Sardar Muhammad Sarfraz Dogar, J: Through this petition, the petitioner has impugned order dated 5.3.2015 issued by respondent No.1, wherein the application of respondent No.5 for 2nd change of investigation in case FIR No.828/2013, dated 7.9.2013, under Section 489-F PPC, Police Station Cantt, District Multan was allowed.
2. Precise facts gathered from the file are that the petitioner is running a business of Travel Agency in the name and style of "Sky Links Travels". Respondent No.5 alleged that the petitioner has borrowed an amount of Rs.1,34,00,000/- from him in the presence of witnesses, and the petitioner gave five cheques of his account No.0001017206, United Bank Limited, L.M Road, Multan, but the same was bounced, and respondent No.5 lodged FIR No.828/2013, dated 7.9.2013, under Section 489-F PPC, Police Station Cantt, District Multan. The petitioner filed an application for first change of investigation, which was allowed, and vide Police Diary No.18 dated 27.1.2015, duly conducted by DSP/SDPO Circle Haram Gate, Multan, the petitioner was declared innocent. Thereafter, respondent No.5 moved an application for 2nd change of investigation, which was allowed vide impugned order dated 5.3.2015 by respondent No.1, which was entrusted to Inspectors of Regional Investigation Branch (RIB), who declared the petitioner as guilty.
3. Learned counsel for the petitioner argued that 2nd change of investigation is not inconsonance with the law laid down by the Hon'ble Supreme Court of Pakistan, and the same was also not done in line with the statutory provisions of law, therefore, the same is liable to be set-aside.
4. On the other hand, learned counsel for respondent No.5 vehemently opposed the contentions raised by learned counsel for the petitioner, and argued that the investigation was conducted in true lines of the Police Order, 2002 as well as the dictum laid down by the apex Courts. Further argued that no illegality or irregularity has been committed by the RIB.
5. Heard, record perused.
6. I have carefully perused the record with the eminent assistance of learned counsel for the parties and collected the facts from the record. The question before this Court taken up by the parties with respect to 2nd change of investigation vide impugned order dated 5.3.2015 issued by respondent No.1. The facts examined from the file speak at volume with regard to the manner and mode for the 2nd change of investigation, which is not inconsonance with the same. Rather, it would be against the statutory provisions of law as the investigation for the 2nd time was not done within the due course of law. The only question which is to be addressed was that under Article 18A
(3) of the Police Order, (Amendment) Act, 2013 ("Police Order, 2013") the investigation is required to be done in a case by an investigation officer or a team of investigation officers of a rank equal to or higher than the rank of the previous investigation officer or officers. The investigation is required to be conducted by the Investigating Officer of rank equal to or higher than the rank of previous Investigating Officer, but unfortunately, first change of investigation was conducted by DSP/SDPO and declared the petitioner as innocent, thereafter, in the 2nd change of investigation, the same was conducted by the Inspectors of RIB, which is without lawful authority and coram non judice, and is sheer violation of Article 18A (3) of Police Order, 2013. For the assistance of the parties, Article 18A (3) of Police Order, 2013 is hereby reproduced hereunder:-
(3) If a Regional Police Officer has decided an application for transfer of an investigation, the Provincial Police Officer may within thirty days of filing of an application, after obtaining opinion of a Standing Review Board, transfer investigation of a case to an investigation officer or a team of investigation officers of a rank equal to or higher than the rank of the previous investigation officer or officers.
7. As far as mandatory provision of law is concerned, the same is required to be enforced strictly without interpreting/construing it in any manner liberally. Such a principle of interpretation is discussed and applied in the case of "Niaz Muhammad v. Mian Fazal Raqib" (PLD 1974 SC 134) in the following words:- "It is the duty of the Courts to try to get at the real intention of the Legislature, by carefully attending to the whole scope of the statute to be construed. As a general rule, however, a statute is understood to be directory when it contains matter merely of direction, but not when those directions are followed up by an express provision that, in default of following them, the acts shall be null and void. To put it differently, if the Act is directory, its disobedience does not entail any invalidity; if the Act is mandatory, disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision".
In this respect, it will be advantageous referring to a celebrated passage from the Interpretation of Statutes by Maxwell (Tenth Edition 1953): - "On the other hand, where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and Government of those on whom the duty is imposed, or, in other words, as directory only. The neglect of them may be penal, indeed. But it does not affect the validity of the act done in disregard of them. It has often been held, for instance when an Act ordered a thing to be done by a public body or public officers and pointed out the specific time when it was to be done, that the Act was directory only and might be complied with after the prescribed time."
The nature of a mandatory provision is described in the "Words and Phrases", Permanent Edition, Vol. 26, p. 463 in the following words: - "Generally, where statutory provision concerning powers and duties of public officer affect the public interest or are intended to protect a private citizen against loss or injuries to his property, provisions are "mandatory" rather than "director".
"A "mandatory provision" of a statute is one the failure to follow which renders the proceeding to which it relates illegal and void."
The other principle of jurisprudence in this very context is that the things are required to be done strictly according to law, or it should not be done at all. Reference in this behalf may be made to the case of "Mir Dost Muhammad v. Govt. Of Balochistan" (PLD 1980 Quetta 1), relevant Para therefrom is reproduced below: "It is well settled principle of law that in a case where statute provides a procedure for doing of a thing in a particular manner, that thing should be done in that manner and in no other way or it should not be done at all".
It has also been held in "Sharafat Kaleem v. Additional District Judge, Bahawalnagar and 11 others"
(2013 CLC 185) and "Bakht Munir v. Qadir Khan and another" (PLD 2014 Lahore 87) that when law required a thing to be done in a particular manner, the same must be done accordingly and if the prescribed procedure was not followed, if would be presumed that the same had not been done in accordance with law. The Hon'ble Supreme Court of Pakistan has held in "Zia Ur Rehman v. Syed Ahmed Hussain and others" ( 2014 SCMR 1015) that If the law requires a particular thing to be done in a particular manner it has to be done accordingly, otherwise it would not be in-compliance with the legislative intent.
8. The Hon'ble Supreme Court of Pakistan held in "Ghulam Sarwar Zardari v. Piyar Ali alias Piyaro and another" (2010 SCMR 624) that High Court has jurisdiction under Art.199 of the Constitution and is competent to correct such proceedings and pass necessary orders to ensure justice and fair play---Investigation authorities do not have entire and total authority of running investigation to their whims---If investigation is lauched mala fide or beyond jurisdiction of investigating agency, then the same can be corrected and appropriate orders can be passed. Furthermore, the modus operandi which has been provided under Article 18A (3) of the Police Order, 2013 was not duly complied with by the investigating agency.
9. What has been discussed above, I am of the confirmed view that the 2nd investigation was not conducted in line with the statutory provisions of law. Therefore, this petition is allowed and impugned order dated 5.3.2015 passed by respondent No.1 for 2nd change of investigation is set- aside being unlawful.