The petitioner challenges the registration of a case against him on an enquiry held and report made by the Officer on Special Duty, Governor's Inspection Team. The police had found him innocent on an earlier report based on the same facts. The learned counsel has urged the following points:-
(i) That an earlier inquiry had been held and there is no provision in the Act for second inquiry.
The learned counsel has relied also on section 29 of the Displaced Persons (Land Settlement) Act in support of his contention that no Court can take cognizance of an offence under this Act without a complaint in writing made by an officer appointed under this Act. The precise argument is that if once a person has been prosecuted, section 29 impliedly bars his prosecution again because it does not make any provision for repeated prosecutions or complaints.
(ii) That the Officer on Special Duty, Governor's Inspection Team has no power under the Act to make a report because section 29 provided that "officer appointed under this Act" can make a complaint; and because the Officer on Special Duty, Governor's Inspection Team is not an Officer appointed under the said Act, therefore, any report to the police made by him is without any authority.
(iii) On my asking that section 20 comes into play only after the registration of the case and relates to the cognizance of the offence by the Court and does not relate to the registration of the case, the learned counsel has explained that when the F. I. R is lodged, a copy thereof is immediately sent to the Magistrate; and the receipt of the F. I. R., by the Magistrate, by itself constitutes the taking of the cognizance of the offence. And because in this case, according to the learned counsel, the F. I.
R. Has been lodged and the copy of the F. I. R. Has gone to the Magistrate, therefore by this fact alone it has been established that the Magistrate has taken cognizance. Therefore if this cognizance is not in accordance with section 29 of the Act, the present petitioner cannot be proceeded against in any criminal matter based on the fresh report.
(iv) That nobody can be tried for the same offence twice. According to the learned counsel, a case was registered earlier in which the matter was enquired by the police but Hayat petitioner was not challaned. Therefore, he cannot be challaned now; and no investigation can proceed against him, because this will amount to double jeopardy.
(v) That the Officer on Special Duty did not give any opportunity of hearing to the petitioner, therefore no case could be registered against the petitioner on a report which was, by that reason, defective and on such a report no investigation could be carried on.
2. Before dealing with the points raised, it will be of some advantage to mention the outlines of the background of this matter. They have been given by the learned counsel:- One Mahi and his wife got the claim of their agricultural land verified and obtained agricultural land in district Sahiwal. Subsequently in respect of the same property left in India, a claim form (in Schedule IV) was submitted on behalf of the parties which also was verified and land was allotted in the name of the claimants in district Lahore. Out of the land allotted in district Lahore, some land has been purchased by the present petitioner. One Mehraj Din who acted as a special attorney of Mahi, reported the matter to the Settlement authorities disclosing that the second claim was bogus. Proceedings started on the Settlement side with which we are not concerned in the present matter. However, a report was made before the Enforcement Staff of the police disclosing the verification of a bogus claim, whereupon a case under sec--tions 420, 468, 471 read with section 109 of the Pakistan Penal Code was registered at Police Station New Anarkali, Lahore, on 5th of September 1963. Copy of that report is Annexure `A' to the present petition. It is significant to note that in the end of this report, the names of the accused are specifically mentioned as Mehraj Din Anwar and Mahi. It is also to be noticed that the fact that Hayat petitioner purchased the land, confirmed on the above-mentioned bogus claim, is also mentioned in this F. I. R.; but it is not mentioned as if he was an accused person. However, the learned counsel states that the investigation was also held against the present petitioner and he was found innocent by the police.
He was not proceeded against, Mahi and Mehraj Din, it is said, had been challaned.
Ultimately, the land was cancelled by the Settlement authorities from the name of Mahi. Two writ petitions were filed in this connection. One was No. 638/R of 1967. It was subsequently withdrawn and another Writ Petition No. 735/R of 1967 was filed. This writ petition was dismissed on 21 of March 1968, by this Court. Civil Petition for Special Leave to Appeal in the Supreme Court, it is said, is pending against the order of this Court, through the stay application has been rejected.
