1998 P Cr (PLP)

Date of hearing: 21st April, 1998. The instant Constitution petition seeks to question the legality and the propriety of the order, dated 7-3-1998 passed by the learned Civil Judge/Magistrate Section 30, Pindigheb, District Attock whereby respondent No.4 has been discharged in case F.I.R. No.262, dated 13-11-1997 registered under section 302/324/34, P.P.C. at Police Station Pindigheb, District Attock.

2. The facts giving rise to the instant petition are that a criminal case under the aforesaid F.I.R. was registered at Police Station Pindigheb, District Attock on the orders passed by this Court on 11-11-1997 in Writ Petition No.2095 of 1997 and the accused Zulqarnain and others were challaned Zulqarnain was sent to judicial lock-up after being found guilty by the Inspector Police Range Crimes, Rawalpindi, of the offence under section 302, P.P.C. and recovery of pistol was also effected from him. On a report prepared by the S.H.O., Police Station Pindigheb and forwarded by D.S.P. (Legal), Attock the learned Magistrate Section 30, Pindigheb proceeded to discharge respondent No.4 from the case vide the impugned order, dated 7-3-1998. The instant petition coming before this Court was admitted to regular hearing vide this Court's order, dated 19-3-1998.

3. Mr. M. Ilyas Siddiqui, Advocate, appearing in support of the instant Constitution petition has raised the following contentions:-- (i) that respondent No.4 was charged under section 302, P.P.C. and has been found guilty by Muhammad Anwar, Inspector Range Crimes who also effected recovery of pistol from him; (ii) that in the occurrence which led to the registration of the case against respondent No.4, two murders were committed by him and his co -accused namely Muhammad Shoaib, Shaukat Mehmood, Faisal, Akhtar Ali and Muhammad Akbar while Sajjad Hussain petitioner was injured besides the murder of another person from the other side. (iii) that as the local police was in league with the accused party and was not acting honestly and fairly, this Court had to be approached for seeking registration of the case against the accused persons. The case having been registered against the accused persons under the orders of this Court, the investigation of the case was entrusted to S.P., Range Crimes, Rawalpindi, so that the same could be conducted fairly and honestly. Learned counsel for the petitioner, however, contends that the S.P., Range Crimes has not conducted the investigation in accordance with law; (iv) that besides the recovery of pistol from respondent No.4, the injured P.Ws. as also the other witnesses have supported the case of the prosecution. The aforesaid factual position of the case notwithstanding the Police without any legal justification submitted the report to the Magistrate Section 30 for securing the discharge of respondent No.4. (v) that not only did the police not acted in accordance with law in securing the discharge of respondent No.4/accused the Magistrate Section 30 who passed the impugned order also acted wholly illegally and in a mechanically manner in accepting the report of the police and directing the discharge of respondent No.4 from the case.

4. Learned counsel for the petitioner on the basis of the aforesaid submissions seeks the quashment of the order of discharge passed by the Magistrate Section 30, Pindigheb, District Attock.

5. Malik Muhammad Nawaz Khan, Advocate, appearing for the accused/respondent No.4 supported the order of discharge.

6. Malik Muhammad Kabir, learned Assistant Advocate-General, Punjab in view of the importance of questions raised by the learned counsel for the petitioner was sent for and accordingly entered appearance and assisted the Court in attending to the questions raised by the learned counsel for the petitioner. The learned Law Officer has fully endorsed the submissions made by the learned counsel for the petitioner and has submitted that the order of discharge was wholly illegal and merited to be interfered with by this Court.

