' MUHAMMAD MOOSA K. LEGHARI, J.---Through this revision application the applicant has invoked the Revisional Jurisdiction of this Court to challenge the legality of the order, dated 3-9-2003 passed by Judicial Magistrate II Naushero Feroze whereby he declined to accept the report submitted by police for disposal of case in B-Class and took cognizance against accused persons including applicant.
2. The applicant has further prayed for quashment of the proceedings in exercise of the inherent jurisdiction of this Court, as it was an abuse of the process of Court, since there was no prima facie evidence, thus there was no probability of the applicant being convicted of any offence.
3. The facts and circumstances giving rise to the filing of the present application are that on the complaint of Haji Ghulam MustafaF.I.R. No,71 of 2003 was registered against applicant and others on 1-7-2003 under section 17(3) Offence Against Property (Enforcement of A Hudood Ordinance), sections 342, 220 and 167, P.P.C., on the directions of Sessions Judge Nausherhro Feroze.
4. It was alleged that the complainant was Chief Polling Agent of Riaz Ahmed Jamali who was contesting election for Provincial Assembly while Farhad Zaman Jatoi was contesting as his rival candidate, who happened to be the cousin of District Nazim. When the complainant arrived to visit polling stations 182 and 181, District Nazim who was cousin of Farhad Zaman Jatoi also reached there. Meanwhile the applicant accompanied by other police personnel duly armed with deadly weapons also reached there. The applicant and others in order to gain patronage of District Nazim removed polling agent of Riaz Ahmed Jamali from the polling station, and pushed them in police mobile. The applicant allegedly hurled abuses upon complainant and gave him threats of murder.
The applicant and one Lal Bux snatched key of car from Ghulam Nabi Jamali and took into possession his licensed rifle, bullets, and the arms licence. Accused Lal Bux robbed Rs, 6000 from Ghulam Nabi while accused/applicant Muzaffar Ali snatched Rs,7000 from Muzaffar Jamali. The applicant Muzaffar Ali also forcibly took possession of wagon which was parked there for transporting voters. The applicant Muzaffar Ali Kalhoro allegedly robbed a cash at Rs,18,000 from complainant while accused Lal Bux robbed a watch and gold ring valuing of Rs,11600. Accused persons forcibly removed the supporters of complainant named in the F.I.R. From polling stations and brought them along with complainant at Police Station Naushero Feroze where they were kept in wrongful confinement, and were given slaps by the applicant/accused. Consequently false F.I.R.
No, 132 of 2002 was B registered against them under sections 148, 149, P.P.C. 13-D Arms Ordinance and section 7 of Anti-Terrorism Act. Rifle of Ghulam Nabi Jamali was foisted upon the complainant, and a case under section 13-D Arms Ordinance was registered against him. It was complained that the accused persons abused their powers and official position, wrongfully confined Ghulam Nabi Jamali and others insulted them and extended threats of death besides robbing wrist watch and golden ring. This was done in order to provide opportunity to rival candidate to cast votes, according to their sweet-will.
5. Consequent upon registration of F.I.R. Investigation was conducted by the police. Investigating Agency formed an opinion that the case was false, and therefore submitted report to the Judicial Magistrate concerned for disposing of the case in B-Class. However, Judicial Magistrate. II, Naushero Feroze did not agree with police report and vide order, dated 3-9-2003 took cognizance against accused persons including applicant. He accordingly directed that papers be submitted to Sessions Court for trial of the accused persons. Magistrate also passed orders for issuance of N.B.Ws against accused persons. Legality and propriety of the order of Magistrate has been impugned through this Revision Application.
6. It was contended on behalf of the applicant that the Magistrate acted in hasteful manner and omitted to take into consideration the facts that the police has investigated the case in a fair and impartial manner in which the allegations were not proved. It was argued that no sufficient evidence was available against the accused, resultantly there was no probability of awarding conviction to the accused persons for any offence. It was pleaded that the order of the Magistrate to the extent of issuance of N.B.Ws against a responsible police official at the outset was, prima facie vindictive and demonstrated vengeance on his part. Learned counsel emphasized that, as a matter of fact; the applicant being police officer was responsible for maintaining law and order; he acted lawfully in the discharge of his official duty to control law and order on the election day. It was argued that the registration of the case against the applicant was in retaliation of registration of 3 cases against the complainant party for the different offences committed by them.
7. Learned State Counsel conceded that, the evidence collected against the applicant during the investigation was absolutely insufficient to warrant conviction for any offence. He however raised objection to the maintainability of the revision application contending that the applicant should first avail remedy under section 265-K, Cr.P.C. From the trial Court.
7A. Learned counsel for the complainant chose not to appear. There was no intimation either to justify the absence.
8. Contentions raised have been considered and the material placed on record has been perused.
9. So far as the objection raised by learned State Counsel with regard to maintainability of the application is concerned it may be stated that as a matter of propriety High Court will not ordinarily entertain revision applications when the Sessions Court has jurisdiction to entertain them, yet High Court will do so in special cases. Moreover once a revision application is admitted, the High Court was neither denuded of the powers, nor prevented from deciding the same on merits.
