2001 PLP 435 (YLR)

2. Briefly stated the facts of the case are that a case F.I.R. No. 223, dated 23-3-2000 was registered at Police Station Kamir, Tehsil' Arifwala, District Pakpattan Sharif, at the instance of one Ghulam Habib son of Said Khan, resident of Chak No. 42/E.B, under sections 447, 430, 437, 440, and 148/149, P.P.C. against the petitioner and his other co accused, namely, Ghulam Janan, Nisar, Shakeel, Faheem, Iftikhar and Noor Khan and that the police arrested the petitioner on 24-9-2000 and was produced before the learned Illaqa Magistrate, Sahiwal on 27-9-2000 for the grant of judicial remand and after examining the record, the learned Illaqa Magistrate passed an order on the same date and according to this order, the offence under section 440, P.P.C. was directed to be deleted and other offences were held to be bailable and the petitioner was ordered to be released on bail and that it is worth- mentioning here that while hearing for the grant of judicial remand and examination of the record, the complainant of the F.I.R. was also present in the Court of the learned Illaqa Magistrate and acceding to his version, which is on the file, the petitioner was exonerated of the charge under section 440, P.P.C. and that feeling aggrieved of the said order, dated 27-9-2000 Ghulam Habib preferred revision petition before the learned Sessions Judge, Sahiwal which was entrusted to the learned Additional Sessions Judge, Sahiwal and this revision petition was admitted to regular hearing and thereafter order, dated 23-1-2001 was passed by the learned Additional Sessions Judge accepting the said revision petition and set aside the order of the trial/Illaqa Magistrate regarding deletion of the offence under section 440, P. P. C.

3. The learned counsel for the petitioner submitted that the order, dated 23-1-2001 passed by the learned Additional Sessions Judge, Sahiwal is liable to be set aside as the same is illegal, ultra vires, void, ab initio, without jurisdiction, bad in law and non-existent in the eye of law of no legal effect and that according to the revisional jurisdiction, vesting in the learned respondent No. 2, only the illegalities or irregularities can be questioned and checked before him and the order of the learned Illaqa Magistrate, dated 27-9-2000 is perfectly legal and the same has been made and passed by him within his jurisdiction vesting in him and the same is strictly in accordance with the provision of section 159 of the Cr.P.C. and being the Illaqa Magistrate he has to act as the Controlling Authority and his order, dated 27-9-2000 being an administrative order is immune from being called in question in revision before the learned Additional Sessions Judge, Sahiwal and that according to the investigation conducted by the Senior Superintendent of Police, Sahiwal, which is narrated and find mention in Zimini No. 18, dated 22-11-2000 Ghulam Jillani Iftikhar and Noor Khan co-accused were not present at the spot at the time of the alleged ineffective aimless firing and furthermore no mischief at all was committed by the petitioner and his co-accused and section 440, P.P.C. was rightly ordered to be deleted by the learned Illaqa Magistrate and the above-. named other co-accused of the petitioner Ghulam Janan, Nisar, Shakeel, Faheem, Iftikhar and Noor Khan were on bail earlier granted to them by the learned Additional Sessions Judge, Sahiwal which was recalled by him on 23-1-2001 and that the above -named co-accused of the petitioner were arrested by the police after recalling their bail by the learned Additional Sessions Judge and thereafter they were produced before the learned Illaqa Magistrate for the grant of judicial remand and the request made by the police was duly considered by the learned Duty Magistrate and the record seeking judicial remand were also thoroughly examined wherein section 440 of the P.P.C. was not mentioned on the face of the remand request but due to the passing of the impugned order by the learned respondent No. 2, said offence under section 440, P.P.C. was again added and presently co-accused of the petitioner were sent to the judicial lock-up because offence under section 440, P.P.C. is non-bailable and that the impugned order made and passed- by the learned respondent No. 2 amounts to a direction to the Police which is a tantamount to interference into the investigation and is absolutely unwarranted by law, the same as such being without jurisdiction is nullity and is non-existent in the eye of law and that it is not out of place to submit here that this Court has already passed order in favour of the petitioner directing the maintenance of the status quo regarding the watercourse in question and that the learned Additional Sessions Judge has travelled beyond the jurisdiction vesting in him in making and passing the impugned order as such the same is untenable and that the petitioner has been admitted to bail before arrest by the learned Sessions Judge, Sahiwal in the said offence of section 440, P.P.C. The learned counsel for the petitioner further submitted that the petitioner was arrested on 24-9-2000 and was produced before learned Illaqa Magistrate, Sahiwal on 27-9-2000 for the grant of Judicial remand the learned Magistrate passed the following order:-- "Accused Muhammad Jillani in custody of Police is present. The request is for the judicial remand while the prayer .of the complainant is that the accused Muhammad Jillani is not guilty of causing mischief to the crop. Under these circumstances, offence under section 440, P.P.C. against Muhammad Jillani is deleted and the accused are sent to judicial lock-up under sections 447/430/ 337/ H-2 and 148/149, P.P.C. and the accused shall be produced on 11-10-2000. The offence under sections 447/430/337/H-2 and 148/149, P.P.C. are bailable, as such if the accused is not required in other case and he furnishes bail bond in the sum of Rs.20,000, he is granted bail. Copy of this order shall be sent to the learned Sessions Judge. (Sd.) 27-9-2000." The learned counsel further submitted that the police comes into motion under section 154, Cr.P.C. and thereafter when the accused is brought to the Magistrate for getting an order of remand, the action on the part of the Magistrate is only administrative and not judicial, and that the cognizance of the case by the Trial Court starts when a report under section 173, Cr.P.C. is submitted. The learned counsel has relied upon the case of Bahadur and another v. The State and others (PLD 1985 SC 62), Muhammad Sharif and 8 others v. The State and another (1997 SCMR 304), Muhammad Siddique v. S.H.O. Sadar, Sialkot and 4 others (PLD 1994 Lah. 407), Muhammad Ishaq Khan v. Abdul Hamid Khan etc. (PLD 1958 Azad J&K 42).

