P L D 1997 Lahore 208 (PLP)

Mst. Kausar Parveen petitioner No.1 is married to Hasnain Akhtar respondent No.3. Unfortunately the relations between the spouses have become strained and at present she is putting up with her brothers and nephews/petitioners Nos.2 to

4. According to her respondent No.3 caused fracture of her right ulna bone whereupon case F.I.R. No.51 dated 27-7-1995 was registered at Police Station Mian Channu, District Khanewal. She maintained that she was being harassed by respondent No.3 through the S.H.O. Police Station Sarai Sadhu/respondent No.2 and she had to file Writ Petition No.4928-HR of 1996 against respondents Nos.2 and 3 wherein the said S.H.O. had been directed not to harass her. She has also instituted a suit for dissolution of marriage against respondent No.3 which is pending in the Court of the Judge Family Court, Mian Channu District Khanewal. An application to obtain the custody of the minor issues from the spouses, named as Faisal Hasnain aged 2 years and Mateen Hasnain aged 1 year has been filed by Hasnain Akhtar respondent No.3 which is on the file of the Civil Judge 1st Class/Judge Family Court, Mian Channu, District Khanewal. In this application respondent No.3 has given his address as a resident of Hassanabad Gate No.l, Maharia Colony, Multan while the address of his wife Mst. Kausar Parveen is narrated as resident of Nelam House, Darbar Road, Mian Channu, District Khanewal.

2. Hasnain Akhtar respondent No.3 filed an application under section 100, Criminal Procedure Code before Mr. Ahmad Ali Zafar, Judicial Magistrate 1st Class Kabirwala, District Khanewal for the search of his wife Mst. Kausar Parveen wrongfully confined in Mian Channu in the house of her parents. The petition was accepted and the required and desired warrant was issued on 16-10-1996.

3. Feeling aggrieved Mst. Kausar Parveen and other petitioners filed this writ petition wherein they challenged the impugned order dated 16-10-1996 about the issuance of warrant under section 100, Criminal Procedure Code on the grounds that neither she (Mst. Kausar Parveen) was confined by her parents and relatives nor Mr. Ahmad Ali War, Judicial Magistrate 1 st Class, Kabirwala was competent to issue to warrant as she was not living within the territorial limits of Tehsil Kabirwala, District Khanewal and also within the Police Stations of which the said learned Judicial Magistrate was the Area Magistrate as her place of abode was in Mian Channu City, District Khanewal.

4. Hasnain Akhtar respondent No.3 did not appear in spite of his service who was proceeded against ex parte on 12-11-1996. Mr. Ahmad Ali Zafar, Judicial Magistrate 1st Class, Kabirwala is present and has submitted the comments as directed by this Court. He has defended the impugned order passed by him.

5. I have heard the learned counsel for the petitioners as well as Mr. Ahmad Ali Zafar, Judicial Magistrate 1st Class, Kabirwala, District Khanewal in person. The contentions of the learned counsel for the petitioners are that the proceedings under section 100, Criminal Procedure Code are the part of the executive duties and a Judicial Magistrate is not competent to issue the aforesaid type of warrant. In this respect he also referred to section 552, Criminal Procedure Code according to which a District Magistrate is competent to issue the warrant for the recovery of the abducted/detained female(s). According to him Mst. Kausar Parveen was not residing within the territorial jurisdiction of Mr. Ahmad Ali Zafar, Judicial Magistrate Ist Class, Kabirwala as she was admittedly a resident of Mian Channu, District Khanewal and that it is a case of transgression of authority on the part of the said learned Judicial Magistrate 1st Class. On the other hand Mr. Ahmad Ali Zafar, Judicial Magistrate 1st Class, Kabirwala sought the guidance of this Court with respect to his working under section 100, Criminal Procedure Code. He expressed that Hasnain Akhtar respondent No.3 was a resident of Tehsil Kabirwala and he was competent to issue the warrant under section 100, Criminal Procedure Code.

6. It would be convenient to reproduce section 100, Criminal Procedure Code for the sake of convenience as under:

"

100. Search for persons wrongfully confined.--If any Magistrate of the First Class or Sub-Divisional Magistrate has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search warrant, and the person to whom such warrant is directed may search for the person so confined; and such search shall be. made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper." .

