Mr. Justice Aqeel Ahmed Abbasi.
Date of hearing : 01.02.2010
Date of order : 25.02.2010
Applicant : Haji Muhammad Zakria through Mr. Muhammad Jameel, Advocate alongwith Haji Muhammad Zakria Seth
Respondents : The State & others through Mr. Ali Haider Saleem, APG alongwith DSP (Admn) Muhammad Irfan Zaman, ACLC.
Humayoon Durrani present in person.
Aqeel Ahmed Abbasi, J. Being aggrieved and dis-satisfied with the order dated 10.11.2009 passed by the learned XII Civil Judge and Judicial Magistrate Karachi South in Cr. Misc. Application No.370 of 2009 in Crime No.415 of 2009 registered under Section 395 PPC, whereby the disposal of the case under Section 173 Cr.P.C as "B" Class by the learned trial Court has been impugned through instant Criminal Misc. Application under Section 561-A Cr.P.C.
2. The learned counsel for the applicant, besides raising number of other legal grounds, has mainly argued on the legal point relating to jurisdiction of the learned Judicial Magistrate. According to learned counsel, the learned trial Court was not competent to entertain or proceed with the instant case, which was registered under Section 395 PPC, which is triable by Sessions Court and not by the Judicial Magistrate. According to the learned counsel for the applicant, assumption of jurisdiction by the learned Judicial Magistrate under the circumstances was void, ab-inito and hence of no consequence. In this regard the learned counsel has referred to Chapter XVII of Schedule II to Cr.P.C to show that offences falling under Section 395 PPC are triable by the Court of Sessions. The learned Counsel besides this preliminary legal ground relating to the jurisdictional error in the impugned order has further argued that even on merits the learned trial Court seriously erred in fact and law by summarily concurring with the report submitted by the police under Section 173 Cr.P.C without appreciating the incriminating evidence available on record which, if would have been placed before the concerned Court the accused could have been charged of the offences alleged therein. The learned counsel for the applicant through statement dated 30th January 2010 has also placed on record number of documents, mostly part of judicial record, to establish that the applicant having a prima facie case against the accused person the F.I.R could not have been summarily disposed of in the manner adopted by the learned trial Court. According to learned counsel, it is highly contentious matter and requires judicial pronouncement after taking evidence in this regard. It was therefore, inter alia contended that the order being without jurisdiction and or alternatively without any legal basis may be set aside and the case may be remanded to the Court of competent jurisdiction to be proceeded in accordance with law.
3. To this submission, learned State Counsel has raised a legal objection regarding maintainability of the instant Application under Section 561-A Cr.P.C. It has been argued that the instant Cr. Misc. Application does not lie against the order passed under section 173 Cr.P.C by a Magistrate. The learned A.P.G submitted that the order passed on report under Section 173 Cr.P.C submitted by the police before the concerned Magistrate for its approval is an administrate order and cannot be termed as a judicial order against which remedy in terms of revision or through filing the application under Section 561-A Cr.P.C is provided. In this regard, learned A.P.G has placed reliance on the following reported judgments :
(i) Bahadur and another v. The State and another PLD 1985 SC 62
(ii) Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others PLD 1994 SC 281
(iii) Ashiq Hussain v. Sessions Judge, Lodhran and 3 others PLD 2001 Lahore 271.
4. According to learned A.P.G in view of the above pronouncement the instant criminal miscellaneous application is misconceived and is liable to be dismissed in limine.
5. One Dr. Humayoon Durrani was also present in Court and stated that since he was falsely nominated in the FIR, which has rightly been disposed of as "B" Class, he would like to be impleaded as a party and defend the case in person. According to him, he had purchased the property after making payment of the entire amount through registered document and now being falsely implicated in the frivolous cases of car theft etc registered at the instance of present applicant as a tool for blackmailing and harassment. He further submitted that the present applicant is in the habit of entering into contracts including execution of sale agreement/sale deed and thereafter he falls back upon such agreements by denying the same. In support of his contention he submitted that he can produce certain documents to show the conduct of the present applicant. Since this Court is not examining the merits of the case of the applicant or defence of the accused nominated in such FIR and at present considering the precise legal controversy relating to propriety of the proceedings and the orders passed by the learned Judicial Magistrate on a report submitted under Section 173 Cr.P.C as "B" Class, such request at this stage was not considered as proper hence declined.
