1. Petitioner Evon Dilbar is the wife of respondent Innocent Dilbar Feroze. Through a Kalandra drawn by the SHO of Police Station Gawalmandi, proceedings are pending against her under Section 182 of the PPC before a learned Special Judicial Magistrate since 5.12.2001. After the Kalandra was registered, she was charge-sheeted on 21.1.2002 and the matter is still pending there. An application was moved by her under Section 249-A of the Cr.P.C. on 20.12.2002 which has also not been disposed of.
2. Her case is that only two-witnesses cited by the prosecution were not made to record their statements during a period of two years, therefore, the proceedings against her were illegal and thus the same be quashed.
3. The Kalandra was initiated at the instance of her husband. According to the petitioner, she was physically assaulted by her husband on 4.4.1999 in the area of Liaqat Road, Rawalpindi, against which she lodged FIR Bearing No, 86 on 4.4.1999. She also got herself medically examined and the MLR is placed on the record. However, the said FIR was ordered to be cancelled by the Ilaqa Magistrate and the grievance of the petitioner is that she was not heard, the record was not consulted, the MLR was not seen and that the FIR was cancelled at the instance of her and because of his influential.
4. After the cancellation of the FIR, the Kalandra proceedings had started.
5. The record in this case was summoned and on examination it was seen that on 23.1.2002 the charge was framed and the case was fixed for evidence of the prosecution for 7.2.2002. Nothing happened on this date because the petitioner was absent. After another intervening date, the case was fixed for 2.3.2002 for recording of the evidence but this was not recorded because the evidence was not available. On 9.3.2002 no witness appeared but as the petitioner had also sought leave of the Court against her absence, this was allowed. Witnesses were summoned on 16.3.2002 which was the next date. On that date the witnesses were not present and they were re- summoned. On 30.3.2002 the Presiding Officer was on leave. Witnesses were summoned on 13.4.2002 for 27.4.2002 and summons were issued against them. Warrants of arrest of the witnesses were issued on 27.4.2002. On 18.5.2002 the witnesses were not present. The same was the position on 1.6.2002, 22.6.2002 and on 29.6.2002. The Presiding Officer was on leave on 27.7.2002. On 10.8.2002 again the witnesses were summoned. The same position prevailed on 7.9.2002 and on 14.9.2002. On 12.10.2002, the petitioner was absent and she sought leave of the Court which was allowed. Again witnesses were summoned on 26.10.2002, 6.11.2002, 23.11.2002 and on 7.11.2002 but no came.
6. On 20.12.2002 she moved an application under Section 249-A of the Cr.P.C. It was fixed for hearing for 24.12.2002 and again refixed for 30.1.2003. Nothing took-place on 30.1.2003, 17.2.2003 and on 18.3.2003. On 29.3.2003 part arguments, were heard on the petitioner u/S. 249-A of the Cr.P.C. and the case was fixed for 5.4.2003 for remaining evidence. Again some arguments were heard on 5.4.2003 on petition u/S. 249-A of the Cr.P.C. However, as the witnesses were also not present, they were given a final opportunity. On 10.5.2003, the Court was informed that the petitioner-lady had proceeded to the USA and her counsel asked for adjournment which was refused and the trial Court recalled her bail order and issued warrant of arrest for 30.6.2003. On 30.6.2003 the petitioner appeared. Her application u/S. 249-A Cr.P.C. was re-fixed for hearing for 17.7.2003. Again on 17.7.2003 the arguments on application u/S. 249-A Cr.P.C. were not heard and the case was adjourned to 9.8.2003. On this date, the matter could not be taken up because of summer vacation. On 6.9.2003 the case was fixed for arguments on the petition u/S. 249-A of the Cr.P.C. for 20.9.2003. And again on 20.9.2003 the case was adjourned for 9.10.2003 and later again the matter was adjourned for 3.11.2003 and subsequently for 1.11.2003. And at this stage she made an application to this Court asking for quashment of the proceedings.
7. The perusal of the order-sheet shows this to be a classical case of inaction and abuse of power by the trial Court. Where an application u/S. 249-A of the Cr.P.C. could not be decided for a whole year and still remains undecided. Where despite many dates fixed for production of the evidence, this was not produced by the prosecution and the matter kept on adjourning. Only on one date when the petitioner was not available i,e, on 10.5.2003 the trial court without giving a show-cause notice recalled its bail order forgetting about its own working and the delay which the trial Court was itself causing.
8. Section 182 of the PPC reads as follows:-- "False information with intent to cause public servant to use his lawful power to the injury of another person: Whoever gives to any public servant any information which he knows or believes to be false, intending thereby cause, such public servant--
(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is give were known by him, or
(b) to use the lawful power of such public servant to the injury or annoyance of any person shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to three thousand rupees, or with both."
9. The question was whether a wife could give a false information `against her own husband while also attaching a Medical Certificate. This called for a serious thought and investigation. The FIR which was registered at her instance had been cancelled and instead a Kalandra proceedings were initiated against her. Nobody has probed into these facts.
10. The. Judicial Magistrate seized of the matter kept on postponing the application u/S. 249-A of the Cr.P.C. oblivious of her hardships and suffering. Perhaps this fact also skipped attention during the quarterly inspection by the learned Sessions Judge. Presiding Officers of the Courts are under a bounden duty to administer justice in accordance with law. When we talk of justice in the Aristolelian terms, it implies equal distribution of advantages and dis-advantages amongst equals.
11. The Judicial Magistrate lost sight of the facts that he was putting the prosecution side in an advantageous position and the accused side in dis-advantageous position throughout. Despite record available before me, he continued to act as such and the question for consideration is whether such a person was fit for being entrusted with the work of adjudication and justice.
12. Quarterly inspections are meant to check unjust tendency of the lower staff of the subordinate judiciary. The Sessions Judges are required to C make thorough inspections of the record for digging out such like actions and for taking curative measures according to the system. Our system is failing because there is lack of accountability and lack of check which the system itself provides and this will continue to deteriorate if we do not ensure proper inspections and accountability.
13. The SHO who sent the Kalandra was also unfair under the circumstances. Because a Medical Report was available on the file to establish that what she was alleging was not totally false. For such a petty offence even if it was committed, should a citizen suffer so much of agony? The answer again is in the negative.
14. There has to be a balance with respect to the crime and with respect to its punishment and the civilized society has set standards for the same and these standards are to be observed carefully and prudently with a heart, compassion and with charity and firmness allowing extenuation where necessary and acting with severity where such is needed.
15. After examining the record and after hearing all sides, this Court is of the view that the torturs and unended proceedings before the Judicial Magistrate deserved to be quashed in the absence of any proof forthcoming on behalf of the police/the complainant side and these are quashed.
16. But the matter should not end here. We have to take curative measures against the mal- administration on the part of the Presiding Officer who delayed such a small matter for such a long time. The learned Sessions Judge, Rawalpindi, is directed to hold a thorough inquiry in this case and also to dig out other such cases showing abuse of authority and send his report in two weeks time to this Court and which shall be put up before me wherever I may be.
17. Copy of this order be sent through a special messenger to the learned Sessions Judge, Rawalpindi.
18. The record of .the trial Court, already summoned, be also returned through the same special messenger.