Stereo. H C J D A 38.

Judgment Sheet
IN THE LAHORE HIGH COURT, MULTAN
BENCH, MULTAN
JUDICIAL DEPARTMENT

W. P.No.9380 of 2015
Khalid Iqbal Khan
Versus
Regional Police Officer, Multan, etc.

JUDGMENT
Date of Hearing 3.9.2015.
Petitioner By: Mr. Ahmad Raza, Advocate.
Respondents By: Mr. Muhammad Aurangzeb Khan, AAG with
Iftikhar A.S.I along with record.
Ch. Muhammad Manzoor, Advocate for
respondent No.5.

Sardar Muhammad Sarfraz Dogar, J: Through this

petition, the petitioner has impugned order dated 5.3.2015 issued by
respondent No.1, wherein the application of respondent No.5 for 2 nd
change of investigation in case FIR No.828/2013, dated 7.9.2013,
under Section 489-F PPC, Police Station Cantt, District Multan was
allowed.

2. Precise facts gathered from the file are that the petitioner is
running a business of Travel Agency in the name and style of “Sky
Links Travels”. Respondent No.5 alleged that the petitioner has
borrowed an amount of Rs.1,34,00,000/- from him in the presence of
witnesses, and the petitioner gave five cheques of his account
No.0001017206, United Bank Limited, L.M Road, Multan, but the
same was bounced, and respondent No.5 lodged FIR No.828/2013,
dated 7.9.2013, under Section 489-F PPC, Police Station Cantt,
District Multan. The petitioner filed an application for first change of
investigation, which was allowed, and vide Police Diary No.18 dated
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27.1.2015, duly conducted by DSP/SDPO Circle Haram Gate, Multan,

the petitioner was declared innocent. Thereafter, respondent No.5
moved an application for 2nd change of investigation, which was
allowed vide impugned order dated 5.3.2015 by respondent No.1,
which was entrusted to Inspectors of Regional Investigation Branch
(RIB), who declared the petitioner as guilty.

3. Learned counsel for the petitioner argued that 2nd change of

investigation is not inconsonance with the law laid down by the
Hon’ble Supreme Court of Pakistan, and the same was also not done
in line with the statutory provisions of law, therefore, the same is
liable to be set-aside.

4. On the other hand, learned counsel for respondent No.5

vehemently opposed the contentions raised by learned counsel for the
petitioner, and argued that the investigation was conducted in true
lines of the Police Order, 2002 as well as the dictum laid down by the
apex Courts. Further argued that no illegality or irregularity has been
committed by the RIB.

5. Heard, record perused.

6. I have carefully perused the record with the eminent assistance

of learned counsel for the parties and collected the facts from the
record. The question before this Court taken up by the parties with
respect to 2nd change of investigation vide impugned order dated
5.3.2015 issued by respondent No.1. The facts examined from the file
speak at volume with regard to the manner and mode for the 2 nd
change of investigation, which is not inconsonance with the same.
Rather, it would be against the statutory provisions of law as the
investigation for the 2nd time was not done within the due course of
law. The only question which is to be addressed was that under
Article 18A (3) of the Police Order, (Amendment) Act, 2013 (“Police
Order, 2013”) the investigation is required to be done in a case by an
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WP No.9380 of 2015.

