1. MUHAMMAD YAQUB ALI, C. J.-Malik Ghulam Ahmad, appellant, lodged with the Central Government, a complaint that Haji Muhammad Yousaf, respondent No. 1, has, by a series of fraud and forgeries, grabbed .Evacuee property consisting of a double-storey building containing one hundred rooms known as Cooper Hostel to which are attached 22 servant quarters, 3 residential bungalows and an area of 39 kanals of land situated on Bahawalpur Road, Lahore. After preliminary investigation, a case was registered against respondent No. 1 under section 420/468/471, P. P. G. (F. I R. No. 95 of 1964) on 9-11-1964. Thereafter the statement of the son of respondent No. 1 was recorded by the Investigating Officer but before he could proceed further, respondent No. 1 filed Writ Petition No. 1965 of 1965 in the defunct High Court of West Pakistan under Article 98 of the 1962 Constitution and by an interim order investigation, in the case, was stopped.
2. It was contended by respondent No. 1 in the writ petition that :
(i) the registration of the case was without jurisdiction ; (ii) that the Special Police Establishment was not empowered to investigate into the matters set forth in the F. I. R. As the matter is not one relating to offences or classes of offences 'connected with matters concerning the Central and Provincial Governments ; (iii) that the circumstances enumerated in the F. I. R. Amounted to probing into judicial orders which had obtained finality ; (iv) that registration of the case was mala fide ; (v) that at any rate the allegations made in the F.
1. R. Could be inquired into by an officer empowered under section 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, or by the Custodian of Evacuee Property ; and (vi) that the accusation that the certificate of sale of the property issued by the Court was tampered with and the names of two other persons who were not party to the execution proceedings in which the property in question was sold, had already been examined by the Custodian of Evacuee Property and the Director of Enforcement. On these contentions it was alleged that the Special Police Establishment had no jurisdiction to 'further look into these allegations'.
3. On hearing arguments and perusal of some documents and copies of Court orders, the learned Judges who heard the writ petition, concluded thus :- "The plain reading of the execution file makes it clear beyond any shadow of doubt that the entire property in possession of the petitioner was sold in Court auction and was correctly recorded in all the documents of the Court including the sale certificate issued on the 29th of July 1946, and as such there could be no question of any fraud ' or forgery about this transaction. The petitioner has obtained this property by a decree of the Court which he obtained from a Civil Court on the basis of an Award and there is no complaint by Haji Muhammad Ismail against the petitioner that the petitioner obtained this decree by deceitful means, therefore, the question of committing any forgery or fraud by the petitioner upon Haji Muhammad Ismail does not arise."
4. The learned Judges omitted to notice that the complaint was made by Malik Ghulam Ahmad, appellant, and one of the accusation made by him was that Haji Muhammad Yousaf, respondent was related to Haji Muhammad Ismail, and that `respondent No. 1 had forged the lease and sale deed of Rs. 72,000 and Rs. 48,000 respectively from (i.e. In collusion with) his relative Haji Muhammad Ismail and that he had managed to obtain a civil decree against the said Haji Muhammad Ismail in a fraudulently planned manner: The accusation did not mean that respondent No. 1 had practised fraud on Haji Muhammad Ismail as was wrongly assumed by the learned Judges. The relationship of respondent No, 1 with Haji Muhammad Ismail and the details of the Award obtained fraudulently by respondent No. 1 in collusion with Haji Muhammad Ismail and the circumstances in which it was made a rule of the Court, were set out in great detail in the written statement filed by the appellant running into 12 pages. No notice of these accusation was, however, taken by the learned Judges in arriving at the conclusion in paragraph 17 of the judgment, reproduced above.
5. During the hearing of the writ petition, the learned Judges called the Public Prosecutor and Special Police Authorities and told them to cancel the case registered against respondent No. 1. Mr. Maqbool Ahmad, Public Prosecutor, who did not agree to advise the Special Police Authorities to cancel the case, annoyed the learned Judges and they criticised his conduct severely in these terms :- "We were surprised to learn of the attitude of Mr. Maqbool Ahmad. He, in company with his senior counsel, Sh. Abdul Haq, was shown the entire original record of the execution proceedings and both of them frankly conceded before us that there was no doubt about the authenticity of these documents nor they were able to point out any forgery, interpolation or tampering with the original records. We, therefore, expected a degree of reasonableness on the part of the Public Prosecutor as legal advisor of the department he should not have hesitated in giving an honest opinion to the department about a matter which he had conceded before us in Court and had nothing to urge to the contrary."
