This is a petition u/S. 561-A Cr.P.C, against the order dated 18.5.2001, passed by learned Judicial Magistrate Section 30, Rawalpindi and order dated 13.11.2001, by learned ASJ, Rawalpindi.
2. The brief facts narrated by the learned counsel for Musaddaq Abbasi-petitioner are that the late mother of the petitioner Mst. Ghulam Fatima, got a case FIR No, 607 dated 24.11.1994, registered against Respondent No, I and others at Police Station Civil Lines, Rawalpindi U/Ss. 420/468/471 PPC.
3. Respondent No, 1 and another moved a quashment petition before this Court in Crl Misc. 60-Q of 1995, for the quashment of above said FIR, which was withdrawn on 26.11.995. The accused were however, discharged in the said case on 29.11.1995 by Assistant Commissioner Cantt Rawalpindi.
4. SHO, Police Station Civil Lines, filed a complaint u/S. 182 PPC against' the petitioner and his mother on 30.11.1995 before the learned Illaqa Magistrate Rawalpindi,
5. In the meanwhile, the above mentioned discharge order dated 29.11.1995 was assailed before this Court in WP. No, 1639 of 1995, which was accepted on 3.11.1996 and the case was remanded back to the learned Judicial Magistrate for its decision afresh. The learned Judicial Magistrate vide order dated 11.1.1997, turned down the prayer of the cancellation of case and ordered the police to submit challan against the accused. This order too, was challenged before the learned ASJ, Rawalpindi, who vide his order dated 17.2.1997 revised and set aside the same. The order of the learned ASJ, was challenged in this Court in Crl. Misc. 57-Q of 1997 and the initiation of the proceedings u/S. 182 PPC was also questioned in Crl. Misc. No, 46-Q of 1997.
6. It is the claim of the petitioner that while dealing with Crl. Misc. 46-Q of 1997, this Court passed an injunctive order on 19.6.1997 in the following words:-- "Subject to notice for said date (25.6.1997), further proceedings before the Magistrate shall remain stayed meanwhile."
Again on 25.6.1997, this Court passed the following orders: "Meanwhile, further proceedings shall remain stayed as directed in the previous date."
It is also the stand of the petitioner that this Court also passed the following order in WP No, 1639/1995 on CM No 807/1996: "Further proceedings in the above referred two Qalandras pending in the Court of Assistant Commissioner/City and Magistrate 1st Class, Rawalpindi are stayed subject to notice for 4.4.1996. "
On 4.4.1996, the order dated 28.3.1996 was confirmed by this Court.
8. Respondent No, 1 moved an application on 13.5.97 for continuation of proceedings against the petitioner Musaddaq Abbasi in Qalandra titled State vs. Musaddaq Abbasi u/S. 176 PPC. The learned Magistrate asked Respondent No, 1, to apprise, if some injunctive order was passed in the present case to which his reply was in the negative. The learned Magistrate required him to support his version through an affidavit. Where-upon Respondent No, 1 submitted an affidavit on 17.1.98 before the learned Illaqa Magistrate/C.I.A to the effect that Musaddaq Abbasi did not obtain any stay order from this Court in respect of Qalandra u/S. 176 PPC, nor any application was pending before this Court in this respect. According to the petitioner, this affidavit was false, and that Respondent No, 1, had committed an offence u/S. 193 PPC.
9. The petitioner submitted an application before the learned Executive Magistrate, Police Station CIA, Rawalpindi for the initiation of the proceedings u/S. 476 Cr.P.C. read-with Section 193 PPC against Respondent No, 1, who was summoned to show-cause as to why proceedings under the aforesaid section be not initiated against him. Four long years passed but Respondent No, 1, never responded to the show-cause notice. Ultimately, the learned Magistrate in his order dated 10.3.2001, observed that: "Resultantly, a show-cause notice was duly issued to Abdul Hamid to produce before the Court his written statement in support of his version vide order dated 29.6.1998, which despite a lapse of 4 years, he has failed to do so under one pretext or the other, while there is nothing on the record to establish any thing in favour of the applicant Abdul Hameed. The points raised in petition of the respondent Musaddaq Abbasi, dated 26.5.98, tends to substantiate the allegations made against the applicant Abdul Hamid. The provisions of Section 193 PPC read-with 476 Cr.P.0 as attracted against Abdul Hameed, is beyond the jurisdictional power of the present Court, hence the case is recommended and forwarded to the Court of learned District & Sessions Judge, Rawalpindi for proper conviction and disposal."
10. The Learned Sessions Judge, Rawalpindi, however, entrusted the present case to a Judicial Magistrate, who vide his order dated 18.5.2001, dismissed the application and released Respondent No, 1.