7. In my view the reasoning adopted by the learned counsel for the petitioners has to prevail. It is a matter of common knowledge that after the separation of judiciary from the Executive the subordinate judiciary has to decide the criminal cases and has not to perform the executive duties. However, A ancillary and connected matters in a criminal case, viz. grant of physical/judicial remand, disposal of bail application, decision on petitions for temporary custody of the case property are within the jurisdiction of the Judicial Magistrate. Under section 552, Criminal Procedure Code the District Magistrate is competent to issue the warrant for the recovery of the confined/abducted females to compel their restoration within the territorial limits of the Revenue District of his posting. Likewise at the lower level in the said hierarchy, an Executive Magistrate First Class can proceed under section 100, Criminal Procedure Code for the recovery of the confined person. The use of the language in section 100, Criminal Procedure Code empowering "any Magistrate of the 1st Class or Sub Divisional Magistrate" is enough to make out that an Executive Magistrate being a subordinate of the Sub-Divisional Magistrate in the Executive Hierarchy, is competent to proceed in the matter. Mr. Ahmad Ali Zafar, Judicial Magistrate has simply transgressed his authority by issuing the warrant under section 100, Criminal Procedure Code whose main duty is to dispose of the criminal cases involving the penal laws criminal offences and enumerated in the Schedule II to B the Criminal Procedure Code, 1898. It can safely be expressed that the proceedings under section 100/107/151/133/145/552 etc., etc. Criminal Procedure Code are not the part of the judicial working of the Judicial Magistrates which come within the ambit of the powers of concerned Executive Magistrate(s). Thus, I have to classify the legal position by holding that the proceedings under section 100, Criminal Procedure Code can be conducted by , the Executive Magistrate 1st Class and not by a Judicial Magistrate lst Class whose primary and sole function is to decide the criminal cases involving criminal offences.

8. Mr. Ahmad Ali Zafar, Judicial Magistrate 1st Class, Kabirwala was also not competent to issue search warrant under section 100, Criminal Procedure Code as Mst. Kausar Parveen was not allegedly confined within his D territorial jurisdiction which extends to the Police Station(s) of Tehsil Kabirwala regarding which the administrative order has been passed by the learned Sessions Judge, Khanewal and he has been allocated the relevant Police Station(s). Mst. Kausar Parveen was living with her parents in Mian Channu City which is a part of Mian Channu Sub-Division and is not a part of Kabirwala Sub-Division. Due to the lack of territorial jurisdiction of Mr. Ahmad Ali Zafar, Judicial Magistrate 1st Class, Kabitwala also, the impugned order is illegal. In the ruling published as Z.D. Yasman v. Mrs. Z.D. Yasman 1972 PCr.LJ 23 this aspect of the matter has been considered and disposed of in the aforesaid manner. 9.At this stage I am tempted to reproduce as under the Policy Letter issued by the Lahore High Court, Lahore in toto and obviously at present for the guidance of and compliance by the Executive Magistrate 1st Class/Sub Divisional Magistrates:

"LAHORE HIGH COURT LAHORE No.5659-Gen/XII. F.B From Mr. Khizar Hayat Khan, Member Inspection Team, Lahore High Court, Lahore To All the District Magistrates, in the Province of the Punjab Dated Lahore, the 13th May, 1975. -, Subject LACK OF POWERS TO ISSUE SEARCH WARRANTS UNDER SECTION 100 OF THE CODE OF CRIMINAL PROCEDURE, 1898, FOR PERSONS CONFINED BEYOND TERRITORIAL JURISDICTION Sir It has come to the notice of the Chief Justice and Judges of this Court that the Magistrate even issue search warrants under section 100, Cr.P.C. for persons confined outside their territorial jurisdiction. The issuance of search warrants is clearly in violation of the law laid down in a case published as 1972, Pakistan Criminal Law Journal (Lahore), page

23. I am, therefore, directed to request you to bring into the notice of all the Magistrates under your administrative control that in future they should not issue any search warrants for the persons confined beyond their territorial jurisdiction. Your obedient servant (Sd.) MEMBER INSPECTION TEAM Endt. No.5659-Genl/XII.F.B Dated Lahore, the 13th May, 1975 Copy forwarded to All the District and Sessions Judges in the Punjab for information. (Sd. ) MEMBER INSPECTION TEAM." At this stage it shall not be out of place to express that the aforesaid Policy Letter has been printed at page 657 of the Manual of Instructions and Form published by the Lahore High Court, Lahore during the year 1989.

10. Yet another aspect of the matter cannot be lost sight of. In view of the facts of the case when Mst. Kausar Parveen is living with her parents/brothers in Mian Channu City and there is litigation between her and her husband Hasnain Akhtar respondent No.3; it cannot be held that her living with her E relatives/petitioners Nos.2 to 4 amounts to an offence within the purview of section 100, Criminal Procedure Code. It is a matter of common knowledge that a daughter/sister who after marriage is deserted by her husband has to live with her parents/brothers to lead a respectable life. On this score as well the impugned order is held to be without jurisdiction and illegal.

11. The only irresistible conclusion which can be drawn from the aforesaid state of affairs and discussion would be that the impugned order is illegal and inoperative. It shall also not be out of place to observe that Mr. Ahmad Ali Zafar, Judicial Magistrate 1st Class, Kabirwala has performed his duties in a perfunctory manner.

12. For what has been said above, I accept this writ petition and hold that the impugned order dated 16-10-1996 regarding the issuance of the warrant under section 100, Criminal Procedure Code by the Judicial Magistrate 1st Class, Kabirwala, District Khanewal pertaining to Mst. Kausar Parveen petitioner No. l is without jurisdiction, illegal and inoperative and hence the same is quashed forthwith. No order as to costs. N.H.Q./K-21/L . Order quashed.