10. In the case reported as Abdullah Khan v. Emperor AIR 1932 Sindh 28. It was observed as under:-- "Opponent has objected at the outset that this application should have been made to the Sessions Court which has jurisdiction in the matter. He relies on Gulay v. Baker Hussain (1905) 28 All. 268 = 3 Cr.L.J. 53 = (1905) A.W.N. 279, Shafaqatullah v. Wali Ahmed Khan (1908) 30 All. 116 = 7 Cr.L.J. 48 = (1908)A.W.N. 25, Emperor v. Abdussobhan (1909) 36 Col. 643 = 10 Cr.L.J. 190 = 2 I.C. 846, Bajirao v.
Dadibhai AIR 1926 Nag. 285 = 91 I.C. 247 = 27 Cr.L.J. 71 and Bepin Behari Mukerji v. Emperor (1908) 3 Pat.LJ 302 = 19 Cr.LJ 589 = 45 I.C. 397 and a circular of this Court A-1550 of 3rd August, 1927. But though it has been laid down that the High Court will not ordinarily entertain such applications when the Sessions Court has jurisdiction to entertain them, it has also been laid down that the High Court will do so in special cases. There is a special reason in this case. The opponent has applied that the proceedings under section 384 should be quashed. This is a matter which must come before the High Court and it is therefore, expedient that both applications should be heard together."
11. In the same report it was further observed as under:-- "It is a recognized rule of practice no doubt that failure on the part of an applicant to submit his application to a lower Court having concurrent jurisdiction will operate as a bar to the application being entertained by the High Court; see Mitra, 7th Edn. P.1135. Where however an application has been admitted by the High Court, even ex parte, there is nothing to prevent the High Court from disposing of it on the merits even though no petition has been made to the Sessions Judge: Emperor v. Mansur Hussain (1919) 41 All. 587 = 20 Cr.L.J. 347 = 50 I.C. 827 and Abdul Mattab v. Nanda Lal Khatel AIR 1923 Cal. 674 = 77 I.C. 990 = 25 Cr.L.J. 526 = 50 Cal. 423, so too where special circumstances exist. In the present case it will be necessary for the determination of the accused's application under section 439, Criminal P.C. To consider the validity of the learned Magistrate's order with regard to the alleged offence under section 384, I.P.C. And the principles of law applicable to the facts complained will have to be considered. There will be no saving of time in referring the applicant to a Sessions Judge with regard to his application under section 436 and a rule has been granted. We have decided in the special circumstances of this case to dispose of this application ourselves on the merits".
12. Patna High Court in the case of Krishna Chandra AIR (30) 1943 Patna 313 took a view that powers of the High Court in dealing with the revision application are as ample as if an appeal on merits had been entertainable by Sessions Judge and had been dismissed.
13. A learned Single Judge of Lahore High Court in Karam Ellahi's case reported in 1975 PCr.LJ 902 observed that "the fact that the Court of Session has also power to revision does not affect the jurisdiction of this Court. Moreover, the revision has been before this Court since 1972 and it will not be proper to refer the parties to the Court of Session at the belated stage".
14. Honourable Supreme Court in the case of Muhammad Samiullah Khan and another v. The State reported in PLD 1963 SC 237 was pleased to observe as under:-- "The revision jurisdiction of the High Court under section 439 is indeed wide and is not confined merely to errors of law. In the exercise of its revisional jurisdiction the High Court can even, in appropriate cases, disturb findings of fact, as, for example, where there subordinate Court has wrongly placed the onus of proof or not applied the correct principles relating to the appraisement of evidence or an important place of evidence has been ignored".
15. So far as the case in hand is concerned, admittedly the F.I.R. In the case was registered in obedience to the orders passed by the Session Judge and Ex Officio Justice of Peace Naushehro Feroze. During the investigation prima facie the allegations could not be proved by the complainant party. Hence a final report under section 173, Cr.P.C. Was s omitted to the Magistrate for passing appropriate orders to dispose of the F.I.R. As false under Class. The Judicial Magistrate did not agree with the report, rejected the same and took cognizance of the matter. Not only that, but he proceeded to issue N.B.Ws against the accused/ applicant. Obviously the Magistrate did so, in an overzealous manner, as seemingly, he has gathered an impression of retribution on the part of Sessions Judge as the F.I.R. Was registered against the police officials on the specific orders of the Sessions Judge, despite negative reports of the Returning Officer and the District Police Officer Naushehro Feroz.
16. Having regard to the above narrated special circumstances of the case, and keeping in view the position that the revision application was admitted long back and is pending since 2003, coupled with the fact that the applicant has prayed for quashment of the proceedings and enough time of this Court has already been consumed, referring the parties to the Court of Session at this belated stage will neither be just nor proper, rather unreasonable and steeping.
