The petitioners have, through these writ Petitions (Nos. 2940 and 3218 of 1978), challenged the registration of cases under Martial Law Regulation No. 30 and investigation thereof by the police.
2. Learned counsel has read the admitting order dated 10-6-1978, with the statement that he reiterates the same points which were raised at the time of admission.
3. When questioned as to why the police should be stopped from investigating the cases, learned counsel has stated that although he does not object to the investigation, but the petitioners have two grievances: one, that the police, without collecting any further incriminating evidence, has stopped the business of the petitioners by sealing their premises where they were doing the business of cleaning the oil; and two, although the allegations disclosed in the F. I. R. Do not constitute an offence as visualised in M. L. R. 30, the case has been registered for the said offence.
4. In the order of admission, relevant record was also summoned in order to understand the nature of the offence alleged in the F. I. R. And, of course, with a view to examine the possibilities in the case. This admitting order was passed by my learned brother Zakiuddin P.I, J., on 10-6-1978. In a similar case decided by his Lordship himself later on (Sheikh Abdul Waheed v. Summary Military Court Writ Petition No. 2605 of 1978 decided on 13-6-1978); while dealing with the crime of a petroleum-dealer as distinguished from the manufacturer of spurious Mobile oil, who was almost in the same position as the petitioners in these cases, his Lordship was pleased to observe as follows :--- "It is admitted on record by the prosecution evidence that the Mobile oil tin in question was supplied by Jamal Din the other accused. There is nothing on record to show, except the oral testimony, that the petitioner was involved in preparing the adulterated Mobile oil and then sealing the same in tins. Jamal Din while making his statement before the Summary Military Court has not involved the petitioner in this respect at all. He has stated that he rather felt sorry for the involvement of the petitioner in this case because of him." '
I was also not aware, before I read the said order of his Lordship, as to what could be the possible lines of investigation by the police in such like cases. It now transpires that there may be witnesses who might depose that they have been purchasing Mobile oil from the petitioners on the latter's representation that it was genuine mobile-oil to be used in vehicular engines, as was done in the said case. Those might be innocent purchasers, as was held in the said case and the innocent purchaser was acquitted. Nonetheless, it cannot be said that no offence could be committed by anybody in such a transaction, because, as noted by his Lordship, the other accused, the manufacturer of such a commodity, felt sorry before the Military Court concerned for what he had done and for an innocent purchaser having been proceeded against on his account. A similar situation cannot be excluded as developing in the present case. Nobody can say that all the petitioners would plead defence of denial in this case. A possibility cannot be excluded that some one might confess having adulterated the used oil for the purpose of selling it as a genuine/fresh oil.
5. I also do not agree with the learned counsel that there is nothing in the F. I. R. To show that some offence was committed. If that were so, there was no reason for some of the petitioners and some of their dependents, running away from the spot at the time the raid was conducted. The raid was conducted by a Magistrate. There could not be any apprehension that if caught hold of, he would have tortured them. At least, there is nothing in the F. I. R. Nor any circumstance to show that the learned Magistrate who conducted the raid unnecessarily harassed any of the petitioners. This circumstance mentioned in the F. I. R. Can, in case of need, be utilised by the Investigating Agency as a piece of circumstantial evidence, in the form of conduct of the accused.
6. Learned counsel is unable to canvass the proposition that the police is debarred from collecting more material against the petitioners. His complaint that the premises have been sealed can be looked into by the Ilaqa Magistrate who is competent under the Criminal Procedure Code to deal with such like complaints, till the submission of the challan. Instead of approaching the Court concerned and seeking easier remedy, the petitioners have chosen to approach this Court. In my view, the investigation has already been stifled on account of these proceedings.
7. Learned counsel has also pointed out that the police has not been able so far to collect any evidence. I have discussed some aspects of the possible pieces of evidence in these cases. Even if the statement of the learned counsel is accepted on its face (a possibility that the police might have collected some more material would not be excluded), it is commonly known practice that on the filing of the writ petition and its admission, despite there being no stay order (but there being a specific restraint order with regard to the arrest of the petitioners) the police would in normal course await the results of the writ petition. It is interesting to note that all the important persons in this connection, namely, the District Magistrate, the Magistrate who conducted the raid and the S. H. O., have been impleaded as respondents in this case. If not, for other reasons including fear, the authorities concerned might not have proceeded any further on account of respect for the orders of this Court.