6. I have heard the learned counsel for the applicant, A.P.G and Dr. Humayoon Durrani in person, perused the impugned order as well as record of the case. It appears that on direction of District & Sessions Judge (South) Karachi in Cr. Misc. Application No.687 of 2009 an FIR No.415/2009 was registered on 6.8.2009 at P.S. Boat Basin Karachi by one Haji Muhammad Zakria Seth son of Haji Haroon Seth reporting an alleged offence having taken place on 21.6.2007. As per contents of FIR on the date of incident between 4 to 5 a.m complainant and his son while driving car in their way back to their home at D-47, Street No.12, Bath Island in their Car No.AGN-353 Toyota Corlloa and ADY-720 Cultus Silver colour, were intercepted near Faisal Masjid Bath Island by two cars, out of one Silver car. Dr. Sardar Humayoon (present in Court) alongwith several other persons came out and on gun point snatched both the cars after issuing life threats. As per contents of FIR thereafter the applicant alongwith his family left for Malaysia and then to Saudia Arabia and on his returning back to Pakistan, he lodged the instant FIR. It appears that during investigation the case was found to be false one. Accordingly, challan was submitted before the Judicial Magistrate with final report under Section 173 Cr.P.C with the request to dispose of the FIR as "B" Class. On such report the impugned order dated 10.11.2009 was passed by the learned XIIth Judicial Magistrate Karachi South, whereby the learned Magistrate after examining the evidence collected by the police during inquiry and the statement recorded thereto approved by the police for disposal of the case under "B" Class. Since the learned counsel for the applicant has mainly objected on the jurisdiction of the Judicial Magistrate, I would restrain myself from minutely examining the merits of the case whereby the disposal of the FIR as "B" Class has been made by the learned Judicial Magistrate.
7. As regards the legal objection of the learned APG about maintainability of the instant application under Section 561-A Cr.P.C, reliance was placed on the reported cases mentioned hereinabove in para No. 2. In the reported case of Bahadur and another v. The State PLD 1985 SC 62, the Hon'ble Supreme Court has dealt with the controversy relating to the nature and scope of the order passed by the Judicial Magistrate on the report submitted by the police under Section 173 Cr.P.C. It appears that there were conflicting views about status of such orders one view was that since an order is passed by the Judicial Magistrate it may be treated as a judicial order against which the revision would lie in terms of Section 435 & 439 Cr.P.C, whereas the other view was that while approving the report submitted under Section 173 Cr.P.C by the police, the Judicial Magistrate does not conduct judicial proceeding and performs administrative functions, which may be treated as an administrate orders against which no revision shall lie before the High Court. The Hon'ble Supreme Court after examining both the conflicting views has resolved the controversy in the following manner:
"Though a Magistrate in canceling 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 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. These peculiarities 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. For that reason his order is not amenable to revisional jurisdiction under sections 435 to 439, Cr.P.C. This appeal is, therefore, allowed, and the impugned order of the High Court is set aside, as one without jurisdiction."
8. Similarly, in the case of Ashiq Hussain v. Sessions Judge, Lodhran and 3 others PLD 2001 Lahore 271, while placing reliance on the judgment of superior Courts including PLD 1985 SC 62, the learned Judge of Lahore High Court has held as under:
"Thus, in view of such a legal status of an order of discharge, extraordinary reasons have to be available for a higher forum to interfere with such an exercise of jurisdiction and discretion by a Magistrate and for insistence upon taking an accused person into custody where the police or the Magistrate do not deem such custody to be necessary or warranted for the time being in the circumstances of a given case. Generally such an insistence by a complainant while seeking setting aside of an order of discharge stems from a misconception that due to the order of discharge the accused person in question stands absolved of the allegations against him or the investigation or prosecution qua him have been smothered or terminated. As already observed above, such notions are based upon misunderstanding of the correct legal position regarding discharge. With the restatement of the law on the subject through this judgment such misconceptions now ought to stand dispelled and it is, therefore, expected that henceforth propensity of complainants to rush to a higher forum with challenges against the orders of discharge would dissipate. In order to complete the picture it may be mentioned here that, as already noticed above, a revision petition is not competent against an order of discharge and such an order may be challenged before a High Court through a petition under Article 199 of the Constitution praying for issuance of a writ of certiorari. It was held by the Supreme Court of Pakistan in the cases of Arif Ali Khan and another v. The State and 6 others 1993 SCMR 187 and Muhammad Sharif and 8 others v. The State and another 1997 SCMR 304 that in an appropriate and unusual case even a petition under section 561-A of the Code may be maintainable before a High Court against an order of discharge. The case law on the subject shows that some of the recognized grounds for interference with an order of discharge are passage of such an order by a Magistrate mechanically without application of his own independent mind to the facts of the case, blindfolded acceptance of a recommendation of the police in that regard, perversity of reasoning and adoption of a procedure which offends against the letter or spirit of the law relating to discharge."
