PLJ 2009
Present:
Zafar Iqbal Chaudhry, J.
ASHIQ ALI
and others--Petitioners
versus
DIG OF
POLICE, PUNJAB,
W.P. Nos.
10587, 10784, 10852 and 10855 of 2008, heard on 12.12.2008.
Police
Order, 2002--
----Arts.
155(2), 171 & 172--Criminal Procedure Code, (V of 1898), S.
156(2)--Quashing of FIR--Petitioner being I.O. did not investigate a murder
case honestly and impartially--Held: Provisions of Art. 155(2) of the Police
Order, 2002 the DSP was not authorized person to recommend for registration of
the cases against the petitioners--Under Arts. 171 and 172 of the Police Order,
2002, the acts of the police officers done in good faith have been
protected--Investigation conducted by the police officer cannot be called
in-question in the subsequent proceedings on the ground that he was not
competent to do the same--FIRs have been registered only on the opinion of the
DSP (legal), who had no authority in such regard when the matter was already
sub-judice before the Court of competent jurisdiction which if fully empowered
to recommend to the higher authorities in police hierarchy for any action
against the police officers/IOs, if any lapses are found on their part during
the trial--FIRs were quashed.
[Pp. 790 & 791] A, B & C
Mr. Shehram
Sarwar Ch. & Mr. Nawab Ali Mayo, Advocates for Petitioner (in W.P. No.
10587 of 2008).
Mr. Khalid
Mian, Advocate for Petitioners (in W.P. Nos. 10784, 10852 & 10855 of 2008).
Ch. M.
Suleman, Additional Advocate General & Mian Ismat Ullah, DPG for State.
Date of
hearing: 12.12.2008.
Judgment
This single
judgment will dispose of WP No. 10587/2008 filed by Ashiq Ali, DSP seeking
quashment of FIR No. 854 dated 21.8.2008, registered under Sections 155-C, 156
of Police Order, 2002 at Police Station Hanjarwal, Lahore; WP No. 10852/2008
filed by Tariq Mahmood, Ex-Inspector for quashment of FIR No. 850 dated
21.8.2008, registered under Sections 155-C, 156 of Police Order, 2002 at Police
Station Hanjarwal, Lahore; WP No. 10784/2008 filed by Ijaz Ahmad, Sub-Inspector
to quash FIR No. 851 dated 21.8.2008, registered under Sections 155-C, 156 of
Police Order, 2002 at Police Station Hanjarwal, Lahore, and WP No. 10855/2008
preferred by Ansar Hussain, Sub-Inspector (Retd) for quashing of FIR No. 853
dated 21.8.2008, registered under Sections 155-C, 156 of Police Order, 2002 at
Police Station Hanjarwal, Lahore as all these FIRs were registered against the
Police Officers with the allegation that they had conducted investigation of a
murder case on different occasions illegally and impartially and common
questions of law and facts are involved.
2. The facts giving rise to these writ petitions
are that a case FIR No. 884 was registered at Police Station Hanjarwal, Lahore
on 14.12.2006 in respect of offences under Sections 302/324/109/148/ 149 PPC
and Section 7 of the Anti-Terrorism Act, 1997 and originally the case was
investigated by Qaisar Mushtaq, Inspector, Tariq Mahmood, Inspector petitioner,
Ijaz Ahmad, S.I. petitioner and Ansar Hussain, S.I. petitioner while Ashiq Ali
petitioner being DPO, Sabzazar Circle verified the investigation conducted by
the said police officers.
3. The learned counsel for the petitioners have
argued--
(i) that all the FIRs have been registered
illegally and with mala fide intentions on the part of DSP (Legal) as well as
DIG (investigation) who without any evidence had passed the order in this
regard, which is not warranted by law,
(ii) that the competent Court has already taken the
jurisdiction of the said case and during that period no objection regarding
defective investigation was raised by any of the authorities;
(iii) that in the light of the comments given by the
CCPO, Lahore and SSP, Lahore, DSP (Legal) had no authority to override their
opinion;
(iv) that all the accused persons except one who is
absconder are facing the trial before the learned trial Court;
(v) that the impugned order on which FIRs have
been registered is against Articles 171 and 172 of Police Order, 2002 under
which protection has been given to the acts done by the Police Officers in good
faith;
(vi) that FIR No. 852 of 2008 registered against
Qaisar Mushtaq has been cancelled after investigation who was opponent and the
investigation and subsequent investigations were conducted in continuation of
his investigation;
(vii) that no case can be registered under Article
156 of Police Order, 2002 in anticipation of the verdict of the Court or any subsequent
investigation;
(viii) that keeping in view the material with the
prosecution there is no probability of the conviction of the petitioners;
and prayed
for quashment of the FIRs, which were registered mala fidely without any basis
while misusing the authority only to create departmental harassment and the
same are liable to be quashed as further proceedings therewith will be abuse of
process of law and sheer wastage of time. Relies upon--
1997
P.Cr.L.J. 974,
1997
P.Cr.L.J. 1503,
1994
P.Cr.L.J. 2391, and
2008 SCMR
76.
4. On the other hand, learned Additional
Advocate General submits that the two accused, persons who were declared
innocent during the investigation by the petitioners have been summoned vide
order dated 11.6.2007 passed by learned Judge Anti-Terrorist Court IV, Lahore
and it shows that they were illegally declared so by the petitioners as I/Os,
who have been rightly proceeded under the provisions of Police Order, 2002.
5. I have heard the learned counsel for the
parties and perused the record with due and caution with their assistance.
