1. ' SHAHID ANWAR BAJWA, J.---Through this order I propose to decide Cr . R. A . No,158/2009 and Cr. M.
2. A . No .305/2009.
3. ' Chaudhry Muhammad Adnan is the applicant in Cr.M.A.No,305/2009. He is the complainant and therefore in this order I shall refer to him as the 'Complainant'. Ms. Eram Adan was wife of the complainant. Besides her four other members, being her father, her mother, her maternal uncle and her brother, are arrayed on the other side. I shall refer to them as the respondents and to said Ms. Eram as respondent (wife).
4. ' It is alleged by the complainant that on 13-4-2009 complainant was present at his house when at about 9-00 p.m. Respondent (wife) served him dinner. Complainant stated that after taking food he started feeling unwell and had to visit wash room again and again. Complainant stated that he is Chief Executive of a Company, whose office is at ground floor of his residence. He stated in the complaint that on 14-4-2009 his Company Manager Tanveer Anjum and Banking Manager Muhammad Ali Shah were having a meeting with him in his office, when at about 9-15 a.m. His wife served him breakfast. He again started felling unwell. He further stated that he had to go out of his office/house to attend to some work. After he had left his house, the respondent (wife) on the pretext of meeting with a neighbour went outside the house and from there she went to school of Taimur Adnan, their child, 8 1/2 of age years. From the school she took the child with her and she alleged that Mr. Saleem, maternal uncle of the respondent (wife) was with her. Complainant was informed on telephone of his wife having left the house. Consequently he went to school of the Child and there he found that his sons had been taken away by respondent (wife). He further stated that he straight away went to the airport, bought an open ticket and went inside the departure lounge. There he saw his wife, his son and maternal uncle Saleem going to Islamabad by a Shaheen Airline flight which was scheduled to depart at 1245 hours. He stated that his wife raised commotion and therefore Airport Security Force personnel got hold of the complainant and brought him outside the Airport. He stated that after he came out of Airport his condition became bad and therefore his General Manager Tanveer Anjum took him to Agha Khan Hospital. His tests were conducted and the test, according to the complainant, revealed that during dinner and breakfast his wife had administered him some poison so that he would die and his wife may take over his property in inheritance. He alleged that his wife and the four above referred relatives had given him something in his dinner and in his breakfast. While he was in hospital since he was alleging that he has been poisoned. On 15-4-2009 his statement was recorded by police. However no further action was taken by the police. Subsequently complainant filed an application under section 22-A, Cr.P.C. And on Court's directions F.I.R. Was registered at P.S. Clifton on 7-5-2009.
5. Contents of the F.I.R. Were as has been stated above.
6. ' After registration of F.I.R, police recorded statements under section 161, Cr.P.C. Of Chaudhry Yousaf, father of the complainant, the complainant himself, Mr. Tanveer Anjum and a friend of complainant, Major Mahyar. After investigation police submitted report under section 173, Cr.P.C.
7. And recommended disposal of the case under "C" Class. This report was submitted on 26-6-2009.
8. On this report on 19-10-2009, the Judicial Magistrate held that no sufficient evidence was available, and order agreeing with police disposal of the case under "C" Class. C.M.A. No,305/ 2009 has been filed to challenge order passed by the Judicial Magistrate on 19-10-2009.
9. ' On 24-8-2009 a criminal complaint was filed by the complainant against respondent (wife) and her four relatives, as detailed above. On this complaint statement of complainant under section 200, Cr.P.C. Was recorded. Thereafter, statements of Tanveer Anjum, Major Mahyar and Muhammad Ali Shah were recorded under section 202, Cr.P.C. Thereafter on 15-10-2009 the following order was passed:-- "Admit/Register. Issue Bailable warrant against the accused at sum of Rs,50,000 each."
10. ' Criminal Revision Application No,158 of 2009 has been filed to challenge the above order of Ist Additional District Judge, Karachi South.
11. ' Mr. Khawaja Naveed Ahmed, learned Advocate for respondent (wife) submitted that father of respondent (wife) is a retired Brigadier who is about 80 years old. He joined Pakistan Army in 1949 and retired in 1984. Captain Saleem Umer also about 80 years old, is maternal uncle of the respondent (wife). He retired as Chief Pilot of P.I.A. And has been Chief Executive of Air Malta. Lie fourth relative accused is Sohail Iftikhar, who, it was submitted by Mr. Khawaja Navid Ahmed, is country Manager of -Askari Bank. Learned counsel submitted that relationship between the husband and wife have been acrimonious and wife took the child to Islamabad, where she filed suit for custody of minor. He submitted that respondent (wife), since the minor is a Dutch National, apprehended that the complainant wanted to snatch the minor and send him abroad and thus deprive mother of company of her child, filed suit before the Civil Judge Rawalpindi, who passed a restraint order. Respondent (wife) instead of appearing before the police sent her written statement, wherein she referred to her turbulent marital life and called her father in law abnormally materialistic, violet, cold-blooded and having quarrelsome attitude towards others. She stated that she had been constantly humiliated and degraded. She stated that she sent her husband a divorce notice on August 28, 2008 and in revenge her husband filed F.I.R. Under section 406, P.P.C.
