Ch. Ijaz Ahmed, J.--We intend to decide the captioned petitions by one consolidated order as these arise out of the same impugned judgment of the Peshawar High Court dated 17.8.2005.
2. The detailed facts have already been mentioned in the impugned judgment. However, necessary facts out of which the present petitions arise are that Faqir Gul and Nairnatullah, brothers inter-se, preferred a complaint addressed to the Director Anti-Corruption Peshawar for taking punitive action under the law against their brother Hayadayatullah, Shakeel Ahmed petition written concerned record keeper and concerned incharge record room. The contents of complaint reveal that House No, 770/2961 in question is the legacy of their father and his legal heirs are co-sharers in the disputed house. Petitioners allegedly prepared collusive, fictitious, in effective and fraudulent deed in the preceding date on a stamp paper allegedly signed by the stamp vendor who had already died and prepared relinquishment deed dated 12.10.1998 on behalf of the complainant which was forged and fraudulent. The complaint was inquired into and on the basis of findings of the inquiry FIR No, 2 of 2005 was registered at police station ACE, Peshawar, under Sections 419, 420, 468, 471 PPC read with Section 5(2) PC Act on 29.1.2005. The learned judicial magistrate, however, discharged the petitioners u/S. 63 of Code of Criminal Procedure 1898 vide orders dated 1.2.2005 on the ground that respondents have filed suit for declaration against the petitioners and seven others in the Civil Court Peshawar wherein petitioners and others filed written statement on 27.5.2004 and relied on relinquishment deed dated 12.10.1998 in reply to para 6 of the plaint. The said suit is pending adjudication and said document was produced by petitioners/defendants during proceedings pending before competent Civil Court and that complaint could only be filed by the Court in view of Section 195 (1)(c) of the Cr.P.C.
3. The state and complainants being aggrieved filed revision petitions under Section 439-A read with Section 435 Cr.P.C, in the Court of Additional Sessions Judge, Peshawar who dismissed the same vide consolidated order dated 19.3.2005. Respondents being aggrieved filed petitions under Section 561-A of Cr.P.C. in the Peshawar High Court which were accepted vide impugned judgment dated 17.8.2005. Hence the present petitions.
4. The learned counsel for the petitioner submits that learned magistrate had discharged the petitioner under Section 63 of Cr.P.C., therefore, petitions filed by the respondents before the Peshawar High Court were not maintainable, learned High Court had mis-understood the facts of the case as the respondent had already filed a suit against the petitioner in the Civil Court wherein petitioner had filed written statement whereas the learned High Court has mentioned in the impugned judgment that suit was not filed, the impugned judgment of the High Court was not in consonance with the law laid down by the superior Courts. He strenously pressed the bar of Section 195(1) (c) Cr.P.C, to the registration of the criminal case. In support of his contention, he relied upon the following judgments:--
(i) Rasool Khan & others v. Haji Banaras Khan & others (PLD 2004 SC 364);
(ii) Ashiq Hussain vs. Sessions Judge Lodhran & 3 others (PLD 2001 Lahore 271);
(iii) Abdul Wahab Khan vs. Muhammad Nawaz & 7 others (2000 SCMR 1904).
5. The learned counsel for the respondents submits that learned High Court had passed the impugned judgment after considering all the pleas raised by the learned counsel for the petitioners. The judgments relied upon by the petitioner were duly considered by the learned High Court and it was held that the cited judgments were not applicable to the case in hand on account of distinguishable features.
6. We have given our due consideration to the contentions of the learned counsel of the parties and perused the record. The learned High Court had distinguished the first two cases cited by the counsel for the petitioners (PLD 2004 SC 364 and PLD 2001 Lahore 271) in para 16 of the impugned judgment. Abdul Wahab Khan's case supra relied upon by the learned counsel for the petitioners is also distinguishable. Facts of the cited judgment are that appellant who had been performing his duties as special magistrate WAPDA filed a private complaint against. the respondents namely Muhammad Nawaz, Ex-Director etc. under Sections 411, 381, 109, 166, 171, 166, 477-A, 201, 161, 167 PPC and Section 5(2) of Prevention of Corruption Act, 1947, in the Court of learned Special Judge, Anti- Corruption Lahore on 1.11.1990 where in various serious allegations of corruption, tempering with official record, theft of judicial files with ulterior motive and receiving of an amount of Rs, 30,000/- in lieu of alleged sale of judicial files were levelled against the respondents. The learned Special Court after recording statement of complainant, dismissed the complaint by order dated 1.11.1990 without holding a preliminary inquiry with the finding that non scheduled offences could not be tried with scheduled offences without adverting to Section 5(7) of the Criminal Law Amendment Act, 1958. In the cited case allegedly judicial files were sold in the year 1984. Complaint was got lodged on 1.11.90 without any plausible jurisdiction. In para 13 of the judgment following observations were made which show that the cited case is not applicable to the facts of the present case-- "It appears from signature of complainant that all the alleged offences were never committed simultaneously and purpose in between runs into years but no complaint was filed at the particular moment. As to why the complainant awarded for such a long period is a mystery but it cannot be without reason which could only be explained by the appellant alone. IT is apparent from record that prima facie sufficient evidence is lacking to show that Ghulam Yasin (respondent) had delivered two judicial files to Raja Saeed Akhtar in lieu of Rs, 30000/- as the complainant had himself admitted that neither the said transaction was made in his presence nor the amount was paid by the Raja Saeed in his presence.
