' KHAWAJA MUHAMMAD SHARIF, J.--- Through this constitutional petition, petitioner has called in question the impugned order, dated 12-5-2005 passed by the learned Judicial Magistrate 1st Class, Lahore, whereby, after agreeing with the report prepared by the police, he cancelled the case registered vide F.I.R. No,531 of 2004 under sections 420/468/471/406, P.P.C., Police Station Chuhng, Lahore.
2. Learned counsel for the petitioner, in support of this petition, contends that the petitioner is a bona fide purchaser of the Plot 5-A in the Pioneer Housing Society, Thokar Niaz Beg, Lahore, on 5-1- 1987 and paid Rs,3,20,000 through Bank that on 8-11-2004, before raising construction, he approached the office of the Pioneer Housing Society but record was not shown to him whereafter he started raising boundary wall; that on 25-11-2004 some persons demolished the outer wall and tried to take forcible possession of the said plot; that the petitioner made a call on Emergency "15", police reached the spot and stopped the respondents from taking over forcible possession; that at the site respondent No,7 told him to be owner of the said plot but could not show any document; that thereafter the said respondent showed him a photostat copy of a registered sale-deed that the said plot was purchased by him through respondent Ch. Muhammad Khan Shaikhu who claimed himself the Director of the said Society; that the petitioner filed petition under sections 22- A/22-B, Cr.P.C. In which respondent S.H.O. Filed a detailed reply. In paragraph 4 of the said reply, at page 18 of this file, the S.H.O. Reported that there were many contradictions in the sale agreement which created doubts about its veracity i,e, the plot in question was stated to be purchased in the sum of Rs,1, 40,000 while the stamp duty was stated paid at Rs,26, 00,000, Ali Akbar Anjum in his statement stated the purchase amount as Rs,48,00,000 and the stamp papers were purchased from Sheikhupura and not Lahore without any cogent reason. The S.H.O. Concluded that fraud was committed by both the respondents in connivance with each other which led to registration of instant case; that in support of his case he has placed on record of this petition documents i,e, Annexure "D.1" (page 20) which is signed by General Manager of the Society with his full signatures while the document allegedly prepared by the respondents bear only initial of the G.M.; that Annexure "D.2" is proof of purchase/adjustment of the plot; that the fraud committed by the respondents is reflective of the fact that all the transactions of the Society are made through Transfer Letters and not sale-deed as has been done in the instant case; that he has placed before this Court attested copies of two F.I.Rs, i,e, F.I.R. No,611 of 2005 dated 5-11-2005, under sections 467/471/420, P.P.C. Lodged by Mr. Muhammad Ilyas Khan, Senior Advocate while F.I.R. No,204 dated 20-5-2005 under sections 419/420/468/471, P.P.C. Lodged by Ijaz Ahmad Khan, Advocate both at Police Station Chuhng, Lahore, qua commission of frauds by the respondents with other people; that the petitioner produced the whole record of the Society before the police but the same was misplaced by the police intentionally and that the impugned order be set aside. In support of the afore-referred submissions, learned counsel has relied on the precedent case-law reported in PLD 1985 SC 62, 1998 PCr.LJ 56 and 1991 PCr.LJ 62.
3. On the other hand, Malik Abdul Salam, Advocate for respondent No,6 Ch. Muhammad Khan Shaikhu, while defending the impugned order, submits that investigation in the case was totally in accordance with law; that the S.S.P. (Investigation) ordered for cancellation of the case after having gone through the record and the papers on the police file; that the said respondent produced the record of the Society before the Investigating Officer and there was no mala fide on the part of his client; that the plot in question was purchased by the petitioner in 1987 who paid Rs,50,000 only, he was asked to deposit the remaining money within two months but failed, accordingly the plot was cancelled from his name, petitioner kept silent for a long period of seventeen years and in 2004 the plot in question was sold to respondent Ali Akbar Anjuum and when the said respondent started raising construction and the rate of the plot had gone very high petitioner started proceeding against the respondents; that then the petitioner lodged the instant case and that both the parties are pitted against each other in the Civil Court. He has relied on PLD 1985 SC 62.
