P L D 1998 Lahore 517 (PLP)

The relevant facts for the decision of this Constitutional petition are that a case against respondents Nos. l to 5 was registered vide F. I. R. No. 100, dated 29-2-1996, with Police Station Gojar Khan, under section 365/342/34, P.P.C. at the instance of the petitioner. The police arrested three accused i.e. respondents Nos. l to 3, while the other two accused got pre-arrest bail from the Sessions Court. The arrested accused were produced before Abdul Rashid Raazi, the then Resident Magistrate, Gojar Khan, on the same day during the Court hours. He proceeded to discharge the accused after taking into consideration the following facts:

2. The petitioner has challenged the discharge order through this petition. The same came up for limine hearing on 5-3-1996 when it was admitted to regular hearing and notices were issued to the respondents. The accusedrespondents Nos. l to 5 have appeared through Mr. Baber Awan, Advocate, while respondents Nos.6 and 7 were represented by Raja Saeed Akram, Assistant- Advocate-General.

3. The learned counsel for the petitioner argued that the Resident Magistrate had incorrectly recorded that the police has not prepared the site plan. The same was available on the police file. It is argued that the R.M. while noting down the lapses of the police as to its inability to get the petitioner medically examined and recover pistol as well as car, failed to take into consideration that there was hardly any time at the disposal of the police to undertake the investigation on effective lines, get the petitioner medically examined and recover the pistol as well as the car used in the occurrence because the case was registered at 12-10 a.m. on the same day. It was added that the trial Court had wrongly and illegally observed that the statements under section 161, Cr.P.C. were fake and fabricated. It was argued that in any case R.M. was illadvised to take into consideration the facts of another complaint which were not on the police file, which was produced before him for the remand of the arrested accused. He failed to appreciate that neither the complainant was before him nor the P. Ws. whose statements were recorded by the police were present. Hence his observations were just in vacuum.

4. On the other hand, Mr. Baber Awan, Advocate, argued that trial Court was fully competent either to grant the remand or to discharge the accused in view of provisions of section 167 read with section 63 of Cr.P.C. It was added that the petitioner had an alternate remedy of private complaint under section 200, Cr.P.C., therefore, resort to Constitutional jurisdiction was not proper. It was argued that even there was another remedy which is in-built in section 169, Cr.P.C. whereby the police could apply to the Court for further investigation in the matter in which the accused has been discharged. The next argument,was that the petitioner has moved this petition under Article 1.99 of Constitution of Islamic Republic of Pakistan, 1973, read with section 561-A of Cr.P.C. which are quite distinct jurisdiction of the High Court. It was added that it is not possible to grant relief at least as to the direction for arrest of the accused or interfere in the investigation. It was also argued that the remedy under section .169, Cr.P.C. for further investigation was more appropriate because the Resident Magistrate, who had passed the impugned order had since been transferred from Gujar Khan. In support of the arguments he has relied on Mian Muhammad Shahbaz Sharif v. The State (1998 SCMR 763), Muhammad Ali and another v. Station House Officer and 6 others (1994 PCr.LJ 1806), Madar Ali alias Muhammad Ali Khan, etc. v. The State (1991 MLD 2564), Federation of Pakistan and another v. Malik Mumtaz Hussain and 4 others (1997 SCMR 299) and Syed Naim Haider v. The State and others (1993 PCr.LJ 645). The learned counsel, however, in his usual frank and candid manner conceded that it was not possible to defend the last portion of the order of the Resident Magistrate.

5. Raja Saeed Akram, learned Assistant Advocate-General argued that the petition is not competent in view of the alternate remedy of private complaint. He also, however, conceded that it was not possible to defend the last part of the impugned order.

