' This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, is directed against the re-investigation of a criminal case registered against the petitioner and another vide F.
I. R. No, 750 of 1974 on 10-12-1974 at Police Station, New Anarkali, Lahore, under section 420/ 406, P. P.
C. Which was subsequently got cancelled by the police itself.
2. The facts of the case necessary for the disposal of the law-point raised in this petition are that one Muhammad Aslam lodged an F. I. R. Complaining of cheating and criminal breach of trust in respect of a certain sum of money advanced by his wife to the petitioner for carrying on cloth business in Lahore. A case as aforementioned was registered at the police station. It was duly investigated by the police and according to the petitioner, during the course of the investigation, he was arrested and confined in the police lock-up for 13 days from 10-12-1974 to 23-12-1974. Finally, however, a final report was submitted under section 173, Cr. P. C. Recommeding the cancellation of the case as it was found to be not a cognizable case being a dispute of a civil nature. The petitioner was discharged by an order of the Magistrate and the case registered against him was cancelled on 25-3-1975. As the petitioner was employed as an Auditor in the office of the Accountant-General, Punjab, Lahore, an intimation was sent by the Deputy Inspector-General of Police by his letter dated 5-7-1975 informing the Head of the Department in the following words I--.
"It has been reported by the Superintendent of Police, City Division, Lahore, that case F. I. R. No, 750 dated 10-12-1974 under section 406/ 420, P. P. C. P. S., New Anarkali was finally sent as cancelled and the accused were get discharged as the issue was found to be of civil nature."
The petitioner claims to have thereafter instituted a civil suit in the beginning of the year 1976 seeking a declaration that the partnership deed entered on 15-3-1973 between the petitioner and the complainant and his wife was a colourable transaction, in fact it being a case of money lending and that the repayment had been made. This civil suit is said to be still pending. The petitioner is now aggrieved by the calls made on him by the D. S. P. To appear before him at the police station for re-investigation of the ease (F. I. R. No, 750 of 1974). He claims to have been called at the police station on 16-3-1976 and Interrogated and has again been called for 23-7-1976. The petitioner challenges the authority of the police to re-investigate a case which on its own motion and under the orders of a Magistrate stood cancelled.
3. In the report received from the Investigating Officer the factual aspect of the case is admitted and on the legal plane the only justification afforded for the impugned action is as follows :- "It is also correct that the case was recommended for cancellation and was cancelled by a Magistrate but a case cancelled by a Magistrate can be re-investigated as held in 1975 P Cr. L J 438 (Muhammad Abdullah v. The State)".
Again in para. 7 of the report it has been stated that "no doubt the case was recommended for cancellation and order of competent Court was obtained but re-investigation in such like circumstances is no bar. It has been ordered by the Senior Officers." Finally, it has been submitted in the report that "civil litigation has no effect or bearing on this criminal case".
4. As the justification for the impugned action is sought to be provided by referring to a recent decision cf this Court, it is necessary to examine it first. In the case of Muhammad Abdullah v. The State (1) the law laid down is contained in para. 3 and is in the following words :- "The learned counsel for the petitioner argued that although a number of successive investigations can be ordered in a criminal case, yet when the case itself is cancelled, there is no case left for investigation and in such a case re-investigation cannot be ordered.
' There appears to be force in this contention, but the learned counsel for the complainant directed my attention to Atta Muhammad v. Inspector-General of Police, West Pakistan. This point did not arise directly in that case and the Court had only considered the question as to whether successive investigations could be ordered in the same case, yet since the fact was that the case against the accused in that case had also been cancelled by a Magistrate, the observation of tt e learned Division Bench that the re-investigation ordered by the authorities in that case, was validly made amounts to holding that re-investigation can be ordered even where a case has been cancelled. I am bound, in law, to follow a Division Bench authority. As such I hold that the order requiring reinvestigation of the present case is also valid despite the fact that it had earlier been cancelled by a Magistrate and therefore the police is entitled to arrest the accused."
' It is clear from these observations in the judgment that no particular reason is given but apparently the law laid down in the case of Atta Muhammad referred to therein has been followed.
Ordinarily, and unless there be distinguishing features, the law laid down by a Division Bench, would be binding on a Single Judge. However, an examination of the facts of the case of Atta Muhammad makes it clear that it was not a case of cancellation of F. I. R. By a Magistrate as was assumed by the learned Single Judge and unless that identity of fact be there the law in Atta Muhammad's case could not be applied without first examining its applicability. The facts of the case of Atte Muhammad show that in the F. I. R. That was lodged and which was the subject-matter of re- investigation 13 persons had been mentioned as the accused. After investigation the police had placed 5 of the named accused in column No, 2 and recommended their discharge under section 173 subsection (3), Cr P. C. And the Magistrate concurring with the recommendation had directed the discharge of those five accused though had inadvertently referred for this purpose to section 169, Cr. P. C. The identity of facts of Atta Muhammad's case and the cue of Muhammad Abdullah having been incorrectly assumed, the law laid down in Atta Muhammad's case or in the case of Muhammad Abdullah would not be applicable unless a cue cancelled is held in this context at par for all purposes with the case of an accused discharged.