3. I do not see any force in any of the contentions raised by the learned counsel. Section 29 of the Displaced Persons (Land Settlement) Act XLVII of 1958 does not deal with the question of investigation by the police. By virtue of subsec--petition (2) of section 5 of Criminal Procedure Code, the investigation in such cases is done under the Criminal Procedure Code. Under the Criminal Procedure Code there is no bar in making a fresh report in respect of an offence, which has been earlier reported. And if the police takes up the investigation in such a case, section 29 of the Act cannot be a bar. It is now well-established proposition of law that the police can enter into a fresh investigation after having submitted a report under section 173, Cr. P. C. The second investigation can take place without a fresh F. I. R.; and if afresh report is lodged, there is no provision of law or rule of practice which can debar the police from investigating the case. This is particularly so if, as held in Kh. Nazir's case (1) it is accepted that they can conduct investigation even without a report. This is a much stronger case for the proposition I have mentioned above because, according to the learned counsel himself, Hayat petitioner was found innocent by thest police and was not challaned as a result of the first investigation. The words used in the petition are: "The petitioner after the investigation of the case by the police was found innocent and he was also found to have done nothing . . . . . He was, therefore, never involved in that case. He was also found to have no connection with Mehraj Din the special attorney of Mahi."
4. The next contention, of the learned counsel that the Officer on Special Duty, not being an officer appointed under the Displaced Persons (Land Settlement) Act XLVII of 1958 could not make a report and no investigation could be done on such a report, has no force either. The learned counsel bases his argument on the language of section 29 of the Act which is reproduced below:- "29. Cognizance of offences by Court.---No Court shall take cognizance of any offence punishable under this Act save upon a complaint in writing made by an officer appointed under this Act."
The reading of this section shows that it deals with the cognizance of offences by the Court and not with the registration or investigation of cases. There is no bar to the registration of a case by the police on the application or report of any person. He may or may not be an officer appointed under the Act. The bar is only in respect of the taking of cognizance of the offences by the Court. It will be only at that stage that the petitioner may, have any grievance, if it is found that the prosecution in the Court is not launched by a competent person. That stage has not yet reached in this case.
Moreover, the police has a statutory right to investigate a cognizable offence as soon as a report is made to that effect. As indicated above, they can investigate even without 'a report. This statutory right to investigate is not hinged by any technicality of the report having been made to the police; by certain specified person. This is nowhere found as a requirement in the relevant law. If any authority is needed to support this view, it may be found in M. Bashir Saigol and another v. The State and another (PLD 1964 Lah. 148).
5. The argument of the learned counsel that the Magistrate takes cognizance of an offence as soon as he receives a copy of the F. I. R., in routine after the registration of the case, is also without any force. In fact, it is misconceived. The E simple fact of receipt of a copy of the F. I. R.; it is a recognised proposition of law, does not amount to the taking of the cognizance in the case. Some other step or acts further needed to show that the Magistrate has taken the cognizance. In this case the factual position is also uncertain. The reading of the petition indicates that the case has not been registered but, according to the submissions of the learned counsel, the case appears to have been registered. Whatever the case may be even if the case has been registered and a copy of the F. I. R. Has been received by the Magistrate, it cannot be held that that Magistrate has taken cognizance of the offence. This question came up for decision before a Full Bench of this Court in Wazir v. The State (PLD 1962 Lah. 405) earlier cited in connection with another proposition. The above proposition of law was confirmed by the Full Bench at page 410 of the judg--ment in the following words:- "We are of the opinion that it would generally be a question of fact whether at a certain stage a Magistrate has taken cognizance of the case when a police challan has been presented before him. When a police officer makes a report under section 173 of the Code of Criminal Procedure that an offence has been committed, the section itself does not say what steps the Magistrate will take, and there is no further provision to meet the situation before we reach section 190, which provides that a Magistrate may take cognizance of an offence upon a police report. In other words, the police report by itself, when received by the Magistrate, does not constitute the taking of cognizance, and it is reasonable to expect that something more will be done to show that the Magistrate intends to start the proceeding."
Therefore, respectfully following the above dictum of their Lordships of the Full Bench, f am of the view that the contention of the learned counsel, that the receipt of a copy of the F.
1. R. By the Magistrate constitutes the taking of the cognizance of an offence, is not correct; and therefore section 29 of the Displaced Persons (Land Settlement) Act XLVII of 1958 is no bar to the reporting of the matter to the police or to their inves--tigating the same.
6. The contention of the learned counsel that the second investigation will amount to double jeopardy for the petitioner, is unfounded. There are two reasons for my holding that view in this case.
(i) The principle of bar against double jeopardy has been embodied in section 403, Cr. P. C. When a principle of natural justice is embodied in a statute, unless the statute expressly leaves out some part of that principle to be applied independently of that statute, normally the provisions of that statute will have to be followed in the application of that principle of natural justice. In this case it is not the argument of the learned counsel that the present case is covered by section 403, Cr. P. C.
And he .Has rightly avoided any reference to it. Obviously that section is not applicable.
