's Secretariat:--- IMMEDIATE.PS0-11/CM-41/0T-19/9 -1724 ' CHIEF MINISTER'S SECRETARIATE PUNJAB 2nd July, 1999 ' Subject: INQU IRY.
' Reference enclosed letter from G.H.Q., Rawalpindi, regarding killing of Havildar Muhammad Arif, 106 Engineering Battalion, allegedly in a fake case by Police Officials of Police. Station Shakargarh, District Narowal.
2. I am directed to forward the case for its investigation by a Joint Inquiry Committee, comprising of the following, with the directions to complete the proceedings within a fortnight under intimation to this Secretariate:---
(i) ADC(Gi, Gujranwala.
(ii) A representative of Pakistan Army (Lt.-Col. Imran Ikram will coordinate further details).
(Sd).
(HAJI MUHAMMAD NAWAZ MALIK)
PSO to Chief Minister, Punjab.
' COMMISSIONER, ' GUJRANWALA DIVISION, GUJRANWALA.
' PC 1. D.I.-G., Gujranwala
2. S.P., Narowal.
3. Lt.-Col. Imran Ikram, HQ 4 Corps, Lahore Cantt.
4. I would express that a perusal of the aforesaid directive has made out that it does not contain that the same was issued at the direction of the Chief Minister, Punjab, even though the same is signed by one Haji Muhammad Nawaz Malik, Personal Staff Officer to Chief Minister, Punjab.
According to the Rules of Business the authority at whose direction such an order is passed has to be mentioned/narrated therein. This is one aspect of the matter. The other aspect of the matter is that in whole of the scheme of Code of Criminal. Procedure, Chief Minister does not figure anywhere to pass the order for the transfer of the investigation to be conducted by some Inquiry Committee or by some Police Officer for the final disposal of the controversy. The Chief Minister was no doubt the Executive Head being the Chief Political Authority but he cannot be allowed to usurp the powers of the competent officers mentioned in the Code of -Criminal Procedure. In this regard para.(6) of, the judgment printed as 1987 PCr.dLJ 391 (Lahore), relied upon by the learned counsel for the 'petitioner is reproduced as under:-- "6. The investigation of a criminal' case is regulated by the provisions continued in Chapter XIV of the Code of Criminal Procedure. Under section 156 (ibid) any officer-in charge of a police station can investigate a cognizable case without the order of a Magistrate relating to his police station. A subordinate Police Officer can also be asked to conduct investigation but in that eventuality he (subordinate Police Officer) has to report the result of such investigation to the officer-in-charge of the police station.
' Under section 551, Cr.P.C. Police Officer superior in rank to an officer-in-charge of Police Station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station. Thus, a Superintendent of Police can investigate himself into a cognizable offence or he can depute another Police Officer subordinate to him in the district to conduct investigation in such a case. Similar powers can be exercised by the D.I.-G. Police, within his range. The I.-G., Police can also exercise such powers for the entire rovince. The provisions of Police Act and the Rules made thereunder take care of the manner and procedure in accordance with which such powers are to be exercised. No provisions of the Code of Criminal Procedure or that of the Police Act and the Rules made thereunder confer any power on the Chief Minister of a Province to order the transfer of investigation of a criminal case from one Police Officer to another Police Officer."
5 Since the directive, dated 2-7-1999 is about the investigation of the case the same is held to be without jurisdiction and inoperative. It is the fundamental rule of construction that the law can be set in motion if where is substantive jurisdiction conferred upon the person exercising the same.
The Chief Minister has no jurisdiction to issue directive, dated 2-7-1999 and the inquiry/ investigation could not be sent out of Narowal District to District Gujranwala. This is an instance of transgression of authority on the part of Chief Minister Punjab. At this stage I would express that good governance cannot materialize unless there is respect for rule of law. Taking the law in one's own hands as in the instant case can neither be appreciated nor approved. I, therefore, hold that the Chief Minister's directive dated 2-7-1999 is without jurisdiction, illegal and in-operative. In consequence, the proceedings conducted by the Inquiry Committee in the fresh investigation shall have to sail in the same boat which are simple coram non judice. It is the proper stage to express that the impugned directive, dated 2-7-1999 cannot be said to have been passed under the Pakistan Commissions of Inquiry Act, 1956, a perusal of which has made out that the aforesaid type of inquiry for the purpose of investigation of an occurrence cannot be directed to be held thereof under the aforesaid Act of 1956.
6. For what has been said above, I accept this writ petition and hold that the Chief Minister's directive, dated 2-7-1999 is without jurisdiction, without authority, illegal and inoperative which is set aside. In consequence the proceedings and recommendations made by the Inquiry Committee on the basis of the same are coarm non judice which are also liable to be quashed and I pass the order accordingly.
7. As expressed above, the District Magistrate, Narowal sent Letter No,RDM/463, dated 3-2-1999 to the Assistant Commissioner, Shakargarh to hold the judicial inquiry who (the District Magistrate, Narowal) is competent in the matter under section 176 of the Code of Criminal Procedure and the Assistant Commissioner, Shakargarh may proceed ahead in this regard who shall conclude the same positively within a period of two months with effect from 15-5-2000 on which date the parties shall appear before him.
8. At this stage, I am tempted to express that during the arguments the learned counsel, for Abdul Rauf respondent No,8 laid the emphasis that all the efforts to get registered the second F.I.R.
According to the version of the relatives of four deceased persons have remained futile as the police is adamant that the second F.I.R cannot be registered. He added that a writ petition was filed which was disposed of due to the pendency of the inquiry. I would hold that there is no bar in this regard. We all know that in the murder case of Mir Murtaza Bhutto. Three separate F.I.Rs, were registered. Myself is the author of the judgments printed as Haji Ahmad v. S.S.P., Rahimyar Khan and others (1997 PCr.LJ 2069 (Lahore) and Muhammad Aslam v. S.H.O. And others (PU 1997 Lahore 1453) wherein I have held that the second F.I.R. Can be got registered by the affected party. If required and desired by Abdul Rauf, he or any other person may go to the Superintendent of Police, Narowal along with written complaint and certified copy of this order who shall immediately direct the Station House Officer, Police Station Lessar Kalan, District Narowal to register a case against the accused mentioned in the written complaint, maintain the case diary, record the statements of the prosecution witnesses immediately and proceed further in accordance with law. I would express that holding of the judicial inquiry under section 176 of the Code of Criminal Procedure is no bar for the registration of the second F.I.R. Under section 154 of the Code of Criminal Procedure. If Abdul Rauf wants to got investigated the case from some other agency/superior Police Officer, he shall make an application before the Inspector-General of Police, Punjab, Lahore who shall transfer the investigation to any other police officer/agency deemed fit by him.
9. In the circumstances, I leave the parties to bear their own costs.