4. While defending the impugned order, Mr. Salman Mansoor, Advocate/learned counsel for respondent No,7 Ali Akbar Anjum, submits that he is a bona fide purchaser of the plot in question, payment was made to Ch. Muhammad Khan Shaikhu through Bank, registered sale-deed was completed, mutation was entered, respondent had filed a suit for permanent injunction on 27-11- 2004, respondent had been appearing before the Investigating Officer and pleaded his case, the police had collected the material and then came to the conclusion that no case was made out and that there is no irregularity in the impugned order and this petition is liable to be dismissed.
5. While assisting the Court on behalf of the State, the learned Additional Advocate-General Punjab, Ch. Muhammad Hanif Khatana has formulated the following three questions out of the contentions raised by the learned counsel for the respective parties:--
(i) Whether the investigation has been conducted in accordance with law?
(ii) Whether the report for cancellation of the case was prepared as per direction of the Investigating Officer? And
(iii) Whether the order for cancellation of the case is based on sound reasons in the light of findings of the Investigating Officer?
' Elaborating the above questions, the learned Additional Advocate-General submits that A.S.-I.
Jameel took up investigation of the case; that before he reached at a definite conclusion, D.I.-G.
Lahore, on the application of respondent Ali Akbar Anjum ordered D.S.P. (Investigation) Chuhng to verify the investigation which direction was not covered by Article 18(6) of the Police Order, 2002; that the order of C.C.P.O. Lahore, dated 15-1-2005 read as under:-- "Please verify the investigation of the subject case personally and finalize the same expeditiously on merit under intimation to this office."
' Learned counsel advancing arguments, further argued that the said D.S.P. Started investigation and wrote only one Zimini and had still not formed his opinion when again on the application of respondent Ali Akbar Anjum, the D.I.-G. Lahore asked the S.S.P. (Investigating), Lahore, to personally investigate the case; that the order dated 31-1-2005 issued by C.C.P.O., Lahore reads as under:--- "Please investigate the subject case personally and finalize the same expeditiously on merit under intimation to this office. Application in original is enclosed."
' That the said order is too violative of Article 18(6) of the Police Order, 2002; that pursuant to the above direction the S.S.P. (Investigation) referred the matter to his P.S.O. Ahmad Saleem to produce parties before him; that the whole investigation was conducted by P.S.O. Ahmad Saleem on behalf of S.S.P. (Investigation), Lahore; that the said Ahmad Saleem wrote last Zimini on 17-2-2005 to the effect that since record relating to year 1987 was not produced before him and since matter was pending in the Civil Court, so, the matter should be kept pending, the police file should be kept in the police station and the report under section 173 should be submitted in the light of the decision to be delivered by the learned Civil Court; that the S.S.P. (Investigation) only wrote a short Zimini agreeing with the opinion of his P.S.O. And that A.S.-I. Jameel prepared the cancellation report in violation to the above direction. At this stage, the learned Law Officer has brought into the notice of this Court that according to the A.S.-I. Jameel present in Court today, the cancellation report was prepared in compliance to a verbal direction to the S.S.P. (Investigation) which verbal direction, according to the A.S.-I., was reduced into writing in the form of a Zimini. The learned Additional Advocate-General, while concluding his arguments submits that the investigation was not conducted in accordance with the mandatory provisions of law, the learned Judicial Magistrate while passing the impugned order did not apply his independent judicial mind and has passed the same without going through the police file and the impugned order is not sustainable in law.
6. I have heard learned counsel for the parties, have given anxious consideration to their exhaustive submissions made at the bar and have also, gone through the record with the assistance of the learned Additional Advocate-General Punjab, Ch. Muhammad Hanif Khatana coupled with perusal of the impugned order. I have also gone through the precedent case-law quoted by the parties.
7. Although the petitioner has produced sufficient material on the file to substantiate his case but being in writ jurisdiction I shall avoid to give any finding on merit of the case, so that the case of either party may not be prejudiced. Admittedly, after registration of the case, an A.S.-I. Jameel Akhtar of local police started the investigation who did not reach any conclusion when the D.I.- G./C.C.P.O., Lahore in violation of Article 18(6) of the Police Order, 2002 asked the D.S.P.
