P L D 2005 Karachi 375 (PLP)

RAHMAT HUSSAIN JAFFERI, J.‑‑The applicant has filed the present constitution petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 with the following prayers: (a) declaration that the actions and act of the police officers/respondents Nos.2 to 4 for re‑investigation/reopening of criminal case registered vide F.I.R. Nos.480/2001 under sections 420/468/471/506(1),.P.P.C., P.S. Ferozabad, Karachi are illegal, unlawful, without jurisdiction, mala fide, null and void having no legal effect in the eyes of law. (b) directions to the respondent No.2 for registration of the case against the respondents Nos. 1, 2, 3, and 4, and any other person involved in the offence, under the relevant provision of law and deal with them in due course of flow. (c) Interim injunction restraining the respondents Nos. 2 to 4 from further re‑investigation of the case; F.I.R. No. 480 of 2001 during pendency of this petition. (d) Award compensatory costs amounting to Rs.5 lacs or as deemed fit by this Honourable Court to the petitioner against the respondents Nos. 1 to 4 to be paid by them jointly and severally or by the State on behalf of the official respondents. (e) Any other relief (s) deemed fit and proper by this Honourable Court under the special circumstances of the case."

2. Brief facts giving rise to the present petition are ‑that the petitioner and his team member's were dealing in Publicity Business. On April 8, 2000, the petitioner and his team members entered into an agreement with the respondent 1 to work with them in the business. In pursuance of the said agreement, the parties worked together for some time as per terms and conditions of the agreement but due to high handedness of the respondent 1 the petitioner and his team members were made to leave the respondent

1. As some dues were outstanding against the respondent 1 therefore the petitioner through his advocate served a legal notice dated 22‑11‑2001 on the respondent 1: calling upon him to pay such dues. A notice` was also published in a newspaper. 'In retaliation to the above notice, the respondent 1 also published a defamatory notice along with photograph of the petitioner and his team members in daily "Dawn" and "Jang" dated 2‑12‑2001. He also printed and distributed a derogatory pamphlet containing photograph of the petitioner and his team members, causing extreme damage to their reputation in the market in particular and in public at large. In order to pre‑empt the legal notice from the petitioner the respondent 1 with mala fide intention and ulterior motive got a false case registered against the petitioner and his team members vide F.I.R. No.480 of 2001 under sections 220, 468, 471, 506(1), P.P.C. at Police Station Ferozabad Karachi on 4‑12‑2001. The petitioner and his team members obtained a bail before arrest from the Sessions Court. The police after usual investigation, on 7‑6‑2002 submitted a final report under section 173, Cr.P.C. in the Court of IInd Judicial Magistrate Karachi East requesting for cancelling the case under "B" class for want of evidence. The said Magistrate approved the request of the police and cancelled the F.I.R. vide order dated. 3‑7‑2002. On 6‑12‑2001, the petitioner filed a civil suit No.127‑of 2002 against the respondent 1 and his. firm for rendition of account, recovery of dues, damages, cancellation and permanent injunction in this Court, which still pending for adjudication.

3. In the above background the petitioner submitted that on 31‑7‑2002 at about 7.00 p.m. the respondent 4 on the directions of respondents 2 and 3, arrested the 'petitioner, raided his house and houses of his team members: The petitioner was handcuffed and rough handed by the police at the instance of the respondent

1. The police produced him before the IInd Judicial Magistrate Karachi East for obtaining remand on 1‑8‑2002. The petitioner was kept in police custody up to 6‑8‑2002 and throughout the period of his confinement he was extended threat to his life, pressurized to come to terms with the respondent 1 and to withdraw the suit No.127 of 2002 pending before this Court. On his refusal, the petitioner was remanded to jail custody at the instance of respondent 1 which has caused extreme harassment, insult, torture and threat to his life. The petitioner moved the Sessions Court for the grant of bail, which was granted on 7‑8‑2002. The rest of the team members were compelled to seek the pre7arrest bail and the Sessions Court admitted them to an interim, bail before arrest on 3‑8‑2002. It is further, alleged that the respondents 2 to 4 are, bent upon to carry on with the investigation of the case illegally thereby causing extreme harassment, torture and damage to the ‑petitioner and his team members at the instance of respondent

