Muhammad Asif Vs Farmaish Ali etc

Form No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Case No. Writ Petition No.31717 of 2024

Muhammad Asif Vs Farmaish Ali, etc.

Sr. Date of Order with signature of Judge, and that of parties No. order or counsel, where necessary.

03.10.2025 M/s. Rai Tariq Saeed Kharal, Liaqat Hayat Bhatti and Kashif Akber Bandesha, Advocates for the petitioner.

Mr. Allah Dad Kashif Awan, Advocate for and with Farmaish Ali/respondent No.1 (respondent No.1 has been identified by his learned counsel as well as police official present in Court). Mr. Muhammad Idrees Rafique Bhatti, Assistant Advocate General, Punjab for respondents No.4 alongwith Muhammad Ali Inspector, Mujahid S.I./S.H.O., Shabbir A.S.I. and record of the case.

Through instant petition, Muhammad Asif (present petitioner/ complainant of case arising out of F.I.R. No.847/2021 dated: 09.12.2021 registered under Sections 155-C of the Police Order 2002, 201 & 420 PPC at Police Station Saddar, Nankana Sahib) has challenged the vires of judgment dated: 03.04.2024 passed by learned Additional Sessions Judge, Nankana Sahib, whereby revision petition filed by Farmaish Ali (now arrayed as respondent No.1 in this petition/accused in aforementioned case) against order dated: 20.12.2023 passed by learned Magistrate Section-30, Nankana Sahib has been accepted and said order has been set-aside.

2.Brief however necessary facts for decision of instant petition are that Muhammad Asif (present petitioner) got registered aforementioned case against Farmaish Ali (respondent No.1); copy of said F.I.R. is available at page No.13 of this petition and same is hereby scanned below for ready reference:-

Cancellation report was prepared in said case by Station House Officer of concerned Police Station on 29.01.2022 (copy of said report is available at pages No.15 to 17 of this petition), which was not agreed by learned Magistrate Section-30, Nankana Sahib vide order dated: 20.12.2023 rather accused was directed to appear in person and face the trial and Station House Officer/Investigating Officer was also directed

to submit list of witnesses within seven days without failure (copy of said order is available at pages No.30 to 33 of this petition); relevant portions from the same are hereby reproduced:-

“Police prepared the instant cancellation report in case FIR No.847/21, Offence U/S 155-C, 201 & 420 of PPC, P.S. Saddar Nankana Sahib, on the ground that during the course of investigation, instant case was found false and baseless.

6.From the perusal of record it transpires that accused was police official and he conducted the investigation of case FIR No.368/21, Offence U/S 489-F of PPC, Police Station Saddar Nankana Sahib, which was got registered by the present complainant. As per the allegations leveled in the FIR, accused Farmaish Ali misappropriated and misplaced the Cheque of said FIR, valuing Rs.5,749,500/- as well as Cheque memo slip, in connivance with the accused party of said case and finally present accused prepared cancellation report in the said case, on the ground that complainant has not produced original cheque to him and he also got lodged case FIR No.468/21, Offences U/S 380, 420, 468, 471 of PPC, Police Station Saddar Nankana Sahib.

7.Perusal of the record further reflects that complainant of this case filed an application for change of investigation in above mentioned both the cases and during the investigation it was held that complainant handed over the cheque to the present accused and his case was restored and case against the complainant was cancelled. Thereafter, RIB as well as DIG & IG also investigated the matter and they agreed with the findings of second investigation. Departmental proceedings were conducted against the present accused and he was found guilty and terminated from the service.

8.I.O. of this case compiled this cancellation report on the grounds that it is not proved that accused Farmaish Ali misappropriated and misplaced the Cheque and memo slip. As discussed earlier, during the second investigation it was observed by the Investigating Officer that cheque and memo slip were misappropriated and misplaced by the accused/I.O. of the case and in result of that misconduct accused was dismissed from the service by the DPO Nankana Sahib on 02.10.2021. The Investigating Officer/DSP Headquarter Nankana Sahib, vide order dated 06.05.2022, declared the accused as guilty and directed the SHO concerned to compile the report U/S 173 of Cr.P.C. and submit the same before the court but SHO concerned failed to comply with the said order of authority.

