1. ' MRS. YASMIN ABBASEY, J.- Being aggrieved with the order dated 7-2-2007 of learned Judicial Magistrate disposing of case registered by applicant Muhammad Daiem Shattari in Crime No.4 of 2004 as false in agreement to the report of Investigating Officer, this Criminal Miscellaneous Application has been filed.
2. ' According to applicants necessity to lodged F.I.R. No.4 of 2007 arose to this applicant as in the night of 3-12-2006 0230 hours Aejaz Akhtar Khan, Wasiq, Hyder Naqvi, Fahim with the help of A.S.-I.
3. Zawar Hussain, S.I. Chaudry Arif with 9-12 other police personnel entered into their house situated at Phase-II, D.H.A., Karachi pretending to arrest one of the elder brother of applicant viz. Muhammad Ali Shattari said to be absconder in Crime No.349 of 2006 lodged by Aejaz Akhtar two months back at Police Station Defence. It is stated by applicant that Muhammad Ali Shattari had left Karachi and his present whereabouts are not known to him but in spite of that police party made continuous rounds of his house in search of Muhammad Ali Shattari.
4. ' It is contended by learned counsel for the applicant that even on 3-12-2006 above named private persons with the help of police party without intimating the applicant and other occupants of the house and without knocking the main gate entered into the house by broke opening the internal door and had directly came to the bedrooms, used abusive language and misbehaved with the female members and took search of the house, had forcibly taken mobile sets of Nokia 6600 and 6260, had grabbed jewellry worth Rs.500,000 and broken the furniture of house:.. After doing all these offensive acts and putting the occupants in harassment they took custody of this applicant and Jehanzaib Ghulam Ali Shattari and took them at Police Station Defence. There his Aunti Mrs. Sabina Iqbal was called and was forced to issue cheques bearing No. 1557001 of Rs.25,00,000 from her Account No. 13487-9 of M.C.B., D.H.A. Branch, Karachi under the duress of involving this applicant and his brother in false and frivolous cases. It is alleged that Aejaz Akhtar did not stop here, but prosecutibn *in .Order to please him had involved Muhammad Daiem Shattari in a case under section 489-F, P.P.C., however, he was released by Court but even after released, applicant and his brother were forcibly put in the car of Aejaz Akhtar along with his companion who brought them to an unknown place where they were kept till 8-00 p.m. On 3-10-2006 and finally after giving threats of dire consequences, if the mil ter is reported to anyone, they were set free. It is argued that without looking into the facts stated and giving due consideration to them case was disposed of just on ti e report of Investigating Officer without any sufficient and cogent reason of rejection of F.I.R.
5. ' It is argued by learned counsel that the raid conducted on 12-3-2006 at the house of this applicant for search of his absconding brother Muhammad Ali Shattari is an undisputed fact, the way in which they made raid was also violative of law. Even if, it is taken that police personnels were of the impression that Muhammad Ali Shattari is in the house of this applicant and had taken shelter therein at night time, the proper course as required under sections 47 and 48, Cr.P.C. Should had been followed. From the report of S.H.O. Police Station Defence Housing Authority, Karachi in Criminal Miscellaneous Application No.978 of 2006 filed by this applicant ahd Jehanzaib Ghulam Ali Shattari, it appears that no notice as required in the proviso to section 48 for break open zanana was issued facilitating them to withdraw themselves from the house and affording reasonable facility for their withdrawal before break opening the gate of house. Right of privacy is a prime factor in every society particularly in a country whereby the Very preamble of Constitution the foundation of Republic of Pakistan was laid on the Islamic principles and right of privacy and dignity of man has been guarded under Article 14 of Constitution, can not be entrenched under the garb of inherent power of police to search the house without obtaining search warrant as neither morally nor ethically it is warranted in any society. It is also not the case of prosecution that there was apprehension of escaping of person of whom they made that raid. According to prosecution before making search they had collected information of visit of Ali Muhammad Shattari in the house and before making search they had impression of presence of Ali Muhammad Shattari in the house at night time. But in spite of having full knowledge the concerned S.H.O. Had bypassed all the rules and regulations to satisfy ill will of the complainant Aejaz Akhter as has been reported by him in his reply to application under section 22-A, Cr.P.C. In Criminal Miscellaneous Application No.978 of 2006, which reads as under:- "As per information of the complainant Aejaz Akhtar the accused (Muhammad Ali Shattari has been seen by him in coming and out going at his residence, which i.s clear that the accused ' might be ore sent at his residence during night. Hence S.I. Muhammad Arif Investigating Officer with the permission of S.I.O. Defence police station along with police party and the complainant raided the house of the accused.
