' SHAHID ANWAR BAJWA, J.--- F.I.R. No,12/2006 was registered on 23-1-2006 at Police Station Bahadurabad. Complainant was Rasool Bux who stated that he lived at Bungalow No,D-267, KDA Scheme No,1, Karachi. He stated that on 15-1-2006 at 7-30 p.m. He went in his car along with his Driver and Chowkidar to house of Muhammad Anwar. Inmates of that house informed the complainant that Muhammad Anwar was not at the house and had gone to barber's shop.
Complainant stated that as he started going back to his house he saw that Muhammad Anwar was coming. Complainant stopped his car and started talking with Anwar in respect of some transaction and alleged that a bogus cheque had been given to the complainant by brother of said Muhammad Anwar. Upon such statement Anwar became infuriated and started beating the complainant with kicks and fist blows and hit something on his face, as a result of which the complainant received injuries on his front teeth and the gums started bleeding. He also stated that he received some internal injuries.
2. Medico-Legal Report dated 15-1-2006 stated: As per Dental Surgeon Report: loosing of tooth 1 is due to trauma. This loosening is permanent. Keeping in view the report of Dental Surgeon reserved injury No,2 is declared as Itlaf-e-Salehiat-e-Udw (tooth).
3. After investigation report under section 173 of Criminal Procedure Code was submitted by the Police on 19-3-2006. The Police requested "C" Class. On this report the Judicial Magistrate, the present alleged Contemnor wrote, "allowed". Against this order of the Judicial Magistrate Criminal Miscellaneous No,93 of 2006 was filed in this Court. The said Criminal Miscellaneous Application was disposed of by this Court vide order dated 7-5-2007. Concluding para of the order reads as under:--- "Irrespective of the merits of case, in view of above discussion and observation made by Honourable Supreme Court it is a settled principle of law as also stipulated in section 24-A of General Clauses Act that every order should be a speaking order and the Magistrate being a judicial officer is required to express himself and led to the impression that he acted judicially.
' Apart from above, as has been brought on record that section 336, P.P.C. Is exclusively triable by Court of Session therefore, any step taken by Judicial Magistrate in disposal of case amounts to exercise jurisdiction beyond the powers assigned to him. Hence, without touching to the merits of case, matter is remanded for its disposal according to law by Court having jurisdiction in the matter.
' In view of foregoing reasons Criminal Miscellaneous Application stands disposed of.
' Respondent No,2 is on bail. He may continue to remain on bail till any appropriate order under section 173(3), Cr.P.C. Is passed by the competent Court.
4. This order was challenged in the Supreme Court and the Honourable Supreme Court on December 19,2007 dismissed the C.P.L.A. With direction. The entire order of the Supreme Court reads as under:--- "The grievance of the petitioner is that the learned High Court has remanded the case to the Court of Session for passing speaking order on a part submitted by police under section 169, Cr.P.C.
Instead of Magistrate. According to the learned counsel, this was inappropriate and illegal. We do not find from the reading of the order that the matter has been remanded to the Court of Session.
However, in order to clarify any ambiguity, we would dismiss this petition with a direction to the Magistrate concerned to pass an appropriate order as per directions given by the High Court."
5. Upon receipt of the order of the Supreme Court, the Magistrate sent the file to Sessions Judge who marked it to the Additional Sessions Judge who sent it back to the Judicial Magistrate with the following order passed on 6-3-2008:--- "The order of Honourable Supreme Court was communicated to the learned Vth Civil Judge and Judicial Magistrate Karachi East. It is unfortunate that the said Judicial Magistrate without complying with the said order submitted the said order to Sessions Court.
' In view of the foregoing reasons, the case may be sent back to the learned Vth Civil Judge and Judicial Magistrate Karachi East with the direction that the orders of the Honourable Court of Sindh and Honourable Supreme Court of Pakistan should be complied with in letter and spirit and appropriate order, on report under section 17a, -Cr.P.C. May be passed within 7 days, under intimation to this Court.
6. Upon receipt of the file from the Additional Sessions Judge on 4-4-2000, the Judicial Magistrate passed an Administrative Order under section 173 of the Criminal Procedure Code. Concluding para of that order reads as under:--- "In view of the above circumstances and facts the final report at the close of the investigation was submitted under section 173, Cr.P.C. After taking approval from the police competent authorities for disposal of the case in cancelled class was made. Since no medical report exists in the field on the basis F.I.R. Was lodged that the accusation was baseless and no case was made out against the delinquent, the report is allowed accordingly."
