The petitioner, an official of bank, and Islam Khan respondent No. 2, the owner of a hotel were on friendly terms. A case was registered against the petitioner at the instance of Islam Khan, on 28th August, 1977. The allegations were that Islam Khan gave the \petitioner golden ornaments weighing 42 Tolas on 18th November, 1975 in response to a request from the petitioner to lend him Rs. 20,000. The petitioner subsequently is alleged to have changed his mind and cheated the respondent No. 2 and committed breach of trust. The case was registered as stated above under section 420/406, P. P. C. The, police investigated the case and the Investi--gating officer on 22nd September, 1977 reported the matter to superior officers with the request that the case may be submitted to the Magistrate for cancellation, as according to him, the offences alleged did not apply to the facts of the case and that according to the documentary evidence it was s case of dealings of a civil nature amounting to sale and purchase and loan without interest.Report was submitted by the Sub-Divisional Police Officer to the Magistrate who discharged the petitioner in accordance with the request of the police. Subsequently, a case under section 182, P. P. C. Was made out against Islam Khan respondent and it was submitted to the Court for trial. Islam Khan appears to have requested the Magistrate not to proceed with the case under section 182 as the case had, been ordered to be re-investigated under orders of the S. P., Multan. The Magistrate, however, decided to proceed with the case and the respondent Islam Khan had to move a revision petition in the Court of Sessions. It was observed by the learned Sessions Judge, Multan that it was open to doubt whether the police could order re-investigation of a cancelled case without the orders of the Magistrate. He observed that until the Magistrate decided to recall the orders of cancellation, the trial Court cannot be stopped from proceeding with the case under section 182, P.
P. C. The revision petition of Islam Khan was thereby dismissed.
2. Islam Khan complainant in the first case, appears to have moved the S. P., Multan for re- investigation of the case on whose orders the case was re-investigated and a challan has since been submitted in the Court. The petitioner moved an application under section 249-A, Cr. P. C. For acquittal on the ground that the case having been cancelled he cannot be tried without recall of the order of the Magis--trate. The application under section 249-A was dismissed on 14th July, 1980. The petitioner has now moved the High Court in the present quash--ment application.
3. The learned counsel for the petitioner has argued that once a case is cancelled by a Magistrate, the police has no authority to re-investigate the case of their own motion. He has relied on the case of Din Muhammad Shakir v. The D. S. P., Ichhra (PLD. 1977 Lab. 1180) in support of his contention. The learned counsel for the respondent, on the other hand, has argued that the earlier investigation was mala fide and the case was cancelled on account of the influence of the petitioner and that the further investigation has led to recovery of 42 Tolas of gold ornaments from the petitioner, but that the petitioner was now claiming to have purchased those ornaments from the respondent through a receipt which the respondent claims is forged. It was argued by the learned counsel that the petitioner is yet to be tried for the offence committed by him and that the peti--tioner cannot be permitted to be acquitted of the offence without being tried or it.
4. As far as the allegations against the petitioner and his defence are concerned, I do not consider it proper to give any comments on them as this stage as further proceedings might be taken in that regard, but the question whether a re-investigation can be ordered by the police after once having obtained the orders of a Magistrate for cancellation of a case requires consideration.
Chapter XIV of the Cr. P. C. Deals with the question of information to the police and their powers of investigation. It begins with section 54 and ends with section 176, but for the purpose of the present discussion the provisions of sections 174 to 176 are not relevant as they deal with inquests, etc., only As regards the remaining provisions the investigation begins with a information given to the police under section 154 and concludes with a report under section 173 which has come to be known as a challan. Section 155 deals with information with regard to non-cognizable cases and contains a direction that no police officer shall investigate a non-cognizable offence without the orders of a Magistrate. The cognizable offences are investigated by the police without orders of a Magistrate although it is necessary that report is sent even in these cases to the Magistrate under section 157, Cr. P. C. Upon investigation if it appears to the officer incharge of the police station that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of an accused to the Magistrate such officer under section 169 shall release the accused-person on a bond with direction to appear before the Magistrate if and when so required. If, on the other hand, he comes to the conclusion that there is sufficient evidence or reasonable ground under section 170 he shall forward the accused in custody to a Magistrate empowered to take cognizance on the report of police, unless the offence is bailable in which case the police officer shall take security from the accused for appearance before the Magistrate. The challan is the report under section 173 which is the final report and the result of investigation on examining which the Magistrate may decide to take cognizance under section 190.
5. The scheme of the Code of Criminal Procedure regarding investigation of case by the police is so designed as is evidence from the provisions referred to above, that it is to be supervised by a Magistrate at every stage. In the present case it seems that the investigating Officer on completion of the investigation found that no case was made out against the petitioner and the language used by him is to the effect that this was a case of a civil nature. The Magistrate thereby decided to discharge the accused. The matter did not end there and the police even made out a case under section 182, P. P. C. On the allegation that Islam Khan respondent had given false information to the police officers setting the law in motion against the petitioner in order that lawful power may be used for injury or annoyance to the petitioner.
6. There is no expression in the Criminal Procedure Code which speaks of cancellation of a case but the power of cancellation is derived from section 173 read with section 190 of the Cr. P. C. As held in the case of Wazir v. The State (PLD 1962 Lab. 405). It seems the term cancellation of a case or the F.
I. R. Has been borrowed from the Police Rules which speak of cancella--tion of a F. I. R. The relevant rule has been quoted in the judgment of this Court in the case of Din Muhammad Shakir v. D. S. P.
Ichhra and the categories, in which a cancellation of a case can be prayed for from a Magistrate, have been listed, but the cumulative effect of all the five categories is that the case regarding which the police officer seeks cancella--tion has been found to be unsustainable or is non- cognizable.
In the present case the request of the Investigating Officer on 22nd September, 1977 asking for cancellation of a case is based on two grounds, firstly that during the Investigation the offences mentioned above have not been found applicable to the case. The second ground for this request is based on the finding of the Investigating Officer that the case was of a civil nature.
This means that the investigation had come to the conclusion that the petitioner had not committed the offence alleged and that it was a case of civil nature suggesting thereby that it was not cognizable. The investigation moved the Magistrate for cancellation of the case and the Magistrate agreeing with the Investigating Officer discharged the accused on 27 September, 1977.
The effect of this order is that the case stands cancelled with effect from 27th September, 1977.
After this the police had no authority t investigate the case as may be seen from the provisions of section 155, Cr. P. C. As laid down in the case of Din Muhammad Shakir referred to above, the police had the option of applying again to the Magistrate for recalling the order of cancellation which the Magistrate could have, the order being administrative in character, but unless they obtain such an order from the Magistrate the investigation or the subsequent challan in the Court has no sanction of law behind it. The police may have had additional information with regard to the commission of the offence but they cannot proceed unless they go back to the Magistrate for an order of investigation.
7. In view of the above considerations, the investigation of the case and the subsequent submission of the challan or the report and the trial of the petitioner is unlawful and the proceedings before the trial Court are, therefore, quashed. It may however be clarified that the police can still apply to the Magistrate of competent jurisdiction for recalling his order of cancellation of the case and only in the event of such an order can the police proceed to re-investigate the case. The petition is disposed o with these observations.