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Criminal Miscellaneous No. 2783 of 1969, decided on 29th September 1969.

---Art. 22-High Court, jurisdiction of-Police withholding submission of challan-sheet although a prima facie case made out-Article 22 of Letters Patent (Lahore), held, attracted also to a concluded investigation and not limited to a direction for preliminary investigation-High Court can direct transfer of investigation from one officer to another.

--Ss. 173 & 170-Police report-Charge-sheet submitted by Station House Officer finding prima facie case established, withheld by superior Police Officer and fresh investigation ordered-Procedure adopted unwarranted by law and Police Rules-Ultimate decision whether a person is guilty or not, held, rests with Courts and not with police.

It is well settled that the right of the police to submit a charge-sheet even after the submission of the final report cannot be questioned, but that does not mean that the superior police officers had the right to withhold a charge-sheet and order fresh investigation. If the whole scheme of Chapter XIV of the Code of Criminal Procedure is examined closely, it will be seen that the ultimate decision, as to whether a person is guilty or not, rests with the Courts of law and not with the police. The conclusion of the investigation may be agreed to by a Magistrate, but he has the right to override the same.

---S. 170-Investiga tion-Investigation conducted in first place by Station House Officer finding accused liable criminally-Subsequent investigation made by another police officer under orders of superior officers found mala fide and not based on evidence on record-Subsequent investigation, held, without jurisdiction and illegal in circumstances-Station House Officer directed to submit charge-sheet to Court concerned.

Abdul Rauf and others v. Abdul Hamid Khan and others P L D 1965 S C 671 ref.

------S. 218-Superior Police Officer transferring investigation to another police officer not with any ulterior motive but in official routine-Contention that superior officer ordered fresh investigation to favour one of respondents who was his distant relation and. investigation officer deputed by him showed partiality hoping to find favour with that superior officer-

No indication on record that he influenced any subordinate officer to favour his distant relation-Superior officer, held, passed order in routine--Investigation officer, found to have acted improperly in not recording report honestly and faithfully, nevertheless let off with a warning.

Petitioner in person.

Raja Mohd. Sabir for Respondents Nos. 1 to 4, 7 and 8.

Arif Iqbal Hussain Bhatti for Respondents Nos..5 and 6.

Malik Abdul Hamid for the State.

Dates of hearing: 1st July, 15th and 23rd September 1969.

This is an application under Article 22 of the Letters Patent of Lahore High. Court praying for the transfer of investigation of a criminal ease "Ch. Muhammad Asif Ranjha, Advocate v. Ghulam Qadir and Ghulam Nabi, under section 4211, P. P. C., to any agency which is not subordinate to the Deputy Inspector General of Police Lahore Range, Lahore.

2. The facts gathered in the course of hearing of the peti tion are these. On 10th September 1968, Ghulam Qadir and Ghulam Nabi sons of Ch. Imam Din Cheema, residents of Chak No. 351S. B., Tehsil and District Sargodha, came to Lahore. Ghulam Qadir offered to sell his agricultural land measuring 141 acres situated in Chak No. 35/S. B., District Sargodha, to Mr. Muhammad Asif Ranjha, Advocate, Lahore, for a consideration of Rs. 45,000. The petitioner agreed to purchase the land and gave an advance of Rs. 2,000 at Lahore, in the presence of Muhammad Shafi, Nazir Ahmad, Ghulam Haider and Ch. Allah Rakha respectables of the locality. Next day, the petitioner accompanied Ghulam Qadir and Ghulam Nabi to Sargodha to ascertain the title of the property and to procure the revenue numbers from: the circle Patwari. On 11th September 1968, at Sargodha. Ghulam Qadir vendor executed a receipt and agreement whereby, he acknowledged the receipt of Rs. 2,000 and it was agreed between the parties that the vendee would purchase the land within one month of the date of agreement. On 7th October 1968, the petitioner learnt from the Patwari circle that Ghulam Qadir had already sold his land to Ch, Sultan Ali Cheema, respondent No. 1, and that mutation had been sanctioned in his favour on the 4th of October 1968. Learning of it, the petitioner on 31st October 1968, presented an application to the Senior Superintendent of Police, Lahore, reiterating the facts stated above. The Senior Superintendent of Police, Lahore, forwarded this application to the Prosecuting Deputy Superinten dent of Police, Lahore, for opinion, who in turn marked it to the Prosecuting Inspector. The report of the Prosecuting Inspector reads as under: -

