P L D 1964 (W (PLP)

Criminal Procedure Code (V of 1898), Ss. 435 & 528 (2) Whether District Magistrate can requisition judicial file of pending criminal case for decision by Commissioner of question whether case should be referred to Tribunal under S. 3, West Pakistan Criminal Law (Amendment) Act (VII of 1963). The power to call for records of inferior Courts by the District Magistrate under section 435, Cr. P. C., is restricted only for the limited purpose of satisfying himself "as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court. The words "finding, sentence or order" are three separate matters on which revision may be heard, and obviously in a pending case the question as to correctness or propriety of a finding, sentence or order, does not arise; con sequently the superior Courts, including the District Magistrate, acting under section 435, Cr. P. C. can examine the proceedings of the inferior Court only to satisfy themselves as to their regularity. There may be cases where the District Magistrate may call for the records of pending cases, with a view to examining the pro ceedings to satisfy himself as to their regularity, but after having requisitioned such files he would be out-stopping his jurisdiction and consequently acting illegally in retaining the file. The District Magistrate, however, cannot under the pretext of acting under section 435, Cr. P. C., send for the record of the pending case from the (Magistrate from the very beginning for the purpose of examining the desirability of recommending to the Commissioner to consider whether the case should be withdrawn for reference to the Tribunal, in that it would be a clear fraud on Criminal Procedure Code under section 528, subsection (2), Cr. P. C. the District Magistrate "may withdraw any case from, or recall any case which be has made over to, any Magistrate subordinate to him, and may inquire into or try such case himself, or refer it for inquiry or trial to any other such Magistrate competent to inquire into or try the same," but the District Magistrate cannot use that provision as a pretext for sending for the record of a pending case with a view to making recommendation to the Commissioner to refer the case to the Tribunal. Where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. The Courts are duty bound to act as censor and guardian of the public liberties which the Courts never allow to be curtailed in any manner without the process of law, and as such the Courts have always jealously seen that an action whether judicial or executive, is taken according to law. Section 435, Cr. P. C., as it stands, does not authorise the District Magistrate to call for the records of inferior Courts for purposes other than those enumerated therein. FAIZULLAH KHAN, J.‑The learned counsel has presented an application praying for impleading the District Magistrate, Mardan as a party. The request is granted. The District Magistrate, Mardan should be impleaded as respondent.

2. This writ petition raises an important question, involving the interpretation of certain provisions of the Criminal Law (Amendment) Act, 1963, (hereinafter to be referred to as the Act), in particular section 3 and some of the Rules framed under section 33.

3. The facts giving rise to this petition briefly are that one Abdul Khaliq, a retired Inspector of Police, was shot dead in Bicket Ganj Bazar, Mardan, at about 12‑45 p m. on 14th May 1963. I he report of the occurrence was lodged by one Hamid Gul, who had also received injuries in the same transaction, but he did not name anybody in the F. I. R. Sabir Khan along with five others was suspected for complicity for the murder. The police after necessary investigation challaned the petitioner, but the other five accused were discharged by Sheikh Bashir Ahmad, Magistrate 1st Class, on police report under section 169, Cr. P. C. The said Magistrate recorded the prosecution evidence, and only Muhammad Shafi F. C. was to be examined as formal witness to prove certain recovery memos.

4. On 12th October 1963, the said Muhammad Shafi appeared before the Magistrate, but the witness was not examined by the Court when at 11 a.m. a chit in vernacular was produced without showing the designation of the writer or the designation of the officer under whose direction the writer made a request to the Magistrate, for requisition of the file for inspection. In para. 9 of the petition it is alleged that the petitioner at once orally drew the attention of the learned Magistrate and followed it up by a written application about the illegality of the pro cedure for requisitioning the file. But the learned Magistrate turned down the request and the case was adjourned to 23rd October 1963, and the file was sent to the District Magistrate -cum‑Deputy Commissioner. (It is not clear in which capacity the file was requisitioned). "I, therefore, reject the prayer of the applicant. The proper forum for making the prayer contained in his application is the Court of the Commissioner who alone would decide whether the case should be sent back to the Court and not withdrawn or that the case is fit for withdrawal under the Criminal Law Amendment Act." The learned Deputy Commissioner in the order posed a question whether after the passing of the Act the District Magistrate could still exercise the power of requisitioning a file from the Court "only for the consideration of the District Magistrate, for the purpose of forwarding to the Commissioner for his con sideration whether the case should be withdrawn or not." While answering this question the learned District Magistrate recorded the following operative part of the order:‑ "However, in the instant cases the order of the District Magistrate dated 12‑10‑63 is only for the sending for of the file from the Court concerned. The District Magistrate continues to have the powers under the Cr. P. C to send for any file from any subordinate Court within his jurisdiction. In order to enable the Commissioner to pass the orders of withdrawal of a case from the Criminal Court or otherwise, it is necessary to forward to him the full record of the case as was the practice when the withdrawal powers rested with the Deputy Commissioner. It has to be made quite clear that the sending for of a case from the Criminal Court and the order for its withdrawal from that Court for trial under the Criminal Law Amendment Act are two distinct stages and two separate acts. While the powers for the latter have now been transferred from the District Magistrate to the Commis sioner under the Criminal Law Amendment Act, the powers to send for a file from the subordinate Criminal Court continue to rest with the District Magistrate under the Cr. P. C. I, therefore, find that in this case the order of the District Magistrate in sending for the file from the Court is not illegal and is not bad in law. In such cases where the files are sent for from the Court only for the consideration of the District Magistrate, for the purpose of forwarding them to the Commissioner for his consideration whether the case should be withdrawn or not, the file would remain pending with the Court from where it was sent for only for such time that the Commissioner passes either the orders of withdrawal or otherwise."

