' This matter now stands titled as "Shahzadi Mumtaz Jahan and two others v. (1) The Area Magistrate, (2) The S.H.O. Police Station North Cantt. (3) Inspector-General of Police, Punjab (4)
Syed Najaf Hussain Shah (5) Syed Ijaz Hussain Shah and (6) Nathu Khan".
2. Briefly, the facts are that 1st petitioner inherited some agricultural land situated in Alipur Sub- Division District Muzaffargarh and Jauhar Town, Lahore from her mother who had, in her own turn, inherited it from her real sister. The properties, both at Alipur and Lahore, are very valuable to pieces of land and the case of the petitioner is that her son-in-law Col. Ijaz Hussain Shah proceeded, with forging a General Power of Attorney, (GPOA) for short, on 7-7-1997, i,e,, just today after the imposition of Martial Law in the country on 5-7-1977. Ostensibly acting under the alleged authority of the said (GPOA), said Attorney started disposing of the lands, subject-matter thereof.
3. Petitioner's son Mr. Muhammad Javeed Iqbal Jaffari as also her second son, namely Dr. Asim Mukhtar, were both out of country and remained so upto 1988/89. Being a lady of more than 80 years in age and not having the benefit of her sons to look after her interests during their absence abroad, she was not in a position to attend to the cause until after the arrival back in Pakistan of Mr. Muhammad Javed Iqbal Jafree, Advocate. Petitioner's said son succeeded in obtaining an order from the then Inspector-General of Police on 29-3-1989 for the registration of a case at Police Station City Alipur under sections 420, 467, 468 and 471, P.P.C. Vide F.I.R. No,54 of 1989, dated 29-3- 1989. This F.I.R. Was at one point of time attended to by the local police of city Alipur but in a slipshod manner Petitioner's son received a communication from the Superintendent of Police, Muzaffargarh, dated 25-11-1991 to the effect that during investigation it has transpired that commission of offences of forgery', impersonation etc. Had taken place at Lahore and that as the General Power of Attorney was both prepared and registered at Lahore and in the office of Sub- Registrar, Lahore respectively, therefore, the police of District Lahore will have the jurisdiction to deal with the matter at their level. It was after about 3-1/2 years of the registration of the case at Police Station City Alipur that case F.I.R No,580 of 1992, dated 29-11-1992 was registered at Police Station North Cantt. Lahore under sections 468, 471, 420/467, P.P.C. The accused side manoeuvred the removal of the names of Najaf Hussain Shah and Nathu Khan and got them discharged in the case. The case was enquired into, allegedly, against Col. Ijaz Hussain Shah alone and, even in his case, the accused-party succeeded in obtaining a two line observation by so-called "Duty Magistrate" i,e,, Dr. Waqar Ahmed Khan on 7th September 1994, for cancellation of the said case to his extent as well.
4. The case of the petitioner is that the matter was, in fact, gone into by more than, one Investigating Officers and without the result of said investigations having been brought to bear upon the alleged finalization of the report, dated 7-9-1994, the concerned quarters fell into an error of law by both not considering the material on the record and sans (?) making a speaking order.
The prayer-clause in the original unamended petition reads thus:--- "Wherefore Petitioners pray for Preliminary and Permanent Injunction that respondents or anyone else are not (to) interfere with any F.I.R. And any and all lawsuits, or complaints of the petitioners; the Police be commanded to submit challan within 15 days after filing report by August 6, 1993 and then case be transferred from the Sessions to High Court for trial; for past interference in due course of justice; respondents 2 and 3 be ordered to pay symbolic damages in this extraordinary situation (money is the only language they comprehend); and this Honourable Court provide guidelines for honest, proper investigation and in the meanwhile grant quia tiem and Peshbandee relief; and perhaps sanctions be imposed on guilty of misconduct respondents or against persons named by them who have put pressure on respondents (who be ordered to reveal the names thereof) for impeding due course of justice for reasons of nepotism, favoritism and on going and sadistic abuse of power; punitive costs be awarded under Article 3; section 35-B of the C.P.C. Any investigation by Ali Pur Police, since they claimed no jurisdiction at all should be ordered held at a naught. The Court order respondents 2 and 3 to instruct all employees to answer all nail within 10 days of its receipt. And no part of the Alipur alleged investigation be used in connection with F.I.R.