7. I have considered and evaluated the respective submissions of the learned counsel for the parties and perused the record. This case has a peculiar history and deserves serious attention. In the first instance, the local Police which was thoroughly in league with the accused was reluctant to register a case. However, at long lost, A.S.-I. Muhammad Aslam registered an F.I.R. on his own giving his own version of the case without associating any person from the aggrieved party or asking them about their version of the case. Resultantly the aggrieved party approached this Court through Writ Petition No.2095 of 1997 for the registration of a case against the accused party. The said A.S.-I. Muhammad Aslam of police station concerned was sent for by this Court and asked to show on whose instructions had he registered the F.I.R. He could not satisfactorily explain his conduct. The women belonging to the deceased family appeared in the Court and complained that in spite of several contacts and demands made by them of the said A.S.-I. he refused to register the case as per their version of the case. After hearing both the sides, the said writ petition was accepted and a direction was issued to the S.H.O., Police Station Pindigheb to register the case against the accused party by associating the aggrieved persons with the matter. Mindful of the fact that the local Police was hand in gloves with the accused party and that it will not investigate the case properly and bring the culprits to book, I had entrusted the investigation of the case to S.P., Range Crimes, Rawalpindi so that justice could be done to the case of the aggrieved party. I am sorry to say, that the hands of the accused appear to be for longer and stronger than I could expect. In spite of the fact that two murders were committed of one side and one on the other besides several persons having been injured and the injured P.Ws. and the other witnesses supported the prosecution version of the case, the Police in keeping with their usual methodology very conveniently submitted report to the Magistrate Section 30 maintaining therein that the accused/respondent No.4 as per their investigation was innocent and should be discharged from the case. On the report being submitted the learned Magistrate Section 30 acted wholly mechanically without exhibiting least application of judicial mind dittoed the report of the Police and ordered the discharge of the accused from the case. A case could not have been dealt with more irresponsibly than in the manner in which this case has been dealt with. Muhammad Anwar, Inspector Police Range Crimes, Rawalpindi in his investigation found respondent No.4 as guilty. The injured P.Ws. as also other witnesses also supported the case of the prosecution. What material had the Police come to lay its hands on which furnish the justification for them to make out a case for the discharge of the accused is not borne out from the record. It is a settled law that it is the right of the Court to find a person guilty or to hold him innocent and that it is not the ipse dixit of the Police to do so. The Police has violated this celebrated principle by declaring the accused/respondent No.4 innocent without any basis whatever. The Magistrate Section 30 before whom the report was submitted by the Police seeking discharge of the accused also blindly without applying his conscious judicial mind and without giving any reasons agreed with the report submitted by the police and ordered the accused/respondent No.4 to be discharged. In doing so, the learned Magistrate Section 30 acted wholly illegally and like a machine. It does not appear from the order passed by him that he is a Judicial Officer. Whether it be Police or a Judicial Office they must justify the order to be passed by them by giving solid reasons in support thereof. The order passed is discrepant, laconic, whimsical and arbitrary and cannot be sustained for a moment. The view that I take with regard to the manner in which the Police should proceed as also the Magistrate is supported by plethora of the case-law on the subject. Reference in this behalf can be made to Mehdi Hussain Shah v, Malik Khizar Hayat Khan and another 1993 PCr.LJ 1601, Babadur and another v. The State and another PLD 1985 SC 62, Zubaida Bibi and others v. The State and others 1986 PCr.LJ 192, Mazhar lqbal and another v. Riazul Hassan Alvi. Additional Sessions Judge, Rawalpindi and others 1989 PCr.LJ 419, Khalil A. Malik and others v. Mian Aftab Saigol and others 1994 MLD 1659, Mst. Amtul Mubin alias Mst. Mubin Karim v. Magistrate Illaqa South Cantt, Lahore and 7 others 1991 PCr.LJ 1075, Ghulam Hussain v. Syed Anwar Hussain and 2 others 1991 MLD 523, Ansar Hussain v. Allah Ditta and 2 others 1993 PCr.LJ 1593. Mushtaq Raj v. Magistrate 1st Class and others 1994 PCr.LJ 497, Mahmood Ali v. The State 1994 PCr.LJ 842, Muhammad Siddique v. S.H.O., Sadar; Sialkot and 4 others PLD 1994 Lah. 407 and Mulazim Hussain v. S.H.O., Police Station Shorkot, District Jhang and 2 others 1995 PCr.LJ 440.

8. For all the aforesaid reasons the instant petition is accepted. Order of discharge is quashed and respondent No.4 is directed to be taken into custody. He shall be proceeded against and put on trial along with the other accused and it shall be for the trial Court to record a finding as to his guilt or otherwise. N.H.Q./S-214/L Petition accepted.