No complaint could have been filed regarding tempering in judicial files as it was the executive prerogative of the Courts below as mentioned hereinabove".
7. The question of applicability of Section 195(1)(c) was considered by full bench of the Lahore High Court in Muhammad Shafi v. Deputy Superintendent of Police (PLD 1992, Lahore 178). The relevant questions and observations are as follows:-- Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz), Narowal & 5 others (PLD 1992 SC 178 page 197).
"(i) Whether the provisions of Section 195, sub-section (1), Clause (c) of the Cr.P.C. as regards offences described in Section 463 or offences punishable under Section 475 or Section 476 of the PPC apply to a document which is produced or given in evidence in a suit or in any other proceedings in a Court but which had been forged before the institution of the suit or proceeding"?
And
(ii) If the facts of a case attract the provisions of Section 195, but no complaint, has been made by the Court concerned, is the police competent to register a case and investigate it?"
"Now can it be said that the offence of forgery was against the administration of justice in a case in which the offence was committed, say, ten or twenty years before the suit in which the forged document was produced or given in evidence? The answer must obviously be in the negative. The former must have, before the suit, used the forged document on a number of occasion in deceiving a number of persons. And when his fraud and forgery came to light and the real owner or the persons defrauded were preparing to take criminal proceedings, he hit upon the clever device of instituting a civil suit and producing the forged document in the civil suit. He would, then, on the view contended for by the petitioner, be able to say. 'Well, I have produced the document in the Civil Court; you have to wait will that Court has finally decided the genuineness or otherwise of the document, for unless that is done, that Court will not be in a position to say whether an offence of forgery was committed or not and to lodge a complaint under Section 195'. Unfortunately civil suits usually take very long to decide and, in practical terms, it may amount to completely defeating the ends of justice. On this view, therefore, the Civil Courts will become a place for the protection of criminals. This obviously could not have been the intention of the law. The cause of action for proceeding against the forger arose immediately when the offence of forgery as defined in Section 463 of the PPC was committed. The commission of that offence was not only intended deprive the real owner of his property but had also enabled the forger to deceive others and to deprive them of money. No proceedings were pending in any Court at that time. There was, therefore, no question of the offence, at the date of its commission, being against the Court or the administration of justice; nor did it, then, in any way sully the proceedings of the Court, for none were pending".
"As the two interpretations of clause (c) of sub-section (1) of Section 195 of the Cr P.C. are so evently balanced, the one that does not deprive the ordinary Criminal Courts of their ordinary jurisdiction and persons of the right of redress must he adopted On that view of the matter also, the view that clause (c) of sub-section (J) of Section 195 of the Cr.P.C. does not apply to cases in which the forgery was committed before the institution of a suit or other proceedings in which the forged document is produced or given in evidence should. In my opinion, be preferred".
"For these reasons, my answer to the first question is in the negative".
As the second question does not arise out of the fats of the case before us. we did not call upon learned counsel to answer that question.
We do not, therefore, think it necessary to answer that question.
8. It is a settled principle of law that it is the discretion of the magistrate concerned to pass order under Section 63 of the Code of Criminal Procedure to discharge the accused persons. However, the discretion must be exercised by the concerned magistrate justly, fairly and in case discharge order was passed by magistrate inechanically without application of his 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 and spirit of the law relating to discharge, then High Court has ample jurisdiction to interfere and set aside such an order under Section 561-A of Cr.P.C. See Arif Ali Khan and others v. The State & others (1993 SCMR 187) and Muhammad Sharif & others v. The State and another (1997 SCMR 304).
9. It is by now settled that order passed by the magistrate is of administrative nature. This Court expressed the view that some of the powers of the magistrate are administrative, executive or ministerial' and he discharges these duties not as a Court but as a persona designata. See Arif Ali Khan v. The State (1993 SCMR 187), Muhammad Sharif v. The State (1997. SCMR 304) and Hussain Ahmed v. Irshad Bibi (1997 SCMR 1503), Bahadur and another v. The State and another (PLD 1985 SC 62). Ratio decidendi of all the cases mentioned above appears to be that since the magistrate, while concurring with a police report submitted under Section 173 Cr.P.C., does not act as Criminal Court subordinate to the Court of Session and the High Court, his order cannot be set aside, revised or modified under the provisions of Sections 435, 439 Cr.P.C, but in that case as stated above it is amenable to the inherent jurisdiction of the High. Court under Section 561-A Cr.P.C. provided the order amounts to, an abuse of process of the Court. Meaning thereby that a magistrate can. thus, effectively grant release to a person who may have been arrested or detained without sufficient cause. High Court is vested with the authority under Section 561-A Cr.P.C. to exercise the said power to secure the ends of justice, suppress the patent mischief if non interference with the impugned order will perpetuate un-justice, in case the magistrate concerned had passed the order without judicial application of mind as per the law laid down by' this Court in Eng. Bashir Ahmed v. Senior Superintendent of Police Islamabad (2002 SCMR 239).
10.It is a settled law that "every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the impressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found as law laid down by this Court in Trustees of the Port of Karachi vs. Muhammad Saleem (1994 SCMR 22131. As mentioned above, the judgments relied upon by the learned counsel of the petitioners are distinguishable on facts and are not applicable to the controversy in the present. case.
11.In view of what has been discussed above, we do not find any infirmity or illegality in the impugned judgment of the Peshawar High Court. The petitions being devoid of any force are hereby dismissed. Leave declined.