7. The matter again came to this Court and on 26-5-2008 matter was again remanded to the Judicial Magistrate. The relevant para of the order of this Court reads as under:--- "Learned A.A.-G. Contends that as the evidence produced before the Magistrate was not sufficient therefore, he was empowered to proceed with the matter and order passed by him is in accordance to law. But in spite of repeated query, by the Court that under which provision of law, if evidence produced by the Investigating Officer before the Magistrate is not found sufficient.
Magistrate can proceed with the matter which is exclusively triable by the Court of Session, he was unable to explain the same and has shifted whole responsibility on respondent No,2 that he being the main contesting party would have been in position to reply the same. This argument advanced by learned A.A.-G. Does not appeal to reason as being representative of the Government he is supposed to come prepared irrespective of the responsibility of private parties to oppose or concede with the matter.
' Apparently impugned order passed by learned Magistrate quashing the F.I.R. Lodged is coram non judice. Matter is remanded to the Judicial Magistrate to pass appropriate order in the light of directions given to him in Criminal Miscellaneous Application No,93 of 2006.
8. When the matter again went to the Judicial Magistrate, he passed a detailed 6 pages order in which he cited various authorities of the Supreme Court and then in concluding para observed as under:--- "I have gone through the record of the prosecution very carefully. The police report under section 173, Cr.P.C. By itself does not constitute the taking of cognizance. Mere section of offence under section 336, P.P.C. In F.I.R. Do not determine the offence but the allegations are to be considered which is lacking. The names of driver and Chowkidar of the complainant find place in F.I.R. And the said F.I.R. Was recorded on the report of the MLO who examined the complainant in the first instance whereafter the opinion given by the Special Medical Board negated the factum of teeth injury on the person of the complainant and the allegation was found to have not been corrected and had been declared "disease not injury" there are no material for sending the accused to the Court of Session for trial. In PLD 1959 Supreme Court (Pak) 347, it was held that accused is to be committed to the Court of Session if there is even a possibility of conviction. Due to above reasons, the police instead of submitting the charge-sheet commonly known challan on the contrary submitted final report under section 173, Cr.P.C. In "C' Class as there is no evidence against the accused for taking cognizance for offence under section 336, P.P.C. The final report was allowed accordingly.
9. This Miscellaneous Application has been filed for initiation of Contempt of Court proceedings against the Judicial Magistrate Mr. Anand Kumar Vaswani and contains the following prayers:--
(a) Quash the impugned order dated 16-6-2008 passed by the learned Vth Judicial Magistrate Karachi (East), remand the case to any Judicial Magistrate Court having jurisdiction for passing appropriate order in terms of the order dated 26-5-2008 passed by this Honourable Court.
(b) ' Initiate Contempt Proceedings against the learned respondent No,2 for disobeying the order/directions of this Honourable Court and thereby lowering the authority of this Honourable Court.10. Mr. Muhammad Ashraf Kazi, learned Advocate for the applicant submitted that under Article 201 of the Constitution all Courts and Magistrates are subordinate to the High Court and every order of the High Court is binding on the Courts below. High Court twice passed order and the Magistrate has twice disobeyed the orders passed by the Courts. The learned counsel prayed that order passed by the Magistrate be set aside, case be sent to another Judicial Magistrate and action for Contempt be taken against the Magistrate. He relied upon Sofia Abdul Qadir v. The State and others , 2000, PCr.LJ 520, Muhammad Ashfaq v. Amir Zaman 2004 SCMR 1924, Badar Maqbool v. The State 2008 MLD 1676 and Sardar Ali v. Zafar Iqbal and others 2002 SCMR 63.
11. Mr. Rasheed A. Rizvi, learned counsel for the alleged Contemnor made the following submissions:---
(1) No direction was issued by the High Court directing the Magistrate, alleged Contemnor to hear the complainant.
(2) If the complainant is aggrieved by order passed by the Judicial Magistrate which order is not a judicial order but is only an administrative order, he could have challenged that order in this Court and this Court has ample powers to set aside the order passed by the Judicial Magistrate. Instead of the complainant has chosen in a way to terrorise the Judicial Magistrate.
(3) The order passed by the Judicial Magistrate is a speaking order and he has given reasons for reaching the conclusions that he has reached. The higher Courts may or may not agree with reasons given by the lower functionary and merely because that reasons are untenable does not mean that the Judicial Magistrate has committed Contempt of Court.