12. Against her brother. F.I.R. Was subsequently discharged by police being false and with mala fide intent. Before her Iddat could expire a conciliation counsel/JIRGA was constituted who brought the two parties together and she returned to Karachi. She accused her husband of drug abuse and regular consumer of anxiety pills. She further stated that she had been kept confined at his home and guards were on instructions not to allow her to go out. She had found an opportunity to escape on the morning of April 14, 2004. She stated that she left a written complaint with the S.H.O.
13. Clifton and walked out of her house in three clothes. She hired a taxi and took up her child and went to the Airport. She denied that she had ever poisoned her husband. Similar statement was sent by her father.
14. ' Learned counsel for respondent (wife) made the following submissions:--
(1) That order passed by the Additional District Judge is not a speaking order, which shows that no consideration, whatsoever, had been given to the material before the Judge. He further submitted That there were essential contradictions in the statement recorded by the Additional Sessions Judge.
(2) Learned counsel further submitted that the record of earlier police case clearly demonstrated that complaint was false and the Judicial Magistrate has rightly dismissed it as "C" Class. This should have been taken into consideration by the learned Additional Sessions Judge.
(3) Learned counsel further submitted that order on complaint must be a speaking order and it must show judicial application of mind. He relied upon Shahida Begum and others v. Muhammad Ramzan and others, 2008 MLD 182 and NLR 2006 Cr.160, (The second is, it appears, a misquotation).
15. ' On the other hand Mr. Ilyas Khan, learned counsel for the complainant referred to the statement recorded by police on 15-4-2002 when, according to him, police was called by Doctors at Agha Khan Hospital. He referred to the sequence of event leading to registration of F.I.R. Learned counsel referred to counter affidavit filed by him and the Medical Certificate as well as Medical papers.
16. Thereafter learned counsel made the following submissions:--
(1) That revision application is not maintainable because remedy available under sections 249-A, Cr.P.C. And 265-K, Cr.P.C. Could have been availed, which remedy has not been available by the respondent.
(2) That no reliance could be placed on the written statement submitted by the respondent wife and her father because they were sent from Islamabad and they are not statements recorded under section 161, Cr . P. C .
(3) That during investigation police recorded statement of complainant Mr. Tanveer Anjum, Major Mahyar and Chaudhry Muhammad Yousuf, However it did not examine Muhammad Ali Shah, Shanul Haq, Administrative of the School, Colonel Jamshed of ASF, P.I.A. Ticket Counter Officer, Medico Legal Officer, Doctor of Agha Khan Hospital, Roznamcha Muharrar of P.S. Clifton and A.S-I Muhammad Riaz which recorded the statement during investigation.
(4) If Court decides to take cognizance on private complaint, it is not required to state reasons for taking such cognizance.
(5) If accused is named in the F.I.R. Court has power to summon the accused even if police found the accused innocent. In this regard learned counsel relied upon M. Ashraf and others v. The State PLD 2005 Lah.
17. 85.
(6) That Magistrate receiving a report under section 173, Cr.P.C. Is to apply his mind and must pass a speaking order. He relied upon Bahadur and another v. The State and another PLD 1985 SC 62, Mushtaq Raj v. Magistrate Ist Class and others 1994 PCr.LJ 497.
18. (7). That revisional jurisdiction is limited jurisdiction and is only for purpose of the satisfaction as to correctness, legality and propriety of any finding, sentence or order recorded and as to regularity of . Any proceedings of any inferior Court and the revisional Court can interfere with order of the inferior Court only if it suffers from an infirmity and revisional Court cannot go into the evidence and reverse findings of fact but has to consider the propriety of an order of proprietary of adopting any particular procedure. In this regard he relied upon Abdul Rehman Bajwa v. Sultan and 9 others, PLD 1981 SC 522. Learned counsel also relied upon Muhammad Rafique and another v. The State and another 1999 PCr.LJ 1848, Asghar Ali v. The State through. Pakistan Coast Guards, Karachi, 1991 MLD 228, State through Advocate-General, Sindh v. Asif Ali Zardari, PLD 1999 Karachi 144, Karamat Hussain v. Faraqat Hussain and 20 others, 1988. PCr.LJ 2421, Mahr Mukhtar Ahmad and another v.
19. S.H.O., Police Station Rangpur and 3 others, 2005 YLR 1876 and Arif Ali Khan and another v. The State and 6 others, 1993 SCMR 187.