investigation officer or a team of investigation officers of a rank equal

to or higher than the rank of the previous investigation officer or
officers. The investigation is required to be conducted by the
Investigating Officer of rank equal to or higher than the rank of
previous Investigating Officer, but unfortunately, first change of
investigation was conducted by DSP/SDPO and declared the
petitioner as innocent, thereafter, in the 2nd change of investigation,
the same was conducted by the Inspectors of RIB, which is without
lawful authority and coram non judice, and is sheer violation of
Article 18A (3) of Police Order, 2013. For the assistance of the
parties, Article 18A (3) of Police Order, 2013 is hereby reproduced
hereunder:-
(3) If a Regional Police Officer has decided an application for
transfer of an investigation, the Provincial Police Officer may within
thirty days of filing of an application, after obtaining opinion of a
Standing Review Board, transfer investigation of a case to an
investigation officer or a team of investigation officers of a rank
equal to or higher than the rank of the previous investigation officer
or officers.
7. As far as mandatory provision of law is concerned, the same is
required to be enforced strictly without interpreting/construing it in
any manner liberally. Such a principle of interpretation is discussed
and applied in the case of “Niaz Muhammad v. Mian Fazal Raqib”
(PLD 1974 SC 134) in the following words:-
"It is the duty of the Courts to try to get at the real intention of the
Legislature, by carefully attending to the whole scope of the statute
to be construed. As a general rule, however, a statute is understood
to be directory when it contains matter merely of direction, but not
when those directions are followed up by an express provision that,
in default of following them, the acts shall be null and void. To put it
differently, if the Act is directory, its disobedience does not entail
any invalidity; if the Act is mandatory, disobedience entails serious
legal consequences amounting to the invalidity of the act done in
disobedience to the provision".
In this respect, it will be advantageous referring to a celebrated
passage from the Interpretation of Statutes by Maxwell (Tenth Edition
– 1953): -
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"On the other hand, where the prescriptions of a statute relate to the
performance of a public duty and where the invalidation of acts done
in neglect of them would work serious general inconvenience or
injustice to persons who have no control over those entrusted with
the duty without promoting the essential aims of the legislature, such
prescriptions seem to be generally understood as mere instructions
for the guidance and Government of those on whom the duty is
imposed, or, in other words, as directory only. The neglect of them
may be penal, indeed. but it does not affect the validity of the act
done in disregard of them. It has often been held, for instance when
an Act ordered a thing to be done by a public body or public officers
and pointed out the specific time when it was to be done, that the Act
was directory only and might be complied with after the prescribed
time."
The nature of a mandatory provision is described in the “Words and
Phrases”, Permanent Edition, Vol. 26, p. 463 in the following words: -
“Generally, where statutory provision concerning powers and duties
of public officer affect the public interest or are intended to protect a
private citizen against loss or injuries to his property, provisions are
“mandatory” rather than “director”.
“A “mandatory provision” of a statute is one the failure to follow
which renders the proceeding to which it relates illegal and void.”
The other principle of jurisprudence in this very context is that the
things are required to be done strictly according to law, or it should
not be done at all. Reference in this behalf may be made to the case of
“Mir Dost Muhammad v. Govt. of Balochistan” (PLD 1980 Quetta
1), relevant Para therefrom is reproduced below:
“It is well settled principle of law that in a case where statute
provides a procedure for doing of a thing in a particular manner,
that thing should be done in that manner and in no other way or it
should not be done at all”.
It has also been held in “Sharafat Kaleem v. Additional District
Judge, Bahawalnagar and 11 others” (2013 CLC 185) and “Bakht
Munir v. Qadir Khan and another” (PLD 2014 Lahore 87) that when
law required a thing to be done in a particular manner, the same must
be done accordingly and if the prescribed procedure was not
followed, if would be presumed that the same had not been done in
accordance with law. The Hon’ble Supreme Court of Pakistan has
held in “Zia Ur Rehman v. Syed Ahmed Hussain and others” ( 2014
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SCMR 1015) that If the law requires a particular thing to be done in

a particular manner it has to be done accordingly, otherwise it would
not be in-compliance with the legislative intent.
8. The Hon’ble Supreme Court of Pakistan held in “Ghulam
Sarwar Zardari v. Piyar Ali alias Piyaro and another” (2010 SCMR
624) that High Court has jurisdiction under Art.199 of the
Constitution and is competent to correct such proceedings and pass
necessary orders to ensure justice and fair play---Investigation
authorities do not have entire and total authority of running
investigation to their whims---If investigation is lauched mala fide or
beyond jurisdiction of investigating agency, then the same can be
corrected and appropriate orders can be passed. Furthermore, the
modus operandi which has been provided under Article 18A (3) of the
Police Order, 2013 was not duly complied with by the investigating
agency.
9. What has been discussed above, I am of the confirmed view
that the 2nd investigation was not conducted in line with the statutory
provisions of law. Therefore, this petition is allowed and impugned
order dated 5.3.2015 passed by respondent No.1 for 2 nd change of
investigation is set-aside being unlawful.

(Sardar Muhammad Sarfraz Dogar)

JUDGE

Approved for reporting

JUDGE
I.R. Karimee *