P L D 1968 Lahore 482 (PLP)

MUHAMMAD FAZLE GHANI KHAN, J.‑

The petitioner Haji Muhammad Yousuf son of Haji Imam Bakhsh, has approached this Court under Article 98(2) of the Constitution of the Islamic Republic of Pakistan with the prayer that respondents Nos. 1 to 3, who are police officers, employed by the State to perform their duties with the Special Police Establishment, Government of Pakistan, Lahore, may be restrained from investigating case No. 95 of 1964 registered with the Special Police Establishment on the 9th of November 1964 under sections 420/ 468/47, P. P. C. against the petitioner as the registration of this case is without jurisdiction.

2. The substance of the allegations, as contained in the F. I. R., is that property No. S‑85/R‑7 and 9 known as Cooper Hostel, Bahawalpur Road, Lahore, comprising a double‑storeyed building containing 100 rooms, two bungalows, quarters and 42 Kanals of land valued approximately Rs. 20 lacs is an evacuee property and the petitioner has manipulated to obtain the same by fraudulent means committing forgery and obtaining several decrees by deceitful means.

3. Before proceeding with the merits of the case we consider it necessary to give, with some detail, the history relating to this property.

4. On the 22nd of June 1935 Messrs Bulaqi Mal & Sons of Lahore obtained a decree against B. A. Cooper, Bar‑at‑Law and his wife for a sum of Rs. 20,500.00 with interest thereon at the rate of Re. 1 per cent. per mensem from the 19th of June 1935 till the date of realisation. According to the decree this amount was charged as a lien on the property of the judgment debtors situated at Bahawalpur Road (Chauburji Property). There are no traces of execution of this decree from 1935 up to 1943 but it appears from the execution file, made available before us, that according to the office report dated the 3rd of May 1913 some previous applications for the execution of the said decree were filed but were consigned to record for one or the other reason. However, when the execution proceedings in the present file commenced the plaintiff decree‑holders filed the particulars of the encumbrance, etc., on the property according to Order XXI, rule 66, C. P. C. on the 25th of October 1943 and stated therein that the property was under debt of Rs. 30 thousand with interest with one Sardar Anand Singh of Amritsar and that its market value was approximately Rs. 50 thousand and it was fetching a rent of Rs. 100 per month. Various notices were issued from time to time by the executing Court to the judgment‑debtors and ultimately a proper notice for the auction was issued by Mr. Parkash Chand Mahajan, Court Auctioneer, Lahore, and the entire property of the judgment debtors, which is now subject‑matter of present controversy, was sold in public auction on the 16th of July 1945, for a sum of Rs. 48 thousand out of which Rs. 46,675 were ordered to be paid to the plaintiff decree‑holders Messrs Bulaqi Mal & Sons. The remaining amount was adjusted towards the cost of auction, etc., by the Court. The auction was concluded in favour of one Haji Muhammad Ismail the predecessor‑in‑title of the present petitioner.

5. It appears that the judgment‑debtors had filed some objection petition before the executing Court which was dismissed in default but subsequently they approached the High Court of Judicature at Lahore on the 12th of July 1945 in Execution First Appeal No. 307 of 1945 which was heard by S. A. Rahman, J., on the 15th of May 1946, who directed that the learned subordinate Judge should hear the arguments of the judgment‑debtors on the objection petition and decided the same on merits. In consequence of the order of the High Court the parties appeared before the Executing Court on the 11th of June 1946 but on the 12th of July 1946 counsel for the judgment debtors made a statement before the executing Court of Lala Jawala Das, Sub‑Judge 1st Class, Lahore, that he "accepts the Court auction in favour of auction purchaser and withdraws his objection petition which he had filed under Order XX1, rule 90, C. P. C. and which was pending after remand from the High Court." On this date the counsel for the decree‑holders also made a statement that he had heard the statement which was made by the counsel for the judgment‑debtors in Court and that he accepted it and also gave up his claim for costs. The executing Court, therefore, consigned the objection petition of B. A. Cooper, etc., to the record and confirmed the auction of this property for Rs. 48 thousand in favour of Haji Muhammad Ismail. The executing Court further directed that the auction purchaser should deposit the stamp papers so that the necessary Court certificate may be issued in his favour. Ultimately on the 23rd of July 1946 the auction purchaser made an application that he had deposited the requisite stamp paper in Court and that a Sandai Sultani be issued in his favour for the property in dispute. This application was granted and on the 29th of July 1946 the executing Court issued a certificate under Order XXI, rule 94, C. P. C. in favour of the auction purchaser Haji Muhammad Ismail which originally contained the following description of the property:

