' QAZI MUHAMMAD JAMIL, J.--The grievance, in short, of the petitioners, all connected with a commercial concern known as Avert Hotels Limited, Karachi, is that the police investigation launched by respondent No,5, Managing Director of a Furniture Manufacturing Company known as M.Hayat and Brothers Limited, Peshawar, and warrants of arrest issued by respondent No,4, a local Magistrate, against the petitioners are in fact a lever to extract a sum of Rs,13,64,077 from the petitioners which is being disputed and arises out of contractual obligations. According to the petitioners the report lodged with the Police not only fails to disclose any actus revs cognizable by Police, the same has been made possible by the interference of one of the sons of respondent No,5 who happend to be, at the crucial time, Commissioner of Peshawar Division. As such, the petitioners urged that the entire exercise complained of is based on male fides.
2. As the contract for the supply of goods between the parties is admitted, we need not go into the details of the respective contractual obligations of the parties for the purpose of disposing of this writ petition. The pleadings filed by both the parties disclose in minute details their such obligations. Suffice it to say that both the parties complain of breach of contract. It is also evident from the record that twice the matter was referred to independent agencies for settlement. Late A.K.Brohi was approached, and this incidentally was after the lodging of the disputed F.I.R. And he, according to his terms of settlement which is on the record, decided that an additional sum of Rs, 14,00,000 be paid by the petitioners' Company to the concern of respondent No,5. After the receipt of payment the said respondent's concern would supply specifie number of furniture. It was also decided that the criminal case filed against the peitioners would be withdrawn forthwith. The petitioners aid Rs, 14,00,000 as agreed, but according to them the respondent honoured none of his commitments and continued activating disputed criminal investigation. Subsequently the then Deputy Martial Law Administrator assisted by two Jirga members made their award with regard to the contractual obligations of the parties. The two members failed to affix their signatures on the said award, again allegedly under the influence of the aforesaid son of respondent No,5. In any case, the award simply endorses the fact that .For the furniture already supplied to the petitioners no money is due to respondent No, 5 and for the remaining contractual obligations yet to be, performed by him he was entitled to Rs, 10,33,444. The said respondent, however, continued claiming a larger sum for the goods already supplied.
3. The abovementioned FIR lodged by respondent No,5 was based on his complaint wherein he alleged misrepresentation on the part of the petitioners' Company and their dishonest intention to cheat him. It was alleged that certain post-dated cheques issued by the 'Said Company were dishonoured with criminal design. The provisions of Pakistan Penal Code were liberally mentioned in the F.I.R., namely, sections 406/420/468/479/109/34. Warrants of arrest were issued against the petitioners under the signature of respondent No,4, a local Magistrate.
4. We are neither being asked, nor we have the intention to determine the contractual liabilities of either party. Our Constitutional jurisdiction is being invoked to question the criminal investigation initiated against the petitioners, with all its consequences at the behest of respondent No,5. Mr, Atiqur Rehman Qazi, advocate, learned counsel for respondent No, 5 raised preliminary objection to our exercise of such jurisdiction. He also made a technical objection with regard to the affidavit of the petitioner which was not sworn before the Registrar of this Court, but this objection could not be pursued by him when he was told that the petition was entertained by the office, duly admitted by this Court and the petitioners are now being heard through their counsel.
5. We may have no dispute with the contention of the learned counsel for the respondents that the criminal investigation duly activated by a complaint registered as First Information Report, other things being equal, shall ordinarily be not interfered with by Court of law. We, however, cannot agree with him that the functionaries sitting in Police Stations do not come within the purview of Article 199 of the Constitution. They are, most certainly, persons connected with the affairs of the Centre or the Province amenable to the directions issued by this Court under the Constitution. Their actions are also in no case sacrosanct so as to be excluded from judicial scrutiny. As a matter of fact in a country which periodically lapses into arbitrary rule by those who do not believe in the Constitution and in a society where life and liberty of an individual, though guaranteed by the Constitution, is marred by ignorance, illiteracy and vestiges of our colonial past, it is all the more necessary that superior Courts, armed with the power of judicial review, niust vigilantly watch the activities of one of the basic instruments of State power, namely, the Police.
6. The ratio decidendi of the precedents cited before us by the learned counsel for the respondent in cases, Shahnaz Begum versus The Honourable Judges of the High Courts of Sind and Bluchistan.