(Investigation) Chuhng to verify the investigation, the said D.S.P. In turn, started investigation but did not reach any conclusion, and once again on the application of accused Ali Akbar Anjum the D.I.-G./C.C.P.O. Lahore vide order, dated 31-1-2005 handed over the investigation to S.S.P.
(Investigation) and specifically asked to personally investigate the matter, although this order was again in clear violation of Article 18(6) of the Police Order, 2002 but this was not at all complied with by S.S.P. (Investigation). The record shows that S.S.P. Instead handed over the investigation to his P.S.O. Ahmad Saleem. As a result of investigation of P.S.O. Ahmad Saleem, the case was ordered to be consigned to record till the decision of the learned Civil Court. But report for cancellation of case was prepared by A.S.-I. Jameel Akhtar who claims that he Was verbally ordered by the S.S.P.
(Investigation) Lahore for the same. I felt extremely sad to go through the police file to know that even the senior Police Officers deal with the serious disputes of the parties so callously. The learned Judicial Magistrate before passing the impugned order definitely did not go through the police file.
Had he read the police file he must have come to know the illegalities committed during the investigation. The cancellation report was admittedly prepared on the verbal direction of S.S.P.
(Investigation) Lahore which did not come into the notice of the learned Magistrate. The learned Magistrate passed the impugned order without applying his judicial mind which is not at all sustainable in law. It appears the whole exercise, leading to preparation of cancellation report, was manoeuvred by the accused persons involved in the F.I.R. In collusion of the police, so, the investigation conducted in the case and preparation of the impugned police report are declared to be violative of law and the settled principles of the superior Courts of the country. So far as the judgment cited by the learned counsel for the respondent in Bahadur and others v. The State and others PLD 1985 SC 62 is concerned, the same is not applicable in the facts and circumstances of the case because the main question involved in the said case was that whether the discharge order was amenable to revisional jurisdiction or not while in the present case cancellation report has been challenged in the constitutional jurisdiction. Learned counsel for the petitioner also relied upon a judgment of the august Supreme Court of Pakistan reported in Bahadur and others v. The State and others PLD 1985 Supreme Court 62 and it appears that learned counsel for both the parties vehemently relied upon on the same judgment of the apex Court of the country, wherein, the august Supreme Court at page 69 of the judgment (report in PLJ) held that "a Magistrate, even while concurring in cancellation of case is required to judiciously examine the report submitted under section 173, Cr.P.C. AIR 1968 SC 117...", but the learned Magistrate did not do so, therefore, the impugned order cannot stand the test of judicial scrutiny. Because the moot point in this petition, as urged by the learned Additional Advocate-General, Punjab Ch. Muhammad Hanif Khatana was the tenor of change of investigation in violation to Article 18(6) of the Police, Order, 2002 which led to cancellation of the F.I.R., therefore, it has become imperative to quote the said provision of law.
Article 18 reads as under:-- "18. Posting of Head of Investigation.--- (1) The head of investigation in a general police area other than the Capital City District or the City District shall be of the rank of Additional Inspector-General of Police.
(2) The head of investigation in a Capital City District or City District shall not be below the rank of Senior Superintendent of Police.
(3) The head of investigation in a District shall not be below the rank of Superintendent of Police and shall be responsible to his own hierarchy subject to general control of the District Police Officer.
(4) All registered cases shall be investigated by the investigation staff in the District under the supervision of the head of investigation: Provided that the Government may by a special or general order, may entrust investigation of offences under Local and Special Laws as defined in the Pakistan Penal Code and punishable with imprisonment for a term not exceeding three years with or without any other punishment, to the police station staff.
(5) The District Police Officer shall not interfere with the process of investigation. The head of investigation shall however, keep the District Police Officer informed of the progress of all cases which have a bearing on public order. The District Police Officer shall provide full support to the head of investigation in the performance of his duties.
(6) Investigation shall not be changed except after due deliberations and recommendations by a board headed by an Officer not below the rank of Senior Superintendent of Police and two Superintendents of Police, one being incharge of the investigation of the concerned District: ' Provided that the final order for the change of investigation shall be passed by head of investigation in the general police area who shall record reasons for change of such investigation: ' Provided further that the second change of investigation may only be allowed with the approval of the Provincial Police Officer, or the Capital City Police Officer, as the case may be."