"The facts contained in the application disclose that Ghulam Qadir in collusion with Ghulam Nabi got Rs. 2,000 as earnest money from the applicant on 10-9-68 for the sale of agricultural land which he had already sold on 30-8-68. Ghulam Qadir did not return the amount and thus by concealment of the transaction of sale, defrauded and cheated the applicant to the tune of Rs. 2,000. Prima facie an offence under section 420, P. P. C. is made out. The occurrence took place in the jurisdiction of Police Station Nawankot, Lahore."

The Prosecuting Deputy Superintendent of Police armed the report of the Prosecuting Inspector and forwarded it to the Senior Superintendent of Police. On 5th November 1968, the Senior Superintendent of Police, Lahore, ordered the registration of the case under section 420, P. P. C. at Police Station Nawankot. Hassan Muhammad, A. S. I. took over the investiga tion and it was supervised by Javed Bajwa, S. H. O. The investigating officer collected the evidence and, in the final police report made under section 173, Cr. P. C., came to the conclusion that the allegations of the petitioner were correct and that an offence under section 420, P. P. C. was committed within the jurisdiction of Lahore. He prayed to the Court that cognizance of the offence be taken and the accused be summoned for 28th February 196 .

The case diary of the case was examined by the Deputy Superintendent of Police, Old Anarkali and the Senior Superinten dent of Police, Lahore, on 14th March 1969 and 5th May 1969, respectively. There is no indication on the police file that any of these police officers differed with the conclusion arrived at by the investigating officer. Meanwhile, on 8th February 1969, the accused presented an application to the Deputy Inspector-General of Police, Lahore Range, Lahore, respondent No. 7, wherein they complained that they were not satisfied with the investigation made by Nawankot Police. The Deputy Inspector-General of Police passed the following order thereon: -

"S. S. P., Lahore/D. S. P., Old Anarkali be asked to look into it personally and let me have the report in due course."

The application along with the order was received in the office of the Senior Superintendent of Police, Lahore, the same day, who ordered: -

"D. S. P., Old Anarkali for necessary action and report." This order was passed on the 10th of February 1969.

On 13th February 1969, the Deputy Superintendent of Police, Old Anarkali, sent for the Station House Officer. Police Station Nawankot and examined the file of the case.

As the challan was not presented to the Court, the petitioner made an application on 4th March 1969, to the Deputy Inspector General of Police and the Senior Superintendent of Police, Lahore, wherein it was complained that the Deputy Superintendent of Police, Old Anarkali, Lahore, was withholding the challan as the accused had connexions with the police officers. The petitioner saw the Deputy Superintendent of Police, Old Anarkali, who told him that the investigation made by Nawankot Police would be verified by the Inspector of Police, Mozang, Lahore, respondent No. 6. The Inspector Police proceeded to Sargodha on 5th May 1969, and examined Bashir Ahmad Patwari, Malik Amir Khan Girdawar and Sh. Zahiruddin, Petition-writer, District Courts, Sargodha. He did not examine any other witness. Bashir Ahmad Patwari deposed that Ghulam Qadir had sold the land in dispute to Ch. Sultan Ali Cheema on 30th August 1968, and a report to that effect was recorded in the daily diary and that report was verified on 19th September 1968, by Circle Qanungo and on 4th October 1968, mutation was sanctioned by the Tehsildar. Sh. Zahiruddin, Petition-writer, deposed that he scribed the receipt and the agreement between Ghulam Qadir and Mr. Muhammad Asif Ranjha and that the sum of Rs. 2,000 was paid at Sargodha. In the earlier statement before the police, this witness stated that after satisfying himself as to the transaction between the parties he scribed the receipt and the agreement. The Inspector Police, Mozang in his supplementary report recommended that no penal offence was made out and that the dispute between the parties was of a civil nature. He recommended the cancellation of the case. The Deputy Superintendent of Police, Old Anarkali, Lahore, concurred with the recommendation of the Inspector and directed the Station House Officer, Police Station Nawankot, for the cancellation of the case by his order dated the 9th May 1969.

