1986 P Cr (PLP)

(c) Criminal Procedure Code (V of 1898)‑‑ ‑‑‑Ss. 173, 190 & 561‑A‑‑Inherent jurisdiction‑‑Impugned order of Magistrate purported to have been passed under S. 173 read with S.190, Criminal Procedure Code‑‑Order although passed in administrative capacity, yet High Court, held, was competent to interfere with such order in exercise of its inherent jurisdiction under S. 561‑A, Criminal Procedure Code. Dr. Abdul Basit for Petitioners. Malik Allah Yar for Respondents Nos. 2 to

6. Date of hearing: 26th June, 1985. This is a petition under section 561‑A, Cr.P.C. The facts leading upto this petition, briefly are, that on 24‑4‑1982, on the report of Mst. Zubaida Bibi a case under section 452/327/323/342/363/354/ 356/357/506/109/148/149/120‑B, P.P.C. was registered against Qazi Bashir Ahmad and 5 others, by Police officials respondents Nos. 2 to 6 at Police Station, Kotwali, Jhang. The allegations were that they in prosecution of their common object committed house trespass into the house of the complainant after having made preparation to cause hurt, out‑raged her modesty, gave beating to her; kidnapped her minor son, Sajjad Hussain with intent to cause him to be secretly and wrongfully confined. The case was investigated by the local police and crime branch as well. On the completion of the investigation of case instead of submitting challan, the Superintendent Police submitted report before the M.I.C. Jhang to the effect that no case was made out against respondents Nos. 2 to

6. The police requested for the cancellation of the case. The learned Magistrate passed following order on the police file on 19‑11‑1983:‑ hence this petition by the complainant.

2. The learned counsel for the petitioner mainly contended that the learned Magistrate instead of acting judicially, fairly and justly has cancelled the case arbitrarily. Conversely the learned counsel for the respondents supported the order of the learned Magistrate.

3. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the petitioner. It is well‑settled that a 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 inasmuch as he did not care to open any file on administrative or judicial side; that he passed the order on the police file and returned it to the police; 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 reasons in support of his order; that obviously he has concurred with the report of the Superintendent Police mechanically and as a matter of course without even examining the F. I. R. and the police file. Since the impugned order purports to have been passed under section 173 read with section 190, Cr.P.C. although in the administrative capacity, therefore, this Court is quite competent to interfere with the same in exercise of its inherent jurisdiction under section 561‑A, Cr.P.C. For all these reasons, I am of the view that to secure the ends of justice and give effect to the order passed under the Criminal Procedure Code, it is the duty of this Court to interfere and strike down such like illegal, arbitrary and unfair orders.

4. For what has been said above, the petition is accepted. The impugned order is set aside. The learned Ilaqa Magistrate shall re‑consider the cancellation report submitted by the Superintendent of Police and decide it according to law, after hearing the complainant. M.Y.H. Petition accepted.