5. In order to understand the full legal implications of the cancellation of a case, one has to refer to the law applicable to the situation. The Criminal Procedure Code does not anywhere provide in specific terms for the cancellation of a case. However, it was held by a Full Bench in the case of Wazir v. State (1) that "such power is inherent in section 173 read with section 190 of the Cr. P. C.
Though the language of subsection (3) does not directly apply to the case". Another legal proposition, well beyond controversy, is that the Magistrate in directing the cancellation of the case is discharging only an administrative or Ministerial duty. Another Full Bench decision in Emperor v.
Hayat Fateh Din (2) is in point. There is not a single case decided or reported referred to by the parties, their counsel or otherwise coming to my notice where after cancellation of a case re- investigation of the same may have been taken up, by the police itself. The Police Rules, Vol, III, Chapter XXIV deal with this subject with some particularity and the provisions made therein are reproduced hereunder t - "24.7. Unless the investigation of a case is transferred to another police station or district, no first information report can be cancelled without the orders of a Magistrate of a Ist Class.
' When information or other intelligence is recorded under section 154, Criminal Procedure Code, and, after investigation, is found to be maliciously false or false owing to mistake of law or fact or to be non-cognizable or matter for a civil suit, the Superintendent shall send the first information report and any other papers on record in the case with the final report to a Magistrate having jurisdiction, and being a Magistrate of the first class, for order of cancellation. On receipt of such an order the officer in charge of the police station shall cancel the first information report by drawing a red line across the page, noting the name of the Magistrate cancelling the case with number and date of order. He shall then return the original order to the Superintendent's Office to be filed with the record of the case.
24.8.-(1) Each Superintendent shall maintain a register of cognizable offences in Form 24.8(1), styled the English Register of Cognizable Offences. It shall be sent on each working day to the District Magistrate when such officer is at the district headquarters.
(2) The serial number in column one shall commence and end with the callendar year. Cases cancelled or transferred shall be erased by ruling a red line through them, and shall, at the end of the year, be deducted from the total."
The only situations where a move for cancellation of a registered case can be made are therefore those in which the information is found to be (1) maliciously false, (2) false owing to mistake of law
(3) false owing to mistake of fact or (4) offence reported is found to be non-cognizable or (5) matter fit for a civil suit. All these situations in which a case can be cancelled, clearly envisage that in fact there is no cognizable case left to be investigated. In the case of a non-cognizable matter, as in the case of a dispute of a civil nature, the police has no authority to investigate without the permission of the Magistrate (section 155, Cr. P. C.). It has to be noted that where within the ambit of section 173, Cr. P. C. An accused is not proceeded against or discharged for want of material or evidence against him, the 41) P p 1962 Lab. 405 (2) AIR 1948 Lah. 184 ' F. I. R. Of the case remains intact and re-investigation or it or further investigation may very much be conducive to the detection of the crime, to the tracing of the criminal, and to further progress in the case. The situation is very different where the matter which is initially taken to be a cognizable case is found not a case at all or in any case, a matter which is non-cognizable. In such a situation where the order of the Magistrate concurring with the recommendation of the police supervenes the authority to re-investigate does not exist because there is no cognizable case to be investigated. For investigating a matter of civil nature or a non-cognizable case the permission of the Magistrate is sine qua non without which the proceedings cannot take place at the sweet will of the police.
6. In a situation like the present there could possibly be three courses open to the police. If on the report and the material already collected a different view is formed by the same or a succeeding officer of the police of the appropriate grade so as to prompt him to require reconsideration of the earlier recommendation including the order of the Magistrate he should through the same channel approach the Magistrate and have his concurrence to the recall of the order cancelling the case as non-cognizable or as no case at all. That being an administrative order can certainly be recalled in a bona fide manner and for sufficient reasons. If, on the other hand, the revival of investigation is induced by information received or material collected otherwise subsequent to the termination of the earlier proceedings then that would not be a revival of the investigation or a case of re-investigation of the case which stands cancelled but proceedings on the fresh material so collected or received. The third course would be to leave the complainant to resort to the alternative remedy of a complaint. In the first alternative it is not open to the police officer to re- investigate a cancelled case without reference to or in spite of the order of the Magistrate. The reason is simple. It cannot treat a case as non-existent or non-cognizable and yet proceed to re- investigate it.
7. In the circumstances, this petition is allowed with costs and the re-investigation of the cancelled case is declared to be without lawful authority and of no legal effect.