20. ' Coming to Crl. Miscellaneous. Application No,305/2009 learned counsel for complainant made the following submissions:--
(1) Police report is not a detailed report and name of witnesses have not been mentioned.
(2) Order passed by the Judicial Magistrate is not in accordance with the law.
(3) Judicial Magistrate could not have relied upon statement not recorded under section 161, Cr.P.C.
(4) It is an offence triable by the Court of Session. Therefore the Magistrate could not have ordered cancellation of F.I.R. In "C" Class. Learned counsel relied upon Muhammad Zaffar Saleem v. The State, 2009 YLR 489, Zafar Sarwar v. The State, 1969 PCr.LJ 181, M. Ashraf and others v. The State, PLD 2005 Lahore 85, Bahadur and another v. The State and another PLD 1985 SC 62, Mushtaq Raj v.
21. Magistrate Ist Class and others , 1994 PCr.LJ 497; and Muhammad Daiem Shattari v. The State, 2007 YLR 2038.
22. ' Learned Additional Prosecutor General made the following submissions:-
(1) That offence with which accused have been charged is offence under section 337-J, which offence relates to hurt by poisoning.
(2) There is no role whatsoever stated in respect of other accused besides respondent (wife). Their names have not been mentioned in the statement of witnesses recorded by the Court below in enquiry under section 202, Cr.P.C.
(3) An order passed under section 204, Cr.P.C. Must show application of judicial mind by the Court to the materia1 before it and the material before the Court can only be firstly the complaint, secondly statements under section 200, Cr.P.C. And thirdly statement of witnesses under section 202, Cr.P.C.
(4) That food given was not tested by any laboratory and Benzodiazene is poison in which death is very rare. Learned counsel referred to the Medical papers of Agha Khan Hospital and Medical report submitted by the Agha Khan Hospital by one Dr. Muhammad Mehmood Riaz to the Investigating Officer on May 26, 2009. He submitted that there is no medical evidence.
(5) On the question whether a Magistrate, who is not competent to try an offence, can order cancellation of F.I.R. Learned counsel submitted that cancellation of F.I.R. Takes place in terms of rule 24.7 of Police Rules and section 173, Cr.P.C.
23. ' Exercising his right of reply, learned counsel for complainant submitted that police rules cannot override provisions of section 173, Cr.P.C.
24. ' I have considered the submissions made by the learned counsel. I have also gone through the record of the two matters as well as law cited by the learned counsel.
25. ' I will first take up legal questions raised by learned counsel. First question which has been raised by Mr. Ilyas Khan, is that if the Magistrate is not competent to try an offence upon receipt of report under section 173, Cr.P.C., he cannot decide and approve the police report for cancellation of the F .
26. I . R.
27. ' In most of the judgments that I have seen emanating from this Court starting point frequently cited in Sufi Abdul Qadir v. The State and others v. 2009 PCr.LJ 520. Question before the Division Bench of this Court was whether Sub-Divisional Magistrate, admittedly an Executive Magistrate, under the scheme of law was competent to concur with the police report submitted under the provisions of section 173, Cr.P.C. And to dispose of the F.I.R. As cancelled class. The Division Bench of this Court noted provisions of section 169, Cr . P. C . Section 170, Cr.P.C. And section 173 of the Code.
28. Thereafter the Bench observed that plain reading of the above sections makes it clear that there can be no cavil with the authority of the Investigating Officer to dispose of F.I.R. As cancelled class when he arrives at a conclusion that the same is false, founded on mistake of law, a dispute of civil nature or untraceable after taking all necessary steps to the best of his endeavor and ability but order of cancellation of must be obtained from a Magistrate competent to, take cognizance of the offence and to try' the case or to send the matter for trial to higher Court. The Honourable Bench further observed that rule 24.7 of Police Rules is inconsistent with section 173, Cr.P.C. As it incorporates the word "Magistrate having jurisdiction and being a Magistrate of the First Class". The Bench observed that words "Magistrate of the First Class", are seemingly unnecessary as inherent qualification for Magistrate as provided in the Criminal Procedure Code is one who is competent to take cognizance of the offence and not necessarily the one being vested with powers of a First Class Magistrate. His lordships went on to hold in the reported case that since offence fell under section 302, P.P.C. And since the offence was triable by the Court of Session, Magistrate was not vested with jurisdiction to take cognizance of said offence and he while canceling F.I.R. On police report had acted without jurisdiction and the order passed by him was coram non judice. This order of Division Bench has been followed by this Court consistently and also finds support from dicta from other jurisdiction. In this regard reference may be made to the following:--
(1) Ghulam Shabir v The State 2000 PCr.LJ 1411.
(2) Sardar Muhammad v. Zaffar Javaid Awan and others PLJ 1996 Lahore 680.
