Raja RUSTAM ALI KHAN vs MUHAMMAD HANIF And 6 Other

IRSHAD HASAN KHAN, J.---This petition for leave to appeal is directed against the interim order dated 12-5-1996 passed by the Lahore High Court in Writ Petition No.6088 of 1996.

2. Brief facts are that Rustam Ali, the petitioner herein, instituted a civil suit dated 17-5-1996 against respondents Nos. l to 3 for possession through pre--emption of land measuring 39 Kanals, 6 Marlas situate in Chak No. 103/GB, Tehsil Jaranwala, vide mutation No.424 sanctioned on 31-1-1995. It was, inter alia, averred in the plaint that the transaction shown as an exchange in the said mutation was, in fact, a sale and this was done with a view to cause loss to the pre-emptor.

3. During the pendency of the said suit, the petitioner who is stated to be the cousin of Raja Riaz Ahmad, M.P.A., submitted an application on 29-2-1996 to the Additional Director, Anti-Corruption, for registration of a criminal case against the aforesaid respondents on the allegation that fraudulent mutation of exchange has been got sanctioned by them in collusion with the Revenue Staff and Government tax has been evaded. Pursuant to the said application, an inquiry was commenced by respondent No.5. It is alleged by the respondents that after recording some statements of the witnesses, enquiry was adjourned to 7-2-1996 for recording the statements of concerned Revenue Officials. However, prior to that date, on the alleged undue influence of Raja Ahmad, M.P.A., a case F.I.R. No.39 of 1996 dated 5-3-1996 was registered at Police Station Anti Corruption Establishment, Faisalabad against respondents Nos. l to 3 and others. Later, the Director Anti-Corruption vide order dated 21-3-1996 withdrew investigation from Anti-Corruption Establishment, Faisalabad and entrusted the same to Anti-Corruption Establishment, Multan.

Again, by order dated 28-3-1996 the earlier order dated 21-3-1996 (supra) was withdrawn.

4. Respondents Nos.1 to 3 filed a constitutional petition in the Lahore High Court praying that the registration of F.I.R. And investigation in consequence thereof, be declared to have been lodged mala fide and beyond jurisdiction, inasmuch as, the entire exercise was being done at the instance of a local M.P.A. Who had manoeuvered the victimisation of the writ petitioners on account of rivalry. The petition came up for hearing on 21-4-1996, before the learned Single Judge of the Lahore High Court who summoned the Director, Anti Corruption. And Additional Director, Anti- Corruption Establishment for 12-5-1996 and stayed the investigation in the meantime. On 12-5-1996 the learned Judge in Chambers passed the order as follows:--- "On account of the serious allegations of malice levelled against the Director and the Additional Director I have asked the Director to bring a list of cases registered at Lahore, Faisalabad, Multan and Rawalpindi with A.C.E. Alongwith details of the date on which the applications had been received in those cases; the dates on which the inquiry commenced and concluded; the dates on which the F.I.Rs. Were recorded and the dates of the completion of the investigation. This is being done to find out the veracity of the allegations of malice and mala fide as levelled by the petitioners. The Directors prays for ten days' the for the purpose."

5. To come up on 26-5-1996. The interim orders with respect to the stay proceedings already passed shall continue till then. The files relating to the investigation brought by the Addl. Director shall be retained in Court. "

6. Raja Muhammad Anwar, learned counsel for the petitioner argued that the impugned order has been passed, in violation of the principle of law, laid down in Malik Shaukat Ali Dogar v. Ghulam Qasim Khan Khakwani (PLD 1994 SC 281), wherein the view expressed in the case of Emperor v.

Khawaja Nazir Ahmad (AIR 1945 PC 18), was reiterated that "the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry". In the case of Khawaja Nazir Ahmad (supra), it was also laid down that the Prohibition contained in section 197, Cr.P.C. Against a prosecution without the necessary sanction is against the action of taking cognisance by the Court. It does not prevent, preclude or otherwise interfere with the power of the police in the matter of registration of the case and the investigation thereof. In the case of Malik Shaukat Ali Dogar (supra) this Court held, "that the continued control over the investigation exercised by the Court as in this case was prejudicial to the accused and detrimental to the fairness of the procedure apart from being without jurisdiction". In the case of Brig. (Retd) Imtiaz Ahmad v. Government of Pakistan 'through Secretary Interior Division, Islamabad (1994 SCM R 2142), this Court, while reiterating the legal position made in the above quoted case, observed:--- "