9. Conversely, the learned counsel for the applicant has seriously controverted to the objection relating to maintainability of the instant application under Section 561-A Cr.P.C. It has been argued that none of the cases relied upon by the learned APG, it has been held that even in cases where the Judicial Magistrate was not competent to proceed with the alleged offence triable by Sessions Court, inherent jurisdiction of the High Court could not be invoked. In support of his arguments he has placed reliance on the following reported as well as unreported judgments (i) Soofi Abdul Qadir v. The State 2000 P.Cr.L.J 520, (ii) Ghulam Shabbir v. The State 2000 P.Cr.L.J 1411, (iii) Ashiq Hussain v. Sessions Judge, Lodhran and 3 others PLD 2001 Lahore 271 and unreported case of Mst. Eram Capt. & others v. Muhammad Adnan Choudhry and another Cr. R.A. No.158 of 2009 & Cr. Misc. No.305 of 2009. A Division Bench of this Court in the case of Soofi Abdul Qadir v. The State 2000 P.Cr.L.J 520 after considering the judgment of Hon'ble Supreme Court including PLD 1985 SC 62 has observed as under:
"Ratio decidendi in all the cases appears to be that since the Magistrate while concurring with a police report submitted under section 173 Cr.P.C does not act as a Criminal Court inferior to the Court of Session and the High Court, his order cannot be revised and modified under the provisions of sections 435, 439 Cr.P.C but in that case it is amenable to the inherent jurisdiction of the High Court under section 561-A Cr.P.C provided the order amounts to abuse of process of Court."
10. On perusal of the case law relied upon by the learned counsel for the applicant as well as learned APG, it appears that under the circumstances where a case is disposed of under section 173 Cr.P.C as "B" Class by the Judicial Magistrate having valid jurisdiction to proceed with the alleged offences, no revision in terms of section 435 to 439 is competent, the remedy available to the complainant is to file private complaint under section 200 Cr.P.C before the same Magistrate containing the same set of allegation as mentioned in the FIR which was finally disposed of in terms of section 173 Cr.P.C as "B" Class by the police and duly approved by the Magistrate. The said Magistrate on such complaint shall proceed with the complaint filed under section 200 Cr.P.C and after examining the evidence shall pass appropriate order by conducting judicial proceedings without being influenced by his earlier order passed under section 173 Cr.P.C which is an administrative order judicially made. However, in cases where the orders are passed by Judicial Magistrate concurring with the recommendation by the police for disposal of the FIR under section 173 Cr.P.C as "B" Class, where the alleged offences were triable by the Court of Session, such orders being without jurisdiction, can be impugned by invoking the inherent jurisdiction of the High Court under section 561-A Cr.P.C.
11. Under the facts and circumstances and on the basis of dictum laid down by the superior Courts in cases referred to hereinabove, the instant application under Section 561-A Cr.P.C is maintainable as the impugned order passed by the XIIth Judicial Magistrate Karachi South appears to have been passed without jurisdiction. Admittedly the alleged offence falling under section 395 PPC is triable by a Court of Session as per Chapter XVII of Schedule II to Cr.P.C. Accordingly, the impugned order is set aside. The same shall be proceeded in the Court of Sessions having lawful jurisdiction to proceed with the case in accordance with law, with the caution that the impugned order is set aside on point of jurisdiction only whereas merits are to be decided by the Court of Sessions having jurisdiction over the case.
12. Before parting with this order it is pertinent to mention that when the matter was reserved for orders, both the learned counsel have placed on record the order passed by the learned 1st Additional Sessions Judge on 29.1.2010 in Cr. Misc. Application 65 of 2010, whereby an application 22-A (6) Cr.P.C filed by the present applicant in respect of the same FIR request for transferring the investigation of the FIR from the present I.O. namely Irfan Zaman has been allowed and the matter has been referred to the D.I.G to take disciplinary action against the said I.O and also transfer the investigation of this case to any other honest investigation officer with direction to conduct a fair and impartial investigation. Be that as it may, and without commenting on the effect of such order passed after the FIR has already been disposed of as "B" Class by the learned Judicial Magistrate, this Court considered it appropriate to dispose of the instant criminal miscellaneous application on the legal point raised therein.
13. Accordingly, the instant Cr. Miscellaneous Application is disposed of alongwith the listed applications in the above terms.