3: Feeling aggrieved by the order of the Deputy Superinten dent of Police, Old Anarkali, Lahore, the petitioner invoked the jurisdiction of this Court under Article 22 of the Letters Patent (Lahore). The petition was registered as Criminal Misc. No. 2651 of 1969. It was laid before my learned brother M. Jamil Asghar, J. (as he then was). On that day, the petitioner did not press the petition, the same was dismissed as having been withdrawn. On 15th May 1969, he presented another petition, the same was numbered as Criminal Misc. No. 2783 of 1969. This petition was laid before me. On being asked as to why he had withdrawn the earlier petition, the petitioner stated that on that day there was conflicting information with him regarding the order passed by the Deputy Superintendent of Police, Old Anarkali, Lahore, therefore, he thought it appropriate to withdraw the petition and to present the same in case it was finally decided by the police to cancel the case.

Raja Nawazish Ali, Inspector of Police, Mozang, was sent for along with the file of the case on 26th May 1969. The case was listed for hearing on 2nd June 1969. On that day the case was not taken up as the Court time was over. It was ordered to be put up for hearing on the 16th of June 1969. On that day after hearing the petitioner and examining the police file, the petition was admitted to hearing and notice was issued to the State and the respondents for 30th of June 1969. The matter was heard on the Ist of July 1969, and the police officers concerned were asked to file their written statements as to the alleged mala fides stated in the petition. The matter came up for hearing on the 2nd of July 1969. It was stated by the learned counsel for the State and the respondents that time should be afforded for filing written statements. Malik Abdul Hamid, learned counsel for the State stated that the Deputy Superintendent of Police, Old Anarkali, Lahore, was proceeding on leave, therefore, it would not be possible to submit the written statement written a short time. They were afforded a month's time to file their comments and the matter was ordered to be put up in the second week of September 1969. The matter came up for hearing on the 10th of September 1969, and was adjourned to 15th of September 1969. The case was finally heard on 23rd September 1969.

4. The respondents filed their explanations. Raja Nawazish Ali, Inspector of Police, who ie-investigated the case, stated that in his opinion the matter was of a civil nature and that the transaction or the offence, if any, was completed and committed at Sargodha and not at Lahore. He stated that he recorded the statement of Zaheer-ud-Din, Petition-writer. Sardar Zulfiqar Ali, Deputy Superintendent of Police, stated that Ghulam Qadir and Ghulam Nabi submitted an application before the Deputy Inspector-General of Police,-Lahore Range, Lahore, wherein they alleged that the investigation of the case was not being done properly and prayed for the transfer of the investigation and that' he received that application on the 10th of February 1969, with the order of the Deputy Inspector-General of Police and endorsed by the Senior Superintendent of Police, Lahore. He stated that he directed the Inspector of Police, Mozang, to verify the investigation of the case, who visited Sargodha in this con nexion. He stated that he endorsed the report of the Inspector dated the 7th May 1969, and directed the Station House Officer, Police Station Nawankot, to submit a cancellation report in the case. The Deputy Inspector-General of Police, Lahore Range, Lahore, admitted that Ch. Sultan Ali Cheema, respondent No. 1, is his relation as alleged in paragraph 2 of the petition, but stated that this could not in any manner affect or interfere with the discharge of his public duties. He stated that he forwarded the application of the accused in normal routine to the subordinate police officers. It was stated that Article 22 of the Letters Patent Lahore was not attracted to a concluded investigation and was limited to a direction for a preliminary investigation. He stated that in case the petitioner would have approached him he would have had no hesitation in transferring the investigation.

