1991 PLP 523 (MLD)

Irfan Oadir AA.-G. with Altaf Muhammad Khan for Respondents Nos.l Zafar Pasha Chaudhry for Respondent No.3. Date of hearing: 21st November, 1990. By means of this Constitutional petition, Ghulam Hussain, petitioner, prays that the order dated 23-9-1989 passed by Syed Anwar Hussain, learned Magistrate section 30, Lahore discharging Shafqat Hussain Bhatti, alias Shaki, respondent No.3, from a charge under section 307/34, P.P.C. registered against him and others at Police Station Chuhang, District Lahore, on 8-4-1989 vide F.I.R. No.113 of 1989, may be declared without lawful authority and of no legal consequence, by accepting this petition.

2. Shortly stated, the facts are that the above-referred criminal case was registered against lbrar Hussain, Ghulam Hussain and Shafqat Hussain alias Shaki, on the statement of the petitioner Ghulam Hussain. It is mentioned in the F.I.R. that Ghulam Hussain, Safdar Hussain and Muhammad Aslam had a joint agricultural undertaking. They also lived together. On the day of occurrence, at about 9-30 p.m. Ghulam Hussain, Muhammad Saddique, Muhammad Aslam, Safdar Hussain, his mother Mst. Sharifan were sitting together in the courtyard of the house of Safdar Hussain at Multan Road, near Bagh Mohallaydar. They were discussing their business affairs. At .the main gate, Ghulam Hussain alias Gamoon; Ibrar Hussain alias Bari, Shafqat Hussain alias Shaki, came and called Safdar Hussain to come out. Safdar Hussain, Ghulam Hussain, Ibrar Hussain and Shafqat Hussain came out accordingly. The petitioner Ghulam Hussain, Muhammad Saddique, Aslam and Mst. Sharifan Bibi also followed Safdar Hussain. The witness saw that Safdar Hussain, Ghulam Hussain, Ibrar Hussain and Shafqat Hussain were busy talking with one another. The accused stated that the complainant was responsible for the institution of a land case against them. Upon this, both the parties started quarrelling. The accused shouted a lalkara whereupon Ghulam Hussain, Shafqat Hussain and Ibrar Hussain took out their revolvers and started firing at Safdar Hussain. Safdar Hussain received injuries on his right eye, abdomen, legs and back. He fell down. The accused left the place with their weapons. Safdar Hussain in an injured condition was brought to Mayo Hospital for treatment. Motive is that 12/13 years ago, Mst. Kaniz Fatima, a real sister of Shafqat Hussain and Ibrar Hussain married Safdar Hussain with her own free-will. Ibrar Hussain and Shafqat Hussain did not approve the said marriage of their sister. They also conspired to kill Safdar Hussain with a view to grab the land of their sister. To achieve this object they attacked and injured Safdar Hussain with an intention to kill him. The occurrence was witnessed by Ghulam Hussain, Aslam, Muhammad Saddique and Mst. Sharifan Bibi.

3. Shafqat Hussain Bhatti, respondent No.3, made an application for his pre-arrest bail which was heard and dismissed by the learned Additional Sessions Judge, Lahore on 26-4-1989 on the ground that there was a strong motive on his part to participate in the commission of the crime and that he had been named in the F.I.R. with a role. It was observed by the learned Judge that no ulterior motive was alleged against the complainant party or the policeman. According to the learned counsel, pre-arrest bail petition of the said respondent was also dismissed by the High Court vide Cr. Misc. No.1776/B-1989. The investigation was conducted by the A.S.P., Nawan Kot who while submitting a report under section 173, Cr.P.C. came to the conclusion that several Police Officers conducted the investigations and according to their investigation respondent Nd.3 was found innocent. He noted that plausible and solid evidence of defence was produced by the accused. He too reported that the accused was innocent. He concluded that the respondent was not proved to be present at time of occurrence. On these premises, a request for discharge of the accused respondent was made by him. This request was accepted by the learned Magistrate on 23-9-1989 without any hesitation there and then.

4. Learned counsel forcefully contends that the learned Magistrate did not apply his judicial mind to the facts and circumstances of the case and that he immediately accepted the request of the investigating officer thereby discharging the respondent from the char a against him. Lamed counsel: maintains that even the report of discharge M eared by the investigating officer is not based in any lawful reasons. Learned counsel places reliance can Bahader and another v. The State. PLD 1985 SC 62 and Mst. Zubaida Bibi and another v. The State 1986 PCr.LJ