1. Therefore, he has filed the present petition.

4. The respondent 1 tiled his comments, in which he admitted the execution of the agreement between him, the petitioner and his team members to carry out works but denied that any dues were outstanding against him. However, he admitted the receipt of notice issued by‑ the petitioner and publication of such notice in the newspaper. He also admitted the publication of his notices in the newspapers and distribution of pamphlet with the photograph of petitioner and his team members. He has also admitted the filing of F.I.R. No. 480 of 2001 and cancellation of such F.I.R. by the Magistrate. Nevertheless, he stated that he had moved an application before the higher officers of the police against the investigation officer for submitting incorrect challan before the Magistrate on which the case was cancelled. Therefore on the orders of superior police officer the case‑ was re=investigated in which the petitioner was arrested who was produced before the Magistrate for obtaining remand which was granted to the police. He further stated that the police after usual instigation submitted the challan in the Court of law and now the case is pending before the Court. He has denied the other allegations of the petitioner.

5. The respondent 4 also filed his comments in which he admitted the registration of F.I.R. No.480 of 2001 and cancellation of such F.I.R. by the Magistrate on the report of the earlier investigation officer. However, he stated that he received the case under the orders of the D.I.‑G., Karachi for re‑investigation of the case. Therefore, he recorded the statements of witnesses and found the involvement of the petitioner and his team members in the case therefore the petitioner was arrested and, subsequently produced before the Magistrate for obtaining the remand, which was accordingly given. After re‑investigation of the case, he submitted the challan before the Court and that he committed no illegality in re‑investigating the case under the orders of D.I.‑G.

6. We have heard the 'advocate for the petitioner, respondent 1 in person and Assistant Advocate General.

7. Mr. Sh. F.M. Javed, learned advocate for the petitioner has stated that in the first investigation, the Investigating Officer reported to the Magistrate that the case may be disposed of under "B" Class, as there was no evidence against the petitioner; that the learned Magistrate approved the said report and cancelled the F.I.R. He has further stated that after cancellation of the F.I.R., the same cannot be re‑investigated or reopened by the Police without the permission of the Magistrate or getting the said order set aside, from the superior Court, therefore, the re‑investigation of the case by the Police is illegal. In support of his arguments, he has relied upon the following cases:‑‑ (1) Mulazim Hussain v. S.H.O., 1995 PCr.LJ 440. (2) Mir Dad Khan v. Zahir Shah, 2000 PCr.LJ 580. (3) Asghar Ali v. The State, 1983 PCr.LJ 2187. (4) Abdul Waheed v. The State; PLD 1986 Lahore 81. (5) Soofi Abdul Qadir v. The State, 2000 PCr.LJ 520. (6) Muhammad Ibrahim v. Qudratullah Ruddy PLD 1986 Lahore 256. (7) Bahadur and another v. The State PLD 1985 SC 62. (8) Mst. Iqbal Begum v. The State 1991 PCr.LJ 1755.

8. On the other hand, respondent No. 1, who was appearing in person has argued that after cancellation of the F.I.R. by the Magistrate, he had moved an application before the D.I.‑G. Police, complaining against the earlier investigation, therefore, on the orders of D.I.‑G. Police, the respondent No.4 re‑investigated the case, who recorded the statements of witnesses and formed the opinion that the case was made out against the petitioner, therefore, he submitted challan. He has further stated that the case can be re‑investigated under the orders of Senior Police Officers. He has relied upon the following cases: (1) Abdul Hakim v. Bashir Ahmed, 1974 PCr.LJ 394. (2) Farooq Sumar v. The State 2004 PCr.LJ 1023. (3) Falak Sher v. The State PLD 1967 SC 425. (4) Muhammad Arif v. The State 1970 SCMR 178. (5) Board of Intermediate and Secondary Education, Lahore v. Mst. Salina Afroze, PLD 1992 SC 263. (6) Arif Ali Khan v. The State 1993 SCMR 187. (7) Muhammad Akbar v. The State, 1972 SCMR 335. (8) Mumtaz v. Mansoor Ahmed 1984 SCMR 221.