8. As to the argument of the learned counsel that the facts mentioned in the F. I. R. Do not constitute an offence under M. L. R. No. 30, I do not agree with him. I have already mentioned the conduct exhibited at the time of raid by the persons concerned, some of whom would be witnesses others might be accused. It is mentioned in the F. I. R. At more than one places that the petitioners were engaged in illegal activity which fell within the ambit of M. L. R. No. 30. The F. I. R. Was drafted by a Magistrate. Instead of repeating the words used in M. L. R. No. 30 in the F. I. R. Which is only a document to indicate the offence committed, he mentioned the number of the Regulation. It cannot be said that he was lodging the F. I. R. Without being conscious that he was making allegation of oil-adulteration. He used the word " NAJAIZ " at several places in the F. I. R. In the above-noted circumstances, when the allegation of an offence has been made in the F. I: R., the police cannot be prevented from collecting evidence to show either that the offence has been committed or that it has not been committed. It will be within the competence of the police, after considering the evidence to be collected during investigation, to submit a report saying that no offence has been committed. The petitioners have a right to present their case before the Investigator. It has often been stressed by superior Courts that the police investigation in the crime would not be interfered with or stifled by superior Courts in extraordinary jurisdiction either under section 561-A, Cr. P. C., or under writ jurisdiction. The best course for the petitioners is to appear before the Investigator and produce the evidence in support of their plea. Although a plea has been raised in this Court that the petitioners are in possession of licences for doing the business which is the subject matter of the entire proceedings and it also is so mentioned in the order dated 10-6-1978, but, after detailed consideration in this behalf, I am of the view that the documents produced on the record of these petitions, which are challan receipts, do not furnish enough evidence to show that the petitioners are in fact licensees. It is commonly known that such like challan forms are filled in by the depositors or even if they are filled in by someone else, this at the most is an admission in one's own favour. The mere fact that a functionary receives a fee which a petitioner claimed to be a licence-fee is no proof of the fact that he holds a 'valid' licence. It is doubtful whether any such licence, as is claimed, 'to deal with' and 'refine used petroleum-product' could be issued under the relevant law to the petitioners. When called upon to show any such law, learned counsel failed to do so. He has, however, mentioned sections 77 and 225 of the Punjab Local Government Act, 1975; which, it is doubtful, would help the petitioners. Be that as it may, this Court would refrain from giving the final verdict on this question in writ jurisdiction. Firstly, no licence has been produced before this Court even till today when the cases have come up for final hearing. Secondly, even if the same would have been produced, this Court would normally have refrained from examining such a defence plea, before even the submission of challan. Thirdly, other remedy of taking such a defence plea before the police, before the submission of challan, to seek any available relief and before the trial Court after the submission of the challan is not only effective but also more proper. Repeated interference through orders of various types in writ jurisdiction would, on the one hand, bring the investigating agencies and trial agencies to a grinding halt; on the other, would , also choke the normal relief giving channels of the superior Courts. A simple exercise of a visualisation of accused and complainants, in all types of cases, coming to the High Court for correction in writ jurisdiction, at almost all conceivable stages (a discriminatory reaction of shutting out cases of other sections of society, involving violence, property, etc., as examples, would not then be possible) would present a colossal problem to tackle with, which could not be the intention of the law-maker. Fourthly, the machinery for tracing and B collection of evidence in crimes available with superior Courts cannot be a safe substitution for mass of ordinary laws/rules in this behalf applied at the regular investigation and trial of crimes.
And lastly, without the necessary machinery and requisite time for holding detailed enquiries, it would be hazardous exercise for a superior Court to take upon itself the duty t investigate such like matters in the world of crime and criminals. Without doing so, it would be almost impossible to interfere with the police action and investigations in writ jurisdiction. That is why, after giving due caution, their Lordships of the Supreme Court used extremely guarded language in imagining a possibility and that too, only very rare, for such an action, in Shahnaz Begum's case (PLD 1971 SC 677). It was observed as follows at p. 691 of the report :----- "This would be unwarranted interference with the investigation which has been disapproved by the Judicial Committee of the Privy Council in the case of Emperor v. Kh. Nazir Ahmad AIR 1945 P C 18. and again at pages 692/693:------ "It appears that in a recent case of State of West Bengal v. S. M. Basak AIR 1963 SC 447 the Indian Supreme Court has also taken the view that we are inclined to take of the observations of the Judicial Committee in the case of Kh. Nazir Ahmad and has held that the High Court has no power under section 561-A of the Cr. P. C. To interfere with police investigations into criminal offence. In the latter case the Calcutta High Court had purported to quash the investigation on the ground that the offence being an offence triable under the West Bengal Criminal Law (Amendment) (Special Courts) Act, 1949, the police had no jurisdiction to investigate at all.
A similar view was expressed by Cornelius, C. J., (as he then was) while dismissing the petition of Sher Khan and others v. The State 1968 SCMR 62. In the case of Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317 this Court had occasion to point out that the power given by section 561-A, Cr. P. C., `can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute'. That was not a case for quashing an investigation simpliciter, for, their challans had already been put in by the police before a competent Court and the High Court had quashed the proceedings on the ground that it was not the business of the police to submit a challan for the commission of offences not disclosed in the first information report. This Court, however, set aside the order of the High Court because in the opinion of this Court there was no legal bar to the police submitting a challan in respect of offences other than those mentioned in the First Information Report. We have, therefore, upon a review of the relevant judicial opinions, come to the conclusion that the High Court has no power under section 561-A, even to quash an investigation. The decision of another learned Single Judge of the High Court of West Pakistan, Lahore Seat, in the case of Yaqoob Khan v. State 1971 P Cr. L J 266 that the High Court has such power cannot, therefore, be approved of and is accordingly overruled.
If an investigation is launched mala fide or is clearly beyond the jurisdic--petition of the investigating agencies concerned then it may be possible for the action of the investigating agencies to be corrected by a proper proceeding either under Article 98 of the Constitution of 1962 or under the provisions of section 491 of the Criminal Procedure Code, if the applicant is in the latter case in detention, but not by invoking the inherent power under section 561-A of the Criminal Procedure Code."
9. After careful and anxious consideration of all the aspects, these petitions are dismissed. It is, however, observed that the petitioners are at liberty to take all pleas before the police and, if they are challaned, before the trial Court. The observations in this judgment on the pleas raised by the learned counsel are in the context of what he argued and sought comments thereon. They should not prejudice the accused as and when they are confronted with evidence by the police or during a trial. There shall be no order as to costs.