4. On the other hand, learned counsel for the respondent/complainant assisted by the State Counsel has submitted that whenever there is suspicion of an offence the police initiates action under section 54, Cr.P.C. and if the accused is arrested, he is to be produced before the Magistrate within 24 hours of the arrest under section 60, Cr.P.C. or under section 61, Cr.P.C. as the case may be and if some material is available the judicial remand or physical remand as the case may be is granted by the Magistrate and if no material is available and he comes to the conclusion that no case exists against the accused, the Magistrate may pass an order under section 63 to discharge the accused on bail and that thereafter when the investigation is completed or not yet completed may report the matter under section 173, Cr.P.C. to the trial Court. The learned counsel for the respondent/complainant has submitted that the development in the law that took place in the year 2000 by Ordinance 29 of 2000 whereby section 6 of Act 27 of 1997 was amended and its subsection (a) was added, a person who was armed and committed some mischief was covered by that amendment. The learned counsel submitted that the learned Additional Sessions Judge had acted within his lawful authority to examine the correctness, priority and legality of the order passed by the Magistrate. The learned counsel referred to the case of Nasira Surriya v. Muhammad Aslam and 7 others (1990 SCMR 12), Mst. Allah Rakhi v. Senior Superintendent of Police, Faisalabad and" 3 others (2000 PCr.LJ 1576), Ghulam Shabbir v. The State (2000 PCr.LJ 1411) and Ghulam Sarwar and another v. The State (1984 PCr.LJ 2588).

5. I have given due consideration to the valuable arguments on both sides.

6. In the case of Muhammad Ishaq Khan v. Abdul Hamid Khan etc. (PLD 1958 Azad J&K) 42 where complainant had registered a case under section 325, P.P.C. which was struck off by the learned Magistrate after police report that as a result of their investigation the case was not proved. It was held that the order being of an administrative character, it was not revisable by the High Court and that the complainant, if he wished could initiate proceedings by complaint and the Magistrate's orders striking off the case would not stand in his way. It was observed that:-- "Section 204, Cr.P.C. which occurs in Chapter XVII entitled "Of the Commencement of Proceedings before Magistrate' shows that judicial proceedings commence before the Magistrate only when he takes cognizance whether on a complaint or on a police report submitted to him either under section 173, Criminal Procedure Code or, after an enquiry under section 202, Criminal Procedure Code made by the police. Proceedings before the Magistrate takes cognizance on a police report are not judicial proceedings and any order 'passed at that stage is not a judicial order. It is only a judicial order that can be revised. The High Court has no jurisdiction to revise administrative orders passed by the Magistrate Dhariam v. Emperor (AIR 1938 Lah. 469) which following Uma Singh v. Emperor (AIR 1933 Pat. 242), a D.B. case is an authority for the proposition that an order of a Magistrate on a police report under section 173 that the case be struck off is an administrative order and not a judicial order. In Uma Singh v. Emperor, it was further held that principle of 'autre fois acquit' does not apply to such orders. To the same effect is another case reported as 1899 Rattan Lal's Unreported Criminal Cases 521 (Bombay) in which it was held that an order of the Magistrate directing a case reported to him by the police under this section to be struck off, is not a judicial order dismissed a complaint but an administrative one and cannot be revised by the Sessions Judge under section 436, Criminal Procedure Code."