18. The significance of the Above-quoted observations lies in the fact that one of the declarations sought by the petitioner was to direct the Government 'to place all incriminating material before the High Court to enable it to exercise judicial review to ensure that the criminal proceedings are not being initiated for reasons and purposes extraneous to statute'. In other words what the petitioner wanted the High Court to do was to assume the role of Investigator. This could obviously not be done, for the authority to register and investigate a criminal case in law vests in the police and not in Court. We must hold, therefore, that the learned Judges in the High Court were eminently justified in not assuming that role. "

In Mian Khan v. Ghulam Mustafa (1996 SCM R 654), leave to appeal was granted by this Court to consider whether the enquiry initiated by the Anti --Corruption Department was hit by the provisions of sections 70-A and 63, Cooperative Societies Act, 1925. This Court observed:- "In the case before us, there were number of complaints filed by the appellants and others against the respondent. These complaints were being investigated by the Anti-Corruption Department.

Unless these investigations were completed' it was not possible to hold whether the allegations made against the respondent disclosed an offence punishable under the Act or under some other law. We are, therefore, of the view that there was no justification at this stage for grant of any injunction interim or otherwise to stop investigation by respondents Nos.3 to 5 on the ground that Anti-Corruption Department had no jurisdiction to investigate into these allegations. In the absence of any charge framed by the Anti-Corruption Department as a result of its investigation into the complaints, it was not possible for the Court to decide whether section 63 of the Act was attracted or not. The learned High Court, therefore, could not interfere with investigation of the case by the Anti-- Corruption Department. "

Reference may also be made to the case of Shahnaz Begum v. The Hon'ble of the High Court of Sind and Baluchistan (PLD 1971 SC 677), wherein a five --members Bench of this Court, presided by Hamoodur Rahman, C.J., as he then was, after examining the case law on the subject including the case of Khawaja Nazir Ahmad (supra), observed:--- .

"If an investigation is launched mala fide or is clearly beyond the jurisdiction 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 tinder 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."

It would, therefore, be seen that if an investigation is launched mala fide by the Investigating Agencies, the same is open to correction by invoking the constitutional jurisdiction of the High Court under Article 199 of the Constitution.

6. As for mala fide, Mian Nusrat Ullah, learned counsel for the respondents rightly admitted that it had to be alleged and proved specifically. Thus, visualised, in view of allegations of mala fide levelled by the respondents in the writ petition before the High Court, it was not necessary to call for record mentioned in the impugned order dated 12-5-1996 to decide the. Question of mala fides by the learned Judge in Chambers. Guidance may be sought from Federation of Pakistan v. Saeed Ahmad Khan (PLD 1974 SC 151), wherein it was observed:- "Mala fides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it, because, there is, to start with, a presumption of regularity .With regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. As has been pointed out by this Court in the case of the Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), mala fides must be pleaded with particularity, and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched upon merely on the basis of ague and indefinite allegations, nor should the person alleging mala fides be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case. "

7. We are, therefore, of the view that the directions issued by the learned Judge in Chambers for calling for the files of the Anti-Corruption Department in deciding the. Question of veracity of allegations of mala fide, is violative of the law laid down in the case of Saeed Ahmad Khan (supra).

Clearly, the aforesaid instructions are not sustainable in law and are liable to be set aside. As to the investigation which has been stayed by the High Court, learned counsel for the parties are satisfied if the writ petition is decided on merits expeditiously on the basis of material produced by the parties before the High Court, after providing them an opportunity of being heard and in accordance with law.

8. We, therefore, convert this petition into appeal and accept it to the extent of setting aside the directions contained in paragraphs 5 and 6 of the impugned order whereby the High Court has summoned the record relating to the investigation of the case. The result is that the learned Single Judge of the High Court shall decide the writ petition within three weeks from the date of the receipt of this order. If, for any reason, the learned Judge in Chambers, seized of the writ petition, is not available during this period, the learned Chief Justice of the Lahore High Court shall entrust the writ petition for disposal on merits and in accordance with law, to any other learned vacation Judge at Lahore. Needless to say that the parties shall be at liberty to raise whatever pleas available to them, in law, in support of their respective claims. With the above observations the case is remitted to the High Court. There shall be no order as to costs.