6. The auction purchaser, Haji Muhammad Ismail, entered into an agreement on the 19th of January 1948 for the sale of the disputed property in favour of Haji Muhammad Yousuf petitioner for a sum of Rs. 70 thousand and agreed that he will execute sale‑deed in favour of the petitioner by February 1948. Subsequently some dispute arose between the parties and they were dragged into litigation. However, they reached an agreement for referring the case to the arbitration of Maulvi Sirajuddin Ahmad, Advocate, Lahore, who gave an award in favour of Haji Muhammad Yousuf which was subsequently made the rule of Court by order of Malik Muhammad Aslam Khan, Senior Civil Judge, Lahore, on the 19th of December 1950 and pursuant to the award and the decree of the Court the plaintiff entered into possession of the property in dispute.

7. Malik Ghulam Ahmed respondent, who has been impleaded as a party on his own application vide order of this Court dated the 8th of January 1965, entered into possession of this property as a tenant under the petitioner, vide rent note dated the 4th of February 1951 (Annexure "Z") and thereafter all the trouble brewed on the premises about the evacuee nature of this property. On the 18th of May 1954 a D. R. C. of Lahore, issued notice to the petitioner that the mortgagee rights of Sardar 1Hukam Singh son of Run Singh and Krishan Gopal son of Tirlok Singh vested in the Custodian and, therefore, the property was evacuee property to the extent of the mortgagee rights. The petitioner, therefore, filed a civil suit in the Court of Senior Civil Judge, Lahore, for a declaration that the property which was under the mortgage of Sardar Anand Singh, who had transferred his mortgagee rights in favour of Krishan Gopal, was different from the property of the petitioner. Since this involved the question of right and interest of the evacuee the matter was referred to the Court of Custodian of Evacuee Property, Lahore, for the adjudication of the evacuee interest in the property. The proceedings continued in that Court up to 1961 when they finally merged in the order of the Custodian dated the 19th of August 1961 by virtue of which the mortgagee rights .of the evacuee were admitted to the extent of Rs. 83 thousand. This amount was subsequently paid by the petitioner in Court and the mortgage was got redeemed by him hence he claims the .exclusive ownership of the entire property in his favour. In this suit the petitioner also impleaded the Rehabilitation authorities and the Custodian of Evacuee Property as defendants.

8. It will be pertinent to point out at this stage that Malik Ghulam Ahmed was contesting the litigation against the petitioner in the Court of Custodian also and the plea which was raised by him before that Court was, firstly, that the mortgage amount stands at a higher figure than that which was accepted by the Additional Custodian and, secondly, that the decree obtained by Haji Muhammad Yousuf in respect of this property was not above board. The learned Custodian brushed aside the first contention on the ground that he was not able to produce any documentary evidence to support his contention that the evacuee had greater interest in the property than Rs. 83 thousand which was duly determined. The answer to the second contention was that the matter pertained to the relation between Haji Muhammad Yousuf and his predecessor‑in‑title Haji Muhammad Ismail and, therefore, the Custodian was not competent to go into that question. The learned Custodian, however, made a passing remark that Ghulam Ahmed should choose his remedy somewhere else.

9. Taking advantage of the above observation of the Custodian Malik Ghulam Ahmed started totally misconcieved proceedings and approached the Chief Settlement Commissioner, who, on his part, misconstrued the order of the Custodian and by his letter dated the 23rd of January 1963 (Annexure "B/1") referred the case to the Director of Enforcement for further probe in the matter. The investigation, however, proved abortive and the matter was consigned to the record vide intimation sent to the petitioner by the Deputy Superintendent of Police, Enforcement Staff, Evacuee Property and Claims, Intelligence Bureau, Lahore, on the 14th of July 1964 (Annexure "C/ 1").