5. Mr. , Muhammad Asif Ranjha argued that once the investigation was complete and a report under section 173, Cr. P. C., by the Station House Officer was made, then it should not have b.-en withheld or intermeddled with by any authority including the .superior police officers. He contended that the second investigation made by Raja Nawazish Ali, Inspector of police, under the orders of the Deputy Inspector-General of Police, Lahore Range., Lahore, and the Deputy Superintendent of Police, Old Anarkali, Lahore, was dishonest and mala fide, and as a mala fide act is by its nature an act without jurisdiction, the second investigation should be held of no legal effect. He urged that there was sufficient evidence available on the record and that the report of Raja Nawazish Ali, Inspector of Police, was an incorrect report and was made with intent to cause injury to him and his act is clearly covered by section 218, P. P. C., and all the superior officers who affirmed his report or that the Deputy

Inspector-General of Police, Lahore Range, Lahore, who ordered the re-investigation knowing full-well that his relation, Ch. Sultan Ali Cheema was keen to protect them, was guilty of the offence under section 218, P. P. C.

6. Mian Aslam Riaz Hussain, learned Additional Advocate-General, stated that the allegations of mala fides against the police officers were unfounded. He stated that under Article 22 of the Letters Patent Lahore, this Court had the jurisdiction to order the transfer of the investigation and that in the circum stances of the case he had the instructions to state that this case may be transferred for r6-investigation to any police agency, which is not under the Deputy Inspector-General of Police, Lahore Range. He argued that the circumstances of the case do not warrant the prosecution of the police officers under section 218, P. P. C.

7. Article 22 of the Letters Patent (Lahore) reads: -

"22. High Court may direct the transfer of a case from one Court to another.-And we do further ordain that the High Court of Judicature at Lahore shall have power to direct the transfer of any criminal case or appeal from any Court to any other Court of equal or superior jurisdiction, and also to direct the preliminary investigation or trial of any criminal case by 4py officer or Court otherwise competent to investigate or try it, though such case belongs in ordinary course to the jurisdiction -of some other officer or Court."

The Letters Patent of the High Court of Judicature at Lahore, was made applicable under paragraph 9 of the High Court of West Pakistan Establishment Order, 1955, to the West Pakistan High Court subject to the provision of "any other law for the time being in force." The power conferred on the High Court under Article 22 of the Letters Patent to direct the transfer of investigation of a case from one officer to the other has not beer taken away by any other law. Therefore, this Court has the jurisdiction to transfer the investigation from one police officer to another under Article 22 of the Letters Patent of Lahore High Court.

8. The first question that arises for determination is what is the legal effect of the order passed by the Deputy Superinten dent of Police, Old Anarkali, in pursuance of the directions of the Deputy Inspector-General of Police in regard to the report submitted by the investigating officer, Police Station Nawankot, by which he found that a prima facie case under section 420, P. P. C. had been made out against the accused. It is well settled that, the right of the police to submit a charge-sheet even after the submission of the final report cannot be questioned, but that does not mean that the superior police officers had the right to with hold a charge-sheet and order fresh investigation. If the whole scheme of Chapter XIV of the Code of Criminal Procedure is examined closely, it will be seen that the ultimate decision, as to whether a person is guilty or not, rests with the Courts of law and not with the police. The conclusion of the investigation may be agreed to by a Magistrate, but. he has the right to override the same. I am unable to lay my hands on any provision in that Code or the Police Rules under which the first charge-sheet was withheld by a Deputy Superintendent of Police, as was done in the instant case, by the D. S. P., Old Anarkali, Lahore.