6. ' Due to the fact, it was necessary to satisfy the complainant on his request, the room was checked and accused Muhammad Ali Shattari was not found present in the Bungalow".
7. ' It was on above quoted reply of Investigating Officer learned Additional District Judge had directed the S.H.O. Of concerned police station to lodge the F.I.R., if cognizable offence is made out according to law, and thereafter, F.I.R. Was registered under Crime No.4 of 2007.
8. ' In reply to the allegations and arguments advanced by learned counsel Mr. Malik Khushhal Khan Advocate for Aejaz Akhtar, who has been allowed to be party in the proceedings, has argued that the raid conducted on 3-12-2006 was in accordance with law. It is alleged that in terms of business this applicant Muhammad Daeim Shattari and the absconding accused Ali Muhammad Shattari in connivance of their mother had issued two Cheques bearing No.6710510 of Rs.22,62,700 and Cheque No.0114928 of Rs.23,93,000 but both of them were dishonoured as such in the capacity of the Director of the company two F.I.Rs. Were lodged against Muhammad Ali Shattari and Guarantor Roshan Ali Leghari. After lodging of F.I.R. Muhammad Ali Shattari absconded that is why raid was made at applicant's house. Referring to a civil suit filed by Aejaz Akhtar for recovery of Rs.23,93,000 his counsel argued that it is case of civil nature to be resolved in civil litigation and learned Judicial Magistrate was justified in disposing of case on the basis of police report.
9. ' May be as stated, but even while reaching at a final conclusion for cancellation of case Magistrate is required to judicially examine the documents and report submitted under section 173, Cr.P.C. But from the perusal of impugned order it appears that except expressing that "perused the entire police papers and found that previous litigation in between the parties existed. One of the accused Aejaz Akhtar already lodged F.I.R. Being Crime No.349 of 2006 under section 489-F against the complainant. Paper shows that it was a money dispute and no such incident took place".
10. Had agreed with Investigating Officer to dispose of case in Class 'C'. These findings ex facie show that presiding officer had not independently acted for and has failed to exercise his discretion in a lawful manner. The observation of a judicial officer while disposing of a case must be self explanatory it must contain the reasons that justify his conclusion. Disposal of case in slipshod manner, simply stating that he had gone through the entire record and found no such incident was happened is not sufficient. He must give cogent reason after discussing material brought before him and the circumstances, .Which came in his knowledge during the course of trial to reach such conclusion. No doubt order of cancellation of F.I.R. Under section 173, Cr.P.C. Is administrative order but even then while exercising his jurisdiction under section ,173, Cr.P.C. The concerned Magistrate being a Judicial Officer is required to express himself and led to the impression that while doing so he was performing function as a Court and should had explained his own opinion, instead of going with the Investigating Officer on his ambiguous report within a short period of one month.
11. Even otherwise section 24-A of General Clauses Act stipulates that when any authority or officer is empowered to make an order or give direction, such power is required to be exercised reasonably, fairly, justly and for the advancement of the purpose of enactment and assign reason for making such order.
12. ' Leave to appeal was granted by Honourable Supreme Court in a case reported in PLD 1985 SC 62 (Bahadur and another v. The State and another) that whether order of discharge of an accused on 173, Cr.P.C. Report and cancellation of criminal case was a judicial order or administrative order and is subject to revisional jurisdiction of High Court under section 439, Cr.P.C. Though finally appeal was allowed observing that 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", but the views as expressed to conduct a proceeding on report under section 173, Cr.P.C. Are material which reads as under:-- "A Magistrate even while concurring in cancellation of a case is required to judicially examine the report admitted under section 173, Cr.P.C., AIR 1968 SC 117 and this has led to the' impression that he must while doing so be acting and functioning as a Court 1973 Cr.L.J. 1446, 1971 Cr.L.J. 194 and AIR 1969 AP 281 etc. This obviously is a mistaken impression and the mistake will transparently surface from what has been observed by Roshan and what was held in the case of Royal Aquarium (1982)
13. 1: QB 431 Robson at page 39 observes: ' We are inclined to go so far as to suggest, indeed, that the whole modern connection of economic and social democracy involves the exercise of discretions which shall be 'judicial' in that they are not to depend on individual caprice and shall be free from personal favour and individual self- interest; and this may imply and extension in certain respects of the judicial mind, an application of mental habits common among those who administer the judicial process".
