The petitioner through this Constitutional petition challenges the order dated 07.02.2009 passed by the learned Judicial Magistrate Shujabad, vide which the Respondent No, 1 Ghulam Mustafa was discharged from the criminal case registered against him.
2. The brief facts as those emerge out of this petition are that the petitioner Zafar Iqbal store in charge NFM L at Shujabad got registered case FIR No, 88/2009 dated 06.02.2009, under Section 420, 468, 471 PPC registered at Police Station City Shujabad District Multan alleging therein that Respondent No, 3 has committed fraud and forgery to the effect that by submission of forged receipts documents, he obtained fertilizers without making payments and produced forged receipts falsely showing the deposit of price of fertilizers in the bank.
3. The Respondents No, 1/accused was arrested by the police on 06.02.2009, and produced before the learned Judicial Magistrate Shujabad on 07.02.2009 with a request to allow physical remand for a period of fourteen days for the purpose of investigation as according to the police recoveries had yet to be effected. Prima facie opinion of the police was that in the investigation conducted till that date the accused was found guilty/connected with the offence alleged against. The learned Judicial Magistrate on the contrary not only refused physical remand but also proceeded to discharge the accused as according to him no sufficient evidence qua guilt of the accused was available. The accused was directed to be released forthwith which order is being assailed through this Constitutional petition.
4. The learned counsel for the petitioner inter alia contends that Respondent No, 2/accused was named in the FIR and sufficient evidence was available when he was produced before the learned Judicial Magistrate seeking physical remand and that the learned Judicial Magistrate proceeded to discharge the accused in an arbitrary manner without examining the record produced before him and without any legal justification. In support of his contentions he relies upon (PLD 1997 S.0 2339) Mansha and 7 others vs. Illaqa Magistrate, Police Station Bahlak, District Faisalabad and 4 others, (1999 M LD 1847) Shahid Raza Bhatti vs. Magistrate Section 30, District Court, Rawalpindi and two others, (1998 P.Cr.L.J 1530) Niamat Ali vs. The State and others, (1998 P.Cr.L.J 244) Muhammad Waseem vs. Additional Sessions Judge, Dera Ghazi Khan and 3 others, (NLR 1999 Criminal 209)
Masood-ul-Hassan vs. Habib-ur-Rehman, etc, (1994 P.Cr.L.J 497) Mushtaq Raj vs. Magistrate 1st Class and others. To canvass that the Court is, vested with ample powers to examine, legality of discharge order in constitutional jurisdiction and can quash the same if finds order of discharge as perverse.
5. Conversely Mr. Muhammad Akbar Sajid Chaudhary, the learned counsel representing Respondent No, 1/accused submits that this petition is not maintainable as the same has not been filed by the State rather it has been filed by an employee of the company. In support of his contentions he has relied upon (2001 P.Cr.L.J 160) Rana Latif Ahmad vs. Judicial Magistrate, Shujabad, District Multan.
6. The learned Additional Advocate General supports the impugned order.
7. Arguments heard. Record. Perused.
8. Admittedly the Respondent No, 3 is an accused specifically named in the FIR with specific allegations. The police had produced him on 07.02.2009 before the learned Illaqa Magistrate seeking physical remand for a period of fourteen days to complete investigation with a specific reason of effecting recovery which was turned down by the learned Judicial Magistrate on account of insufficient evidence. The learned Judicial Magistrate in his comments has tried to give the justification of discharge. According to him most of the points which have now been raised before this Court were not agitated before him and that the police had not placed before him sufficient material at the relevant time, therefore, in absence of sufficient evidence before him he was of judicious mind that there being no evidence substantial in nature connecting the accused with the offence alleged against, neither remand was justified nor he could be sent on judicial remand.
9. The case-law cited at bar by the learned counsel for Respondent No, 3/accused in my view is not of much help to him and is distinguishable for the following reasons: Firstly facts of the cited case and the one in hand are materially different. Inasmuch as in the case referred to supra the accused was found innocent by the police during the course of investigation, the complainant in that case was a member of the police force, who was the investigating agency as well. Whereas in the case in hand the complainant is different official. Secondly in the cited case no recoveries were affected during the course of investigation, whereas, in this case even no opportunity was given to the Investigating Agency to endeavour to get the recoveries effected.
10. Now adverting to the specific objection regarding maintainability of this petition taken on the strength of 2001 PCr.L.J 160 referred to supra I may observe that on the subject law has developed with the passage of time and with the insertion of Section 4172(A) in the Cr.P.C., right of appeal has been allowed to any aggrieved person, whereas prior to this amendment, only the State had the right of filing of appeals against acquittal. In my view the right of appeal to an aggrieved person in respect of a particular case, has to be given extended meaning, as narrow interpretation would be against the wisdom of legislature. In my view, right of appeal also includes right of assailing the B other orders concerning the particular case right from it's inception and till it's logical conclusion, in accordance with law including discharge order .
11.Admittedly the petitioner is in-charge of the store where allegedly fraud has been committed by the Accused/Respondent No, 3 and admittedly he was the custodian thereof and responsible to take care of smooth running of store and its property. In addition thereto in case of any shortage in the funds he was definitely accountable for that and perhaps the authorities above, could justifiably require him to make good the loss suffered by the corporation or the department.
Secondly he could be proceeded against under the relevant Service Rules as well, for negligence and misconduct etc. Viewed from which ever angle petitioner/plaintiff does fall within the purview of definition of aggrieved person. This matter can be viewed from yet another angle. The State has to act through some officers/officials and if an official can justifiably get register a criminal case it would not be in the fitness of things to deprive him from right of appeal or revision etc. I, therefore hold that this petition having been filed by the present petitioner against discharge order, being complainant/aggrieved person of the case was competent.
12. On merits, I find that the learned Judicial Magistrate proceeded to discharge the Accused/Respondent No, 3 from the case in hand in an indecent haste without any legal justification and sufficient material was available on record, at least prima facie connecting the accused with the commission of offence alleged against. I may observe that as a result of afore- stated discharge order the investigation of the case has come to stand still and the investigating agency has been deprived of its valuable right to investigate the case. The complainant who has suffered substantial loss as a result of alleged omissions and commissions of the Accused/Respondent No, 1 in all fairness has every right to get the case investigated. In my opinion passing of discharge order in such a fashion amounts to encouragement of the culprits which is not permissible under the law.
13.The impugned order is, therefore, set aside and I direct that the case in hand shall be investigated in accordance with law and thereafter, report under Section 173 Cr.P.C., shall be submitted before the Competent Court of law without further loss of time.
14. With these observations this writ petition is allowed. No order as to costs.