(4) When a Magistrate receives a report under section 173 of Criminal Procedure Code, he can either accept it or ask for further report or disagree with the report. The learned counsel relied upon Habib v. The State 1983 SCMR 370 and Ashiq Hussain v. Sessions Judge, Lodhran and 3 others, PLD 2001. Lahore 271.
(5) The alleged Contemnor relied upon Gamen and others v. Muhammad Ali, Naib Tehsildar Halqa Jampur, District Rajanpur and others 1989 Pakistan Criminal Law Journal 909 and Awal Khan v. The Superintendent of Police, Attock and 13 others, PLD 1995 SC 572.
' The learned A.P.-G. Supported contentions of Mr. Rasheed A Rizvi.
12. Exercising his right of reply, the learned counsel for the applicant submitted that the offence was triable by a Court of Session and therefore, a Magistrate could not have ordered cancellation of F.I.R. He further submitted that learned Magistrate discussed merits of the case in his order which he could not have done. Lastly the learned counsel submitted that authorities relied upon by Mr. Rizvi are only in respect of police report and not in respect of case in which directions have been issued by the High Court.
13. I have considered the submissions made by the learned counsel. I have also gone through the record as well as case-law cited by the learned counsel.
14. Before proceeding further, I think it would be appropriate to refer to the case-law cited by the learned counsel because the issue is trite and simple: What are powers and duties of a Magistrate to whom report is submitted by police in respect of an offence of which he is not competent to take cognizance. In Muhammad Ashfaq's case (supra) final report under section 173 of Criminal Procedure Code had been already submitted when the accused through writ petition sought direction to the concerned Police Officer to submit before the Trial Court Report of re-investigation.
The petition was dismissed and matter was taken to the Supreme Court. The Supreme Court firstly referred to Aftab Ahmed's case PLD 1987 SC 13 wherein it had been held that number of investigations into a crime by Police is not limited by law. Thereafter the Supreme Court held that case of the petitioner before it was not likely to be prejudiced by submission of report of re- investigation because firstly the concerned Court can proceed with trial on the basis of report already submitted under section 173 or Criminal Procedure Code and secondly it is not bound by the opinion expressed in the Police Report either after first investigation or after re-investigation. In Abdul Qadir's case (supra) Mr. Justice Rana Bhagwan Das writing as Judge of this Court (as his lordship then was) for a Division Bench held that reading of section 173 indicates the Investigation Officer had authority to dispose of F.I.R. As cancelled class when he arrives at the conclusion that either the F.I.R. Is false or is founded on a mistake of fact or law or the matter is a dispute of civil nature or the crime is untraceable, after taking all necessary steps to the best of his endeavour and ability. However, order of cancellation of F.I.R. Must be obtained from a Magistrate competent to take cognizance of the offence and to try the case and to send report of trial to the superior Court. Thereafter his Lordship observed that since offence alleged in the case included offence under section 302 of P.P.C. And since the offence was triable by Court of Session, the Magistrate was not vested with jurisdiction to take cognizance of saki offence and therefore, he while cancelling F.I.R. On Police Report had acted without jurisdiction and order passed by him was coram non judice. In Badar Maqbool's case (supra) it was observed as under:--- "Thus for the purpose of examination of 173, Cr.P.C. Report, office of Judicial Magistrate be looked in two different categories, one as judicial and other as administrative. While functioning on administrative side he discharges his duties as a persona designata and not as a Court, and while discharging his duties as a persona designata although he is required to examine the material placed before him, but he is not bound to explain each and every aspect of case and give its reason for acceptance and rejection"
' It was further held as under:--- "Thus without going in further detail as to the merits and demerits of case, which is not required at this stage, it is found that offence under section 324, P.P.C. Is exclusively triable by the Court of Session, therefore, after receiving the report under section 173, Cr.P.C. The learned Magistrate is required to forward the same to the Court of Session as provided under subsection (2) of section 190, Cr.P.C. Further clarifies that a Magistrate taking cognizance under subsection (1) of an offence triable exclusively by a Court of Session shall, without recording any evidence send the case to the Court of Session for trial.
' With this opinion the learned trial Court is directed to forward the report submitted by Investigating Officer under section 173, Cr.P.C. To the Court of Session for its disposal."
15. In Safdar Ali's case (supra) facts were that F.I.R. Was lodged by Safdar Ali inter alia under section 302, P.P.C. After completion of investigation an application was made for discharge of accused which application was turned down by Judicial Magistrate. Criminal Revision Application was filed before the Additional Sessions Judge which was dismissed. Thereafter writ petition was filed which was also dismissed. Thereafter respondent preferred application under section 265-K, Cr.P.C.
