1997 P Cr (PLP)

Abdullah Yousaf Warraich, Addl. A.-G. Date of hearing: 15th October, 1996. Petitioner through this Constitutional petition has taken exception to the order, dated 15-12-1994 of the Ilaqa Magistrate, Police Station Bahlak, whereby agreeing with the police report, he discharged respondents Nos. l to 9 from a case emanated out of F.I.R. No.292 recorded on 27-10-1994 at Police Station Bahlak, under section 302/109/148/149, P.P.C. Facts briefly for the disposal of this Constitutional petition are that the petitioner got recorded the aforestated F.I.R. for the murder of Noor Muhammad and Ahmad at the aforesaid police station. Learned counsel has taken exception that the impugned order of discharge of respondents Nos. l to 9 has been passed in an arbitrary manner without appreciating evidence brought on record. Learned counsel appearing for the contesting respondents has supported the impugned order. I have considered the contentions have noticed that after registration of the case the investigation was initially conducted by the local police through Manzoor Ahmad, S.I. and Mukhtar Ahmad Inspector/S.H.O. of Police Station Bahlak. However the complainant being dissatisfied -with the way the investigation was being conducted by local police moved for its transfer to some independent agency. Accordingly an order was passed by the competent authority on 8-12-1994 for the entrustment of the investigation to Mr. Saifullah Warraich, D.S.P. Headquarter, Faisalabad. The file was not sent to him for some time. However, the D.S.P. present in Court has stated that he received the file at 8 p.m. on 13-12-1994 and by that time according to him the period of physical remand was over as such he moved an application on 14-12-1994 before the Ilaqa Magistrate for the judgment of the respondents Nos.1 to 10 in the judicial lock-up. The Magistrate seized of the matter, accepted the plea of the D.S.P. and lodged the respondents in judicial lock-up and next date was fixed as 28-12-1994. However, there was sudden surprizing move for the reasons best known to the Investigating Agency that on the same day while D.S.P. Saif Ullah hardly taken any step, the file was requisitioned back from him on 15-12-1994. On the same day a "Zimni No.25-Alaf" was recorded by Amir Nawaz, D.S.P. agreeing with the investigation earlier conducted by local police i.e. Manzoor Ahmad, S.-I and Mukhtar Ahmad, S.H.O. Thereupon aforestated Mukhtar Ahmad, S.H.O. made an application before the Ilaqa Magistrate on the same day for the discharge of the accused/respondents. The learned Magistrate without noticing that he had already, a day earlier sent the aforesaid accused-respondents to the judicial lock-up and fixed the date for further proceedings on 28-12-1994, in a mechanical manner passed order without appreciating the evidence so far collected. He did not give any cogent reason for the discharge of the accused respondents. Even otherwise, the manner in which the investigation was withdrawn from Mr. Saif Ullah Warraich, D.S.P. Headquarter, smacks mala fide in the exercise of power. The investigation was entrusted to him under order of the competent Authority. However, he was not allowed to proceed further and the same was abruptly taken back from him in a very uncouth manner. This indecent haste has certainly shattered the confidence of the petitioner/ complainant whose two near relatives were murdered in a broad daylight. Reliance in this respect has been placed upon Mushtaq Raj v. Magistrate 1st Class and others 1994 PCr.LJ 497, where it was held as under:-- "It is a well-settled principle of law that the learned Magistrate while functioning as a persona designata in discharge of his administrative duty, has to act fairly, justly and honestly but in the instant case, the learned Magistrate has acted quite arbitrarily and in a mechanical manner inasmuch as he did not care to open any file on administrative or judicial side; that he did not apply his conscious mind to the facts of the case and the evidence collected by the police; that he did not give any reason in support of his order while concurring with the investigation conducted by respondent No.2. It appears that he has not even examined the F.I.R. and the police file as is apparent from the impugned order referred to above." Reliance is also placed upon Arif Ali Khan and another v. The State and 6 others 1993 SCMR

187. For what has been stated above, the writ petition is accepted and the order, dated 15-12-1994 passed by Ilaqa Magistrate is declared to have been passed without lawful authority and of no legal effect. The case is remitted to the Magistrate, who shall pass appropriate order keeping in view the fact that the investigation was abruptly taken back from Saifullah Warraich, D.S.P. Head Quarter and the discharge report was submitted on the same day while the case was fixed before him for further proceedings on 28-12-1994. Their shall be no order as to costs. N.H.Q./G-27/L Petition accepted.