1997SCMR304 (PLP)

MUHAMMAD BASHIR KHAN JEHANGIRI, J.‑‑‑These two appeals by special leave of the Court are directed against the order of a learned Single Judge of Lahore High Court whereby he declared the order dated 25‑11‑1992 discharging the appellants to be without legal effect.

2. The facts of the case noticed in the leave granting order are that Mst. Anaran, appellant No.2 eloped with Muhammad Sharif, appellant No. l and they later got married. In consequence, Madad Khan, father of Mst. Anaran appellant, reported the matter at Police Station, Chakraia, District Mianwali, where, a case under sections 10 and 11 of Zina (Enforcement of Hudood) Ordinance (VII of 1979) (hereinafter referred to as the rdinance) was registered against the two appellants as aforesaid. After numerous investigations conducted at the level of Deputy Superintendent of Police and Assistant Superintendent of Police, the local police ultimately got the case cancelled and had the said appellants discharged. Madad Khan complainant thereupon invoked the jurisdiction of the High Court under section 561‑A, Cr.P.C. for quashment of the order dated 25‑11‑1992 whereby the learned Magistrate of the 1st Class, Mianwali, had cancelled the case and discharged the appellants. A learned Single Judge in Chambers of the High Court after hearing the learned counsel for the parties before us observed that out of the four Investigating Officers two had held the accused in both the cases guilty while the other two had come to the conclusion that they were innocent; that "they gave reasons for their respective findings and when the D. S. P. Headquarters, Mianwali, probably on the directions of S.P.. Mianwali, moved the Illaqa Magistrate for the discharge of the accused, he proceeded to oblige him readily by writing short orders and discharged the accused." (Underlining is for the emphasis). According to the learned Judge in the High Court, it was the duty of the learned Magistrate to have carefully gone through the findings of all the four Investigating Officers and after analysing the same, he should have passed the final order agreeing or disagreeing with the recommendations of the Investigating Officers but he did' not adopt this course and proceeded to approve the report of the last Investigating Officer by short orders. In the opinion of the learned Judge, these orders did not satisfy the requirements of law, therefore, he was persuaded to quash them and remit the cases for re‑investigation to some other senior officer of the Range Crimes.

3. Leave to appeal was granted in both the cases to examine whether the learned Judge in Chambers of the High Court was justified to have set aside the impugned orders of the Magistrate on the abovenoted grounds.

4. Sardar Muhammad Latif Khosa, learned counsel appearing on behalf of the appellants in both the appeals, referred us to the law laid down by this Court in the case of Bahadur and another v. The State and another (PLD 1985 SC 62) to contend that the High Court does not have the jurisdiction to quash the orders of a Magistrate concurring with the police report submitted under section 173, Cr.P.C., discharging the accused and cancelling the criminal case. The ratio deducible from the precedent case of Bahadur supra is that though a Magistrate in cancelling a registered criminal case is required to act judicially, in that, he has to act fairly, justly and honestly, a duty common to the exercise of all State powers, there is no lis before him, there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order. The party is left free to institute a complaint on the same facts, and the same Magistrate does not even after passing such an order render himself functus officio. On the contrary, he is quite competent to entertain and deal with such a complaint on material presented to him. The peculiarities enumerated above establish beyond any doubt that in so concurring with a report submitted under section 173, Cr.P.C., he does not function as a Criminal Court. In view of this dictum, the order so passed by the Magistrate was held to be not amenable to the revisional jurisdiction under sections 435 to 439, Cr.P.C.

5. Mr. Karam Elahi Bahatti, learned counsel for the State, on the contrary, supported the impugned order of the learned Single Judge in the High Court and maintained that undoubtedly in the case of Bahadur supra it was clearly laid down by this Court that a Magistrate while cancelling a registered criminal case, acting on the report of police submitted to him under section 173, Cr.P.C., though required to act judicially, but his orders so passed are not amenable to revisional jurisdiction under sections 435 to 439, Cr.P.C., nonetheless, this does not mean that where the High Court reaches a positive conclusion in a case that a particular order passed by the subordinate Criminal Court amounted to an abuse of the process of the Court, it would be wholly unable to rectify the injustice. In support of this proposition, the learned counsel placed reliance on the law laid down by this Court in the case of Arif Ali Khan and another v. the State and 6 others (1993 SCMR 187).

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 in Arif Ali's case supra which tends to counter the deterioration pervading in the society at this juncture is followed and the order passed by a subordinate Criminal Court which clearly amounts to an abuse of process of the Court, the High Court remains empowered to rectify the injustice.

7. Let us now place the instant case on the touchstone of the law laid down in the case of Arif Ali Khan supra and find whether the order of the Magisterial Court discharging the appellants before us was tantamount to an abuse of the process of the Court so as to warrant interference by the High Court under the provisions of section 561‑A, Cr.P.C. It is a common ground between the parties that both Muhammad Sharif and Mst. Anaran at the time of so‑called elopement of the latter with the former were sui juris. Again the so‑called 'Nikahnama' of Mst. Malkani Khatoon with Muhammad Razzaq produced during the proceedings in the High Court was a crude attempt to mislead the Court and obtain the impugned order. The learned Judge in the High Court has, therefore, fallen into an error to interfere with the order of police investigation before submitting the challan as is evident from the impugned order. This course has been disapproved by this Court in the authorities reported as: (i) Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others (PLD 1994 SC 281) and (ii) Brig. (Rtd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division and 2 others (1994 SCMR 2142). In the case of Brig. (Rtd.) Imtiaz Ahmad supra the jurisdiction at the investigation stage by a Special Inquiry Team headed by the respondent therein who was Additional Director‑General‑FIA, was considered at length. In this regard, the following observations of the Full Bench of this Court are worthy of notice:‑‑

"In every investigation‑‑there are‑‑by and large three different phases. First of all, the administrative phase, next the judicial phase; and finally, the executive phase when the orders of the Court or the Tribunal are, if necessary, executed or promulgated. Quite plainly fairness to the suspect ...demands that he should be given a chance of stating his case before the final period: the execution ....Equally fairness demands that the suspect shall be given a chance of putting his side of the case before the judicial inquiry is over ....But on the other side, and the other side are entitled to fairness just as the suspect is, fairness to the inquirer demands that during the administrative period he should be able ‑to investigate without having at every stage to inquire from the suspect what his side of the matter may be. Of course it may be difficult to find out the particular point at which the administrative phase ends and the judicial phase begins ...."

8. In the light of these distinguishing features of the case, interference by the High Court in the orders passed by the learned Magistrate was thus unwarranted. The dictum laid down in the case of Arif Ali Khan supra is, therefore, not applicable to the case in hand. On these considerations, the learned Judge in the High Court, in our view, was wholly unjustified in setting aside the orders of the learned Magistrate under section 561‑A, Cr.P.C. We would, therefore, accept these appeals, set aside the impugned order of the High Court and maintain the orders of the learned Magistrate whereby concurring with the police report submitted under section 173, Cr.P.C., the appellants were discharged and the criminal case registered under sections 10 and 11 of the Ordinance was cancelled. N.H.Q./M‑3345/S Appeals accepted.