8. That keeping in view Article 18 of the Police Order, 2002, the matter of change of investigation came up for consideration before a Full Bench of the Honourable Lahore High Court, Lahore, in Khyzar Hayat v. I.-G. Punjab PLD 2005 Lah. 470, wherein, in paragraph 26, it was held as under:--- "By virtue of the provisions of Article 18(5) of the Police Order, 2002 a District Police Officer cannot interfere with the process of investigation. According to Article 18(6) of the Police Order, 2002 the first change of investigation can, in areas other than the Capital City District, be ordered only by the Additional Inspector-General of Police (Investigation Branch) and that too only after deliberations and recommendations by a Board headed by an officer not below the rank of Senior Superintendent of Police and including two Superintendents of Police, one being in charge of the investigation in the concerned District. According to the same Article second change of investigation may only be allowed with the approval of the Provincial Police Officer (Inspector- General of the Police in a Province) or the Capital City Police Officer, as the case may be."
9. A bare perusal of the mandatory provision of law qua change of investigation stipulated in the Police Order, 2002 coupled with guidance sought from the above quoted precedent case-law, it can be said that the whole exercise of change of investigation was done not only in violation to the Police Order, 2002, but also in disregard to the principles settled by the Superior Courts of the country as quoted above.
10. So far as competency of this Court qua taking notice of the mala fide on the part of an authority is concerned it has engaged the attention of the Honourable Supreme Court of Pakistan time and again. In Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and others 2005 SCMR 678, the question of mala fide came up for consideration before the Supreme Court wherein, at page 934, the august Court of the country held as under:-- "... There is no cavil with the proposition that mala fides are required to be pleaded specifically and proved as a question of fact, as held in the case of Government of Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 but when mala fide on the part of concerned authority is apparent on the face of record, then a Court of law, seized with the matter, is not supposed to shut its eyes, without taking notice thereof. In forming this view, we are fortified by the judgment in the case of Muhammad Bashir v. Abdul Karim PLD 2004 SC 271..."
11. The nutshell of the above discussion is that this petition is accepted, the impugned order, dated 12-5-2005 passed by the learned Judicial Magistrate is declared to have been passed without lawful authority having no legal effect.
12. Before parting with this order I may observe here that the whole exercise of change of investigation, firstly, from A.S.-I. Jameel Akhtar to D.S.P. (Investigation) Chuhng, secondly, its entrustment to S.S.P. (Investigation) and its further entrustment to P.S.O. To S.S.P. (Investigation) is violative to the law of the land. Furthermore, cancellation report of the F.I.R. Was got manoeuvred in a dramatic manner because the Ziminis of P.S.O. Ahmad Saleem show that the fate of the investigation was kept pending sine die till the decision of the civil suits but surprisingly and suddenly A.S.-I. Jameel Akhtar allegedly under the orders of the S.S.P. (Investigation) prepared a cancellation report and got the case cancelled from the learned Judicial Magistrate. It is the worst example of mala fides on the part of the police. Furthermore, it is settled by now by the Superior Courts of the country including the apex Court that civil and criminal proceedings can proceed side by side and there is no bar on the registration of the criminal case and its consequential flow as provided in the Criminal Procedure Code and the law relating to the investigation, if facts and circumstances of the case so warrant. Since the whole exercise is not only tainted with malice but also violative of the mandatory provisions stipulated in the Police Order, 2002, therefore, this Court has ample power to interfere in suchlike situation and can do justice keeping in view the principle in mind that justice should not only be done but it should manifestly be seen to have been done.
This is in line with the law laid down by the august Supreme Court in Nasrullah Khan v. Manzoor Hussain and others 20041E SCMR 885 and the direction of the High Court for proper investigation through an independent officer in a fraud case registered under sections 420/461/468/471, P.P.C.
Was not interfered with by the apex Court. Therefore, the investigation of the case is thereby, deemed to be pending. In the peculiar facts and circumstances of this case, I am inclined to direct the D.I.-G./C.C.P.O., Lahore to get the investigation of this case changed strictly in terms of Article 18(6) of the Police Order, 2002 and it shall be handed over to some senior Police Officer not under the supervision of S.S.P. (Investigation), Lahore who had previously dealt with the case.