(ii) The principle of double jeopardy, to my mind, applies to the vexation and inconvenience which is caused to an accused person, if he is tried for the same offence for which he has already been tried. In the present case it is admitted by the learned counsel that the petitioner was not even challaned in the earlier case and the present is only a report against him the investigation of which has yet to be conducted, completed and the challan if necessary; has yet to be filed against him.
7. Lastly, the learned counsel contended that the Officer on Special Duty did not afford any opportunity of hearing to the petitioner before making a report to the police for the registration of the case. I do not think that the Officer on Special Duty has violated the principle of natural justice i.e. Audi alteram partem, which the learned counsel, by the above argument, intends to invoke. This principle viz. Opportunity of hearing, before a person is deprived of his right to property, person or reputation, cannot apply to the making of an F. I. R. A person against whom an F. I. R. Is lodged, cannot be said to be deprived of any of his above-mentioned rights, and even if there is some shade of an attack on any of these rights in an F. I. R., it is permitted by law, i.e., section 154 of Criminal Procedure Code. And it is not the contention of the learned counsel that a principle of natural justice cannot be altered or modified by a statute under the Constitution of Pakistan. There is also another reason for not accepting the contention of the learned counsel in this behalf. And that is that if his contention is accepted and is made a universal rule, every accused person, before he is reported against for the registration of a case with the police, would have to be given opportunity of hearing. This would end in preposterous results which cannot be, and was never, the intention of the law-maker. It is not possible to give an opportunity of hearing to an accused person before the registration of a case.
8. No other case has been cited by the learned counsel nor has he advanced any other argument.
9. In view of the above discussion, I do not find any merit in any of the contentions raised by the learned counsel for the petitioner.
10. There is another very important aspect of this case which needs to be mentioned. This writ petition has been filed', to fore-stall an intended investigation and prosecution on the basis of an F.
I. R. Made by a person who, according to the petitioner, was not competent to report. The whole argument of the learned counsel is directed towards this end. In other words, instead of challenging the impugned proceedings under the Criminal Procedure Code (presumably under section 561-A thereof), the petitioner has invoked the writ jurisdiction under Article 98 of the Constitution. But the principles laid down by judicial pronouncements for application of section 561-A, Cr. P. C. i.e. For the quashment, of criminal proceedings, to my mind, will be fully applicable to the present case in view of its peculiar nature explained above.
The controversy of interference, by Court processes, in the police investigations has now been set at rest by the Supreme Court in M. S. Khawaja v. The State (PLD 1965 SC 287). The observations of their Lordships at page 291 of the report are reproduced:- "With reference to the last-quoted observation, we should point out that abuse, as attracting the inherent power of the Court, must be "abuse of the process of any Court", and "the investigation stage" is, generally speaking, outside the purview of the Court, arid rarely involves employment of any Court process. Further, the ends of justice" to secure which the inherent power may be invoked, have reference to the purposes which the judicial process is intended to secure, and it is difficult to include the actions of investigating agencies within the scope of judicial process."
Respectfully relying on the observations of the Supreme Court quoted above, I am of the firm view that the present writ petition is misconceived. The registration and investigation' of the present case cannot be interfered with, by the High Court in this case.
11. It may be pointed out at this stage that this case was sent to me today to be disposed of as urgent matter. When I asked the learned counsel as to what was the urgency about the case being heard today, the learned counsel explained, quite rightly, that there is an apprehension of the arrest of the petitioner; and because the basis of the would-be arrest are being challenged in this petition, therefore it is necessary that the case should be heard urgently rather immediately. I had given time to two other learned counsel in a notice case. I made them wait to dispose of this urgent matter. The learned counsel appearing for the petitioner has given me the facts and the background of the case and, according to him, with full responsibility.
12. At this stage I e. At the time I was dictating the last sentence, the learned counsel, who has been present at the bar throughout, without consulting his client, has requested that he should be allowed to withdraw the petition, because the observations made in the order dictated by me may go against his client. I sent for the petitioner who was outside the Court. On enquiry be also made a similar request. I assured the learned counsel that these observations will not go against his client in any other matter except the present petition; and because they are questions of law and have been agitated before the High Court therefore the determination, against his client in this petition, will have to be considered as necessary. However, in deference to the desire of the learned counsel, I consider that these observations should not be used against the petitioner in any matter other than that of the present petition. In respect of the request for withdrawal, I do not think that there is any harm in allowing this request; because in either way I will be dismissing the petition in limine. In view of these circumstances, I dismiss this petition as withdrawn.