ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

C.P. No.D-709 of 2013

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Date Order with signature(s) of Judge(s)

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1) For orders on Misc. No.4132/2013

2) For Katcha Peshi

3) For hearing of M.A. No.2912/2013

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06^th March, 2013

Mr. Sheikh Javed Mir, Advocate for the Petitioner.

Mr. Ali Haider Saleem, A.P.G. along with Raja Umar Khattab, SSP, CID, Inspector Fayaz Qadri, Inspector Mumtaz Ali of CID and Inspector Suhail Ahmed Khan, SHO P.S. Gizri.

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Through this Constitutional Petition filed on 21^st February 2013, the petitioner Hamida Fatin Niazi seeks the following reliefs:

(a) Quash the FIR No.55/2013 u/s 324/34 PPC at PS Gizri and FIR No.72/2013 u/s 3/4 Explosive Act r/w section 7 Anti-Terrorism Act, 1997; alternatively, direct that an officer not below the rank of DIG to independently and impartially investigate the FIR No.55/2013 u/s 324/34 PPC at P.S. Gizri and FIR No.72/2013 u/s 3/4 Explosive Act r/w section 7 Anti-Terrorism Act, 1997 PS Gizri.

(b) Restrain the respondents, their servants, agents and people working under or through them not to arrest the petitioner’s husband Lt. Col. (R) Asad Alam Niazi in FIR No.55/2013 u/s 324/34 PPC at P.S. Gizri and FIR No.72/2013 u/s 3/4 Explosive Act r/w section 7 Anti-Terrorism Act, 1997 PS Gizri or from registering any fresh FIR against her husband without permission of this Court.

(d) Any other relief this Honourable Court deems fit in the circumstances of the case.

2. It is the case of the petitioner that her husband Asad Alam Niazi is retired Army Colonel of Pakistan Army and is doing his private business. There is a substantial amount which one Eshwar Lal son of Treekam Das has to pay to the petitioner’s husband and other people as the said amount was obtained by him for investment in his company. It is stated that Eshwar Lal in order to usurp the said amount of the husband of the petitioner lodged FIR No.55/2013 u/s 324/34 PPC on 09.02.2013 at P.S. Gizri against the petitioner’s husband. At the time of alleged incident the petitioner has stated that her husband was having dinner at house with Senator Nawab Akbar Magsi, Federal Minister Mir Israrullah Zehri and others. Thereafter, Eshwar Lal through his brother Mahesh Kumar lodged another FIR No.72/2013 under section 3/4 Explosive Act r/w section 7 Anti-Terrorism Act, 1997 on 18.02.2013 at P.S. Gizri, alleging therein that petitioner’s husband was present outside the house of Mahesh Kumar on 17.02.2013 at 21.45 hours and on his instigation a cracker was thrown in his house. Petitioner has mentioned that at the given time of incident in the second FIR, petitioner’s husband had already travelled to Dubai via Emirates Flight 607. It is stated that on 18.02.2013 respondent No.1 and 2 raided the house of the petitioner at 02:00 a.m. along with Eshwar Lal, Mahesh Kumar and about 40 police personnel and they took away the cash of Rs.1 Million, jewellary of about Rs.4 Million, watches worth about Rs.2 Million, two rifles, two shotguns and one Toyota Camry car. It is stated that official respondents are acting on the dictation of Eshwar Lal who is supported by Asad Ali Shah son of Qaim Ali Shah and they are totally bias against the petitioner and her husband. Petitioner has further stated that her husband is at Dubai, he is being harassed and would be arrested when he arrived at Karachi Airport.

3. Notices were issued to the respondents as well as prosecutor general Sindh. Comments have been filed by respondents Nos.4 and 6 in which allegations of the petitioner have been denied and it is stated that two FIRs have been lodged by private persons against the husband of petitioner and investigation has been transferred to CID and case files have been handed over to CID for further investigation. Raja Umar Khitab, Incharge CID effected his appearance and stated that he requires time for completion of the investigation as main accused Asad Alam Niazi has left the country.

4. Mr. Shaikh Javed Mir, Advocate appearing on behalf of the petitioner has contended that investigation of both FIRs has been transferred to Raja Umer Khattab, Incharge C.I.D., with mala fide intention and it is being done with bad faith. The husband of the petitioner was out of country at the time of registration of FIR No.72/2013 lodged at P.S. Gizri. Plea of alibi is not being considered. It is argued that at least investigation may be transferred from Raja Umer Khattab of CID, to an independent investigating officer. In support of his contentions he relied upon the case of Ghulam Sarwar Zardari versus Piyar Ali alias Piyaro, reported in 2010 SCMR 624.

5. Mr. Ali Haider Saleem, A.P.G. argued that both the FIRs are under investigation, prima facie, cognizable offences are made out, no specific malafide has been pointed out against Raja Umer Khattab of C.I.D., who is investigation officer of both the cases. He has also argued that High Court has no power to interfere in the investigation.

6. We have heard the learned counsel for the parties and perused the relevant record.

7. Firstly, we will dilate upon the powers of the High Court in exercise of constitutional jurisdiction regarding transfer of investigation. In the case of Ghulam Sarwar Zardari versus Piyar Ali alias Piyaro (2010 SCMR 624) Honourable Supreme Court of Pakistan was pleased to observe as under:

“13. It is clear from the above definition that if the investigation is launched in bad faith out of personal motives either to hurt the accused or to benefit oneself or in colourable exercise of powers not authorized by the law under which the action is taken or action taken in fraud of the law then it comes within the scope of mala fide. The fraud of the law or colourable exercise of powers amounts to abuse of the process of law.

14. In view of the above position, the investigation can be corrected and necessary orders can be passed if the aggrieved party alleges and proves one or other of the following conditions:

(1) investigation initiated beyond the jurisdiction of Investigating Agencies;

(2) investigation initiated with mala fide intention;

(i) in bad faith out of personal motives either to hurt the person against whom the action is taken or to benefit oneself;

(ii) in colourable exercise of powers;

(iii) not authorized by the law under which the action is taken;

(iv) action taken is fraud of the law; and

(v) abuse of the process of law.

8. In view of the above legal position, we are clear in our minds that High Court can exercise writ jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to correct the investigation if conditions as laid down in the case of Ghulam Rasool Zardari referred to above are fulfilled. In the present case, all of sudden investigation of the aforesaid FIRs has been transferred to Raja Umer Khattab, Incharge CID. Till today, he has failed to examine the plea of alibi raised by the petitioner. It is also contended that police has conducted raids upon the house of the petitioner to cause harassment, humiliation and took away valuable articles. Apparently, it is colourable exercise of powers. This Court has jurisdiction in the matter to correct investigation and to pass necessary orders. In the above stated circumstances, it is observed that a fair investigation and due process is right of accused Asad Alam Niazi. Therefore, Inspector General of Police Sindh, Karachi is directed to transfer the investigation of the above said FIRs to the Deputy Inspector General of Police Sindh, Karachi, who will conduct a fair investigation in accordance with law. The husband of the petitioner shall not be arrested till some tangible material is collected against him during investigation.

In the foregoing terms, the petition is accordingly disposed of.

JUDGE

Gulsher/PA