Which was dismissed by the Additional Sessions Judge. Such order was assailed before the High Court. However, High Court remanded the case to Trial Court for disposal. What prevailed upon the High Court was that order passed by the Judicial Magistrate whereby accused was discharged could not be said to be a speaking order. The Honourable Supreme Court observed as under:-- "It is well-settled by now that the Magistrate can take cognizance of on offence even in case of negative report submitted by police that accusation is baseless and no case is made out against the delinquents. There is no cavil to the proposition that the accused placed in Column No,2 of challan cannot be summoned by the learned trial Court to face the trial and there is no legal bar whatsoever that at first instance the evidence should be recorded to ascertain as to whether the prima facie case is made out against them. In this regard reference can be made to case titled Waqarul Haq v. State 1988 SCMR 1428. Malik Rabnawaz Noon learned Advocate Supreme Court could not mention any provision in Cr.P.C. In support of his contention that evidence should have been recorded prior to summoning the respondents whose names were admittedly placed in Column No,2 of the challan. In this regard we are fortified by the dictum as laid down in case titled Falak Sher v. State PLD 1967 SC 425 which has been followed in various judgments passed by this Court and relevant portion whereof is reproduced herein below for ready reference:-- "In our opinion, the action of the Magistrate in issuing summonses to these appellants despite the fact that the Investigating Officer in his report under section 173, Cr.P.C. Placed their names in Column No was clearly correct.
Section 173, Cr.P.C. Is in these terms:-- "173(1). Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer Incharge of the police station shall---
(a) forward to a Magistrate empowered to take cognizance of the offence on a police report, in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so whether with or without sureties, and
(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.
(2) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the Officer Incharge of the police station to make further investigation.
(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
(4) " Under subsection (1), when the investigation is completed the police officer is required to forward to the Magistrate a report in the prescribed form. Under subsection (3) when it appears from the report forwarded under section 1, that the accused has been released on his bond 'the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit". It is clear that under section 3 a Magistrate may agree or may not agree with the police report. It, however, does not say what step the Magistrate should take if he disagrees with the police report. If the Magistrate wants to start a proceeding against the accused, he must act under section 190 of the Code of Criminal Procedure. Section 190 provides that a Magistrate may take cognizance of any offence (a) upon a complaint (b) upon a police report, or (c) upon information received by himself.
' Now, the question is, if he disagree with the report, can he take action under clause (b) against those whose names have been placed under Column 2 of the challan. As already pointed out, the Magistrate is not bound by the report submitted by the police under section 173. When the said report is received by the Magistrate, the Magistrate on the report itself may not agree with the conclusions reached by the Investigating Officer. There is nothing in section 190 to prevent a Magistrate from taking cognizance of the case under clause (b) in spite of the police report. This Court in the case of Sardar Ali and others v. The State P.S.L.A. No,66 of 1966, while dealing with a similar question, observed:--- `Reference to section 173, Cr.P.C. Which prescribes the details that must go into a police report of the relevant kind shows that the requirements are of a factual nature, so that, irrespective of the Investigating Officer's opinion, a Magistrate takes cognizance on a police report, when he proceeds against a person whose name is mentioned therein as one accused of the offence reported upon."
16. On the other hand Mr. Rasheed A. Rizvi relied upon Honourable case (supra). Facts of the case were that a case was registered against Habib on the allegation that he enticed a 7 years old girl and confined her in a room. The child's cries attracted witnesses to the room and they saw that the child had been put in a gunny bag. Habib was able to escape. Subsequently he protested innocence. The Sessions Judge directed Police to submit challan after preparation of report under section 173 of Cr.P.C. The High Court dismissed the Revision and the matter ended up in the Supreme Court. Contention was based on the assumption that the Sessions Judge has interfered with the investigation as he had required the Investigating Officer to submit the challan showing the accused as guilty person against whom there was sufficient evidence justifying his being sent for trial. The Supreme Court summaries the provisions starting with section 154, Cr.P.C. And thereafter observed as under:--- "The crux of the above-noted provisions i.e. Sections 169, 170 and 173, is that whatever course the Invcm igating Officer adopts i.e. Whether he acts under section 169 or under 170, Cr.P.C. It is incumbent upon him to submit a 'final report' under section 173, Cr.P.C. With regard to the result of his investigation to a competent Magistrate and the said Magistrate shall thereupon, take such action as he may consider proper under subsection (3) of section 171', Cr.P.C. Or under section 190, Cr.P.C. As the case may be. It will be noticed that in the present case, instead of preparing and submitting the 'final report' under section 173, Cr.P.C. The Investigating Officer, under a misconception as to the true meaning of section 169, Cr.P.C. And the Magistrate's power thereunder submitted an application for cancellation of the case under the said section which of course was not competent. The learned trial Court, therefore, did not accede to the request of the Investigating Officer and directed him to what he was required to do under law, namely, to submit the final report under section 173, Cr. P. C . "
17. In Ashiq Husain's (supra) case it was held as under:--- "It may be necessary to mention here that under the present dispensation under the Code there are two kinds of Magistrates i.e. Judicial Magistrates and Executive Magistrates and both have their respective jurisdictions 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 incompetent Magistrate is, therefore, an order passed without lawful authority and the same is of no legal effect."
