P L D 1965 (W (PLP)

ABDUL AZIZ KHAN, C. J.‑This order will dispose of Criminal Original No. 23 of 1965, a petition under section 3 of the Contempt of Courts Act, against (1) Raja Qurban Husain, S. H. O., Police Station, City Sargodha, (2)' Sultan Mahmud, S. H. O., Police Station, Bhagtanvvala, and (3) Mir Bahadur Ali, Superintendent of Police, Sargodha.

2. The following pedigree‑table will be helpful in appreciat ing the facts of the case :‑ Mst. Fateh Bibi=Haji Muhammad (deceased) | ______|______________________________ || Mst. Rashidan. Mst. Sattan=Abdul Hamid. One Khan Muhammad is a brother of Haji Muhammad (deceased) and Abdul Halim (petitioner) is a brother of Abdul Hamid above‑mentioned.

3. The petition has arisen out of the following allegations made by Mst. Rashidan mentioned above. On the 9th of June 1964, Mst. Rashidan, who is an unmarried girl of 18 years, her sister Mst. Sattan, her mother Mst. Fateh Bibi and Abdul Halim petitioner came to Sargodha from village Kotla (District Jhelum) in order to institute a civil suit against Khan Muhammad, brother of Haji Muhammad (deceased). They stayed in the house of one Gul Muhammad situate in Haripura in the town of Sargodha, While they were in Gul Muhammad's house, two constables came, there and took them away to City Police Station, Sargodha. As soon as the party reached the police station, Raja Qurban Husain, respondent No. 1 arrested Abdul Halim petitioner under section 107/151, Cr. P. C. Later Mst. Sattan was allowed to leave the police station but Mst. Rashidan and her mother Mst. Fateb Bibi were handed over to Muhammad Khan, Bahawal Bakhsh (a retired Sub‑Inspector of Police) and others mentioned in Mst. Rashidan's petition given below. It may be stated that Abdul Halim was released on the following day by Sardar Baqir Ali, Magistrate, Sargodha, Mst. Rashidan and Mst. Fateh Bibi were taken to the house of one Riaz situate in Chak No. 92.

4. On the 15th of June 64, Mst. Rashidan submitted an application in the Court of Chaudhri Muhammad Ali, Magistrate 1st Class, Sargodha. The petition was written by a petition‑writer. Its English version is as follows:‑ (1) That the applicant had come to Sargodha alongwith her sister Mst. Sattan, her mother Mst. Fateh Bibi, and the brother of Mst. Sattan's husband (Abdul Halim petitioner) in order to file a civil suit and stayed in the house of Gul Muhammad, a resident of Haripura, Sargodha. (2) That two constables came to the house of Gul Muhammad at about 9 p.m. on the same day and took the party to City Police Station, Sargodha where Bahawal Bakhsh, retired Sub Inspector of Police, Riaz, Arif and Muhammad Khan,‑residents of Chak No. 92, were present with Raja Sahib, Thanedar (respondent No. 1). On seeing the party, respondent No. 1 abused them and slapped them. (3) That Bahawal Bakhsh, Arif and Muhammad Khan dragged Mst. Rashidan and her mother Mst. Fateh Bibi towards a car whereupon Abdul Halim tried to rescue them, but Raga Qurban Husain (respondent No. 1) arrested him and put him, in the lock‑up, (4) That she and her mother were forcibly taken away to Chak No. 92 in a car. (5) That she was taken to the house of Riaz where she was illegally confined and was raped by Riaz and Bahawal Bakhsh, during her confinement. (6) That she escaped from Riaz's house at sehri time on the 15th of June 1964 and then reached Sargodha. After recording the statement of Mst. Rashidan the learned Magistrate passed the following order:‑

5. On the same day, i.e., 15th Jane 1964, Mst. Rashidan submitted an application wherein she prayed that she be medically examined. The prayer was accepted and she was allowed to be medically examined by a lady doctor. It mars from the medico‑legal report that Mst. Rashidan was examined on the 17th of June 1964. The doctor, who examined her, was of the opinion that Mst. Rashidan had been subjected to sexual intercourse,

6. On the 19th of June 1964, Mst. Rashidan put in a petition alongwith the medico‑legal report praying that the local police be directed to register a case against the culprits. The learned Magistrate passed the following order thereon:‑ "Forwarded to S. H. O., Bhagtanwala for necessary action."