14. In the Royal Aquarium case it was held that:-- ' "The word 'judicial' has two meanings. It may refer to the discharge of duties exercisable by a Judge or by justices in Court, or to administrative duties which need not be performed in Court, but in respect of which it is necessary to bring to bear a judicial mind---that is, a mind to determine what is fair and just in respect of the matters under consideration. Justices, for instance, act judicially when administering the law in Court, and they also act judicially when determining in their private room what is right and fair in some administrative matter brought before them, as, for instance, levying a rate."
15. "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."
16. ' The rule as laid down for consideration of case by a Magistrate, besides the aspect that revision application against such order lie or not, has further been elaborated in 1993 SCM R 187 (Arif Ali Khan and another v. The State and 6 others) in terms that:-- "The learned counsel for the petitioners very vehemently contended before us that the order of Magistrate dated 20-8-1991 having been passed on the report of police officer submitted to him under section 173 Cr.P.C., the order was not revisable under sections 435 to 439, Cr.P.C. In support of his above contention the learned counsel relied on the case of Behadur v. State PLD 1985 SC 62. It is true that in the above cited case this Court clearly laid down that a Magistrate while cancelling a registered criminal case, acting on the report of police submitted to him under section 173, Cr.P.C.
17. Though required to act judicially but his orders so passed are not amenable to revisional jurisdiction under sections 435 to 439, Cr.P.C. But this does not mean that where the Court reaches a positive conclusion in a case that a particular order passed by the subordinate criminal Court amounted to an abuse of the process of Court, it would be powerless to rectify the injustice. In the case before us, firstly, the application filed by respondent No. Before the High Court was riot under sections 435 to 439, Cr.P.C. But it was a petition under section 561-A, Cr.P.C. Secondly, on the facts of the case the learned Judge in Chambers reached the conclusion that exclusion of the names of petitioners from the first challan submitted to the Court was a mala fide act on the part of police and the manner in which the orders were obtained from the Magistrate by the police for discharge of petitioners from the case clearly amounted to an abuse of the process of the Court. On these considerations, the learned Judge in Chambers in our view was fully justified in setting aside the order of Magistrate under section 561-A, Cr.P.C. And direct him to dispose of the case in accordance with the law. No interference is called for with the order of High Court. The petition is dismissed."
18. ' The above view was reiterated by Honourable Supreme Court in 1997 SCM R 304 (Muhammad Sharif and 8 others v. The State and another) touching the erosion of social value in society that:- "The precedent of Arif Ali Khan supra has slightly made a distinction in the law declared in the case of Bahadur supra. Looking to the erosion of positive values in our social set-up, loss of moral direction, the development of culture of corruption, . Ever increasing and unbridled tendency of abuse of power and lack of complete accountability in almost all walks of life, we find that it would be in the interest of justice that ratio in Arif Ali's case supra which tends to counter the deterioration pervading in the society at this juncture is followed and the order passed by a Subordinate.
19. Criminal Court which clearly amounts to an abuse of process of the Court, the High Court remains empowered to rectify the injustice".
20. Rule 24.7 of Police Rules, 1934 also prescribes a procedure for submitting a report for cancellation of F.I.R. It is specified that if after collecting information and evidence the Investigating Officer is of the view that the report is maliciously false or false owing to mistake of law or fact or to be non- cognizable or matter for a civil suit, the Superintendent shall send the first information report and any other papers on record to Magistrate having jurisdiction. After consideration of those documents Magistrate will pass final order.
21. Over all conclusion of above discussion is that learned Judicial Magistrate while passing the impugned order had acted arbitrarily. Previous litigation in between the parties on any dispute does not authorize a police officer to go beyond his jurisdiction and the judicial officer even acting on administration side to get at the whims of a particular party.
22. ' In view of above discussions impugned order is set aside and the matter is remanded for re- examination of the case by some other Judge of the District with notice to the parties.