No,580 of 1992. Also other and different relief be accorded.
"The Court may note that Iqbal Jafree will be out of the country till September 4, 1993. It is prayed that the Court instead of disposing of this writ petition retain jurisdiction till all the relief is accorded and has fructified."
' Noticing subsequent amended memos. Of this petition, it would be appropriate to reproduce the last amended petition's prayer-clause. This is contained in "Third-amended Writ Petition Per 16-10- 1994 Orders of Honourable Court." in which the array of parties is to read as below, in terms of orders, dated 7-7-1993 and 15-5-1997 latter order having been made in Civil Miscellaneous No,1274 of 1997:--
(1) Alhajj Shahzadi Mumtaz Jaham widow of Syed Iqbal Hussain Shah R.A., resident of 128-E-1 Gulberg Main Boulevard, Lahore-54660.
(2) Muhammad Jawaid Iqbal Jafree son of Syed Iqbal Hussain Shah R.A., and Shahzadi Mumtaz Jahan, Secretary of the Shahzadi Mumtaz Jahan Trust, 128-E-1, Gulberg Main Boulevard, Lahore 54660.
(3) Pir Shamwhorish Al-Rizwaun ul-Murtaza son of Asghar Ali Shah R.A., (Address as above).
Petitioners. ' versus
(1) The Area Magistrate, Lahore Cantt North, A.C. Courts House Ahata, Saddar, Lahore.
(2) The S.H.O., Police Station Lahore Cantt. Shamali, Saddar, Lahore Cantt.
(3) The Inspector-General Police, Lahore.
(4) Syed Najaf Hussain Shah son of Brig. (Retd.) Syed Ijaz Hussain Shah, resident of 8-A, Defence Housing Society, Lahore.
(5) Brig. (Retd.) Ijaz Hussain Shah, resident of 8-A Defence Housing Society, Lahore Cantt.
(6) Nathu Khan c/o Brig. (Retd.) Syed Ijaz Hussain Shah resident of 8-A Defence Housing Society Lahore Cantt. Respondents.
' The prayer clause reads thus:-- WHEREFORE, it is humbly prayed that:
(a) Leave be granted to file this 3rd amended writ petition, as is, instanter and rules be relaxed per section 151, C.P.C. To that effect;
(b) The custom and usage of not answering queries of the complainant about his/her F.I.R.
Progress in writing be declared to be unconstitutional (Articles 3, 8 of Constitution) as it is illegal (section 173, Cr.P.C.) and against public policy promoting corruption and perversions of justice;
(c) The Court issue guidelines for future handling of complaints;
(d) The administrative Orders of the Area Magistrate, dated 24-1-1993 (Partially cancelling the F.I.R.
580 of 1992 but ordering thorough investigation against Ijaz Hussain) and of 6/7-9-1994 cancelling the F.I.R. Against Ijaz Hussain Shah be quashed as illegal and in abuse of discretion;
(e) Respondents are ordered to complete a re-investigation within 1 month and the reinvestigation be assigned to respondent 6 from whom it was removed without any reason or justification; (0 The Court direct that since the Alipur ' investigation' was without jurisdiction; it is nullity and shall not be used by Lahore Police; and the answer and 'comments' scurrilously/corruptly submitted by respondent 7 Mushtaq Ahmad be expunged from the file and the Court direct that respondent 7 acted arbitrarily in making his ' recommendations' without contacting the Petr and her side of the family. In fact no relative has come forward to side Ijaz-Najaf-Nathu fraudulent story; (f-2) The Honourable Court declare the rights of the parties; 'Respondents be directed not to use the forbidden fruits of the poisonous tree of the so-called Alipur Investigation (F.I.R. 54 of 1989 Alipur) in any matter in future and seal it and store it; 'That the Court order respondent I.-G.P. To carry an investigations into criminal misconduct and corruption of respondent Mushtaq Ahmad (to whom under section 164, Lofe Polygraphic Lie Detection tests may be given); 'The Court order how Najaf Hussain (not a respondent in Writ Petition 6117 of 1993) obtained copies from this file; 'The Court retain jurisdiction while re-investigation is being done and to ensure that directions are not flouted; respondents Nos.1, 2, 4 and 7 be restrained from interfering with this F.I.R. Or case directly or indirectly;
(k) Other, different, additional relief be granted and preliminary and permanent and Quia Timet relief be granted holistically; and the Writs Office ensure the integrity of the file in Writ Petition 6117 of 1993 by all firm means;
(1) Costs and full attorneys fees be awarded;
(m) 80 years plus old Purdahnaskeen petitioners requests the Court to facilitate her personal appearance before Honourable Justice as much time has been wasted ... Permission be granted to S.M.J. To be driven close to the Court room and her testimony be tape-recorded (Article 164 law of Evidence): Respondents are wasting time so that S.M.J. Dies."