9. The second question that calls for decision is whether the order of second investigation was dishonest and based on mala fides. If it is found that the second investigation was conducted under some influence and found to be dishmest, then it being a mala fide act would be without jurisdiction.- It is admitted by the Deputy Inspector-General of Police that Ch. Sultan Ali Cheema, respondent No. 1, the first vendee of the land from the accused, is his relation. Raja Nawazish Ali, Inspector of Police, who re-investigated the case, though collected evidence that the accused had already sold the agricultural land to Ch. Sultan Ali Cheema and by suppressing the fact of earlier sale, had entered into another contract for sale with Mr. Muhammad Asif Ranjha and induced him to part with the earnest money, yet he gave his final report that no offence of cheating was made out. The other evidence collected by the investigating officer Police Station Nawankot, fully supports the allegations made in the first information report. In view of the entire evidence placed on the record it was the duty of the police officers concerned to forward this case to the Courts of law, because it is not within the domain of the police officers to adjudicate upon the guilt or innocence of the alleged offenders as this scope is of Courts alone. To conclude, I would say that the supplementary report of Raja Nawazish Ali, Inspector of Police, is not based on the evidence on the record. This report cannot be said to be an honest one. The reason appears to be that somehow Ch. Sultan Ali Cheema, who is a distant relation of the Deputy Inspector-General of Police, Lahore Range, might have exploited his kinship with the Deputy Inspector-General of Police to influence the Inspector of Police, who it appears fell into his trap and favoured the accused. I am clear in my mind that the second investigation made by Raja Nawazish Ali was rot an honest one and was mala fide. In Abdul Rauf and others v. Abdul Hamid Khan and others (1), their Lordships observed: -

A mala fide act is by its nature an act without jurisdiction. No Legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power. A mala fide order is a fraud on the statute. A mala fide order means one which is passed not for the purpose contemplated by the enactment granting the power to pass the order, but for some other collateral or ulterior purposes."

In this view of the matter, I hold that the second investigation was without jurisdiction and illegal. The Station House Officer, C Police Station Nawankot, is therefore, directed to submit the charge-sheet dated the 15th of February 1969, to the concerned Magistrate at Lahore.

10. The last contention of the petitioner is that the police officers are guilty of the offence under section 218, P. P. C.

(1) P 1. D 1965 S C 671

Section 218, P. P. C. is attracted where a police officer makes a report knowing it to be incorrect and with intent to cause injury to the complainant. In the instant case, there is nothing on the record to show that the Deputy Inspector-General of Police was taking personal interest or that he passed an unusual order. He simply marked the application of the accused in usual routine to the Deputy Superintendent of Police, Old Anarkali, for looking into the matter. Likewise, the Deputy Superintendent of Police forwarded the same to Raja Nawazish Ali, Inspector of Police, Mozang, for re-investigation, As observed earlier, Raja Nawazish Ali, Inspector of Police, appears to have been influenced by Ch. Sultan Ali Cheema, respondent No. 1, who is a distant relation of the Deputy Inspector-General of Police. The Police Inspector thought that by doing so the might curry favour with the Deputy Inspector-General of Police, though from the written statement of the Deputy Inspector-General of Police it is obvious and abundantly clear that he passed the order in routine and there is no indication on the record that he influenced any of the subordinate officers to favour his distant rela tion. Likewise, there is nothing on the record which is indicative of the fact that the Deputy Superintendent of Police, Old Anarkali, Lahore, was influenced to concur with the report of the Inspector. He might have done so in routine believing that his subordinate has investigated the case faithfully and honestly. If a distant relation of the Deputy Inspector-General of Police has exploited his good name to gain his end, the Deputy Inspector General of Police could not be blamed for it. We know from experience that some distant relations do exploit the names of the officers without their knowledge to achieve their object. At the same time, I am constrained to hold that Raja Nawazish Ali, Inspector of Police did not record the report honestly and faithfully. His conduct is not prise-worthy in the safe administration of justice and in the interest of public, it is necessary that police officers should record reports correctly, truly and faithfully and it is to the injury of the public that offence (s) should be concealed by the police, and that reports should be falsely recorded. It came to my mind that I should propose some action against Raja Nawazish Ali, Inspector D of Police, but I am letting him off with a warning to be careful in future, but this should not form an impression in his mind that he can commit such like act with impunity. The petition is disposed of accordingly.

Order accordingly.

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