(3) Ashique Hussain v. Sessions Judge, Lodhran and 3 others, PLD 2001 Lahore 271.
(4) In the last mentioned case in para- the Court observed that "it may be clarified that an order regarding discharge or otherwise of an accused person under section 63 or under subsection (3) of section 173 of the Code of Criminal Procedure is within the competence of Magistrate competent to take cognizance of offence in question and it has no relevance to the question as to which Court is to ultimately decide the said offence unless, of course, a special statute provides otherwise".
29. Thereafter the Court summarized the position in the para-28 in the following words:-- "28. It may be necessary to mention here that under the present dispensation under the Code there are two kinds of Magistrate i.e, Judicial Magistrates and Executive Magistrates and both have their respective jurisdiction vis-a-vis competence to take cognizance of specified offences. It has already been mentioned above that the power of a Magistrate to discharge an accused person under the Code is relatable to his competence to take cognizance of an offence. Thus, an Executive Magistrate having no jurisdiction to take cognizance of a particular offence is not competent to discharge an accused person involved in such an offence and, likewise, a Judicial Magistrate having not been conferred jurisdiction to take cognizance of a particular offence is not empowered to discharge an accused person involved in such an offence. An order of discharge passed by an incompetent Magistrate is, therefore, an order passed without lawful authority and the same is of no legal effect."
30. ' Reference may also be made to' Muhammad Zaffar Saleem v. The State, 2009 YLR 489, which is a judgment authored by, incidently, learned counsel for the respondent (wife). Abdul Qadir's case (supra), was extensively quoted and in conclusion it was held as under:-- " Regardless of the fact whether the Magistrate had applied her judicial mind to the facts stated in the report submitted by the police, since she was not vested with the jurisdiction to take cognizance of the offence, I am of the definite view that she acted without jurisdiction and the order passed by her are coram non-judice and are accordingly quashed. Resultantly, the petitions succeed and are hereby allowed."
31. Therefore the question whether Magistrate, who is not competent to take cognizance of an offence, is competent to B concur with the police that the complaint be disposed of as cancelled, is no longer an alive question. Such a Magistrate is not competent to cancel such an F.I.R.
32. ' Having laid this question to rest, the next question would be when a report is presented to the Magistrate under section 173, Cr.P.C. And report is not in respect of offence which the Magistrate is competent to take cognizance of then what is it the, Magistrate can and should do? Should he act merely as a post office and send the report to the Sessions Judge or should he apply his mind to the facts before him? And if he is required to act only as a post office, why to submit report to him in the first place. Should this decision be left to the police and the Public Prosecutor to decide whether they should submit report to the Ilaqa Magistrate or -directly to the Sessions Judge?
33. ' I will first refer to Bahadur's case (supra), law was succinctly summed up by the Supreme Court in the following words: "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. The party is left free to institute a compliant on the same facts, and the same Magistrate does not even after passing such an order render himself functus officio. On the contrary he is quite competent to entertain and deal with such a complaint on material presented to him. 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."
34. ' In Mushtaq Raj's case (supra), Single Judge of the Lahore High Court observed as under:-- "6. I have considered the submissions of the learned counsel for the parties with care. I find great force in the submission of the learned counsel for the petitioner. It is well-settled principle of law that the learned Magistrate while functioning as a persona designate in discharge of his administrative duty, has to act fairly, justly and honestly but in the instant case, the learned Magistrate has acted quite arbitrarily and in a mechanical manner inasmuch as he did not care to open any file on administrative or judicial side; that he did not apply his conscious mind to the facts of the case and the evidence collected by the police; that he did not give any reason in support of his order while concurring with the investigation conducted by respondent No,2. It appears that he has not even examined the F.I.R. And the police file as is apparent from the impugned order referred to above."
35. ' In Muhammad Daiem's case (supra), it has been held that while reaching conclusion the Magistrate is required to judicially examine documents and report submitted under section 173, Cr.P.C. It was held that it should not be disposed of in a slipshod manner, simply by saying that he has gone through the entire record. It was further observed that Magistrate being Judicial Magistrate is required to express himself and should explain his opinion.
36. The above discussion leads me to the conclusion that a Magistrate while exercising his powers under section 173, Cr.P.C. Does not act in a mechanical manner. His order must show his application of mind, his opinion must be supported by reasons and his conclusion C must be laced with evidence that judicial mind has been applied. Though he is required to apply his judicial mind but the order passed by him is not a judicial order, it is an administrative order. Inspite of being an administrative order it must be a judicious order. This brings up to the answer of the question. Even if the Magistrate is not competent to take cognizance of the offence he must apply his mind and thus pass a speaking order. Further this speaking order shall have only effect of recommendation and thereafter the matter should be sent to the Court competent to take cognizance, who can pass final order either concurring with the Judicial Magistrate or disagreeing with the Judicial Magistrate.