5. During the hearing of the case, after the submission of last-amended memo. Of writ petition, petitioners' miscellaneous application bearing Civil Miscellaneous No,1523 of 1997 and 1607 of 1997 were respectively disposed of on 23-6-1997 and 1-7-1997. Former application, seeking an interim order of payment of costs amounting to Rupees 3,93,00,000.92 was disposed of with the observation that the matter in relation to costs will be attended to at the time of disposal of the main case and the latter stood disposed of with a direction to counsel for the parties to get whatever documents and/or excerpts from pleadings they want to, from each other, couple of days before the next date, i,e, 9-7-1997 and as regards the prayer from bringing on record the statement of the 1st-petitioner, it was observed that certified copy of the same can be procured and put to any use "--- in relation to this cause and/or any other".
6. Learned counsel for the petitioners has simply reiterated the pleas noticed in the admitting order, dated 11-3-1997, para.2 whereof reads thus:- "(2) I have heard the learned Law Officer at this stage and am inclined to admit this petition to regular hearing to consider whether the order, dated 7-9-1994, passed by the Illaqa Magistrate North Cantt. Lahore, is not deficient in the following particulars:- It has not made a reference to either the plea unfolded by the first informant in F.I.R. No,580 of 1992 or even tot he material brought on the police file before more than one Investigating Officers.
(ii) The order, dated 7-9-1994 is sans any reference having been made to the police file.
(iii) The effect of pendency of the civil suit titled 'Mst. Shahzadi Mumtaz Jahan v. Brig. (Retd.) Syed Ijaz Hussain Shah etc.' pending before the Civil Courts at Lahore was not even obliquely referred to at the time of making the order, dated 7-9-1994.
' It is argued that as the earlier case, registered at Police Station Alipur City, was disposed of with the observation that registration of the alleged power of attorney having been proceeded with at Lahore, within the territorial limits of Police Station North Cantt. Lahore, therefore, the case be got registered there and, after nabbing them, they be challaned according to law. The application seeking the preceding course of action was accompanied by copy of statement, dated 29-11-1992 made by Dr. Ahsan Mukhtar to the effect that the 1st-petitioner had time and again expressed herself as having not executed any power of attorney in favour of respondent-Ijaz Hussain Shah and that:- {{URDU TEXT}} ' Orders, dated 24-1-1993 and 7-9-1994, made professedly by the then Illaqa Magistrate, it is contended by the learned counsel, are sons support from law and facts of the case. With regard to the order, dated 24-1-1993, it is contended that the same illegally made a distinction between the case of respondents Syed Najaf Hussain Shah and Nathu Khan and respondent Ijaz Hussain Shah, former of whom stood exonerated and regarding the latter it was observed that ".. Let a thorough investigation be carried in the presence and after listening of the complainant and his mother. Also have a look on the hand writings, signatures and get it examined if necessary. All this is necessary to satisfy both the parties and to meet the ends of justice. According to the learned counsel, it was during the pendency of this petition here that order, dated 7-9-1994, made by so-called Illaqa Magistrate North Cantt. Lahore, came to light. This order is couched in the following words:- "Order. Accused Brig. (Retd.) Ijaz Hussain Shah present.