10. The allegations of the petitioner are that Malik Ghulam Ahmed has some relations which the officers of the Special Police Establishment and, therefore, he was instrumental in getting the case registered against him vide F. I. R. No. 95 dated the 9th of November 1964. It will be useful at this stage to reproduce the entire F.I.R. in this judgment as its contents have a lot of bearing on the case which has been registered against the petitioner. It reads as under:‑ "Information has been received that Haji Muhammad Yousuf son of Haji Imam Bakhsh of Amritsar, occupied the evacuee property No. S‑85/R‑7 & 9 known as `Cooper Hostel', on Bahawalpur Road, Lahore, comprising of a double‑storey hostel of one hundred rooms, two bungalows, quarters and 42 Kanals lands, valued approximately Rs. 20 lacs, in 1948. He has been collecting rent from the tenants and even this would have amounted to about as two lacs. He is alleged to have forged lease and sale‑deeds of Rs. 72,000 and Rs. 48,000 respectively, from his relative Haji Muhammad Ismail, Government Pensioner of Chachi Mohalla, City Rawalpindi, who had been shown to have purchased the entire property on 28‑7‑46 for Rs. 48,000 having been sold under the order of a Civil Court at Lahore. He also managed to obtain a Civil decree, against the said Haji Muhammad Ismail, in a fraudulently planned manner. Later this property was declared as an evacuee property, by the Rehabilitation Commissioner (General), Lahore on 2‑4‑

54. The aforementioned Haji Muhammad Yousuf went up in a Civil suit, to the Court of Senior Sub‑fudge, Lahore, against this order. The Custodian of Evacuee Property fixed Rs. 83,000 as an evacuee burden on this property. Somehow or other, he still holds the property, with fraudulent means. This entire property was, in fact, owned by the three buyers Messrs B. A. Cooper, M. Cooper and M. Cooper jointly and the shares of the last mentioned two persons, had been fraudulently included in the sale certificate forged by Haji Muhammad Yousuf. As the above constitutes the commission of offences under sections 420/468/471. P. P. C. a case may kindly be registered and investigation ordered. (Sd.) M. Abbas Khan Inspector Police, S. P. E. Lahore.

9. XI. 64". The Deputy Superintendent of Police, Special Police Establish ment, with all possible haste and in all probability without recourse to the previous judicial record of the case, directed the informing Inspector (Abbas Khan) to go ahead with the investigation of the case. The petitioner, who had enough of the litigation about this property right from 1948, rushed to this Court on the 23rd of November 1964 and was successful its getting a stay order restraining the respondents from proceedings in the matter any further.

11. Briefly stated the case of the petitioner is that the, property in dispute was purchased by him from Haji Muhammad Ismail who was the auction purchaser and in whose favour a court certificate had been issued as early as 29th of July 1946 when the evacuee owners were still in Pakistan and since whatever they owned and possessed was the property which was fully described in the above‑mentioned court certificate no question of any fraud or practising any deceitful means with reference to an evacuee property arises and, therefore, the entire proceedings are mala fid., and fictitious and since he is a bona fide purchaser for consideration from Haji Muhammad Ismail, the auction purchaser, and has discharged the mortgage debt of evacuees under the orders of the Custodian of Evacuee Property, therefore, there is no question of his committing any offence with reference to any matter connected with the affairs of the Centre or the Province. It was further submitted that the title in the property of Haji Muhammad Ismail, from whom the petitioner has purchased this property, was based on a court certificate issued by the Civil Courts of Lahore and if there were any allegations of forgery, etc then these were committed with reference to the proceedings of the Civil Court sometimes in the year 1946, therefore, the proper course open to any aggrieved party was to approach the Civil Court for the setting aside of the sale on the grounds of fraud, etc. Lastly it was urged that assuming for the sake of arguments that any offence was committed with reference to an evacuee property then the Custodian of Evacuee Property, who was fully seized of the matter for a considerable long time, should have been approached for this purpose and the special police had no jurisdiction to sit in judgment on the sale certificate issued by the Civil Court as well as the order of the Custodian dated the 19th of August 1961.