6. A perusal of the entire judgment in appeal and the observations quoted above have left an unhappy impression on our minds that the learned Judges were anxious to obtain concession from the Public Prosecutor and dispose of the writ petition on its basis. In the circumstances we do not attach much importance to the view formed by the learned Judges that `there was no doubt about the authenticity of the documents relied upon by respondent No. 1 `or' that no forgery, interpolation or tampering with the original record had been practised.' The accusation had yet to be probed into by the Special Police Authorities and to some extent they received prima facie support from the voluminous material placed on the record by the appellant. For instance, in the Court certificate, encumbrance by way of only one mortgage on the property sold in favour of Sardar Nand Singh for Rs. 30,000 is not mentioned. At a later stage, respondent No. 1 himself conceded the existence of for mortgages in the sum of Rig. 83,000 in favour of evacuees.
7. There was also the accusation that the property included in the Court certificate belonged to three persons and two of them were not judgment debtors but their names were fraudulently added to the certificate. The; learned Judges ignored this allegation while recording the finding that `there was no doubt about the authenticity of the documents and Court orders on which respondent No. 1 relied' and that `there was no forgery, interpolation or tampering with original record'.
8. It was also omitted from consideration by the learned Judges of the High Court that the property to which respondent No. 1 lay claim comprised an area of 39 kanals of land, a double-storeyed building consisting of 100 rooms and three large bungalows situated on Bahawalpur Road, near Chauberji, a highly congested commercial area of Lahore. How could such property be sold at a public auction for the paltry sum of Rig. 48,000--- It is on record that Mr. Cooper, the judgment- debtor, who was a practicing Barrister-at-law had obtained orders from the High Court for rehearing of, his objection to the proclamation of sale but on the next date of hearing in the executing Court his counsel conceded that the attached property may be sold by auction. Mr. Cooper did not put in appearance. The property was put to auction and sold to Mian Muhammad Ismail for the sum of Rs, 48,000. No objections were filed against the sale. In fact; Mr. Cooper disappears from the picture after obtaining favourable order from. The High Court.
9. Court certificate of the property involved in the case was issued in the name of Haji Muhammad Ismail on 16th .July 1945. In turn he entered into an agreement with Haji Muhammad Yousaf, respondent, on 19-1-1948 to sell the property to him for Rs. 70,000. It was recited in the agreement that Rs. 20,000 had been received by Haji Muhammad Ismail from the respondent and Rig. 40,000 was kept in deposit with him for payment to one Haji Muhammad Ibrahim, refugee, who had advanced to him an interest free loan in the said sum and that Rs. 10,000 will be paid to the vendor before the Registrar. This agreement was substituted by another instrument executed on 24-4- 1948 in which it was recited that Haji Muhammad Ismail had received the sum of Rs. 40,000 which was lying in deposit with respondent No. 1 for payment to Haji Muhammad Ibrahim.
10. On 23-7-1950 Haji Muhammad Ismail and respondent No. 1 entered into an agreement of Arbitration and appointed Maulvi Siraj-ud-Din. Advocate, to adjudicate upon the dispute which had arisen between them about the value of the property agreed to be purchased by respondent No. 1 for Rs.70,000. It was claimed by respondent No. 1 that the property agreed to be purchased by him had depreciated in value since the agreement was executed in 1948. It was specifically mentioned that a residential bungalow included in the property had been vacated by the Public Works Department in a dilapidated condition resulting in damage to the bungalow estimated ate Rs. 20,000.
11. On 3-8-1950 the Arbitrator gave an Award holding that the value of the property which Haji Muhammad Ismail had agreed to sell to respondent No. 1 was Rs. 48,000. He was accordingly held liable to pay back Rig. 12,000 to respondent No. 2. In the concluding part of the Award, it is said that Haji Muhammad Ismail has elected for him 1500 sq. Ft. Of land and the rest of the property stands transferred to respondent No. 1. The consideration for retaining a plot of land measuring 1500 sq. Ft.