9. Mr. Habib Ahmed, learned Assistant Advocate General, who was assisted by respondent No.4, has argued that the, order of the Magistrate, cancelling the F.I.R was an administrative order, therefore, if the respondent No.4 was dissatisfied with the said order, then he should have challenged the same before this Court under section 561‑A, Cr.P.C., but no step was taken by him for setting aside the said order. However, he has‑stated that respondent No.4 conducted the investigation under the orders of his superior officers and the investigation can be conducted even after the decision of the case.

10. Learned Assistant Advocate General was asked to show the order of the competent authority, ordering the re‑investigation of the case. He after consulting the police papers, and respondent No.4, was unable to show such order but he referred to the orders passed by the Senior Police Officers, on the application filed by the respondent No.1. The said orders ace available on the record, which have been filed by the respondent No.1 through his counter affidavit. After going through the said orders, the learned Assistant Advocate General has frankly conceded that the last order passed by the superior police officer was to obtain the legal opinion in the matter and thereafter no legal opinion was obtained but instead thereof the respondent No.4 started the re‑investigation. Faced with the above situation, the learned Assistant Advocate General frankly conceded that the superior police officer did not pass any order for re‑investigation of the case. 11 We have given due consideration to the arguments, gone through the material available on record and find that the admitted facts are that on 4‑12‑2001, the respondent No.4 lodged F.I.R. bearing No.480 of 2001 under sections 420, 468, 471 and 506(1), P.P.C., against the petitioner. The Police after investigating the case, on 7‑6‑2002 submitted a report with the approval of respondents 2 and 3, before the Court of II‑Judicial Magistrate, Karachi for cancelling the case as the police could not collect any evidence against the accused persons. Learned Magistrate after going through the material, approved the report and ordered for the cancellation of case vide order dated 3‑7‑2002. Thereafter, the F.I.R. bearing No.480 of 2001 of Police Station. Ferozabad was cancelled. It further transpires that respondent No.4 started re‑investigation of the case; therefore, the petitioner filed the present petition.

12. A perusal of Criminal Procedure Code reveals that there is no specific provision in it, under which question of cancellation of registered criminal case can be dealt with. However, the wording of section 173(3), Cr.P.C., clearly indicates that it gives inherent powers to the Magistrate to cancel the case. Similar question was examined by a Full Bench of Lahore High Court in the case of Wazir v. The State PLD 1962 Lahore

405. The Full Bench took the view that power of cancellation of F.I.R. is available in section 173(3), Cr.P.C., because it is inherent in section 173 read with section 190, Cr.P.C., though the language of subsection (3) does not specifically apply to the case. The Hon'ble Supreme Court of Pakistan approved the above observation of the Full Bench of Lahore High Court in the case of Bahadur v. The State, reported in PLD 1985 SC

62. In this case also the order of Magistrate cancelling the criminal case on the report of police was challenged. The Horn'ble Supreme Court of Pakistan held the said order to be administrative order of the Magistrate which cannot be challenged under section 439, Cr.P.C. At page 65 it has been observed as under:‑‑ "The Magistrate, by the impugned order, dealt with and disposed of a final report submitted to him under section 173, Cr.P.C., recommending the cancellation of the registered criminal case. Neither section 173, Cr.P.C., nor any other provision of the Criminal Procedure Code specifically deals with the question of cancellation of a registered criminal case. In the Full Bench decision Wazir, v. State PLD 1962 Lah. 405, such a power was found to be inherent in section 173 read with section 190 of the Code of Criminal Procedure though the language of subsection (3) does not specifically apply to the case."

13. Thus, the Magistrate. was within its power to cancel the F.I.R. The said order is an administrative order of the Magistrate as held in the case of Bahadur (supra). The administrative order of Magistrate is not hit by doctrine of res jusdicata or hit by doctrine of functus officio. These doctrines will not apply to prevent exercise of administrative power, as observed in Reid and David in Administrative Law and Practice, 2nd Edition, Canadian Legal Text Series observed at page 52.