12. On the other hand, Sh. Abdul Haq, who appeared on b‑‑half of the three police officers as well as for the State, vehemently urged that no authority can deprive the police of its powers of investigation of a cognizable offence and since the report lodged with the special police establishment discloses the commission of such a crime, therefore, under sections 154 and 157 of the Cr. P. C. the police has a statutory right to make investigation and as the evacuee property is a matter concerning the Central Government the Special Police Establishment has full powers and authority to register the case against the petitioner and investigate the same.

13. In order to appreciate the prosecution allegations that some forgery has been committed by the petitioner or his predecessor‑in‑title Haji Muhammad Ismail or that the property has been obtained by fraudulent means we sent for the original file from the Civil Courts of Lahore to find out and satisfy ourselves whether in fact the allegations which have been repeated time and again by Malik Ghulam Ahmed respondent and which have been subject‑matter of inquiry and trial before the Court of Custodian, Enforcement Staff, etc., on various stages, bears any substance with reference to the execution record of the case or they are mere oral assertions of a vindictive tenant who after having entered into the property wants to harass his landlord by some clever tactics. The register of auction was also sent for and we have examined the original execution file as well as the Court register in the presence of the learned counsel for the parties. The main contention of Sh. Abdul Haq was that this was a very huge property situated in the heart of Lahore and the original sale in favour of Haji Muhammad Ismail was only for 19 Kanals 1 Marla and the other entry about 19 Kanals 17 Marlas and 119 sq. feet is a mere interpolation. We would have no hesitation, if it was possible for us, to uphold the contention of Sh. Abdul Haq on the factual plane and would have dismissed this writ petition if there was slightest doubt in our mind that the matter concerning the sale and the disposal of the property by the Civil Courts in the year 1946 was in any way of doubtful nature and required some probe. But the examination of the original execution file furnishes a complete answer to the prosecution case. We now, therefore, proceed to examine this file which reveals the following:

The property in dispute was under attachment by the Civil Courts right from 1935 and the first warrant issued from the Court of Mr. S. A. Nasar, Sub‑Judge 1st Class, Lahore, on the 22nd of May 1944 contains the following details of this property:‑ This was addressed to the Court Auctioneer why was directed to auction the property and return the warrant duly executed. These particulars tally with the notice of auction where once again the full particulars, mentioned above, have b.‑en repeatedly incorporated. This notice for auction was issued on the 22nd of May 1944 for the auction to be held on the spot on the 14th of June 1944. It appears that the auction was not concluded on that date or it was postponed and, therefore, a second warrant was issued by Lala Jawala Das, Civil Judge 1st Class, Lahore, on the 27th of June 1945 to the Court Auctioneer, Lahore. In this document also the same particulars have been incorporated. There is on record another notice for auction issued by the Court of Lala Jawala Das on 28th of June 1945 and this document also bears full description of the property as given above. The Court Auctioneer also issued notice for auction which is unambiguous details lays down the entire particulars of the property comprising the building of the hostel etc., on 19 Kanals and 1 Marla and land measuring 19 Kanals 17 Marlas and 119 Sq. feet, etc. This notice by the Court Auctioneer is in a printed form and the details of the particulars are the same as given in the earlier documents. There is no document on the file to prove to the contrary. This establishes beyond any doubt the claim of the petitioner that the entire property which is in his possession and which he has obtained from Haji Muhammad Ismail was put to auction under the orders of the Civil Court. This document is the sale list from the office of Mr. Parkash Chand Mahajan, Court Auctioneer, which contains the details of the property and the names of the bidders with their respective bids which were offered by them. This sale list of the Court Auctioneer contains the entire details .and the whole measurement of the area of the property which was auctioned in execution of the decree of Messrs Bulaqi Mal, etc., against B. A. Cooper, etc., judgment‑debtors. Fortunately this document is available in original on the file of the executing Court and shows that the hammer fell at the final bid of Haji Muhammad Ismail for Rs. 48 thousand at about 4 15 p.m, on the 16th of July 1945. Thereafter there was an objection petition by the judgment‑debtor which ultimately came up before the High Court and as already indicated earlier after remand counsel for the judgment‑debtors withdrew his objection petition and the auction was confirmed by the executing Court in the name of Haji Muhammad Ismail. Ultimately the Court granted Court certificate under Order XXI, rule 94, C. P. C. on the 29th of July 1946 which contains the total measurement of the property in possession of the petitioner and about which the prosecution says that the petitioner has obtained it by fraudulent means.