9.The accused person is well nominated in the FIR with specific role. Sufficient incriminating material is available on the record to proceed with this case. I.O. while preparing the instant cancellation report could not give any plausible and sound reasons for cancellation of the instant case. His investigation is defective and not based on strong and reasonable grounds and his findings proved wrong after the result of second investigation and departmental inquiry.

10.“Ipsi Dixit” of the police is not binding on the court of law. Moreover, the police cannot be given authority to decide the fate of cases rather it is the sole duty of the courts.

11.As discussed earlier, the accused person has been declared innocent without any just and reasonable ground. Police has prepared this cancellation report just to save the skin of their colleague. Therefore, keeping in view the above discussion and in the best interest of justice, I hereby disagree with the findings of the police. Accused is already appearing before the court through his counsel, so, he is directed to appear in person and face the trial.

12.SHO/I.O. is directed to submit list of witness within seven days without any failure.”

(emphasis added)

However, said order was challenged by Farmaish Ali (respondent No.1) through revision petition before learned Sessions Judge, Nankana Sahib (copy of revision petition is available at pages No.36 & 37 of this petition), which was allowed vide judgment dated: 03.04.2024 passed by learned Additional Sessions Judge, Nankana Sahib (copy of the judgment is available at pages No.44 to 48 of this petition), which judgment has been challenged through instant petition.

3.Learned counsel for the petitioner submits that sufficient material is available on the record for proceeding with the trial of the case against Farmaish Ali/respondent No.1 (accused in the case); on 06.05.2022, Deputy Superintendent of Police (Headquarter), Nankana Sahib concluded that allegation leveled against Farmaish Ali (respondent No.1) has been established during investigation of the case and he directed Station House Officer to compile and submit report under Section 173 Cr.P.C. and also clearly observed that earlier conducted investigation was not correct. In this regard, learned counsel has referred report of Deputy Superintendent of Police (Headquarter), Nankana Sahib (copy of the same is available at pages No.49 to 52 of this petition) and relevant portion of the same is hereby scanned below:-

He while referring report prepared by Superintendent of Police (Investigation), District Nankana Sahib (copy whereof is available at pages No.53 to 56 of this petition) submits that even Superintendent of Police (Investigation), Nankana Sahib also found Farmaish Ali (respondent No.1) responsible for alleged offence and recommended

his dismissal from the service. Relevant portion of the said report is also scanned below:-

Learned counsel also submits that though Station House Officer was duty bond to comply with the aforementioned direction issued by Deputy Superintendent of Police (Headquarter), Nankana Sahib regarding preparation of challan report against Farmaish Ali (respondent No.1) and submission of the same in the court yet he did not do so, however learned Magistrate Section-30, Nankana Sahib while examining the record rightly disagreed with the cancellation report prepared by Station House Officer and directed the accused to appear in person and face the trial, directed Station House Officer for submission of list of witnesses. Learned counsel finally submits that impugned judgment dated: 03.04.2024 passed by learned Additional Sessions Judge, Nankana Sahib is against the law as well as facts of the case, thus same is liable to be set-aside, therefore, prays for acceptance of instant petition.

4.Learned counsel appearing on behalf of respondent No.1 submits that there was no material available on the record against Farmaish Ali (respondent No.1), therefore, cancellation report was rightly prepared and impugned judgment dated 03.04.2024 has rightly been passed by learned Additional Sessions Judge, Nankana Sahib while keeping in view the facts and circumstances of the case, thus instant petition is without any merit and requests for dismissal of the same.