14. The Administrative order can be challenged before the High Court under section 561‑A, Cr.P.C., if the order amounts to an abuse of the process of Court. Reference is invited to Arif Ali v. The State, 1983 SCMR 187.

15. If the respondent No.4 was dissatisfied with the investigation of the earlier Investigating Officer and the order of the Magistrate cancelling the F.I.R, then he should have invoked the jurisdiction of the High Court under section 561‑A, Cr.P.C, to rectify the said order but the respondent No.4 did not challenge the said order before the competent forum. However, instead thereof he moved an application before the D.I.‑G. Police, making complaints against the earlier investigation. The last order passed by the D.I.‑G. Police on the application of the respondent 1 was to obtain legal opinion. Instead of obtaining legal opinion, the respondent No.4 started reinvestigating the case. As such, the respondent No.4 re‑investigated the case without any authority or sanction of his superior officer.

16. It is pertinent to point out that a police officer has jurisdiction to investigate a case in which F.I.R. has been registered in 154, Cr.P.C, book of the police station. The said power of the police officer continues even after submission of the challan in the Court. However, position is quite different when after investigation; police submit a report to the Magistrate for cancelling the case under "B" class. If the Magistrate approves such report then he will order for cancelling the F.I.R. After passing such order by the Magistrate, the police would cancel the F.I.R by putting cross lines on the said F.I.R available in the 154, Cr.P.C, book in red ink as per Rule 47:7, Volume‑III of Police Rules 1934. After crossing, the said F.I.R in red ink then there will be no F.I.R. pending on the file of police. Once such situation arises then no further investigation can be conducted in such case without recalling the order of cancelling the F.I.R. by the Magistrate himself. or getting it set aside from the High Court.

17. If the police intend to re‑investigate the case, then they have to approach the Magistrate for recalling his order of cancelling the F.I.R. If such order is recalled then the F.I.R. would become alive and thereafter re‑investigation can be conducted. If the complainant or prosecution is aggrieved from such order of the Magistrate, then they can challenged the said order before the High Court under section 561‑A, Cr.P.C. If the said order is set aside, then the Police would be competent to start the re‑investigation. Thus without the Magistrate recalling such order himself or it is set aside by the High Court further investigation cannot be conducted in the said case.

18. If we accept the proposition that in such type of cases, re‑, investigation can be undertaken under the orders of superior officers of f police, then superior officers of police would be acting as an appellate forum over the orders of the Magistrate. Superior officers of police by ordering re‑investigation of the cancelled F.I.R. case, which was done under the orders of Magistrate, tantamounts to setting aside the said order of the Magistrate. It cannot be done as it is beyond the authority of a police officer how high so ever he may be. The order of the Magistrate either judicial or administrative can be set aside by the competent judicial forum and not by the police officers directly or indirectly. It the said order of the superior police officer is implemented then the investigation officer would start the re‑investigation of the case, which, otherwise he was not competent to do so even on the order of his superior officers. It is well settled that if a particular thing cannot be done directly then it cannot be done indirectly. Therefore, superior police officers are not competent to allow the re‑investigation of the case, in a case, in which the F.I.R. has been cancelled under the orders of the Magistrate.

19. In the present case, more glaring factor is that the respondent No.4 started re‑investigation Of the case on his own, without obtaining permission or getting the order cancellation of F.I.R. cancelled from the Magistrate or getting it set aside from the High Court. Thus, the respondent No.4 has travelled beyond his jurisdiction thereby committed material illegality in re‑investigating the case.

20. In view of the above discussion, the re‑investigation conducted by respondent No.4 in the cancelled F.I.R. No.480 of 2001, Ferozabad Police Station, Karachi, is an abuse of process of law hence it has no legal effect. Consequently, all subsequent actions on the said investigation are illegal and void. Thus, the petition is allowed in the above terms: M.H./Z‑20/K Petition allowed.