37. ' On the criminal complaint, order was passed by the Additional Sessions Judge. I have quoted above that order in extenso. Does it reflect any application of mind? Does it reflect expression of any opinion? If this order is not mechanical, I would be at loss to know as to what orders would be mechanical. Therefore the order passed by the learned Additional Sessions Judge cannot be sustained.
38. ' Extensive arguments were addressed by both the learned counsel on factual aspect of the controversy. Learned Prosecutor General is correct when he says that before a Court acting on the basis of complaint there are three sets of materials: (i) Firstly the complaint; (ii) secondly statement of the complainant under section 200, Cr.P.C.; and (iii) statements of witnesses under section 202, Cr.P.C. He should not and he cannot consider any extraneous material.
39. ' In the present case, in the complaint, as detailed above, history of acrimony was stated.
40. Thereafter alleged facts relating to dinner on 13-4-2009, feeling sick, breakfast on 14-4-2009, feeling sick, leaving office by the complainant, thereafter surreptitiously leaving house by the respondent (wife), complainant being informed by his employee, complainant going to school, complainant going to the airport, fracas in the departure lounge, complainant feeling sick and at 4-00 p.m. Being taken to Agha Khan Hospital, hospital calling his contact next day and allegation of poisoning are stated. Not a single word is stated in the complaint regarding other four accused besides respondent (wife) except in para.20, which para is in the following words:-- "20. That all the accused persons with their common intention and abetment have committed heinous offences punishable under sections 324/337-J read with section 109/34, P.P.C. Within the cognizance of the honourable Court of Session. It is crystal clear that prima facie evidence has been collected which is supported by Medical evidence as well as circumstances evidence."
41. ' This was first set of material before learned Additional Sessions Judge. The second set of material before the learned Judge was statement under section 200, Cr.P.C. The complainant narrated the entire series of incidents almost as they had been stated in the complaint. However, there is no mention of feeling sick in the morning after having breakfast. The third set of materials was three statements under section 202, Cr.P.C. The first witness was Mr. Tanveer Anjum. Obviously he was not there when dinner was served. He stated that after the complainant had taken breakfast the witness felt that complainant was feeling unwell. However the complainant went out of office and after half an hour a guard came and informed the Manager that wife of the complainant had left the house. He stated that he immediately called the complainant and complainant asked him to go out and search as to where complainant's wife had gone and that the complainant was going to child's school. Thereafter complainant called him and told him that child was not at school and asked him to go and search where they had gone. Thereafter witness stated that he went to the airport and checked all the travellers and found that wife was going to Rawalpindi by Shaheen Airline. He conveyed this situation to the complainant who obtained a ticket and went inside the lounge. Half an hour latter, witness stated that the complainant came out with the ASF guard and they took him to their office for inquiry from which he came back at 4' 0 Clock and he stated that he was not feeling very well. Thereafter he took him to the hospital as narrated.
42. ' The second witness was Major Mahyar. He was neither present at the time of dinner nor present at the time of break fast. He stated that on April 14, 2009 at 7-15- a.m. He received a call from the complainant saying that he did not feel well the whole night and was having . Loose motions till 3- 00 a.m. Witness stated that at 10-00 a.m. He received telephone call, and the complainant informed him that his wife had taken away child from school and most probably she was going to the airport and the complainant asked him to reach the airport as "wife has fooled the guard at home". Witness stated that he reached airport; he found that complainant was coming with ASF Officer and he was also in semiconscious and drowsy condition. The witness stated that he requested ASF officer to please relieve the complainant which they did and the witness had to re-hold him because of his weakness. He stated that he remained in the office of Commander ASF and left his office at about 4-00 p.m. For Agha Khan Hospital.
43. ' Third witness produced in the Court was Mr. Muhammad Ali Shah. He just stated that complainant took the breakfast and he was not feeling well. He stated that at 10-30 a.m. He received telephone from the complainant that his wife has taken child from the school and most probably she was going to airport and complainant directed him to reach the airport. He further stated that when he reached airport the ASF Officer were escorting the complainant out of lounge and he was almost semiconscious and drowsy and they relieved him at about 4-00 p.m. And he was taken to Agha Khan Hospital.
44. ' Now this was all the material before the learned Additional Sessions Judge. Mr. Ilyas Khan in his submissions stated that the complainant would also produce, at the time of trial, the following witnesses.
(1) Administrator of the School
(2) Commander. Jamshed of the ASF
(3) P.I.A. Ticket counter officer
(4) Medico-legal officer.
(5) Doctor of Agha Khan Hospital.
(6) Roznamcha Moharrar of P.S Clifton.
45. (7). A.S-I Muhammad Riaz.
46. ' Assuming all these witnesses are produced, none of them is witness of dinner or the break fast.
