NAZEER AHMAD GHAZI, J. - Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 Muhammad Rafique son of Nawab Din petitioner has challenged the order dated 14.7.2009 passed by the learned Sessions Judge, Lahore.
2. The brief facts of the case are that at the instance of one Muhammad Boota case F.I.R. No. 338, dated 21.3.2008 under Section 365, P.P C. Was registered at Police Station Factory Area against the petitioner and others for the abduction of Mst. Hamidan Bibi,, the wife of the petitioner. During investigation of the case it was found that the petitioner after abducting the deceased Mst.
Hamidan Bibi had committed her murder with the help of his son-im law Shera by way of strangulation and thereafter threw, her dead-body in the canal. It also transpired that during the investigation statements of Nousher son of Waryam, Rehmat Ali son of Siraj. Din, Haider Ali son of Muhammad Bukhsh and Muhammad Ishaq son of Muhammad Ibrahim were recorded who fully implicated the petitioner and his son-in- law Shera as co-accused. In spite of this the Investigating Officer in a clandestine manner submitted the Challan under Section 3^5, P.P.C. In the Court of Judicial Magistrate, 1st Class, Model Town, Lahore. Charge was framed and evidence of the prosecution was summoned, whereby, Muhammad Boota, the complainant of the case appeared as PW-1 and deposed that he got the case registered on the basis of misunderstanding and now he has satisfied himself that the petitioner was. Not his culprit/accused and he had no objection on the acquittal of the accused. The Urdu version of complainant's statement is available on the file of this case as Annexure-C.
3. It is interesting to note that in his statement the complainant has mentioned his case us F.I.R. No. 349/08 instead of Case F.I.R. No. 338/08 which shows that the petitioner and some of the officials prosecution side were in haste and also in league to demolish the murder case. Immediately after recording of the said statement of the complainant, the petitioner moved an application under Section 249-A, Cr.P.C. And the learned Judicial Magistrate vide his order dated 29.7.2009 acquitted the accused petitioner.
4. Another very strange fact of the case is that in spite of ample evidence, available on the police file, during the investigation, the learned Judicial Magistrate has not bothered to have a glance on the material available with the prosecution. It appears that he was in a hurry for extraneous reasons, otherwise, the Trial Court is supposed to frame the charge, after going through the F.I.R., the report under Section 173, Cr.P.C., the statements of the witnesses as well as documents available on the file. Subsequently, when this factum of acquittal came to the knowledge of the higher echelon in the hierarchy of the police, letter dated 14.3.2009 was written to the learned Sessions Judge, Lahore by the SSP/Admin. On behalf of the Capital City Police Officer, Lahore, wherein all the important facts of the case were brought to the knowledge of the learned S.J., Lahore and permission to arrest the accused for the murder of Mst. Hamidan Bibi was sought from the learned Sessions Judge who after hearing both the parties allowed the arrest of accused/petitioner Muhammad Rafique under Sections 302/201, P.P.C. And to investigate the case in accordance with law. It caused a distress to the petitioner and being aggrieved he has filed the instant writ petition.
5. Main thrust of learned counsel for the petitioner was on the point that impugned order dated 4.7.2009 was. Without jurisdiction as well as backing of law. According to him, it has not the effect of setting aside the, order dated 29.7.2008 of learned Magistrate acquitting the petitioner as, there is no provision in Code of Criminal Procedure which authorizes the learned Sessions Judge to pass any such-like order merely on the basis of a letter issued by police. Even if it is presumed for the sake of arguments that the learned Sessions Judge passed the impugned order while acting as Justice of-Peace under Section 22-A of Cr.P.C.; even then he was not in a position to hold that such and such offences are made out as per dictums laid. Down by the higher Courts. Unless order of the acquittal is set aside in clear terms, the petitioner cannot be left to face the adverse consequences of impugned order, while enjoying double presumption of innocence.
Further submitted that as the petitioner was acquitted by the learned Judicial Magistrate vide his order dated 29.7.2008 he cannot be vexed twice, in view of immunity provided under Section 403, Cr.P.C. He has further added that the principle of estoppels applies in this case, therefore, the Investigating Agency was estopped to agitate the matter before the learned Sessions Judge, Lahore again.
6. I am afraid that contention of the learned counsel for the petitioner is misconceived and mistaken. Under Section 435 of Cr.P.C. a Sessions Judge has ample powers of calling and examining the record of any proceedings before any inferior Criminal Court situated within the local limits of his jurisdiction for the purposes of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed to the regularity of any proceedings of such inferior Court, therefore, what to speak of taking an action in the pursuance of letter issued by higher up of the police, even he was authorized to proceed if some order comes to his knowledge through any source and no formal application is necessary. I can safely conclude that the impugned order dated 14.7.2009 was passed by learned Sessions Judge on judicial side exercising his revisional powers under Section 435 of Cr.P.C. And the language used in the order has clear effect of setting aside the order of Magistrate dated 29.7.2008 acquitting the petitioner.
7. Furthermore the concept of estoppels is also alien to the criminal law. As far as application of Section 4Q3, Cr.P.C. Is concerned, the petitioner was neither challaned nor tried for the murder of Mst. Hamidan Bibi as is evident from the report submitted before the learned Judicial Magistrate under Section 173, Cr.P.C. And order of acquittal passed by him. If Sessions Judge finds any illegality, misuse of process of law or material irregularity or jurisdictional defect in order of lower Court he can examine the same and set aside the order which has been done in this case by him.
8. It is observed that once it is established that evidence regarding the murder of Mst. Hamidan Bibi, by the petitioner and his co-accused was available in the file of the case, the complainant namely Muhammad Boota was not solely authorized to compromise the same under Section 345, Cr.P.C. It were all the legal heirs of the deceased Mst. Hamidan Bibi who only could enter into the compromise and forgive the petitioner.
9. The learned counsel for the petitioned has not been able to point out any illegality, material irregularity or jurisdictional defect in the impugned order, therefore, this writ petition meritless is hereby dismissed.