7. On the same day, i.e., 19th June 1964, Raja Qurban Husain submitted an application in which he stated :‑ (1) That Mst. Rashidan had made false allegations against him in her petition as a result of a conspiracy. (2) That he had learnt that the Court had ordered the S. H. O., Bhagtanwala to proceed in the matter according to law. (3) That he could prove that the allegations made against him were false. At the end he prayed that the application of Mst. Rashidan be inquired into by the Court and that he be allowed to tender evidence in his defence, and till then the application of Mst. Rashidan be not forwarded to S. H. O., Bhagtanwala. On this application the learned Magistrate ordered that the relevant papers be not forwarded to the S. H. O., Bhagtanwala and be placed before him alongwith the application of Raja Qurban Hussain. The learned Magistrate passed another order on the same date, i.e., 19th June 1964, to the effect that it was necessary to record the statement of Raja Qurban Husain before proceeding further in the matter and fixed the case for the 24th of June 1964. The learned Magistrate recorded the statement of Raja Qurban Hussain and ordered that Mst. Rashidan should appear on the 2nd of July 1964 alongwith her witnesses.

8. The procedure adopted by the learned Magistrate was contrary to law. Raja Qurban Husain had no locus standi to appear before him and the learned Magistrate acted illegally ii recording his statement on the 24th of June 1964 and directing Mst. Rashidan to produce her evidence under section 202, Cr. P. C in the presence of Raja Qurban Husain. A person complainer against does not become an accused until it has been decided to issue process against him under section 204, Cr. P. C. I' however, the person complained against chooses to attend the proceedings he can do so like any other member of the public but has no locus standi as a party, the purpose of the law being clearly to exclude him until sufficient ground for joining him has been mad out by the complainant. As already stated, after recording the statement of Mst. Rashidan and perusing the medico‑legal report the learned Magistrate had already ordered on the 19th of June 1964, that the papers be forwarded to S: H. O., Bhagtanwala for necessary action. His subsequent order of the 24th of June 196 after he had recorded the statement of Raja Qurban Husain, the Mst. Rashidan be directed to adduce her evidence on the 2nd July 1964, amounted to a review of his previous order which criminal Court is not competent to do.

9. It appears from the record that the case remained pending in the Court of Mr. Muhammad Ali but no further proceedings were taken till December 1964. In the meantime the learned Magistrate was transferred. On the 15th of December 1964, the learned Additional District Magistrate entrusted the case to Mr. Abdul Jabbar who, after perusing the record, passed the final order on the same day, i.e., 15th December 1964. Paragraphs 3 and 4 of the order, which are relevant for the purposes of the present case, may be reproduced with advantage:‑ "(3) I find that the intention of the petitioner was not to lodge a complaint in the Court within the meaning of section 190, Cr. P. C. She only wanted that a case should be registered by the police. This is also obvious from the applica tion of Abdul Halim mentioned above. Raja Qurban Hussain, or Ch. Faiz Ahmad, Advocate, or his client Bahawal Bakhsh, etc. had no locus standi to make any application at this stage of the case. They could only become the parties of the case if and when they were summoned as accused persons in the Court. That is why the learned Magistrate, vide his order dated 19‑6‑64, ordered that a copy of the application and of the M. L. R. should be sent to the S. H. O., Bhagtanwala. Had the petitioner intended that the application should be treated as a complaint, she would not have gone to a Magistrate 1st Class but to a Section 30 Magistrate who could take cognizance of the case and not the Magistrate 1st Class. (4) In these circumstances, I hereby order that a copy of this order, alongwith the copy of the application in question, should be sent to the Superintendent of Police, Sargodha, with the direction that a case under section 366/376, P. P. C., etc. and all other offences disclosed from the application and the statement of the petitioner be registered at Police Station, City Sargodha or P. S., Bhagtanwala as he may deem fit, and should' be duly registered, and I hereby direct that the case should also be duly investigated both for cognizable and non‑cogniz able offences, and this order may be treated as the one under section 156 (3) read with section 155 (2), Cr. P. C."