7. In the case of Bahadur and another v. The State (PLD 1985 SC 62) where the question was whether a Magistrate concurring with police report submitted under section 173, Cr.P.C. discharging accused and cancelling a criminal case registered under sections 379/420, P.P.C. acts as a Court in Judicial proceedings and is for that reason subject to the revisional jurisdiction of the High Court under section 439, Cr.P.C. It was observed that:-- "In so concurring with a report submitted under section 173, Cr.P.C. he does not function as a criminal Court."

8. In the case of Muhammad Sharif and 8 others v. The State and another (1997 SCMR 304) slightly made a distinction in the .law declared in the case of Bahadur and another v. The State and another. It was observed that: "Looking to 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, it would be in the interest of justice that ratio in Arif Ali Khan 's case which tends to counter the deterioration pervading in the society at this juncture, is followed and with regard to an order passed by a subordinate Court, which clearly amounts to an abuse of process of the Court, High Court remains empowered to rectify the injustice."

9. In the case of Nasira Surriya v. Muhammad Aslam and 7 others (1990 SCMR 12) where it was held that:-- "Cognizance of the case having been taken by a learned Magistrate, the impugned judgment of the High Court in exercise of its power under section 561-A, Cr.P.C. is to be set aside."

10. In the case of Ghulam Sarwar and another v. The State (1984 PCr.LJ 2588) the principle to be followed by the Magistrates in accordance with law, High Court Rules and Orders and case-law laid down by superior Courts were enumerated as under:- "(1) During first 15 days, the Magistrate may authorise the detention of the accused in judicial custody liberally but shall not authorise the detention in the custody of the police except on strong and exceptional grounds and that too, for the shortest possible period. (2) The Magistrate shall record reasons for the grant of remand. (3) The Magistrate shall forward a copy of his order passed under section 167, Cr.P.C. to the Sessions Judge concerned. (4) After the expiry of 15 days, the Magistrate shall require the police to submit complete or incomplete challan and in case, the challan is not submitted, he shall refuse further detention of the accused and shall release him on bail with or without surety. (5) After the expiry of 15 days, no remand shall be granted unless, the application is moved by the police C for the grant of remand/adjournment. (6) The application moved by the prosecution/police after the expiry of 15 days of the arrest of the accused, be treated as an application for adjournment under section 344, Cr.P.C. (7) Before granting remand, the Magistrate shall assure that evidence sufficient to raise suspicion that the accused has committed the offence has been collected by the police and that further evidence will be obtained after the remand is granted. (8) The Magistrate shall not grant remand/adjournment in the absence of the accused. (9) The Magistrate should avoid giving remand adjournment at his residence. (10) The Magistrate shall give opportunity to the accused to raise objection, if any, to the grant of adjournment/remand. (11) The Magistrate shall record objection which may be raised by an accused person and shall give reasons for the rejection of the same. (12) The Magistrate shall examine police file before deciding the question of remand. (13) If no investigation was conducted after having obtained remand, the Magistrate shall refuse to grant further remand/adjournment. (14) The Magistrate shall not allow remand/adjournment after 2 months (which is a reasonable time) of the arrest of the accused unless it is unavoidable. (15) In case, complete challan is not submitted the Magistrate shall commence trial on the strength of incomplete challan and examine the witnesses given in the list of witnesses. . (16) If the challan is not submitted within 2 months, the Magistrate shall report the matter to the Sessions Judge of the district and also bring the default of the police to the notice of Superintendent of Police of the District. (17) The Magistrate shall not grant remand mechanically for the sake of cooperation with the prosecution/ police. (18) The Magistrate shall always give reasons for the grant of remand and adjournment. The Magistrates should realize that they are answerable and accountable to the High Court for the illegalities and irregularities done by them and that the High Court under section 439, Cr.P.C. is quite competent to examine the correctness of the orders passed by them and in case they violate the instructions given by High Court, serious action may be taken against them. "

11. In the light of the above judicial pronouncements the order passed by the learned Magistrate appears to be lawful and could not be impugned by way of Revision before the Sessions Court. As such, the writ petition merits to be allowed and the same is allowed. The order of the learned Additional Sessions Judge, Sahiwal is declared illegal, void and without lawful authority and without jurisdiction.

12. For the reasons stated above, the Criminal Miscellaneous No. 418/B of 2001 titled as Nisar etc. v. The State is also allowed and the petitioners shall remain on bail till the decision of the trial Court. The interim bail already granted to the petitioners vide order dated 16-2-2001 is hereby confirmed and the petitioners are directed to submit fresh bail bond in the sum of Rs.10,000 (Rupees ten thousand only) each with one surety each in the like amount to the satisfaction of the learned trial Court. N.H.Q./M-578/L Petition allowed.