FLD 1971 SC-677: Nazir Ahmed and others Versus Mohammad Shafi and another, PLD 1980 SC 6; Abdul Aleem Versus Special Judge, Customs Lahore and others, 1982 SCM R 73, Ghulam Mohammad versus Muzammil Khan an three others, P1.4) 1967 SC-317, does not go counter to our views expressed above. In most of the above-cited judgments the import of section 561-A Cr.P.C.
Viz-a-viz investigation was considered. It is nowhere laid down that Police action in criminal investigation even if in excess of its authority or beyond its competence or mala fide cannot be looked into by this Court in its Constitutional jurisdiction. As a matter of fact the Supreme Court in case Shahnsz Begum Versus The Honourable Judges of the High Courts of Sind and Baluchistan, referred to above, made a distinction between the power of the High Court under section 561-A of the Criminal Proeedure Code and its Constitutional jurisdiction under Article 98 of the Constitution of 1962 and observed: "If an investigation is launched male fide or is clearly beyond the jurisdiction of the Investigating Agency concerned then it may be possible for the action, of the Investigating Agencies to be corrected by a proper proceedings under Article 98 of the Constitution of 1962.................. ".
Furthermore, Article 4 of the Constitution lays the basis of Rule of Law in Pakistan. Every action of even the minutest cog in the State machinery is to be justified on the basis of law.
7. We, therefore, \proceed to consider the petition before us on merit. It is an admitted position that the'dispute oetween the parties is of mutual contractual obligations. We, therefore, have no hesitation to say that such a dispute is of civil nature. As stated earlier, parties have not only made attempts to settle the disputes through conciliation and arbitration, but one cannot see as to how such a dispute is precluded from being agitated before civil Courts._
8. In this background, we have to see the F.I.R. Lodged against the petitioners. One may not deliberate on the allegations that son of respondent No,5, who was Commissioner of the Peshawar Division at the crucial time, was instrumental in forcing the Police to register a case against the petitioners and that subsequently a Magistrate obliged him by issuing a warrant of arrest against the petitioners without applying his mind, for a valid reason advanced by the said respondent that no such influence from his son was established on the record. We are also not inclined to draw any inference from it despite the fact that one is tempted to do so from the manner the local administration has dealt with the case:. However, there is no one kind of mala fides which may destroy even the legitimate action of an authority. There is what is called male fides in law duly recognized by our Courts of law and the Courts of other countries with a similar legal system as ours. Male fides would not only include colourable exercise of power, decisions taken and orders made with extraneous considerations and with malice but would also include the exercise of power patently and grossly in violation of law without any proof of actual malice on the part of authority exercising that power.
9. In the case in hand, we have considered the facts narrated in the complaint which was made the basis of the registration of the case against the petitioner by the Police in the background of the dispute between the parties. We, find that the provisions of Pakistan Penal Code mentioned in the F.I.R. Are not attracted to those facts.
' Provisions of sections 154 and 155 of the Criminal Procedure Code do not require an Officer Incharge of a police Station to reduce into writing any information which has been given to him but such an information must relate to the commission of an offence. Offence is defined in section 4, subsection (1), paragraph (o) of the Cr.P. C. Which is as follows:- "Offence' means any act or omission made punishable by any law for the time being in force: it also includes any act in respect of which a complaint may be made under section 20 of the Cattle- Trespass Act, 1871:"
' In other words, the Officer Incharge of the Police Station has to apply his mind to the facts narrated to him and in case he finds that such a narration discloses an offence only then he shall register a case. The investigation which follows the registration of the case must have its roots in the alleged commission of an offence. The police report and the subsequent investigation launched thereto without the commission of an offence would obviously fall outside the competence of the authorities concerned. In a given circumstance as in this case, it may obviously smack of male fides as well. As such, the case registered against the petitioners and the subsequent warrant of arrest issued by respondent No, 4 are beyond the competence of the authorities concerned and male fide in law as stated above.
10. It may be pointed out that the learned Advocate General appearing on behalf of respondents Nos.1 to 4 simply controverted the allegations that one of the high placed sons of respondent No,5 was instrumental in initiating criminal investigation against the A petitioners. We have dealt with the question in the preceding paragraphs. No other argument was addressed by him on the questions discussed in this judgment.
11. In the circumstances, the petition is accepted, F.I.R.No,891 dated 24-10-1984 registered against the petitioners' Company at Police Station Gharbi Peshawar is declared to have been registered without lawful authority, the same and other steps taken in pursuance thereof are quashed being of no legal effect. We, however, make no order as to costs.