14. We called upon Sh. Abdul Haq who was assisted by Mr. Maqbool Ahmad, Public Prosecutor, S. P. E. to point .out if there was, in any one of the documents which have been enumerated by us above in detail, any iota of doubt that any forgery or interpolation has been committed by any person in the past. But they were unable to point out to us any single document which could remotely indicate that there was any tampering with the original record of the Civil Court. Sh. Abdul Haq candidly conceded before us that in view of the availability of the original execution proceedings and the original sale certificate and other documents, mentioned above it was impossible for him to assert with any force that when the property was put to auction, in the first instance in the year 1944‑45, any interpolation has been done by any party with these documents or even subsequently any attempt has been made by some one to give any undue advantage to Haji Muhammad Ismail or to his successor‑in‑title the present petitioner. Sh. Abdul Haq, therefore, frankly admitted that in these circumstances Haji Muhammad Ismail got a complete title under the Sanadi Sultani which was issued in his favour to the property under dispute.

15. This is not the case of the prosecution that the petitioner has got something more than what was given to Haji Muhammad Ismail in the original Court certificate for sale but their case as explained in the F. I. R. as well as during the arguments by Sh. Abdul Haq before us, is that Haji Muhammad Ismail, who is now dead, was a relation of Haji Muhammad Yousuf petitioner and Haji Muhammad Ismail committed certain interpolations in the Court certificate by which the whole of the property has been included in the title of Haji Muhammad Ismail although in fact what was sold was much less. Since the original file does not support this contention Sh. Abdul Haq, therefore, rightly conceded before us that he was unable to support the prosecution allegations that this property was obtained by fraudulent means or any tempering with the records has taken place.

16. In view of the availability of the original record which was shown in Court to the learned counsel for the respondents we called upon the learned counsel for the petitioner as well as the Public Prosecutor to approach the Special Police Authorities if they were prepared to cancel the criminal case against the petitioner and we adjourned the case for this purpose. On the: adjourned hearing of the case Mr. Muhammad Hussain, counsel for the petitioner, made a statement in the presence of Mr. Maqbool Ahmad, Public Prosecutor, that the Superintendent of Special Police Establishment was prepared to cancel the case in view of the original genuine documents being available on the record, provided his learned public prosecutor was prepared to advise him so. Mr. Muhammad Hussain told us in Court that Mr. Maqbool Ahmad was unable to render any advice to the Superintendent of Special Police Establishment. We were surprised to learn of this attitude of Mr. Maqbool Ahmed. He, in company with his senior counsel Sh. Abdul Haq was shown the entire original record of the execution proceedings and both of them frankly conceded before us that there was no doubt about the authenticity of these documents nor they were able to point out any forgery, interpolation or tampering with the original records. We, therefore, expected a degree of reasonableness on the part of the Public Prosecutor as legal adviser of the department he should not have hesitated in giving an honest opinion to the department about a matter which he had conceded before us in Court and had nothing to urge to the contrary.

17. The plain reading of the execution file makes it clear beyond any shadow of doubt that the entire property in possession of the petitioner was sold in Court auction and was correctly recorded in all the documents of Court including the sale certificate issued on the 29th of July 1946 and as such there could be no question of any fraud or forgery about this transaction. The petitioner has obtained this property by a decree of the Court which he obtained from a Civil Court on the basis of an award and there is no complaint by Haji Muhammad Ismail against the petitioner that the petitioner obtained this decree by deceitful means, therefore, the question of committing any forgery or fraud by the petitioner upon Haji Muhammad Ismail does not arise.

