2023 SCMR 2058
Sheikh HUMAYUN NAZIR vs State
Ss. 155(2), 156(3) & 159---Non-cognizable cases---Investigation---Magistrate, powers of---Scope---Section 155(2) Cr.P.C. does not expressly confer power on a Magistrate to order an investigation in a non-cognizable offence as is given by section 156(3) & section 159, Cr.P.C.---Police may report for an order under section 155(2), Cr.P.C. and the Magistrate can order for the investigation---Magistrate, however, has to apply his mind to the facts and before passing the orders has to see whether there are reasonable grounds for believing that an offence has been committed---Fact whether there are reasonable grounds for believing that an offence has been committed, is a very material circumstance to be taken into account in deciding whether an investigation should be ordered---Magistrate must apply his judicial mind to satisfy himself that reasonable grounds exist for believing that an offence has been committed before he orders such type of investigation---If he does not do so, he would be acting arbitrarily in ordering an investigation---Order to investigate is an important matter and it must precede the investigation by the Police Officer---Magistrate has unfettered discretion to grant or refuse the order for any reason that he deems appropriate---In order to perform the function of granting or withholding permission to investigate, the Magistrate must have a thorough understanding of the facts of the case.
Intra Court Appeal---Constitutionality---Intra Court appeal filed before a Division Bench of the High Court against a decision made by a Single Judge in a Constitutional petition filed under Article 199 of the Constitution---Whether a remedy of appeal could be provided to an aggrieved person either through an Ordinance (i.e. Law Reforms Ordinance, 1972) or parliamentary legislation in respect of matters decided under the jurisdiction conferred upon a Court under Article 199 of the Constitution---[Per Jamal Khan Mandokhail, J: Present issue is a constitutional issue regarding the provision of statutory right of appeal through the Ordinance against the order of a High Court passed under Article 199 of the Constitution and is also a matter of public importance---His Lordship issued notices to the Attorney General for Pakistan, the Advocate General, Islamabad, the Prosecutor General, Islamabad and the Advocate General, Punjab as provided by Order XXVII-A of the C.P.C., and also to the State---As the issue involved in present petition is identical to the issue involved in certain other Constitutional petitions, therefore, let the matter be placed before the Chief Justice to pass an appropriate order as to whether this case be heard along with said petitions or otherwise]---[Syed Hasan Azhar Rizvi, J. dissenting: Clause (2) of Article 175 of the Constitution provides that "no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law"---Supreme Court and the High Courts have been established by the Constitution; they have such jurisdiction as has been conferred upon them by the Constitution, and also such other jurisdiction as is or may be conferred upon them by or under any law---Expression 'law' here has been used to distinguish it from 'Constitution' and obviously means an ordinary or sub-Constitutional law made in the exercise of the powers granted by the Constitution---Law Reforms Ordinance, 1972 was promulgated on 14.04.1972---Later, it was validated through Article 269 of the Constitution---Despite lapse of more than fifty years from the promulgation of the Ordinance, no question qua the legality of the Ordinance has been raised by any party, lawyer, any High Court or the Supreme Court---This question has also not been raised in the present case but it has been taken up by the other Member of this Bench (i.e. Jamal Khan Mandokhail, J) on his own---Such question is not related to the issue involved in this case, and thus, it cannot be brought under debate, nor can any conclusion be drawn thereon---Further, the case in hand is required to be decided first instead of referring such a delicate constitutional question to the Chief Justice which has not been raised before us and which could be decided in any other appropriate proceedings].
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