5.Learned Assistant Advocate General, Punjab while going through the record of the case produced by the police officials today submits that sufficient material is available on the record against Farmaish Ali (respondent No.1) for proceeding against him, cancellation report was prepared against the facts as well as material available on the record, therefore, same was rightly disagreed by the learned Magistrate Section-30, Nankana Sahib through order dated 20.12.2023; adds that it is on the record that Deputy Superintendent of Police (Headquarter), Nankana Sahib/Investigating Officer of the case on 06.05.2022 after thorough investigation came to the conclusion that allegation leveled against Farmaish Ali (respondent No.1) has been established and rightly directed concerned Station House Officer to compile, submit report under section 173 Cr.P.C. but said direction was wrongly not complied with by the Station House Officer; further adds that he supports order dated: 20.12.2023 passed by learned Magistrate Section-30, Nankana Sahib with respect to disagreeing with the cancellation report as well as directing Farmaish Ali (respondent No.1) to face the trial alongwith direction to the Station House Officer/Investigating Officer for submitting list of witnesses. Learned Assistant Advocate General, Punjab further submits that impugned judgment dated 03.04.2024 passed by learned Additional Sessions Judge, Nankana Sahib whereby revision petition filed against aforementioned order passed by learned Magistrate Section-30, Nankana Sahib was accepted is against the law as well as material available on the record. In this regard he submits that in paragraph No.7 of the impugned judgment, photocopy available regarding some arbitration has also been made basis for passing the impugned judgment, whereas any such photocopy of any affidavit has no legal worth and cannot be taken into consideration for passing any judicial decision; adds that when it was categorically mentioned by Deputy Superintendent of Police (Headquarter), Nankana Sahib that earlier investigation on the basis of which cancellation report was prepared was not correct then taking the same into consideration was very much

necessary at the time of deciding the revision petition, but it was not taken into consideration, which fact further depicts that said judgment has been passed without proper appreciation of material available on the record as well as facts of the case. He finally prays for setting-aside the impugned judgment.

6.Arguments heard. Record appended with this petition as well as produced today by aforementioned police officials has been perused.

7.It has been noticed that cancellation report in this case was prepared on 29.01.2022 whereas Deputy Superintendent of Police (Headquarter), Nankana Sahib/Investigating Officer after conducting thorough investigation came to the conclusion on 06.05.2022 that allegation leveled against Farmaish Ali (respondent No.1) has duly been established and Station House Officer of concerned Police Station was directed to compile and submit report under Section 173 Cr.P.C., though Station House Officer did not prepare as well as submit said report before the court of learned Area Magistrate, Nankana Sahib as apprised by learned Assistant Advocate General yet while deciding cancellation report learned Area Magistrate, Nankana Sahib after thoroughly perusing the record disagreed with the said cancellation report and directed the accused to appear and face trial as well as issued direction to Station House Officer for submitting list of witnesses. It goes without saying that learned Magistrate is quite competent and does possess the jurisdiction to disagree with the cancelation report, and summon the accused to face the trial in the case while taking cognizance of the matter and issue direction to SHO (concerned) for submitting list of witnesses, hence, said order was passed quite in accordance with law as well as facts of the case; whereas in impugned judgment dated: 03.04.2024 passed by learned Additional Sessions Judge, Nankana Sahib, proceedings of investigation conducted by Deputy Superintendent of Police (Headquarter), Nankana Sahib and direction issued by him regarding compiling as well as submitting report under Section: 173 Cr.P.C. have not been considered/

appreciated. Furthermore, photocopy of some affidavit has also been taken into consideration while passing the impugned judgment. Impugned judgment is against the settled principle of law on the subject as well as peculiar facts and circumstances of the case, therefore, same is not sustainable in the eyes of law.

8.In view of above, for securing ends of justice, impugned judgment dated: 03.04.2024 passed by learned Additional Sessions Judge, Nankana Sahib whereby revision petition filed against order dated: 20.12.2023 passed by learned Magistrate Section 30, Nankana Sahib has been accepted, is hereby set-aside whereas order dated 20.12.2023 passed by learned Magistrate Section-30,Nankana Sahib is restored. Farmaish Ali, (respondent No.1/accused) will appear before the trial court on the date fixed by trial court after receipt of certified copy of this order and Station House Officer of concerned Police Station will immediately submit list of witnesses before the trial court in compliance of order dated: 20.12.2023 passed by learned Magistrate Section 30, Nankana Sahib. Instant petition stands accepted in the above terms.

(Farooq Haider) Judge Approved for reporting.

(Farooq Haider) Judge

This order has been dictated, pronounced, prepared and signed on 03.10.2025.

Khalid