' The case was presented earlier before the Maga Court for discharge orders. However, the Court discharged Najaf Shah and Nathu Khan and directed for further investigation in respect of main accused Brig. (Retd.) Syed Ijaz Hussain Shah. Police has conducted investigation and has resubmitted the matter before Court. I have gone through the file and final report of investigation.
Accused is discharged as no evidence has been collected.
' File be consigned to record."
' Learned counsel for the petitioner has divided his arguments in two groups/parts. In the first instance, it is argued that order, dated 24-1-1993 in itself was not supported by anything favourable to respondent Syed Najaf Shah and Nathu Khan with the result that alleged exoneration of the said accused was uncalled for. According to him, the case of all the three accused required proper investigation and, therefore, confining it only to one of the three accused was totally unjustified. In the second place, it is contended that not only that nothing at all was" achieved even to the extent of the suggested ' in depth enquiry regarding respondent Ijaz Hussain Shah, investigation of the case was got transferred by the said respondent from D.S.P. Circle Cantt. To D.S.P. (Legal) and that too without hearing petitioner No,1 or anybody else on her behalf. The former Investigating Officer, namely, Rana Mahmood-ul-Hassan, D.S.P. Cantt. Circle had heard the 1st petitioner and her 2 ,sons and also proposed to take action against respondent Ijaz Hussain Shah under section 87, Cr.P.C.
The transfer of investigation from him could not be factualized and the matter took a different turn, during the interregnum. Dr. Waqar Ahmed was the area Magistrate and respondent No,4 succeeded in having the case being placed before one Dr. Waqar Hussain. He further succeeded in obtaining report from the local police recommending him to discharge respondent Ijaz Hussain Shah (which was done on 7-9-1994). As the order, dated 7-9-1994 was not made by the concerned Illaqa Magistrate and as no inquiry was held by the local police in line with the earlier order, dated 24-1-1993, both the orders are liable to be quashed by this Court and appropriate directions issued, to the local police, to proceed in the matter in accordance with law. Relying upon Muhammad Alam and another v. Additional Secretary to Government of N.-W.F.P., Home and Tribal Affairs Department and 4 others PLD 1987 SC 103, Bashir Ahmed v. Bashir Ahmed and others PLD 1975 Lah.
373, Bahadur and another v. The State and another PLD 1985 SC 62 and Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz), Narowal and 5 others PLD 1992 Lah. 178 it is contended that although these orders fall in the category of executive orders still they bring to therefore, the fact that they are tantamount to thwarting the ends of justice and rendering ineffective the duties/functions of the local police to complete the investigation, submit challan of accused and have the case tried/decided by the appropriate forum. This having not been done the respondent- authorities generally and the local police in particular have failed to perform their said functions and can be mandated to act in accordance with law. On question/s from the Bench regarding the production of any written material by the petitioners' side before the Investigating Officer between 24-1-1993 and 7-9-1994 and regarding obtaining or otherwise of comparison of the disputed signatures on the power of attorney as also the formal signatures of respondent Ijaz Hussain Shah, he stated that numerous affidavits and statements of 2 sons and 3 daughters of the 1st petitioners were produced before the concerned authorities and that no effort whatsoever was made by the Investigating Officer to obtain comparison of the disputed signatures on the power of attorney with the formal signatures of respondent Ijaz Hussain Shah and that he is not aware of any progress made by the local police in relation to obtaining expert opinion on the sample signatures of the 1st petitioner.
