ABID HUSSAIN Versus TAJ MUHAMMAD

The main prayer in this petition is that the report recorded in the High Court in Writ Petition No.8981 of 1992 of respondent No.3 be declared) extremely mala fide, illegal and without any foundation and of no legal effect.

2. The brief background of the matter is that case F.I.R. No.127 was registered on 7-8-1992 at Police Station Saddar, District Toba Tek Singh, under sections 365/354 and 148/149, Cr.P.C. The investigation in this case in the first instance was conducted by the local police and none of the accused were arrested. The investigation was later on transferred to S.P. Range Crimes, Faisalabad, who after investigation held that the accused nominated in the F.I.R. are guilty. He further held that the petitioner abetted the offence. Thereafter the file was sent back to S.H.O. Police Station Sadar, Toba Tek Singh, so he could proceed against the accused, complete the challan and submit in the Court. The petitioner has now challenged this part of the report of the respondent No.3 recorded by him/during the investigation of the case. The petition was admitted to regular hearing. Notices were issued to the respondents, who have appeared and contested the petition.

3. Mr. Nazir Ahmad, Ghazi, learned A.A.-G. and the counsel for the contesting respondent have raised a preliminary objection to the effect that the petition is not competent. It is argued that the impugned report of respondent No.3 was only the proceedings recorded by respondent No.3 during the investigation, therefore, not amenable to the constitutional jurisdiction. In this behalf, they have referred to the cases reported as Wali Muhammad alias Walia v. Haq Nawaz and 3 others 1971 S C M R 717 and Union of India and another v. W.N. Chadha 1994 S C M R 285.

4. On the other hand, learned counsel for the petitioner argued that the report was without basis and recorded mala fide, therefore, the petitioner can invoke the Constitutional jurisdiction of this Court.

5. I have given my anxious consideration to the argument of the learned counsel for the parties and gone through the precedent cases. If the reports made during the investigation or the opinion of the Investigating Officer are allowed to be questioned in writ jurisdiction then in the first instance the investigation would not be allowed to be completed by the accused and in case the investigation is complete the trial of the case would be delayed. The Honourable Judges of the Supreme Court in the case of Wali Muhammad 1971 S C M R 717 reiterated the principle laid down in the case reported as Shahnaz Begum v. Honourable Judges of the High Court of Sindh and Balochistan P L D 1971 SC 677. The relevant portion reads as under:--

" .... This Court held that the High Curt did not possess the power it had assumed either under clause 22 of the Letters Patent of the High Court of West Pakistan or under any other law or under the Constitution. We must, therefore, hold that the interim order of the High Court dated 30-9-1969 is without jurisdiction .... "

In this view of the matter, the preliminary objection is upheld. The writ petition is dismissed as incompetent.

N.H.Q./G-224/L ????????????????????????????????????????????????????????????????????????????????? Petition dismissed.