192. Learned counsel submits that there is overwhelming evidence available on record to implicate the accused respondent in the commission of the crime and that the investigating officer has failed to consider the statements of the eye-witnesses and particularly the statement of the injured first informant in that behalf. Learned counsel states that there is no power vested in the investigating officer to recommend the discharge of the accused person against whom sufficient and reliable evidence is available on record. The learned Magistrate and the investigating officer were summoned with record to explain their position in the case. The learned Magistrate was unable to explain as to why he discharged the accused. He frankly conceded that he did not see the entire police file while passing the impugned order. The investigating officer stated that he was satisfied on the basis of his investigation that respondent No.3 Shafqat Hussain, was innocent and that he was not present at the time of occurrence. Mr. Zafar Pasha Chaudhry, learned counsel for the accused respondent No.3 submitted that it was not at all necessary for the learned Magistrate to detail his order of discharge with reasons. He, therefore, submits that, the impugned order of the learned Magistrate was based on the report of the investigating officer. He argues that the impugned order was passed by the learned Magistrate in the exercise of his executive powers and that being so, the writ petition in hand was not competent. The learned Law Officers, had been appearing in the case. On the last date, Mr. Irfan Oadir, learned Additional Advocate-General appeared and contended that the order passed by the learned Magistrate should be speaking and judicial one: He submits that the impugned order cannot at all be maintained on the face of it because it is apparent that the learned Magistrate did not apply his judicial mind to the facts and circumstances of the case. He, therefore, straightaway submits that he has no objection if the impugned order is set aside by declaring it without lawful authority. He too relied upon the judgment reported in Bahadur's case.

5. I have heard the learned counsel for the parties at considerable length on number of dates and have myself perused the police f le. I am in agreement with the contention of the learned counsel that the impugned order is not sustainable in law inasmuch as it did not contain any valid reasons for the discharge of the accused. The-impugned order shows that the request of the investigating officer was accepted by the learned Magistrate, the moment it was made to him. Even the report of the investigating officer for discharge of the accused respondent does not cc plain any ground at all. The investigating officer did not -care to properly prepare the report of discharge itself. He did not mention the names of the witnesses who defended the respondent. The mere fact that the investigating officer states that the defence evidence is reasonable is not at all enough to recommend for the discharge of the accused. In a case like this, it was the duty of the investigating officer to have disclosed as to what was the evidence and circumstances which persuaded him to recommend for discharge of the accused. No evidence has been mentioned in the discharge report. On the contrary, according to the learned counsel, witnesses, of the prosecution do implicate the respondent in the commission of the crime. At any rate, this was the view of the investigating officer that respondent No.3 was innocent while the prosecution version is that there was considerable evidence available against him to justify his trial according to law. The truth was required to be ascertained by the- learned Magistrate by applying his judicial mind to the facts, circumstances of the case and evidence of the parties. It appears that this has not been done by him and he hurriedly accepted the vague report of the investigating officer: This he cannot do under the law. Under law, he is not expected to do his duties of his high office in a mechanical way without looking into the police ' file. The object is that the learned Magistrate would see as to whether or not the discharge report prepared by the investigating officer was based on evidence. It cannot be done unless learned Magistrate himself scans whole police file. He must do this in order to do complete justice with the complainant. In case, he finds from the police file that the discharge report of the investigating officer is based on mala fide or is not in line with material available on 'record, he has, certainly the powers to refuse to accept the discharge report. The learned Magistrate cannot act arbitrarily or against record. The Hon'ble Supreme Court in Bahadur's case has given a complete and exhaustive guideline as to how to proceed in such like matters. A portion out of the said judgment is respectfully referred as under: -- "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 power, 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 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:' From the above quotation, it is crystal clear that the Magistrate in a registered criminal case is bound to perform his duties judicially, fairly, justly and honestly. Keeping this touch-stone in mind, I feel no hesitation in saying that impugned Border passed by the learned Magistrate on 23-9-1989 is not at all judicial, fair and just order. Similarly, in Mst. Zubaida Bihi's case (Supra), it was observed that a Magistrate while functioning as a persona designata in the discharge of his official duties, has to act fairly, justly and honestly. In the ease in hand the learned Magistrate failed to consider the impact of the F.I.R., statements of the eye?witnesses including the statement of the injured witnesses and the motive for commission of the crime while massing the impugned order. Respectfully following the dictum of the Hon'ble Supreme Court. I proceed to hold that the 1 impugned order dated 23-9-1989, is not judicial, fair and just order. It has undoubtedly been passed arbitrarily and capriciously by the learned Magistrate without applying his judicial mind to the facts and circumstances of the case. This being so, the impugned order is set aside with a direction that the learned Magistrate shall pass fresh order in the light of the judgment of the Hon'hle Supreme Court in Bahadur's case (Supra). The petition succeeds and is, allowed with no order is to costs. N.H:O:/G-393/'L ???????????????????????????????????????????????????????????????????????????????? Petition allowed.