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Civil Petition for Special Leave to Appeal No. 68 of 1968, decided on 29th October 1968.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 23rd October 1967, in Writ Petition No. 1965 of 1964).
Art. 98‑High Court in exercise of writ jurisdiction quashing a criminal prosecution by calling for original files from Civil Courts and after examining records holding that there was not an iota of evidence to support allegations‑Questions whether High Court under Art. 98 could convert itself into an investigating agency and quash prosecution Special Leave to Appeal granted by Supreme Court to consider question.
Emperor v. Nazir Ahmad A I R 1945 P C 18 ref.
Muzafar Ahmad, Advocate Supreme Court instructed by M. Siddiq, Senior Attorney for Petitioner.
Muhammad Hussain Choudhury, Advocate Supreme Court instructed by Masud Akhtar, Attorney for Respondent No. 1.
Nemo for Respondents Nos. 2 to 5.
Date of hearing : 29th October 1968.
This is a petition for special leave to appeal from the judgment of a Division Bench of the High Court of West Pakistan holding under Article 98 of the Constitution that the registration of a criminal case against the respondent Haji Muhammad Yousuf by the Special Police Establishment, Lahore was without lawful authority and without jurisdiction and directing the said Police Establishment not to proceed with the investigation any further.
The learned counsel appearing in support of the petition contends that the High Court has clearly exceeded its jurisdiction under Article 98 of the Constitution by itself undertaking the investigation of the case. It is contended that under sections 154 and 157 of the Criminal Procedure Code the Police has a statutory right to make investigation and if it has bona fide started an investigation of a cognizable case in the lawful exercise of its powers, the High Court could not deprive the police of these powers and take upon itself to decide as to whether there was any case to investigate or not.
It does appear that in this case the High Court actually went to the extent of calling for the original files from the Civil Courts of Lahore to satisfy itself whether in fact the allegation made against the said respondent "bears any substance" and after such examination came to the conclusion that there was not an iota of evidence to support the allegation of tampering with the said records of the Civil Court. Hence the entire action was mala fide and upon wholly illusory grounds.
The question is whether the High Court could do so under Article 98 of the Constitution, by converting itself into an investigating agency, when it could not do so under section 561‑A of the Criminal Procedure Code, as was pointed out by the Privy Council in the case of Emperor v. Nazir Ahmad (A I R 1945 P C 18).
The question of law raised in this petition is a question of general public importance, affecting the jurisdiction of the High Court under Article 98 of the Constitution. We are of the opinion that this needs consideration. Leave is, accordingly, granted to examine the above question. Security‑Rs. 1,000.
Leave granted
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