Find a Lawyer

Writ Petition No. 1276 of 1986, heard on 23rd December, 1986.

---Art. 199--Criminal Procedure Code (V of 1898), Ss.156 & 551- Transfer of investigation in criminal case--Jurisdiction of Chief Minister as Chief Executive of Province--Criminal case registered at District (3 ordered by Chief Minister to be re-investigated by Superintendent of Police of- District K--Superintendent of Police obtaining further orders from D.I.-G. for investigation of case--D.I.-G. of L District permitting to comply with direction of Chief Minister--District G falling out of territorial jurisdiction of L Range--Order of D.I.-G. of L District found to be nullity in eye of law--Chief Minister as Chief Executive of Province, held, was not conferred with powers to transfer investigation of criminal cases from one Police Officer to another under Constitution or Punjab Government Rules of Business or Criminal Procedure Code--Order of Chief Minister transferring investigation was, therefore, coram non judice without jurisdiction and of no legal effect.

---S. 540--Summoning of witness--Application of accused allowed by Additional Sessions Judge to summon Police Officer re-investigating the case under orders of Chief Minister--Order of Chief Minister found to be coram non judice--Order of Additional Sessions Judge summoning Police Officer to express his opinion on basis of investigation conducted by him in pursuance of order of Chief Minister, held, was not legally sustainable.

Ch. Liaquat Ali for Petitioner.

Tanvir Ahmad,Add1.A.-G. for Respondents Nos. 1 to 3.

R.A. Awan for Respondent No.4.

Date of hearing: 23rd December, 1986.

Mazhar Hussain Bhatti respondent No. 4 herein, submitted an application before the Chief Minister Punjab, seeking transfer of investigation pertaining to murder case arising out of F.I.R. No. 33/85, dated 25-3-1985, registered at Police Station Pindi Bhattian, District Gujranwala, under section 302/34/109, P.P.C. from Gujranwala police to Superintendent of Police Kasur, namely Mr. Ahmad Nawaz Khan Niazi. On 18-1-1986, the Chief Minister passed an order that Mr. Ahmad Nawaz Khan Niazi, S.P. Kasur might look into the investigation for appropriate action. The order of the Chief Minister was conveyed by his Secretariat to Mr. Ahmad Nawaz Khan Niazi, vide No. S.O. (P) 1-11/85/386 of even date. Consequently Mr. Ahmad Nawaz Khan Niazi collected the relevant records of investigation from Gujranwala police and. conducted re-investigation into the case.

2. The present constitutional petition has been filed by Mast Khan, the complainant of the aforementioned murder case, assailing the ordered of the worthy Chief Minister Punjab.

3. It has been contended that the Chief Minister, though a Chief Executive of the Province, had no jurisdiction /power to order re-investigation of the case by Mr. Ahmad Nawaz Khan Niazi, respondent No.1 herein. It has been averred that transfer of investigation from one Police Officer to another could only be order by superior Police Officers having jurisdiction in the matter.

It appears that in the meantime, the trial of the case commenced before a learned Additional Sessions Judge, Gujranwala, as on the basis of the investigation conducted by the local police, report under section 173, Cr.P.C. had already been submitted. In the said trial, after the prosecution closed its case, an application was submitted by the accused under section 540, Cr.P.C. requesting the learned trial Court to summon and examine Mr. Ahmad Nawaz Khan Niazi, as C.W., so that he could make a statement in regard to the re-investigation which he conducted into the case pursuant to the order of the Chief Minister. The application of the accused was allowed by the learned trial Judge on 8-9-1986. The said order passed by the learned Additional Sessions Judge, Gujranwaia, was called in question before this Court, through Criminal Revision No. 426 of 1986, which also stands admitted to regular hearing. As an interim measure it has been ordered that pending disposal of the revision petition, the learned Additional Sessions -Judge, Gujranwala, shall not record the statement of Mr. Ahmad Nawaz Khan Niazi, S . P . Kasur under section 540, Cr. P. C .

4. The writ petition as also the aforementioned criminal revision shall be disposed of by this judgment.

5. In the writ petition, written statement and written reply hive been filed by Mr. Ahmad Nawaz Khan Niazi, as well as by Mazhar Hussain Bhatti respondent No.4.