Briefly the allegation is that after the investigation in the aforesaid murder
case, Muhammad Asim and Muhammad Sarwar accused had been declared POs., who
after the grant of interim pre-arrest bail from the Court joined the
investigation and they were declared innocent by Qaisar Mushtaq, Incharge
Investigation within 15 days vide Zmini No. 45 dated 25.3.2007, which was
verified by Ashiq Ali DSP petitioner. Muhammad Aslam accused was also declared PO,
who on coming back from France and after the grant of interim pre-arrest bail
was joined in the investigation by Ijaz Ahmad SI petitioner and was declared
innocent, which opinion of the said I/O was also verified by Ashiq Ali DSP,
petitioner. Moreover, on 25.3.2007 Malik Muhammad Ashraf Lumberdar had given a
writing about the innocence of Asim and Muntzir Mehdi accused, which was found
fictitious, but no notice thereof was taken by Ashiq Ali DSP. Then on 22.4.2007
Tabassum Ali accused was declared innocent by Ijaz Ahmad SI after the
investigation, which was verified by the DSP, but the learned Judicial
Magistrate while disagreeing with the discharge report ordered for committal of
Tabassum accused to jail, who was sent there by Ijaz Ahmad SI petitioner without
effecting any recovery from him. However, the pistol was shown to be produced
through Malik Zafar so that it could not be connected with the accused.
6. It is admitted position that the challan in
the murder case was primarily submitted to the Anti-Terrorism Court and after
submission of challan an application for transfer of investigation was moved by
Tassawar Hussain son of Bao Bashir Ahmad and Abdul Rashid son of Hadayat Ali,
which was duly considered by the Senior Superintendent of Police, Discipline
& Inspection, Lahore (Mr. Sultan Mahmood) and Chief City Police Officer,
Lahore (Malik Muhammad Iqbal), who after going through the record and hearing
the parties filed their comments that the investigation was properly conducted
and case was not likely to be re-investigated as challan has already been
submitted before the Anti-Terrorist Court. Then vide judgment dated 22.10.2007
passed by this Court in W.P. No. 49486 of 2007 whereby the jurisdiction of
Anti-Terrorism Court had been challenged, offence under Section 7 of ATA was
deleted by this Court and the case was sent to the Court of ordinary
jurisdiction where the case is pending and during this period evidence of 7
witnesses has been recorded. It has also been brought to my notice that when the
matter was pending before the CCPO, Lahore two aggrieved persons also filed
writ petition claiming therein that they were satisfied with the investigation
conducted by the above-said police officers. Now the case is sub judice before
the learned Additional Sessions Judge, Lahore and during the pendency thereof
in the Court of competent jurisdiction the DSP (Legal) on some query on the
administrative side gave opinion that the investigation in this case had not
been conducted honestly by the above-said petitioners whereupon the aforesaid
FIRs have been registered. When questioned by this Court, the DSP (Legal)
present in Court has failed to produce any letter/document on which this
opinion was sought and he is also not sure that who had sought that opinion. It
is admitted that keeping in view the provisions of Article 155 (2) of the
Police Order, 2002 the DSP was not authorized person to recommend for
registration of the cases against the petitioners. Moreover, under Articles 171
and 172 of Police Order, 2002, the acts of the police officers done in good
faith have been protected and for ready reference the said provisions of Police
Order, 2002 are reproduced as under:--
171. No
Police Officer to be liable to any penalty or payment of damages on account of
acts done in good faith in pursuance of duty. No Police Officer shall be liable
to any penalty or to payment of damages on account of an act done in good faith
in pursuance or intended pursuance of any duty imposed or any authority
conferred on him by any provision of this Order or any other law for the time
being in force or any rule, order or direction made or given therein.
172. Suits
or prosecutions in respect of acts done under colour of duty not to be
entertained if not instituted within the prescribed period. In case of an
alleged offence by a Police Officer, or a wrong alleged to have been done by
him or by any act done under colour of duty or in exercise of any such duty or
authority of this Order or when it shall appear to the Court that the offence or
wrong if committed or done was of the character aforesaid, the prosecution or
suit shall not be entertained, or shall be dismissed, of instituted after more
than six months from the date of the action complained of.
Furthermore
under, sub-section (2) of Section 156 Cr.P.C., which is the parent law, the
investigation conducted by the police officer cannot be called in question in
the subsequent proceedings on the ground that he was not competent to do the
same. The said sub-section reads as follows:--
"(2) No
proceedings of a police officer in any such case shall at any stage be called
in question on the ground that the case was one which such officer was not
empowered under this section to investigate."
7. It is also not case of the prosecution that the
petitioners being the police officers were not competent to investigate the
case and it is settled law that the opinion of the police is not binding on the
Courts. The aggrieved party had the right to move for reinvestigation.
Admittedly the police has not collected any evidence regarding dishonest
investigation conducted by the
petitioners and it seems that all the FIRs have been registered only on the
opinion of the DSP (Legal), who had no authority in this regard when the matter
was already sub-judice before the Court of competent jurisdiction, which is
fully empowered to recommend to the higher authorities in police hierarchy for
any action against the police officers/I.Os if any lapses are found on their
part during the trial. It has also been brought to the notice of this Court
that FIR No. 852/08 with the such allegation was also registered against Qaisar
Mushtaq, but the same has been cancelled after the investigation and the cases
registered against the petitioners have no distinct features.
8. In view of the above discussion, I am
satisfied that all the aforesaid FIRs were result of malice and those do not
constitute any offence, rather these are cases of no evidence and further
proceedings therewith will be sheer abuse of process of law, which cannot be
allowed to continue. Hence, all the four writ petitions are accepted and the
FIRs called in question therein are quashed.
(M.S.A.) FIRs quashed.