18. We are now left with the argument of the learned counsel for the respondent that there is an evacuee interest in the property and, therefore, it concerns the Central Government and the Special Police Establishment has the jurisdiction to investigate the case. As already stated earlier the right and interest of the evacuee in the property was duly investigated by the Custodian who determined the same at Rs.83 thousand. This sum was paid to the Rehabilitation Authorities who on the 28th of August 1963 issued a clearance certificate in favour of the petitioner that the title of the petitioner in the property was free from the evacuee mortgage charge from that date. Therefore, whatsoever was the interest of the evacuee in this property became extinct on that date and the property ceased to be an evacuee property. This negatives the contention of Sh. Abdul Haq that some offence about the evacuee property has been committed. The Pakistan Special Police Establishment was created by the Central Government vide Ordinance No. VIII of 1948 with the powers to investigate into certain offences connected with the matters concerning the Central and Provincial Governments and since the evacuee interest in the property has ceased to exist by virtue of the order of the Custodian of Evacuee Property the petitioner has become its full owner and the property is no longer an evacuee property and has become the property of a private individual. There is no matter concerning the Central or the Provincial Government in this case and the respondents, Pakistan Special Police Establishment, have no jurisdiction to proceed against the petitioner on an illusory ground that an offence concerning the Central Government has been committed.

19. Before parting with the case we would like to add that when the petitioner filed a suit for the declaration of his right in the Civil Courts of Lahore in the property in dispute it was referred to the Custodian of Evacuee Property under section 41 of the Pakistan (Administration of Evacuee Property) Act XII of 1957. The Custodian gave an adjudication about the evacuee interest in the property and finally accepted the mortgage money and a clearance certificate was issued on his behalf by the Rehabilitation authorities in favour of the petitioner. Section 41 of the Pakistan (Administration of Evacuee Property) Act XII of 1957, creates a bar of jurisdiction of Courts as well as all other authorities to entertain or adjudicate upon any question arising in any suit, appeal, application or other proceedings as to whether any property is or is not evacuee property or what right or interest, if any, an evacuee has in any such property. After the order of the Custodian if we allow the Special Police Establishment to proceed and inquire about the evacuee interest in the property it will amount to nothing more than giving them a handle to sit on the judgment of the Custodian of the Evacuee Property despite the fact that this course is prohibited by law. The Special Police Establishment, created under the Ordinance of 1948 (No. VIII of 1949) is, therefore, an authority as envisaged by section 41 of the Pakistan (Administration of Evacuee Property) Act XII of 1957 and as such its jurisdiction to investigate into such matters, after the decision of the Custodian, is completely barred. To hold otherwise will amount to allow the ordinary police or any other agency, to say the least of Special Police Establishment, to question the legality of the order of the Custodian which under the Act of 1957 has attained the shape of finality and is not at all questionable before any Court or authority.

20. Section 5 of the Pakistan (Administration of Evacuee Property) Act XII of 1957 provides that "The provisions of this Act and any rule or order made thereunder, shall have effect notwithstanding any thing inconsistent therewith contained in any other law for the time being in force, or in any instrument having effect by virtue of any such law." In view of this clear overriding provisions of the Act of 1957 we are of the view that the Special Police Establishment will have no jurisdiction to investigate about the so‑called commission of an offence with reference to any alleged evacuees property when the matter has already been concluded by the judicial determination of the Custodian.

21. The Custodian of Evacuee Property declined to examine the contention of Malik Ghulam Ahmed that some fraud had been committed by the petitioner vis‑a‑vis Haji Muhammad Ismail. The learned Custodian rightly concluded that he was not competent to do so. The matter being concerning the private citizens of this country neither the Custodian nor the Special! Police Establishment has any jurisdiction under the law to investigate about the commission of such an alleged offence. Since the allegations in the F. I. R. do not extend to the commission of any offence connected with the Central and Provincial Governments the Special Police Establishment cannot stretch its jurisdiction and take upon itself the responsibility of making investigation, when evacuee interest has ceased to exist.

22. As a result of the above discussion as well as our finding about the powers of the Custodian and the Special Police Establishment we hold that the registration of the case against the petitioner by the respondents was without lawful authority and without any jurisdiction and is of so legal effect. Consequently the rule issued by this Court is, made absolute. The respondents are hereby directed not to proceed with the matter any further. In view of the fact that a very hasty action wag taken by the respondent police to register a case against the petitioner without recourse to the previous record we would like to burden them with the cost of these proceedings. Malik Ghulam Ahmad respondent, who has been prosecuting this litigation in a vexatious manner, will share 50 per cent. of the costs. K.B.A. Petition accepted.