6. I have given my anxious consideration to the arguments and gone through the record. The admitted position is that the case was registered on 29-2-1996 at 12-10 a.m. Respondents Nos. l to 3-accused were arrested and produced for judicial remand before the Resident Magistrate who after holding that the police has failed to recover car as well as weapon, get the complainant medically examined, prepare the injuries statement and site plan proceeded to discharge the accused. It was clear from the facts on the file that the Resident Magistrate proceeded in an unchaste haste to discharge the accused. He has failed to appreciate that police had hardly any time to complete the investigation, moreso when two of the accused have already been allowed bail before arrest, therefore, not joined investigation. This is not all. He proceeded to take' extraneous facts into consideration as is clear from last para. of his order. He seemed more impressed by the private complaint against the petitioner. It was no stage to embark upon the merits and demerits either of the prosecution case or of ,the defence plea. The question whether the petitioner has pre-empted tht private complaint against him or the complaint was a counterblast to the case registered against the respondents was question which could only be decided by the trial Court after recording evidence and hearing the parties. The Resident Magistrate acted illegally while taking facts into consideration which were not on the police file of the criminal case.

7. Now coming to the legal objection that in view of the alternate remedy the writ petition is not competent. Mr. Baber Awan, Advocate referred to the judgments in the cases of Mian Muhammad Shahbaz Sharif, Muhammad Ali and another, Madar Ali alias Muhammad Ali Khan, etc,. Malik Mumtaz Hussain and 4 others and Syed Naim Haider (supra). It is clear from the judgment in the case of Syed Naim Haider (supra) that interference with the acquittal order will not take place even if a different reasonable conclusion is possible on the basis of evidence on record and at the same time it was observed with reference to the judgment of the Hon'ble Supreme Court in the case of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11) that finding of acquittal can be interfered if the same is found wholly artificial, shocking and ridiculous or is such which no reasonable person would conceivably arrive at the same. The case of Muhammad Ali and another (supra) is clearly distinguishable because in that case discharge order under section 167, Cr.P.C. was upheld, which did .not amount to cancellation of the case and Investigating Officer could proceed with the investigation on availability of any material warranting arrest of the accused, therefore, the order of the Sessions Court accepting the revision against discharge order and remanding the case to Magistrate for further proceedings in accordance with law was declared without lawful authority and of no legal effect. This is not the case here. Moreover, in the said case the order of discharge was passed when the police moved for further remand. It is clear from the report that the accused had already remained on remand for 10 days. In the case of Malik Mumtaz Hussain and 4 others 1997 SCMR 299, Hon'ble Supreme Court with reference to earlier judgment in the case of Falak Sher v. State (PLD 1967 SC 425) held as under:- "

5. It is well-settled law that a report submitted by the Investigating Officer under section 173, Cr.P.C. is not binding on the Court. The Court, therefore, notwithstanding the recommendation of the 1.0. regarding cancellation of case and discharge of the accused from the case, may decline to cancel the case and proceed to take cognizance as provided in section 190, Cr.P.C and summon the accused person to face the trial. The scope of section 173, Cr.P.C. came up for consideration before this Court in the case of Falak Sher v. State (PLD 1967 SC 425) ... ... .. ..." In this case, the police recommended cancellation of case. The report was filed before the learned Special Judge Customs, Lahore, who did not agree with the conclusion of Investigating Officer and declined to discharge the accused. This order was challenged through criminal revision in the High Court, which was accepted. The result was that the case against the accused was cancelled and the gold recovered from them was directed to be returned. The Federation of Pakistan challenged this order before the Hon'ble Supreme Court. It is interesting to refer to the concluding para., which reads as under:- "

7. We are unable to accept the approach of the learned Judge in Chambers. The learned Judge in Chambers could not ..go into merits of the case as the trial Court had only decided to take cognizance of the case and the matter was vet to be enquired into and the trial commenced. Reasons given by the learned trial Court for not accepting the report of Investigating Officer for cancellation of the case and discharge of the accused from the case could not be discarded by the learned Judge in Chambers merely on the basis of the report of Investigating Officer. We have examined the reasons assigned by the trial Court for not accepting the report of Investigating Officer and we do not find these reasons either perverse, fanciful or arbitrary so as to justify interference by the learned Judge in Chambers in exercise of his revisional jurisdiction under sections 435 and 439, Cr.P.C. The approach of the learned Judae in Chambers was wholly misconceived as the learned Judge made definite observations on the merits of the case without allowing opportunity to the trial Court to record evidence in the case and to examine merits of the case. We, accordingly, allow this appeal, set aside the order of the learned Judge in Chambers and remand the case to the trial Court to proceed in accordance with the law in the light of above observations." The observations made in the above para. is clearly attracted in the present case.