' Apart from aforementioned reasons, having tested the circumstances of the case on the touchstone of two well-known maxims viz. "Justice should not only be done, but should be seen to have been done", and that "no one should be the Judge of his own cause;" I am of the firm view that the objection raised by learned state counsel with regard to the maintainability of the petition being devoid of efficacy is not sustainable. It is accordingly repelled.
17. Adverting to the facts of the case, it may be stated that admittedly the alleged incident took place on the day of polls, at pollingstation. There are allegations that the complainant who was the election agent of one of the contesting candidates, was abused, insulted and implicated in three police cases. It is also not disputed that the applicant and other accused persons were police officials and were performing their duties to control law and order situation. It is alleged that the complainant party was victimized and insulted for the purpose of pleasing the District Nazim as rival candidate belonged to District Nazim Group. It is on record that the complainant sent telegrams to various authorities on the election day wherein allegations were levelled, inter alia against the applicant alleging therein that they took away the agent of the complainant in the police vehicle to some unknown place as agents namely Razzak and Qurban were missing. Riaz Jamali the candidate for election submitted telegram to the effect that as chief agent Ghulam Mustafa Jamali was arrested and police case was registered against him. In the said telegram, of- course there are allegations of rigging and alleged high-handedness on the part of police but there is absolutely no .Allegation regarding commission of robbery, as alleged in the complaint, for snatching of car, cash, wrist watch and golden rings etc. Neither there is a tangible evidence about robbery, nor any of the articles allegedly robbed were recovered. Complainant was admittedly arrested and cases were registered against him and others which were sent up for trial.
18. The order passed by the Magistrate reveals that he disagreed with the police report, by taking a view that during investigation police examined those persons who were partisan and not independent. However the Magistrate conspicuously lost sight of the glaring fact that police, during the investigation, apart from other witnesses, proceeded to record the statement of Polling Officer/Staff, who were on duty and undeniably natural witnesses, but they categorically denied any such incident. Such officials of the government could, in no way, be labelled to be partial or interested persons. Their presence at the site could, even not be disputed. The Returning Officer also in his report submitted to Sessions Judge denied any such untoward incident. Nevertheless the order passed by the magistrate itself adequately reveals that enough and sufficient evidence was badly lacking in the case to bring home the charges against the accused persons and thus reducing the probability of conviction of the accused persons to zero per cent.
19. In an abnormally lengthy order, the Magistrate proceeded to refer to a number of rulings of the superior Courts to emphasize the proposition that Magistrates was not bound by the report of the Investigating Officer and that irrespective of the opinion of a police officer expressed in the report under section 173, Cr.P.C. The Magistrate was invested with the powers to take cognizance in the matter.
20. Certainly, there can be no cavil to the aforementioned well-settled proposition of law.
Nevertheless, the Magistrate can take cognizance of the matter, subject however to the stipulation that; "if upon the material before him he found that the prima facie case was made out against the accused persons". Thus it would be abundantly clear that taking cognizance by Magistrate would depend upon material placed before him and not beyond that. The law clearly stipulates that the Magistrate has to scrutinize the material, and if upon evidence collected by agency, he formed the opinion that a prima facie case was made out he would pass appropriate order taking cognizance of the matter. In the present case admittedly there was no material to establish prima facie case against the applicant.
21. However perusal of order of Magistrate reveals quite clearly that he acted in somewhat disparate manner while taking cognizance of the matter. While transmitting the case papers to Court of Sessions Judge learned Magistrate proceeded to pass order for issuance of N.B.Ws against the accused persons.
' The order for issuance N.B.Ws was obviously beyond lawful authority of the Magistrate as the offence were exclusively triable by Court of Session.
22. Learned State Counsel therefore rightly stated that there was no probability of the accused being convicted upon the evidence so collected in the case. Indeed it was a case of no evidence, to constitute an offence warranting conviction.
23. There can be no two opinions that Court of first instance has to be approached as a matter of propriety but it is not a rule of universal application and that the inherent powers of this Court are unfettered to pass orders to achieve the purpose of securing the ends of justice and to prevent the abuse of the process of Court.
' Case in hand is certainly one in which inherent power need to be exercised. For the above reasons this revision application was allowed in terms of the short order, dated 23-5-2006 which is reproduced here under:-- "Learned State counsel has conceded that order passed by the Magistrate was untenable and there was no probability of the applicant being convicted on the basis of evidence collected in the case by the prosecution. He however raised objection with regard to maintainability of the petition contending that in the first instance the applicant must exhaust remedy before the trial Court as provided under section 265-K, Cr.P.C.
' For the detailed reason to be recorded later on, the order, dated 3-9-2003 passed by Judicial Magistrate II, Naushehro Feroze is set aside. Proceedings of Sessions Case No, 153 of 2003 pending in the Court of Additional Sessions Judge Naushehro Feroze are quashed."