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Writ Petition No. 1977 of 1974, decided on 14th November, 1974.

--‑‑Ss. 561‑A & 491 read with Ss. 154 & 156 and Constitution of Pakistan (1973), Art. 199‑Quashment of criminal proceedings‑Habeas corpus‑Writ jurisdiction‑Investigation into offences‑Statutory duty of police‑Restraining police from investigation‑Tantamounts to acting against law‑Not possible to interfere with such right of police by exercise of inherent jurisdiction under S. 561‑A subject nevertheless to Court's right to intervene in appropriate cases under S. 491- Alleged abductee's statement recorded and abductee also medically examined‑No action, held, called for and petition dismissed‑Penal Code (XLV of 1860), S. 363.

Emperor v. Khawaja Nazir Ahmad A I R 1945 P C 18 rel.

Dr. Khalid Ranjah for Petitioner.

Muhammad Abdullah Bajwa for Respondent No. 3 (on 14‑11‑1974).

A. S. Najam, Asstt. A.‑G. for the State (on 14‑11‑1974).

On the 20th of August 1974, Barkha son of Sardar, respondent No. 3, lodged a report at Police Post Kandiwala alleging that his minor daughter, Mst. Kaniz Fatima had been kidnapped and abducted by Ahmad, Sarang, Khushal and Samand, petitioners 1 to 4. A case under section 363, P. P. C. was accordingly registered against them.

2. This application has been moved by the accused and by the alleged abductee, Mst. Kaniz Fatima stating that the case registered against peti tioners 1 to 4 under section 363, P. P. C. be ordered to be struck off and that respondents 1 and 2 who are police officers should be restrained from investigating the case.

3. If on the report made under section 154, Cr. P. C. the facts disclose the commission of an offence, it is the statutory responsibility of the Station House Officer to register the case and proceed to investigate it under the provisions of Chapter XIV of Part 11, Cr. P. C. It was stated in the F. I. R. that Mst. Kaniz Fatima was of 14/15 years of age and that she bad been removed from his custody by the accused without her consent and that they had done so by show of force and by threatening them with dire consequences if they tried to restrain them from taking her away. The act of the Station House Officer in registering the case on the basis of such allegations is unexceptionable.

4. The most important witness in the case was doubtless Mst. Kaniz Fatima. The police could not complete the investigation unless her state ment had been recorded. She has not been produced before the Investigat ing Officer so far and, therefore, it is not justified for the petitioners to complain that the case had been registered against them falsely. It is for the Investigating Officer to collect all the facts connected with the commis sion of the offence and if he submit a report under section 173, Cr. P. C. to the Illaqa Magistrate the other hand, if on the basis of his investigation he is of the an offence has, in fact, been committed, he has to submit a report accord ingly. However, the report of the Investigating Officer is not even an evidence in the case. The investigation is held with a view to ascertaining whether or not an offence has been committed. The inquiry, or trial, as the case may be, has to be conducted by the Magistrate. If the police is restrained, from investigating the matter, which is their statutory duty, it will, in my opinion, be tantamount to acting against the law. In Emperor v. Khawaja Nazir Ahmad (A I R 1945 P C 18) it was held : "Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance 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 India there is a statutory right on the part of the police under sections 154 and 156, to investigate the circumstances of an alleged cognizable crime without requiring any authority ,I from the judicial authorities, and it would be an unfortunate result if should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court under section 561‑A. The function of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always of course subject to the right of the Court to intervene in an appropriate case when moved under section 491, Criminal P. C., to give directions in the nature of habeas corpus. In the case of a cognizable offence, the Court's functions begin when a charge is preferred before it and not until then and, therefore, the High Court can interfere under section 561‑A only when a charge has been preferred and not before. As the police have under sections 154 and 156, a statutory right to investigate a cognizable offence without requiring the sanction of the Court to quash the police investigation on the ground that it would be an abuse of the powers of the Court would be to act on treacherous grounds." The proper course, in the circumstances for the petitioners was to have produced Mst. Kaniz Fatima before the police for the purposes of her statement, which was not done.

5. The petition has no merit and is dismissed accordingly.

A case under section 363, P. P. C. was registered at Police Post, Kandi wala on the report of Barkha son of Sardar, caste Nissoana, resident of Dingha, Tehsil Chiniot, District Jhang, against Abroad, Sarang, Khushal and Samand residents of Dingha, Tehsil Chiniot, District Jhang. It was alleged in the F. I. R. that they had forcibly kidnapped the daughter of the complainant, namely, Mst. Kaniz Fatima. She is present in Court under my orders. She has not appeared before the police so far and has been with Ahmad and others, accused, all along, with the result that the investigation could not be completed. It is, therefore, necessary that her statement should be recorded. The accused have no objection to her being lodged in Daarul Amaan. Mr. Abdus Sattar Najam, learned Assistant Advocate‑General, Punjab, who is present in Court, has been asked to contact the Investigating Officer so that he should record her statement in Daarul Amaan in the presence of the Lady Superintendent. It shall also be competent for the Investigating Officer to have her medically examined, for the purposes of ascertaining her age etc. The Assistant Advocate‑General, after her state ment is recorded, shall submit a report so that further orders are passed in the matter.

2. If the accused or Mst. Kaniz Fatima apply for any copy of an affidavit which they had filed in Writ Petition No. 1977 of 1974, the same shall be supplied with a clear endorsement on it that such an affidavit was not considered for the purposes of the decision of the Writ Petition nor it was ascertained whether or not the statement made therein was voluntary one, Mr. Munir Ahmad Bailiff has produced Mst. Kaniz Fatima from Daarul Amaan. Her statement has been recorded by the Investigating Officer and she has also been medically examined. Let her statement be recorded.

Statement of Mst. Kaniz Fatima wife of Ahmad, caste Nissoana, resident of Dingha, Tehsil Chiniot, District Jhang, on S. A:

The Investigating Officer has recorded my statement. I have also been medically examined. I want to live with my husband.

Ahmad etc. moved Writ Petition No. 1977 of 1974 alleging that the case registered against petitioners 1 to 4 under section 363, P. P. C. be ordered to be struck off and that respondents 1 and 2 who are police officers should be restrained from investigating the case. I passed an order on the 31st of October 1974, dismissing the writ petition. However, since the police were to investigate the matter and Me. Kaniz Fatima was in the Court I thought it proper that the investigation should be completed because she may otherwise not be available. I, therefore, directed that Mst. Kaniz Fatima should be lodged in Daarul Amaan. It has now been reported that her statement has been recorded. She has also been medically examined. No further action is called for.

Petition dismissed.

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