Before Khalil-ur-Rehman Ramday, J (PLP)

On the complaint of one Mst. Sultana Sandhu, an FIR bearing No.506/91 was registered at P.S. Model Town, Lahore on 1‑8‑1991 for the alleged commission of offencLs punishable under sections 10 and 11 of the Zina (Enforcement of Hudood) Ordinance of 1979.

2. The said case was investigated and finally a report under section 173 of the Cr.P.C. was prepared by the officer‑in‑charge of the police station which was forwarded by the S.D.P.O. of Model Town Circle on 29‑8‑1991 and having been passed by the Legal Branch and the District Attorney, the same was submitted before the learned Ilaqa Magistrate who after taking cognizance of the same sent it to the learned Sessions Court in terms of section 190(3) of the Cr.P.C. on 29‑9‑1991. On 12‑10‑1991, the learned Sessions Judge at Lahore was pleased to entrust the same to the Court of Mr. Khalid Mian, an Addl. Sessions Judge at Lahore in whose Court, the matter came up for hearing for the first time on 19‑10‑1991 when he adjourned the same for 26‑10‑1991 for distribution of copies of statements under section 161, Cr.P.C. On the said date i.e. on 26‑10‑1991, the said copies were supplied to Zulfiqar, Nazir and Salamat accused and the case was adjourned to 7‑11‑1991 for framing of charge.

3. A prayer was made on 7‑11‑1991 before the said learned A.S.J. to postpone the framing of the charge on account of some developments which had taken place in the meantime. The matter was consequently adjourned to. 19‑11‑1991. According to the file of the learned A.S.J., the charge was accordingly framed on 19‑11‑1991 whereafter, the prosecution evidence had been summoned for 23‑11‑1991.

4. While this matter was pending with the said learned A.S.J., an application was submitted by Zulfiqar accused before the Deputy Commissioner at Lahore on 22‑10‑‑1991 wherein, after stating that he had been falsely involved in the case in question, he had prayed that the District Attorney should be asked to get back the challan and to re‑examine the same. He had further prayed that the case in question which was false, should be cancelled.

5. On the same day, the Deputy Commissioner marked the said application to the District Attorney in whose office it appears to have been originally examined by an Assistant District Attorney who reported on the very next day, i.e. on 23‑10‑1991 that on account of a number of infirmities etc., in the said case, the same deserved to be cancelled. This report was endorsed by the District Attorney on the same day and was marked to the S.P.(Legal) of Lahore who then marked it to the S.H.O. on 24‑10‑1991.

6. The S.H.O. of Model Town then submitted a fresh report before the learned Ilaqa Magistrate seeking the cancellation of the said case and the discharge of the accused persons.

7. This report was placed before Mr. Javed Bokhari~ a learned M.I.C. who discharged the three accused persons from the said case on 20‑11‑1991.

8. When the learned A.S.J. became cognizant of the abovementioned facts, he is stated to have asked the Jail Authorities not to release the accused persons in question in pursuance of the discharge order passed by the A Magistrate and also directed the arrest of the accused persons who stood already released in pursuance of the said discharge order.

9. One such accused person, namely, Malik Nazir Ahmad who had secured his release as above‑noticed, approached this Court for his admisssion to pre‑arrest bail through Criminal Miscellaneous No 4333/B‑91 which petition was dismissed by me in limine on 24‑11‑1991.

10. Several petitions seeking various reliefs have now been filed by the said accused persons which petitions are now before me.

11. Criminal Miscellaneous No.I/Q‑92 prays for quashment of the proceedings in question pending before the learned A.S.J. on the ground that the police having recommended the cancellation of the case and the discharge of the accused persons and the Magistrate having acted upon the said recommendations, no criminal proceedings could be permitted to be continued before the Sessions Court.

12. Writ Petition No. 8 of 1992 is in the form of a habeas corpus petition which after stating that as a result of the abovesaid cancellation/discharge, further detention of the accused persons of the said case in jail was illegal prayed that the said accused person be set at liberty.

13. Criminal Revision No.57 of 1992 prays that an order passed by the learned A.S.J. on 23‑11‑1991 be set aside.

14. Criminal Revision No.58 of 1992 impugns an order dated 21‑11‑1991 passed by the learned A.S.J. while Criminal Revision No.96 of 1992 challenges the order dated 19‑11‑1991 of the same learned Court. 15. 1 am shocked at the manner in which the case in question having once been challaned with the approval of the Legal Branch of the Police Department and the District. Attorney, was then condemned by the same officers within a few days of the views earlier expressed by them.

16. The whole exercise appears to have been undertaken in bad faith.

17. The application on which the discharge of the accused persons in, question was secured had been made to the Deputy Commissioner who does not figure anywhere in the Criminal Law. However, it had been withheld even from the said Deputy Commissioner that this case was pending trial in the Court of Session.

18. The Deputy Commissioner without proper application of mind, marked this application to thp District Attorney from where it. reached the S.H.O. for having the case in question cancelled.

19. The Assistant District Attorney concerned, the District Attorney, as also the S.P. (Legal), concealed from their respective reports, the fact that the case was already pending with the Sessions Court.

20. The final report for the discharge of the accused persons which was submitted by the S.H.O. before the learned M.I.C. and which had been forwarded by the A.S.P. and the District Attorney, is again silent on the question that the matter was sub judice before the Sessions Court. .

21. The learned Magistrate also, without making any inquiries and without applying his mind and almost mechanically, passed the order of discharge on the report submitted for the purpose.

22. A Magistrate once having taken cognizance of the matter and.then having sent up the case to the Court of Session, had no business either in law or in propriety to then discharge the accused persons. Such an action on the part of the Magistrate amounts to pre‑empting the exercise of jurisdiction by a superior Court i.e. the Court of Session. This conduct on the part of the Magistrate, besides being highly improper, is even contemptuous. Allowing such a course of action to continue would create j di i I h whi be permitted.

23. The conduct of the Magistrate, the District Attorney, the Assistant District Attorney, the S.P. (Legal), the A.S.P. concerned and the S.H.O., as above noticed, is appalling and must be deprecated.

24. Since the entire exercise, starting with the application made to the Deputy Commissioner and resulting in'the discharge order passed by the Magistrate was against all norms of law and propriety, no notice can, therefore, be taken of the same.

25. The learned A.S.J. might have over‑reacted in the matter but I find nothing substantially wrong with the action taken by him.

26. In view of what has been hoticed above, all the petitions i.e. Criminal Miscellaneous No. 1/0 of 1992, Writ Petition No.8 of 1992, Criminal Revision No.57 of 1992, Criminal Revision No. 58 of 1992 and Criminal Revisison No.96 of 1992 are dismissed.

27. The record received from the learned trial Court, the police agency and from the Court of the learned Magistrate shall be returned.

28. Notices shall issue to Mr. Javed Bokhari, M.I.C., Mr. Naeein Qures'w" District Attorney, the A.D.A. concerned (whose name is not decipherable), the S.P. (Legal) concerned, the A.S.P. of Model Town and the concerned S.H.O. of Police Station Model Town to show cause why proceedings should not be taken against them for their above‑noticed conduct. 29. independent files shall be constructed in respect of each notice and shall be listed before me for hearing on 27‑4‑1992. M.BA./Z‑21/L order accordingly.