47. Contents of dinner or break fast have not been produced in any laboratory for analysis. It is not a case of kidnapping of child, therefore school administrator is not at all relevant or P.I.A. Counter man, Medico-legal officer and Doctor of Agha Khan can be relevant. However fortunately their opinions are available on record and I shall refer to them shortly.
48. ' A few words about time. It is alleged that break fast was served at 9-15. After finishing break fast accused left office and after half an hour wife left house. Let us say that accused left office at 9-45.
49. The flight was leaving at 12-45 and it is claimed by the accused that he was in the lounge at 12-15.
50. He also stated that after half an hour of his leaving office Mr. Tanveer Anjum informed him that his wife had left house without guard. Therefore Tanveer Anjum probably informed him at 10-15. As stated above he was in the lounge at 12-15. He was informed at 10-15. He went to school in phase VIII, inquired from the teacher etc. And then went to airport, bought the ticket and went into the departure lounge. The time was too tight, however all this hectic activity was not impossible in that tight a time. Only a fit, alert and healthy man could undertake such activity. During night he had to go to toilet a number of times but surprisingly morning poisoning was so agreeable to his gastrointestinal tract that he did not need to go to washroom, at least till 4-00 p.m. And even immediately thereafter. Medico-legal report by JPMC is in the following words:-- "As per summary received from Agha Khan University, patient attended Hospital on 14-4-2009, admitted on 15-4-2009 and discharged on 20-4-2009. Patient came with complains of drowsiness and loose motions. Urine of toxicology shows Benzodiazepine poisoning positive. Therefore reserved medico-legal certificate for detection of poisoning is now detected as "BENZODIAZEPINES POISONING."
51. ' Summary of discharge issued by Agha Khan Hospital on 20-4-2009 stated that the complainant came with complaint of drowsiness and loose motions. It also stated that patient had stated that he had not taken any benzodiazepine and he suspected that some one had poisoned him. It also stated that he was "Young Male Alert Oriented". Blood-pressure, pulse and temperature were all found normal. It was also stated that stool detailed report was normal and that he was treated for enteric fever.
52. ' Learned Prosecutor-General placed on record the report submitted by Agha Khan Hospital to the Investigating Officer. The entire report reads as under:-- "Dear Mr. Islam, ' With reference to queries raised in your letter received in my office on 18th May 2009, below are the responses.
(1) What was the quantity of the poison in the patient's body at the time of presentation?
53. ' The urine toxicology screening that was sent within 24 hours of his admission on April 15-2009, to the hospital turned out to be negative. However his first urine sample that was checked when he visited emergency room on April 14, 2009, showed positive result for Benzodiazepine. The level was 237.3 ng/ml. The cut off value is 200 ng/ml. The positive test result only indicates the presence of Benzodiazepnes.
54. (2). After how long of taking or giving of the overdose benzodiazepine do the signs and symptoms occur?
55. ' The rate of Benzodiazepine (BZD) onset of action is determined by rate of BZD absorption from the GI rate. The relatively lipophilic BZDs usually are absorbed more rapidly and produce a faster onset of effect than the relatively water-soluble BZDs. BZD absorption is especially rapid when ethanol is present and the stomach is empty. Peak blood concentrations of most agents occur within 1-3 hours.
(3) Can death occur by taking over dose of benzodiazepine?
56. ' Benzodiazepine generally are thought to be safe and death is rare. Mortality from a pure BZD overdose is rare; it usually occurs in conjunction with concomitant alcohol ingestion or use of other sedative-hypnotic drugs.
57. ' Benzodiazepine is what type/ kind of poison?
58. ' Benzodiazepine are sedative-hypnotic agents. They are used for a variety of situations that include seizure control, anxiety, alcohol withdrawal, insomnia, control of drug-associated agitation, as muscle relaxants, and as preanesthetic agents. They also are combined frequently with other medications for procedural sedation.
59. ' Sedative-hypnotic-Definition.
60. ' The term sedative-hypnotic refers to a heterogeneous class of drugs that includes benzodiazepines, barbiturates, and various hypnotics. A sedative lowers excitement and calms that awake patient, whereas a hyphonic produces drowsiness and promotes sleep. By tradition, they are categorized into a single class because of their common ability to induce sedation and sleep".
61. ' Now there are inherent contradictions which, prima-facie, belie the complaint of the complainant.
62. He alleged that when he had dinner he had loose motion, which continued for six hours. But when he had it with breakfast, he did not have any loose motion; at least there is no statement in this regard. Moreover the food was not tested or sent to any laboratory for examination.
63. ' Medical certificate of Agha Khan Hospital stated that peak effect occurs within 1 to 3 hours and during this period of 1 to 3 hours the complainant was feeling alert: going for meeting, going to school, going to airport and fracas in the lounge.