8. I am conscious of the rule laid down by the Hon'ble Supreme Court in the case of Bahadur and another v. The State and another (PLD 1985 SC 62) that there shall be no interference but that rule was to a great extent modified in subsequent judgment reported as Arif Ali Khan and another v. The State and 6 others (1993 SCMR 187), as is clear from the recent case reported as Muhammad Sharif and 8 others v. The State and another (1997 SCMR 304) while noting both the judgments held as under:- "

6. The precedent of Arif Ali Khan (supra) has slightly made a distinction in the law declared in the case of Bahadur (supra). Looking to the erosion of positive values in our social set-up, loss of moral direction, the development of culture of corruption, ever increasing and unbridled tendency of abuse of power and lack of complete accountability in almost all walks of life, we find that it would be in the interest of justice that ratio to Arif Ali's case (supra) when tends to counter the deterioration pervading to the society at this juncture is followed and the order passed by a subordinate Criminal Curt which clearly amounts to an abuse of process of the Court, the High Court remains empowered to rectify the injustice.' This is a golden rule. Now placing the case in hand on the above touched stone laid down by the Hon'ble Supreme Court, it is clear that the Resident Magistrate proceeded in unchaste haste and based his conclusion on extraneous and irrelevant considerations without appreciating that the police had applied for the remand of the accused in terms of section 167, Cr.P.C. as it was, not possible to conclude the investigation within twenty-four hours. The Resident Magistrate should have allowed the police at least a week's time to complete the investigation. This was reasonable time keeping in view the proviso to section 173(1) of Cr.P.C.

9. The discharge is based, inter alia, on the ground that a complaint had been filed in his Court wherein the petitioner was named as accused. The learned counsel for the accused as well as the learned A.A.-G. frankly and candidly conceded that it was difficult to defend this part of the order. This was one of the reasons and seemed to have been given much importance. This way the order is based on at least one ground, which was illegal. It is not possible for this Court to determine how much was Resident Magistrate impressed by this extraneous fact, therefore, this would vitiate the order as a whole.

10. The other legal ground that the petitioner had the alternate remedy of private complaint under section 200, Cr.P.C. The Resident Magistrate while trenching upon merits of the prosecution case as well as defence plea, foreclosed the remedy of the petitioner by way of private complaint. It can be held without any fear of contradiction that in face of the impugned order the resort to private complaint would have been a futile exercise.

11. Now coming to in-built remedy under section 169, Cr.P.C., suffice it is to record here that in view of the finding on merits there was no scope for the police to move for further investigation, therefore, it can be safely concluded that the petitioner was rendered without any remedy.

12. The order being patently illegal, without jurisdiction, perverse and amounted to killing the prosecution on extraneous and artificial considerations on the day the FIR was registered, therefore, keeping in view the erosion of positive values in social set-up, loss of moral direction, development of culture of corruption, ever-increasing and unbridled tendency of abuse of power and lack of complete accountability in almost all walks of life and to keep the channels of justice clear and unpolluted this is the Constitutional duty of this Court to interfere in such unreasonable, ridiculous and shocking orders. This type of orders cannot be countenanced under the prevailing conditions of the society as the refusal to interfere would encourage the wrongdoers. The golden rule is that greater is the mischief the effective is the remedy afforded by Courts to an aggrieved person.

13. The upshot of the above discussion is that this writ petition is accepted. The result is that the impugned order of .Resident Magistrate dated 29-2-1996 is set aside. The police is directed to proceed in accordance with law. Let a copy of this order be sent to the Chief Secretary. Government of the Punjab, for withdrawal of all judicial powers from Abdul Rashid Raazi. Magistrate. because he has rendered himself unfit person to exercise judicial powers in any capacity. N.H.Q./M-729/L Petition accepted.