6. S. Masoom Shah, learned counsel for the petitioner complained that the Act is a substantial departure from the provisions of the F. C. R., in that under the F. C. R. the powers of withdrawing the case under the F. C. R. rested with the Deputy Commissioner, but under the Act he has been completely put out of the picture, and only a District Magistrate has been given certain powers in regard to preparation of the penal of the Tribunal and for the purposes of awarding sentence, and under section 3 the Commissioner alone is empowered to decide whether "it is inexpedient in the interest of justice, that the question of the guilt or innocence of any person accused of an offence specified in the First Schedule, . . . . . . be tried by a Court mentioned in section 6 of the Code of Criminal Procedure, 1898." It was complained that though a District ..Magistrate under section 435 of the Cr. P. C. was empowered to "call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of . . . . . his jurisdiction for the purpose of satisfying . . . himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court . . . . .", but in the instant/ case the requisition of the file from the Court of the Inquiry Magistrate has not been done for any of the purposes mentioned in section 435 but on the contrary the file had been requisitioned, as admitted by the Deputy Commissioner in his order dated 6‑11‑63 "for the purpose of forwarding them to the Commissioner for his consideration whether the case should be withdrawn or not." It was argued that the Act and the Rules do not empower the District Magistrate to requisition the file for the purpose of enabling the Deputy Commissioner, the District Magistrate, or for the matter of that, any other authority to move the Commissioner to exorcise his powers under section 3 of the Act.

7. The learned counsel argued that the Courts have always been very jealously guarding any interference from any quarter with judicial proceedings, and that the requisition of file in a criminal case could be done only under section 435 of the Cr. P. C. for the purposes mentioned therein, and the Act and the Rules framed thereunder have not in any way amended section 435, Cr. P. C. and introduced into it an additional reason to enable the Deputy Commissioner or the District Magistrate to suo motu, without the direction of the Commissioner requisition a file from a Magistrate and send the same with recommendation that the Commissioner may consider the question of the expediency of the trial by the Tribunal.

8. It was also argued that under Article 98, sub -clause (2) (a) (i) this Court could issue direction to any person "performing in the Province functions in connection with the affairs of the Centre, the Province . . . . . to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do. "It was, therefore, argued that the action taken by the Deputy Commissioner or the District Magistrate in requisitioning the file from the Court of Magistrate was "not permitted by law."

9. In Writ Petition No. 413 of 1963 this very Bench by its order dated 12th November 1963, while dismissing the petition in limine, thought that the Deputy Commissioner or the District Magistrate could requisition the file. After hearing the industrious argument by Pir Masoom Shah, we have some doubts in regard to the correctness of the view taken by us earlier, and since the question is of a very considerable importance, involving as it does the question whether the judicial record can be requisitioned by functionary or Provincial or Central Government other than the District Magistrate for any purpose other than those listed in section 435, Cr. P. C., we, therefore, consider it desirable that this case should be referred to a Full Bench, the question to be ref erred to the Full Bench being "whether the provisions of Criminal Law Amendment Act of the Rules framed thereunder authorise functionary of the Provincial or the Central Government other than the Commissioner or under his direction to requisition a judicial file of a criminal case pending before a Magistrate for the purpose of forwarding it to the Commissioner with a view to enabling him to decide the question of withdrawal of the case for reference to the Tribunal under section 3 of the Act."? Notice is also issued to the State.

10. We, therefore, direct that the case be laid before the Senior Judge for Constitution of Full Bench for decision of the question formulated above. Sher Bahadur Khan A. A. G. for the State.