7. Mr. Javed Iqbal Awan, learned Law Officer, has produced for perusal police file containing Ziminis Nos.18 to 21, 24, 26 to 28 and 31 to be and states that statements of Ijaz Hussain Shah and Najaf Hussain Shah were recorded on 12-10-1993 (Zimini No,18), an undated letter from Syed Javed Iqbal Jaffari was reproduced verbatim on 26-10-1993 (Zimini No,19), statement of Javed Iqbal Jaffary was recorded on 27-10-1993 (Zimini No,20), statement of Dr. Ahsan Mukhtar was recorded on 24-1- 1993 (Zimini No,21), statement of First Informant/petitioner No,1 was taken down on 10-5-1994 (Zimini No,26), respondent Ijaz Hussain Shah was reported absconding and recommended to be proceeded against under section 87, Cr.P.C. On 12-6-1994 (Zimini No,2) Final Zimini in so far as Investigating Officer/D.S.P. Rana Maqsood-ul-Hassan is concerned investigation was transferred to S.-I. Munawar Khan on 20-6-1994 (Zimini No,28), investigation further transferred to D.S.P.
Headquarters namely, Muhammad Abdul Rehman by S.S.P., Lahore and the former sought the opinion of D.S.P. (Legal) on 20-7-1994 (Zimini No,31), D.S.P. (Legal) asked for the legal document, i,e,, general power of attorney on 2-8-1994 (Zimini No,32) and final Zimini (No,32, dated 18-8-1994) was prepared by the then Inspector-S.H.O. Police Station North Cantt., Lahore which simply contains narration of basic features of the case and is totally silent about any recommendation by the Investigating Officer to the Illaqa Magistrate for concealing the case. He has read out the relevant opinion in that regard, which is to the following effect: {{URDU TEXT}} ' The learned Law Officer has not argued the matter with a view to bring on record for having either supported orders, dated 24-1-1993 and 7-9-1994 or requested for disposal of the main case, one way or the other.
8. Sardar Muhammad Latif Khan Khosa, Advocate has controverted the arguments raised by the learned counsel with two-fold submission. Ist limb of his arguments is that the earlier case, being F.I.R. No,54 of 1989 registered under sections 420, 468, 471, P.P.C. At Police Station Alipur District Muzaffargarh on 29-3-1989, was cancelled by the then Illaqa Magistrate, therefore, the registration of the second F.I.R., i,e, No,580 of 1992 under sections 468, 471, 420, 467, P.P.C. At Police Station North Cantt., Lahore on 29-11-1992 was void ab initio. The second limb of his arguments was that as civil litigation between the private parties herein is pending decision at Lahore, which has a direct connection with the alleged subject-matter of said F.I.R. No,580 of 1992 the matter cannot be gone ahead as alleged and that if the petitioners were to succeed in establishing, before the Civil Courts that the power of attorney is a forged document only then the criminal case can be gone ahead on a reference by the Civil Court in that regard. Further elaborating his arguments it was contended that report under section 173, Cr.P.C., for challenging the accused in any given case, is to be preceded with bringing of evidence on record by the concerned Investigating Officer/s and if there is no such evidence available then the matter is reported to be cancelled. Relying upon Bashir Ahmed v. Illaqa Magistrate, Jaranawal and 4 others PLD 1980 Lah. 28, it was contended that an order of discharge of an accused could mean cancellation of the case to the extent of particular accused. As in fact, no lis whatsoever stands resolved, when an accused is discharged in any criminal case, the remedy of the complainant/Ist Informant lies in making a complaint under section 200, Cr.P.C. A complaint was in fact filed before the learned Illaqa Magistrate, under sections 406, 419, 420, 467 and 468, P.P.C. And the same was dismissed on 29-5-1989, vide Annexure "K" to the written statement on behalf of respondents Nos.4 and 5. A long drawn out litigation both before the Criminal Courts (at various places in the Province) and Civil Courts has been engineered by one of the sons of 1st petitioner, i,e, Mr. Muhammad Javed Iqbal Jaffary. With the cancellation of both the F.I.Rs, Nos.54 of 1989 and 80 of 1992, after proper investigation by more than one Investigating Officers at different places, the petitioners can ill afford to seek another inquiry into the cause and that too in the presence of pending civil litigation before the Civil Courts of plenary jurisdiction. He has referred to Waqaru. 1 Haq alias Mithoo and another v. The State PLD 1988 Lah. 336 to contend that as orders made under subsection (3) of section 173, Cr.P.C. Partake of the nature of administrative orders, the same are not amenable to the Constitutional jurisdiction of this Court.