11. The order of the learned Magistrate dated 18.5.2001, was assailed in exercise of the revisional powers of the learned Sessions Judge, Rawalpindi. The revision petition was finally adjudicated upon by learned Addl. Sessions Judge, Rawalpindi, who vide order dated 13.11.2001, dismissed it.
Hence the present petition for the quashment of the order of the learned Judicial Magistrate Section 30 and learned ASJ, Rawalpindi referred to above.
12. The learned counsel for the petitioner submits that the learned Executive Magistrate had found a prima facie case against Respondent No, 1 and that considering himself to be incompetent, to award legal sentence to Respondent No, 1, he referred the matter to the learned Sessions Judge for its transfer to some judicial Magistrate of competent jurisdiction. He submits that the learned Judicial Magistrate should have proceeded with the complaint and he was wrong to dismiss the application under Section 476 Cr.P.C. He also argues that the learned ASJ, has dismissed the application of the petitioner on wrong assumption. He prayed that both the orders of the learned Judicial Magistrate dated 18.5.2001 and learned ASJ dated 13.11.2001. be quashed.
13. On the other hand, the learned counsel for the Respondent No, 1, submits that only a show- cause notice was issued and that the - learned Magistrate has not taken cognizance of the offence. While referring to the affidavit, the learned counsel argues that at the time of the submission of the affidavit, no injunction of this Court was in existence, therefore, Respondent No, 1, has not committed any offence, nor his affidavit was false. Referring to the contents of the affidavit, he argues that verification clause of the affidavit was not cleared as to how much facts, deposed therein were within the knowledge of Respondent No, 1 and how much of its contents were based on his information, therefore, the affidavit was not in conformity with the provisions of law. He concludes that from the facts and circumstances of the case, the provisions of Section 193 PPC are not attracted. He relies upon, Haji Sh. Manzoor Elahi vs. Sh. Abdul Jabar (1971 P.Crl.L.J 1021), Al-Hajj Ali Muhammad Akhand. vs. The State (PLD 1963 Dacca 166) and that Muhammad Asaf Advocate. Vs. Mehboob Ali Khan Sherwani (1999 P.Cr.L.J 436). Lastly, he argues that the provisions of Section 476 Cr.P.0 are not meant for grinding the axe of private grievance. The jurisdiction under the said section should be exercised in the public interest. He relies upon the case reported as Ch. Feroze Din vs. Dr. K Munir and another (1970 SCM R 10).
14. While considering the order of the learned Magistrate, this Court is of the considered view that the learned Executive Magistrate has taken cognizance of the offence, but considering him incompetent to try it, he referred the matter to the learned Sessions Judge, for its proceedings by a competent Court. Resultantly, the learned Sessions Judge, entrusted the proceedings u/S. 193 PPC to the learned Judicial Magistrate Section 30 Rawalpindi. The learned Judicial Magistrate Section 30, should have been mindful of the fact that the case was entrusted to him as trial Magistrate. He was not required to restart the proceedings initiated on an application under Section 476 Cr.P.C.
The order of the learned Executive Magistrate dated 10.3.2001 cannot be revised by a Magistrate Section 30. The power to revise the order of the Magistrate lies with the Court of Sessions. The learned Executive Magistrate had impliedly accepted the application and decided to proceed against the accused. The learned Judicial Magistrate opted to release the accused and while discussing the case he appears to be of the view that there was no probability of the conviction of the accused. His order dated 18.5.2001, were, as a matter of fact, was under Section 249-A Cr.P.C.
Against these orders, the petitioner should have moved the High Court under Section 417 Cr.P.0 challenging his acquittal. In my view the orders of the learned Magistrate acquitting Respondent No, 1, could not have been challenged under Section 435/439-A Cr.P.C. The impugned order of the learned Magistrate was never challenged under Section 417 Cr.P.C. and thus attained finality. In the above circumstances, the present petition under Section 561-A, Cr.P.0 was not competent.
15. The parties to the present case are involved in series litigations on petty matters. They are dagger drawn against each other. They want to grind the axe of their private grievance through the powers of Courts exercisable under Section 476 Cr.P.C. such powers can only be exercised in public interest. Reliance in this respect, is placed on 1970 SCM R 10. The petitioner had attempted to satisfy his personal grievance through the powers of learned Magistrate u/S. 476 Cr.P.C. I do not see a matter of public interest in the proceedings initiated through application u/S. 476 Cr.P.C. Therefore, the learned Executive Magistrate was not correct in taking cognizance of the present case under Section 476 Cr.P.C. I would not like to comment as to whether provisions of Section 193 PPC were attracted to the facts and circumstances of the present case or not, or whether the affidavit filed by Respondent No, 1, was in its true legal shape or not, because I have already held that the present case was not carrying a matter of justice involving the public interest.
For what has been discussed above, the present petition fails and is dismissed as not maintainable.