64. ' The complainant in his statement stated that Airport Security Staff arrived there and "forcibly took him outside the departure lounge and thereafter he was detained in the ASF office till 4' 0 Clock. His witness Tanveer Anjum stated that when he came out with ASF guard and they took him in their office at that time he was looking very ill. Other witness stated that he was semi conscious and drowsy. All these were very material contradictions.
65. ' In the case relating to F.I.R, statements recorded under section 161, Cr.P.0 by Ch. Muhammad Yousaf, the complainant, Tanveer Anjum and Major Mahyar were read. Ch. Muhammad Yousif is not witness of any incident and all his words are hearsay. Therefore his statement need not be referred to. The complainant in his statement neither mentioned his feeling sick after the breakfast nor mentioned his being semi conscious or drowsy when ASF brought him out of the departure lounge. Complainant in his statement under section 161, Cr.P.C. Stated that after having breakfast he went for on work. He did not mention any sickness. Tanveer Anjum in his statement under section 161, Cr.P.C. Stated that wife brought the breakfast after which she immediately went from the house and condition of comprainant after breakfast became worst and he also went out with the driver and witness immediately informed the complainant that his wife has gone out of house on foot. Major Mahyar in any case is not witness of any of the two eating occasions etc. All these facts were sufficient for the Magistrate to come to the conclusion that opinion of the police that the case be declared in "C" Class was fully justified.
66. ' I may attend to two objections by Mr. Ilyas Khan. In respect of revision application Mr. Ilyas Khan stated that since no application under sections 249-A, Cr.P.C. And 265-K, Cr.P.C. Has been filed therefore revision by the respondent (wife) would not be maintainable. His second objection was that in exercise of revisional jurisdiction, the High Court can only interfere to satisfy itself as to correctness, legality and propriety of any findings, sentence or order recorded and as to regularity of any proceedings of any inferior Court.
67. ' Learned counsel firstly relied upon Abdul Rehman Bajwa's case (supra). In this case F.I.R. Was lodged against one Sultan and 9 others. They were acquitted. Being aggrieved by acquittal, before the Sessions Court preferred revision petition under section 439-A of Criminal Procedure Code was filed. Revision was accepted, order of acquittal was set-aside and matter was remanded for retrial.
68. Being aggrieved by this judgment a writ petition was filed in the High Court. Writ petition was accepted and order of remand was declared as without lawful authority and of no legal effect.
69. Petition was filed in the Supreme Court. It is in this background of facts that the Supreme Court observed that principles relating to facts to be considered revisional jurisdiction while remanding case of acquittal for retrial were laid down in Anwar and another v. Crown PLD 1955 FC 185, in the following words:-- "It has been held, technically, therefore, the power of the High Court to examine the evidence on which a finding of fact is based is unlimited, though in adopting that course it will naturally pay due regard to the opinion formed by the acquitting Judge about the witnesses who gave evidence before him and the corresponding disadvantages from which the High Court itself should or should not order a retrial. The matter is essentially in the discretion of the High Court and the only limitation on the exercise of that discretion, apart from the legal restriction contained in subsection
(4) of section 439, is that the exercise of such discretion is to be in accordance with the dictates of Justice and not arbitrary or fanciful. The trial Court's view of the evidence, the nature of the error committed, the magnitude or apprehended miscarriage of failure of justice, the possibility and extent of prejudice to the accused, the chance of conviction, the expenses of a retrial are all relevant factors to be duly weighed."
70. ' In Mushtaq Raj's case (supra), the accused persons who had been named in the F.I.R. Were summoned by Additional Sessions Judge for facing trial because that Court was not satisfied with the inquiry conducted by the Investigation Officer. The High Court held that order summoning accused to face trial did not tantamount to punishment or to injuring any of their rights.
71. ' In Asghar Ali's case (supra), facts were that upon receipt of credible information received by Pakistan Coast Guards about smuggling of foreign currency from Pakistan to Dubai through sea, a mobile patrolling party was launched on the coastal area and it saw a vehicle standing near the seashore. Person sitting in the vehicle fired at the patrol party, but three persons who intended to deliver the currency were apprehended and from them some currency was recovered. After investigation petitioner along with their co-accused were challaned before the Special Judge Customs, Khuzdar. Application under section 265-K, Cr.P.C. Was submitted which was rejected by the Court and the petition was filed to challenge order of such rejection. The Court after analyzing the case law observed that the prosecution has made serious accusations supported by recovery of huge amount of currency. In this context of facts the Court observed that revisional jurisdiction could not be invoked for interrupting or diverting the normal criminal proceedings or for throttling prosecution.
72. ' In Asif Ali Zardari's case (supra), the petitioner at that time was a Senator, certain facilities were recommended for him including Air-Conditioner, Fridge and Physiotherapy Machine in the jail.