12. By Haji Muhammad Ismaili is not mentioned in the Award. '
13. The Award bears a non-judicial stamp of Rig. 62-8-0. It was made Rule of the Court on 19-12-1950, without contest either before the Arbitrator or before the civil Court.
14. While we refrain from expressing any considered opinion on the facts of the case it is not possible to avoid the inference that either the property put to auction had been eaten away to its foundations by a number of mortgages and only the equity of redemption was sold or that the property put to auction did not consist of 39 kanals of land, a double-storied building containing 100 rooms and 3 large residential bungalows in the city o of Lahore. There are many other pertinent questions which require a thorough probe by the investigating Agency. The circumstances in which, instead of executing a sale deed, the transfer of the property was effected in favour of respondent No. 1 by means of an Award also called for an inquiry.
15. The learned Judges dealing with the jurisdictional issue observed that there was no evacuee interest in the property in dispute and therefore the case registered by the Special Police Establishment did not relate to matters concerning the Central and Provincial Governments. This was begging the question. For if the Court certificate was tampered with and thereby the entries in favour of evacuee mortgagees were not mentioned in it or the names of two' other co-owners of the property who were not judgment --debtors were added to the sale certificate or properties which were not put to auction were fraudulently included in the Court certificate then there would be evacuee interest in the property and the offences allegedly committed by respondent No. 1 will be connected with the matters concerning the Central and Provincial Governments to attract the jurisdiction of the Special Police Establishment.
16. On the finding reproduced above the learned Judges passed the following order :- "As a result of the above discussion as well as our finding about the powers of the Custodian and the Special Police Establishment we hold that the registration of the case against the petitioner by the respondents was without lawful authority and without any jurisdiction and is of no legal effect.
17. Consequently the rule issued by this Court is made absolute. The respondents are hereby directed not to proceed with the matter any further. In view of the fact that a very hasty action was taken by the respondent Police to register a case against the petitioner without recourse to the previous record we would like to burden them with the cost of these proceedings. Malik Ghulam Ahmad, respondent, who has been prosecuting this litigation in a vexatious manner will share 50 per cent.
18. Of the costs."
19. The law on the point has been clearly laid down by the Judicial Committee in the case of Emperor v. Nazir Ahmad (AIR 1945 P C 18)
20. "Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their Province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combi--nation of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under section 491, Cr. P. C. To give directions in the nature of habeas corpus."
21. In a recent case, Shahnaz Begum v. Hon'ble Judges of the High Court of Sind & Baluchistan and another (PLD 1971 SC 677), this Court dealing with a similar point concluded thus :- "In the case of Ghulam Muhammad v. Muzammal PLD 1967 SC 317 this Court had occasion to point out that the power given by section 561-A, Cr. P. C., `can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute'. That was not a case for quashing an investigation simpliciter, for, their challans had already been put in the Police before a competent Court and the High Court had quashed the proceedings on the ground that it was not the business of the Police to submit a challan for the commission of offences not disclosed in the first information report. This Court, however, set aside the order of the High Court because in the opinion of this Court there was no legal bar to the Police submitting a challan in respect of offences other than those mentioned in the First Information Report. We have, therefore, upon a review of the relevant judicial opinions, come to the conclusion that the High Court has no power under section 561-A even to quash an investigation. The decision of another learned Judge of the High Court of West Pakistan, Lahore Seat, in the case of Yaqub Khan v. The State 1971 P Cr. L J 266 hold--ing that the High Court has such power cannot, therefore, be approved and is accordingly overruled."
22. On hearing the learned counsel for the parties and examining the record we are left in no doubt that in issuing the writ in the terms reproduced above, the learned Judges of the High Court have acted without jurisdiction. We, accordingly, allow the appeal and recall the writ issued by the High Court.
23. We are informed that the Special Police Establishment has since been replaced by the Federal Investigation Agency. The authorities concerned of the Federal Investigation Agency will now proceed with the investigation in the case against respondent No. 1 under section 420/468/471, P. P.
24. C. In F. I. R. No. 95 of 1964 and submit their report to the Court concerned.
25. Parties will bear their own costs throughout.