It has been maintained on behalf of respondent No. 4 that in his capacity as Chief Executive of the Province, the Chief Minister has full powers to pass an order transferring investigation of a criminal case from one Police Officer to another Police Officer in the Province. It has, however, been pleaded by Mr. Ahmad Nawaz Khan Niazi and his plea has been supported by the learned Additional Advocate-General, representing the Chief Minister Punjab that, as a matter of fact, the Chief Minister did not per se order the transfer of investigation of the case to Mr. Ahmad Nawaz Khan Niazi. Since Mr. Ahmad Nawaz Khan Niazi had previously been the Superintendent of Police, Gujranwala, he had earlier conducted- investigation in the matter and, therefore, he was asked by the Chief Minister only to look into the investigation. It has further been urged that after receipt of order from the Chief Minister's Secretariat, Mr. Niazi approached the Deputy inspector-General of Police, Lahore soliciting his orders in the matter and that the then D.I.-G. Lahore Range, Lahore, vide orders, dated 20-2-1986, permitted Mr. Niazi to comply with the orders of the Chief Minister and thereafter, he collected the records of investigation from the Gujranwala police.

6. The investigation of a criminal case is regulated by the provisions contained in Chapter XIV of the Code of Criminal Procedure. Under section 3.56 ibid any officer incharge of a police station can investigate a cognizable case without the order of a Magistrate relating to his police station. A subordinate Police Officer can also be asked to conduct investigation but in that eventuality he (subordinate Police Officer) has to report the result of such investigation to the officer incharge of the police station.

Under section 551, Cr.P.C. Police Officers superior in rank to an officer in charge of police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station. Thus, a Superintendent of Police can investigate himself into a cognizable offence or he can depute another Police Officer subordinate to him in the district to conduct investigation in such a case. Similar powers can be exercised by the D.I.-G Police, within his range. The I.-G. Police can also exercise such powers for the entire Province. The provisions of Police Act and the Rules made thereunder take care of the manner and procedure in accordance with which such powers are to be exercised. No provisions of the Code of Criminal Procedure or that of the Polices Act and the Rules made thereunder confer any power on the Chief Minister of a Province to order the transfer of investigation of a criminal case from one Police Officer to another Police Officer.

7. As already stated, respondent No.1 and the learned Additional Advocate-General wanted to justify the investigation' of the case by respondent No.1 on the ground that he did not act pursuant to the order of the Chief Minister simpliciter but he obtained orders in this behalf from his D.I.-G. He has no doubt been permitted by the D.I.-G. Lahore Range, Lahore to comply with the direction of the Chief Minister, but we cannot lose sight of the fact that the criminal case in question pertained to Gujranwala District, which was not within the territorial jurisdiction of D. I.-G. , Lahore Range. He could not, therefore, order the transfer of investigation of a case pertaining to Gujranwala district to the S.P. Kasur. Such an order could be passed only by the I.-G. Police, Punjab. The order passed by the D.I.-G. Lahore is, therefore, a nullity in the eye of law. Under the Constitution as also under the Punjab Government, Rules of Business, no power has been conferred on the Chief Minister as Chief Executive of the Province, to pass orders regarding transfer of investigation of criminal cases from one Police Officer to another Police Officer.

8. In the light of the above discussion, the impugned order passed by the worthy Chief Minister Punjab is held to be coram non judice. In this view of the matter, the writ petition is allowed and the impugned order passed by the Chief Minister Punjab ordering the re-investigation of the case by Mr. Ahmad Nawaz Khan in Niazi, S.P. Kasur, is declared to be without jurisdiction and of no legal effect. There shall, however, be no order as to costs.

9. Since the order passed by the Chief Minister transferring investigation of the case from Gujranwala police to Mr- An Nawaz Khan Niazi, S.P Kasur, has been held to be coram non judice and without lawfully authority, therefore, the result of investigation, B' any, conducted by Mr. Ahmad Nawaz Khan Niazi, as S.P. Kasur, pursuant to the aforementioned order of the Chief Minister cannot lawfully be taken into consideration. The order, dated 8-9-1986, passed by the learned Additional Sessions Judge, Gujranwala, whereby he allowed the application of the accused under section 540, Cr. P. C. and summoned Mr. Ahmad Nawaz Khan Niazi as C.W. to express his opinion in the case on the basis of investigation conducted by him is not legally sustainable. The criminal revision is, therefore, also allowed and the impugned order is set aside.

The learned trial Judge, however, is at liberty to examine Mr. Ahmad Nawaz Khan Niazi, as C.W. to make depositions on the basis of investigation, if any, conducted by him while posted as S.P. , Gujranwala.

S.A. Petition accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.