73. Grant of such facilities was challenged and the High Court observed that when interest of justice requires it can interfere for correction of manifest illegality or prevention of gross miscarriage of justice. It held that since authenticity. Of medical report was not challenged and since such facilities have been provided under the order of the Court on medical grounds at Government expenses, the revision application was dismissed.
74. ' In Karamat Hussain's case (supra), decided by Supreme Court (Azad Jammu and Kashmir), District Court in a criminal case had refused further opportunity to the petitioner for recording evidence and had closed his evidence. This order was challenged in the High Court in appeal and the High Court declined it. Reversal was sought from the Supreme Court. The Supreme Court after referring to observations of the High Court and the District Court observed that the findings did not suffer from any legal defect. Thereafter the Supreme Court observed that in revision petition unless the orders are not shown to be perverse or illegal, they do not call for interference. It was further observed that scope of revision petition is very limited and Revisional Court could interfere only where interest of public justice required interference for correction of manifest illegality or gross miscarriage of justice.
75. ' Mahr Mukhtar Ahmad's case (supra), is in respect of power under section 173, Cr.P.C. And it was observed that after submission of challan, accused would have alternative remedy of moving application under section 265-K, Cr.P.C. The last case in this regard cited by learned counsel was Arif Ali Khan's case (supra). Facts of this case were that F.I.R. Was registered under sections 324/ 147/148, P.P.C. Interim bail before arrest was granted, but it was not subsequently confirmed. Inspite of non-confirming of bail before arrest the Investigating Officer submitted report for discharge of accused and the Illaqa Magistrate accepted it. Thereafter when challan submitted accused was named in thewas challan. In this view of the situation the High Court declared order of Magistrate discharging the petitioners from the case as without lawful authority and consequently directed the Magistrate to proceed with the case in accordance with the law. Supreme Court first held the order passed under section 173, Cr.P.C. As not liable to revision under sections 435 to 439, Cr.P.C.
76. Thereafter it observed as under:-- "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,2 before the High Court was not 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 Chamber 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 Chamber 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."
77. Above case law clearly indicate the position that revisional jurisdiction has to be exercised to further cause of justice. Revisional Court is not a toothless paper tiger. It can always exercise its powers to correct manifest illegality or to prevent ol gross miscarriage of justice. Therefore what revisional Court has to see is: Whether the process of the Court is being used for the purpose of advancing cause of Justice or whether process is being used for miscarriage of justice? While revisional power should not oe used to throttle any litigation, however High Court should not hesitate to exercise its revisional power when it comes to the conclusion that litigation is being used as a tool to victimize a particular person. Power under section 561-A, Cr.P.C. Can always be used E to prevent abuse of process of any Court or to, otherwise, secure ends of justice.
78. ' Complaint was made for prosecution under sections 324/337-J/34, P.P.C. Since neither in the complaint nor in the statement under section 200, Cr.P.C. Nor in any statement of any of the witnesses F under section 202, Cr.P.C. Any role or specific act on part of any of four relatives of respondent (wife) has been stated, it, in any case, could not be a case under section 34 of P.P.C. As far as section 3374 is concerned, said section is in the following words: "Causing hurt by means of a poison.---Whoever administers to or causes to be taken by, any person, any poison or any stupefying, intoxicating or unwholesome drug or such other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence, or knowing it to be likely that he will thereby cause hurt may, in addition to the punishment of arsh or daman provided for the kind of hurt caused, be punished, having regard to the nature of the hurt caused, with imprisonment of either description for a term which may extend to ten years."
79. As far as section 3374 is concerned, there are two alleged actions. Poisoning was allegedly administered, firstly during the dinner; there is no witness of it. Secondly in the breakfast; contents of break fast have not been sent to any laboratory for analysis. Consequently after F having break- fast complainant ran like sprightly deer to the meeting and the school and the airport. Obviously there cannot be any hurt there. As far as 324, P.P.C. Is concerned, medical opinion of Agha Khan Hospital is crystal clear that firstly level of benzodiazepine is marginally in excess of limit (237.3 against limit of 200 mg/ml) and secondly it is almost never fatal. Moreover it is an ingredient present in many medicines and the complainant has been declared as normal and alert by the hospital. For all the above reasons I allow Cr.R.A No,158/2009 and dismiss the complaint filed by the complainant before the Court below.
80. ' However, order passed by the learned Magistrate on report under section 173, Cr.P.C. Shall have effect of only being a recommendation or a report of the Magistrate to the Court having power to take cognizance. Learned Judicial Magistrate is directed to transmit his report/order to the Court competent to take cognizance and that Court shall pass an order on it in accordance with the law.
81. However while passing such order it shall in no way be influenced by any of the observation made hereinabove.
82. ' Criminal Revision Application No,305/2009 is disposed of in the above terms.