MUHAMMAD ASLAM vs DEPUTY COMMISSIONER, SIALKOT and 2 others
This Intra-Court Appeal challenged an order dismissing a writ petition, which had sought to set aside a Deputy Commissioner's directive to register a criminal case against the appellant. The appellant argued that the case registration was illegal, violated the principle of double jeopardy under Article 13 of the Constitution of Pakistan 1973, and was initiated malafidely without notice or proper inquiry. The core legal question was whether the High Court, in its constitutional jurisdiction, could interfere with an ongoing investigation or the registration of a criminal case at a preliminary stage. The Court held that the High Court lacks jurisdiction to assume the role of an investigating agency or interfere with the investigative process, which is a preliminary stage of criminal proceedings. The Court affirmed that 'prosecution' implies judicial determination, not mere investigation. While dismissing the appeal, the Court emphasized that the investigating agency has a dual duty: to investigate the offence and to uncover the truth to protect innocent persons from unnecessary agony. Consequently, the Court directed the investigating agency to record the appellant's counter-version before proceeding in accordance with the law.
- Can the High Court interfere with the registration of a criminal case at the preliminary investigation stage?
- Does the High Court have the jurisdiction to assume the role of an investigating agency?
- Is the registration of a criminal case considered 'prosecution' for the purposes of Article 13 of the Constitution of Pakistan 1973?
- What is the duty of an investigating agency regarding the counter-version of an accused person?
- Article 13, Constitution of Pakistan 1973
- Section 3(2), Law Reforms Ordinance 1972
- Rule 6, Punjab Anti-Corruption Rules 1985
' CH. IJAZ AHMAD, J.---The appellant filed W.P No,9546 of 1995 with the following prayer: "It is, therefore, respectfully prayed that the order dated 22-6-1995, may kindly be declared as illegal, ultra vires, not binding upon the right of the petitioner, of no legal effect and may kindly be ordered to be set aside."
' The aforesaid writ petition was dismissed by the learned Single Judge vide impugned order dated 25-7-1995. Hence the present Intra-Court Appeal.
2. Learned counsel of the appellant submits that the inquiry was conducted on the direction of the Deputy Commissioner and after conclusion of inquiry proceedings were ordered to be dropped as provided by rule 6 of the Punjab Anti-Corruption Rules, 1985. He further submits that on the application of the respondent the inquiry was initiated and the same was dropped under the order of the Deputy Commissioner. Therefore, the order of the respondent that the case be registered against the appellant is hit by Article 13 of the Constitution. He further submits that aforesaid action was taken against the appellant without associating the appellant and without issuing any notice to the appellant. He further submits that Deputy Commissioner was not justified to order registration of a case against the appellant without calling fresh report in presence of the earlier reports. He further submits that proceedings were initiated against the appellant malafidely under the influence of the local M.P.A. He further submits that second inquiry ordered by the Deputy Commissioner is not valid in the eyes of law and this fact was not considered by the learned Single Judge in the impugned order. In support of his contention he relied upon Turaj Ahmad Khan v. D.I.- G. Police PLD 1982 Lah.464. He further submits that the third application of the private respondent against the appellant is frivolous in character. Therefore, the same is liable to be dismissed by the Deputy Commissioner. In support of his contention he relied upon Anwar Ali Khan v. Wahid Bux 1991 SCMR 1608. Learned counsel of the respondent submits that impugned order is valid and the Intra- Court appeal is not maintainable in view of proviso of section 3(2) of Law Reforms Ordinance, 1972.
4. We have considered the contentions of the learned counsel of the parties and perused the record ourselves. It is better and appropriate to reproduce the operative' part of the impugned order to resolve the controversy between the parties:-- "None has been alleged in this case nor I find, after perusal of the record, any substance in the same. Investigation being always in the nature of an enquiry, the accused has to face the same. It is not the case of the petitioner that the authority directing registration of the case has in law, no power to do so."
' The aforesaid operative part of the order reveals that the matter is still at a preliminary, stage.
Therefore, this Court has no jurisdiction to entertain the Constitutional petition. It is pertinent to mention here that our Constitution is based on trichotomy as per principle laid down by the Honourable Supreme Court in Zia-ur-Rehman's case PLD 1973 SC 49. This Court has only jurisdiction to interpret the law and has no jurisdiction whatsoever to take the role of the Investigating Agency.
The contention of the learned counsel of the appellant has no force in view of the law laid down by the superior Courts in the following judgments:--
(1) Naqibullah and another v. The State (PLD 1978 SC 121).
(2) Muhammad Abbas v. The State (PLD 1990 SC 642), and
(3) Ismail A. Rehman v. Muhammad Sadiq (PLD 1990 Karachi 286).
' The ratio of the aforesaid judgments is that- the word "prosecution" means judicial determination of the guilt or innocence of the accused. In this view of the matter, the judgment relied upon by the learned counsel of the appellant is not attracted to this case. It is pertinent to mention here that it is not the duty of the Investigating Agency to investigate the matter in such a manner to connect the accused persons with the offence but it is also the duty of the Investigating Agency to bring the truth on the surface to save the innocent persons from agony of endless investigation and trial. In this view of the matter the Investigating Agency is directed to record counter-version of the appellant and then proceed in the matter in accordance with law.
' With these observations this Intra-Court appeal is disposed of.