10. The facts narrated above clearly indicate that Mr. Muhammad Ali, Magistrate, recorded the statement of Mst. Rashidan under section 200, Cr. P. C. as a complainant on the 15th of June 1964 and then ordered that the papers be forwarded to S. H, O., Bhagtanwala for necessary action. Mr. Abdul Jabbar, to whom the case had been finally entrusted by the Additional District Magistrate, wrongly assumed the aforesaid order to be one under section 156 (3), Cr. P. C. Where a complaint has been made in respect of any offence and the Magistrate taking cognizance thereof considers, before the issue of process to the accused, that the‑ matter should be investigated, C he can order such investigation under section 202, Cr. P. C. and not under section 156 (3), Cr. P. C. The reason being that once he has decided to take cognizance, he can no longer avail himself of the alternative procedure laid down in section 156, Cr. P. C. The order of Mr. Abdul Jabbar directing the Superintendent of Police to register a case was, therefore, a nullity. It is true that a presumption attaches to orders of superior Courts that they are with jurisdiction, but no such presumption attaches to an order of a subordinate Court. In the circumstances, Mir Bahadur Ali, Superintendent of Police, respondent No. 3, did not commit any contempt of Court by disobeying the order which had no legal force.

11. Mr. Sultan Mahmud, S. H. O., Bhagtanwala, respondent No. 2, never received any orders. The question of his having committed any contempt of Court, therefore, does not arise.

12. Raja Qurban Husain, S. H. O., Police Station, City Sargodha, respondent No. 1, did not commit any contempt of Court as no directions had been given to him to register a case.

13. We, however, cannot avoid making an observation for the consideration of the authorities. It was contended on behalf of Raja Qurban Husain that he was on leave on the 9th of June 1964 and, therefore, the question of his having committed any offence did not' arise. While scrutinizing‑his defence was sent for the roznamchas of Police Station, Sargodha. On a suspicion that entries in the roznamcha relating to the 9th of June 1964, had been, tampered with, we went to the Forensic Science Laboratory along with the counsel and observed with the help of the ultra‑violet rays that prima facie the entries had been tampered with. We then sent for the copies of the roznamchas from the office of the Superintendent of Police and we could see with naked eye that the entries had been tampered with in ink. The above must not be taken as a final expression of our opinion, but apparently public documents have been tampered with. In order to verify the truth of the statement of Raja Qurban Husain that he was on leave on the 9th of June 1964, we sent for his leave application but no such application was forthcoming from the office of the Superintendent of Police.

14. So far as the complaint of Mst. Rashidan is concerned it must go to S. H. O., Bhagtanwala for investigation as ordered by Ch. Muhammad Ali on the 19th of June 1964. This order has been reproduced above and it can only be construed as one under section 202, Cr. P. C. If the allegations made by Mst. Rashidan appear to the police to be correct it is for them to act according to law. We may, however, make it clear that if Magistrate sends a cognizable case to the police to investigate under section 202, Cr: P. C., the police officer making investiga tion can arrest and send up a charge‑sheet. The Magistrate's order under this section does not debar the police from exercising their general powers to arrest and investigation in regard to the c same matter as can form the subject of the complaint. In fact in such a case the police would be failing in their duty if they did not arrest an offender against whom a cognizable offence i made out. Much more so would this be the case where the Magistrate after recording the complaint finds that regular police investigation would be more suitable and intentionally keeps the complaint pending in order that the police may exercise their powers of investigation and arrest independently of the Magistrate. Our view is based on Rashid Ahmad v. The Crown (I L R 14 Lah. 194). The relevant passage on page 200 reads:‑ " I think that the powers given to the police by section 156 are not affected when an order to investigate under section 202 is made; and though it is not open to the Magistrate when a complaint has been made to him, to direct the police to make a charge in the same case, it is open to the police to do so, if they think proper." In King‑Emperor v. Bhola Bhagat and others (A I R 1923 Pat. 547) Mullick, J., with whom Bucknill, J. agreed, observed as under:‑‑ "But even if the order of the Magistrate was an order under section 202, Cr. P. C., I cannot see why the jurisdiction of the police to arrest and to send up a charge‑sheet was ousted practise, of course, the police would not ordinarily independent action in respect of a complaint which has already been distrusted by the Magistrate, but to lay down the general proposition that a Magistrate's order under section 202, Cr. P. C. debars the police from exercising their powers of arrest and investigation, would, in my opinion, be neither expedient nor correct." A similar view was taken in Gopal Naick v. Alagirisami Naick (131 I C 176) and Crown v. Ghulam Nabi Allahwadhaya (27 S L R 67).

15. We send a copy of this order through the Home Secretary to the Governor who is the highest executive authority in the Province for such action as he may deem necessary to ensure that justice is not further denied to Mst. Rashidan, and that if, after due inquiry, public documents are found to have been tampered with the culprit or culprits receive due punishment. K. B. A. Order accordingly.