1986 PLP 1153 (MLD)

‑‑‑S:561‑A‑‑Penal Code (XLV of 1860), S.420/468/471‑‑Prevention of Corruption Act (II of 1947), S:2‑‑Though offences with which accused was charged were scheduled offences and accused was public servant yet local Police instead of sending report to concerned investigating agency not only registered case but also investigated same‑‑No independent investigation was made by concerned Police‑‑Such jurisdictional defect of investigation, held, rendered all subsequent proceedings as unlawful. Dr. A. Basit for Petitioner. Altaf Muhammad Khan for Respondent. Dates of hearing: 16th and 19th February 1986. This is an application for quashment of, proceeding under sections 420/468 and 471, P.P.C. against Mufti Abdul Ghani Shah petitioner in case F.I.R. No.124 registered at P.S. Lower Mall, Lahore on 26‑4‑1981 pending adjudication before Special Judge, Anti‑Corruption, Lahore.

2. Mufti Abdul Ghani Shah petitioner was transferred plot bearing Khasra No.3340 measuring 7 Marlas and 38 sq. ft. at Mohni Road, Lahore‑ P.T.0 was issued on 17‑11‑1966. On the payment of transfer price of Rs. 3, 394 by the petitioner, P . T . D . was issued in his name on 6‑1‑1969. The allegations against him are that he made forged entries in the official record as well as in his own P: T. D. , inasmuch as the area of plot transferred to him was enhanced from 7 Marlas and 38 sq. ft. to 2 Kanals, 5 Marlas and 100 sq. ft. by adding Khasras Nos.3306 to 3310. After investigation, the challan was submitted in the Court of Special Judge, Anti‑Corruption, Lahore against the petitioner and two others. The petitioner filed application under section 265‑K, Cr.P.C. for his acquittal before the learned Special Judge, Anti‑Corruption on 14‑1‑1984, which was dismissed on 16‑4‑1985, hence this petition.

3. Learned counsel for the petitioner submitted:‑ That since before the registration of case, inquiry into the allegations of forgery of the P. T.D. against the petitioner was conducted, by Ch. Muhammad Rafiq. D . S. C . and the disputed P. T. D. was produced in the inquiry proceedings before the D.S.C. ‑ who found that forgery had been committed by the petitioner by adding Khasras Nos.3306 to 3310 resulting .in the enhancement of the area transferred to the petitioner from 7 Marlas and 38 sq.ft. to 2 Kanals, 5 Marlas and 100 sq.ft. therefore, under section 195, Cr.P. C. , the learned Special Judge, Anti‑Corruption, could take cognizance of the offences relatable to the P.T.D. on complaint by the D.S.C. or the Officers to whom he was subordinate and could not have proceeded against the petitioner on the report under section 173, Cr.P. C . ; and (ii) That the S.H.O., P.S. Lower Mall, Lahore was not competent to register and investigate the case under section 420/468/471, P.P.C. and section 5(2) 47, which are scheduled offences, inasmuch as under Ordinance VIII of 1948 and Pakistan Criminal Law Amendment Act, 1985, Special Investigating Agency has been created for the registration of and investigation into scheduled offences and as such no other agency could investigate and submit the challan before Special Judge, Anti‑Corruption and that this jurisdictional defect of investigation renders all subsequent proceedings as unlawful. Conversely, the learned counsel for the State has opposed this application. He maintained that the investigation conducted by the S. H .O. , P. S. Lower Mall, Lahore at the most is an irregularity and does not vitiate the proceedings before the Court and that the learned Special Judge was quite competent to take cognisance of the case against the petitioner on the challan submitted by the Police, inasmuch as, the D.S.C. being not a Court, no complaint was necessary under section 195, Cr.P.C.

4. I have considered the submissions made by the learned counsel for the parties with care. I feel pursuaded to agree with the learned counsel for the petitioner. I find that on 27‑9‑1978 a complaint was made by Abdul Hakim Sehota, Advocate, the first informant, against Mufti Abdul Ghani Shah petitioner before the Deputy Settlement Commissioner alleging forgery of entries in the official record and in his P.T.D. Ch. Muhammad Rafiq, D.S.C. conducted inquiry into the allegations against the petitioner. The alleged forged P.T.D. which is the basis for the prosecution of the petitioner was produced during the inquiry held by the D.S.C,, who found that forgery had been committed by adding Khasras Nos.3306 to 3310 resulting in the enhancement of the area, in fact allotted to the petitioner. The D.S.C. vide his letter dated 5‑10‑1978 requested the S.H.O., P.S. Mozang, Lahore for the registration of the case. Before the case could be registered the petitioner surrendered the P.T.D. before the Settlement Department and necessary corrections were made therein. Thereafter, on 17‑1‑1979, the Deputy Settlement Commissioner intimated the Superintendent of Police, City Division, Lahore that the department did not wish to pursue the report made by D.S.C. against the petitioner. On this Ch. Abdul Hakim Sehota Advocate lodged F.I.R..on 26‑4‑198 at P.S. Lower Mall, Lahore. The local police investigated the case an submitted the challan in the Court of Special Judge. Anti‑Corruption, Lahore. The F.I.R. contains reference to inquiry proceedings in respect of the P.T.D. before the D.S.C. On examination of the provisions o section 23 of the Displaced Persons (Compensations and Rehabilitation Act, 1958, sections 19 and 20 of the Pakistan Penal Code, sections 47 and 195, Cr. P. C . , there can be no two opinions that the Deputy Settlement Commissioner while holding inquiry into the complaint made by Abdul Hakim Sehota Advocate, was a Court within the meanings section 195, Cr.P.C. The document I. e. P. T. D., having been produced, in the inquiry proceedings conducted by him, it can be said with certainty that the offences of forgery and use of forged document punishable under sections 468 and 471, P.P.C., if any, were committee by the petitioner in respect of the document produced in such proceedings and as such, the learned Special Judge, Anti‑Corruption was restrained from taking cognizance of offences under sections 468 and 471, P.P.C. on the Police report. He could take cognizance only on complaint by the D.S.C. or his superior Officers. As far the other sections i.e. 420, P.P.C. and 5(2) of the Prevention of Corruption Act, 1947, I find that the allegations against the petitioner accepted a its face value, no case under section 420, P.P.C. is made out, inasmuch as, there is no evidence that he by deceiving any person fraudulent or dishonestly induced that person to delivery and property to him. Furthermore, although the offences with which the petitioner was charged are scheduled offences and the accused was public, servant yet the local police instead of sending report to the concerned Investigating Agency, not only registered the case but also investigated the same and that n independent investigation was made by the concerned police. For al these reasons I am convinced that the proceedings against the petitioner amount to an abuse of the process of Court.

5. For what has been said above, the petition is accepted and the proceedings against the petitioner before the learned Special Judge, Anti‑Corruption, Lahore, are, hereby, quashed. H.A.K. Proceedings quashed.