9. There is no cavil with the proposition that an order made under section 173, Cr.P.C. Cannot be made the subject-matter of a revision under sections 435 and 439, Cr.P.C. Here, the question is whether such an order has, in fact, been rendered by the Magistrate concerned or not? It is common ground between the petitioners and the private respondents herein that two orders have been made by the then Magistrate/s on 24-1-1993 and 7-9-1994. Order, dated 24-1-1993 was admittedly made exonerating respondents Syed Najaf Hussain Shah and Nathu Khan. With regard to respondent Ijaz Hussain Shah, it was specifically mentioned then that his case required thorough investigation and that his handwritings and signatures required examination. The second order, dated 7-9-1994, taken on its. Face value, talk of the material in relation to respondent Syed Ijaz Hussain Shah having also been gone alongwith them and final report of investigation. The latter order has been reproduced in the above Zimini No,33. Being final and prepared by the then Inspector-S.H.O. Police Station North Cantt. Lahore, it makes a reference to the cancellation report, dated 4-12-1992, i,e, before the making of the 1st order, dated 24-1-1993. Report, dated 4-12-1992 was subject-matter of the 1st order, dated 24-1-1993 and the same cannot be equated with a basis for authenticating the 2nd order, dated 7-9-1994. Viewed in this perspective, it tantamounts to ignoring even the mandate contained in order, dated 24-1-1993 with the result that the same has not been complied with, so far. No precedent has been cited to support the contention on behalf of respondents Nos.4 and 5 that even an order which has been made contrary to the directions of the predecessor Magistrate can be upheld. There is considerable force in the contention of the learned counsel for the petitioners that all concerned can be mandated to perform their function under applicable law and rules. It is not the case of the contesting respondents that Court's jurisdiction to put the respondent-authorities on the right rails, is not attracted. Ist two questions detailed in admitting order, dated 11-3-1997, are answered in the affirmative.
10. As regards the last question referred to ' in order, dated 11-3-1997, suffice it to say that pendency of civil suit may have a direct bearing on the authenticity or otherwise of the disputed power of attorney but, the matter in relation to commission of an offence by the private-respondents herein still remains current, for its resolution in the later proceedings. Failure on the part of the learned Illaqa Magistrate, in his order, dated 7-9-1997 to refer to the civil suit titled "Mst. Shahzadi Mumtaz Jahan v. Brig. (Retd.) Syed Ijaz Hussain Shah etc." is of no consequence. I am not even inclined to comment upon the contention raised by the learned counsel for the petitioners that there was any lacuna in the proceedings being brought before one or the other Illaqa Magistrate i,e, "Dr. Waqaar Ahmed" and "Dr. Waqar Hussain", for the simple reason that the said order, dated 7-9-1994 cannot be allowed to stand in the way of all concerned, to comply with the earlier order, dated 24-1-1993.
11. I have considered the arguments of the learned counsel for the contesting respondents to the effect that a complaint, filed by the 1st petitioner before the learned Illaqa Magistrate, under sections 406, 419, 420, 467, 468, P.P.C. Was dismissed on 29-5-1989 and that the matter before the criminal Court should be treated as having come to a close. I am afraid the argument losses sight of the fact that the alleged dismissal of the said complaint by the Illaqa Magistrate on 29-5-1989, came about before even the 1st order, dated 24-1-1993. Such situation was available with both the investigators and the learned Illaqa Magistrate, when the order, dated 24-1-1993 was made by the latter. There is no need for determining the effect of such dismissal on the finalization of the case by all concerned and that too in the absence of any objection being raised by the answering- respondents between 29-5-1989 and 24-1-1993 or even subsequent thereto.
12. For all that has gone before, instant petition is allowed, order, dated 994 is declared to have been made without jurisdiction and the case is d to the respondent-authorities to comply with the direction, dated 24-1-1993, within two months. As the matter has been remanded to the respondent-authorities for finalizing the same in terms of the earlier orders, both the parties are directed to bear their respective costs.
13. Office is directed to send the. Police file to respondent No,2, immediately.