18. Lastly I may refer to the two Cases cited by the alleged contemnor. In Gamen's case (supra)
Supreme Court found that Contempt Application was filed to humiliate and harass the Naib Tehsildar and to influence the Appellate Court ousted with appeal against the order of the Naib Tehsildar. Contempt Application was dismissed by the Supreme Court as malicious and frivolous.
He also relied upon Awwal Khan's case (supra) where it has been held that a Magistrate has to examine any case exclusively triable by the Court orders whether prima facie case is disclosed and only then the Magistrate is obliged to send the case for trial to Sessions Court.
19. We have now reached the stage where the provisions can be summarised as under:---
(1) A Magistrate while scrutinizing the report under section 173, Cr.P.C. And passing order thereon does not act as a Court of Law and his order is only an administrative order. However, it must be speaking order giving valid reasons for his conclusion.
(2) Fact that his order is an administrative order does not mean that he can act arbitrarily. It may not be a judicial order but it must be judicious order.
(3) The Magistrate has power to disagree with the conclusion recorded in the police report.
(4) If it disagrees with the police report he has the option of ordering further inquiry.
(5) Another option available to the Magistrate is to take cognizance under section 190 of Cr.P.C.
(6) The Magistrate cannot order cancellation of an F.I.R. Which is in respect of offence triable by a Court of Session.
(7) If there are more than one investigation or part of the investigation is conducted by one Inquiry Officer and thereafter investigation was conducted by another Investigating Officer, the Magistrate must scrutinize the material available with him.
20. Contention of Mr. Kazi that the Magistrate cannot scrutinize the report and record submitted to him in a case of which he is competent to take cognizance, in my opinion is not tenable. Firstly the Magistrate is required to pass a speaking order. How can he pass a speaking order without scrutinizing the material before him. Secondly in the case of Badar Maqbool (supra) relied upon by Mr. Kazi, it has been held that Magistrate is bound to explain each and every aspect of the case and give his reasons for acceptance or rejection therefore. In Bahadur's case PLD 1985 SC 62 such Magistrate is bound to act judicially, fairly, justly; and honestly. Fact that the alleged contemnor scrutinized the material before him and then expressed his opinion on it, which opinion is not judicial opinion but an administrative determination (or recommendation: to this aspect we shall return latter) goes in favour of the alleged contemnor. He has performed his duty by passing a speaking order which duty is cast upon him both by the orders of this Court and the Supreme Court as well as by section 24-A of the General Clauses Act so also under the dictates of good governance. Therefore, by scrutinizing material before him the Magistrate has committed no wrong.
21. When the Magistrate passed the first order, the Supreme Court ordered that the matter be remanded to the Magistrate to pass an appropriate order. After the Supreme Court passed the order, the Magistrate sent the matter to the Sessions Judge who, through the hierarchical channel, sent it back to the Magistrate. Thereafter Magistrate passed order on it. The matter was again sent by this Court back to the Magistrate asking him to pass an order. He again passed an order on it.
That order may be right or wrong but this is not a question to be decided in contempt. The fact is that this Court ordered him to pass an order after considering all the facts and he had passed an order by applying his mind to the papers before him. Therefore, I don't think he has committed any contempt. If the applicant feels that the order passed by the Judicial Magistrate is wrong, he has the remedy available to him to approach this Court in appropriate proceedings and then this Court can scrutinize whether the order passed by the Judicial Magistrate is in accordance with facts before him and the law or not.
22. In this Miscellaneous Application it is prayed that the matter may be remanded to another Judicial Magistrate. Suppose that Judicial Magistrate also conies to the same conclusion that case deserves to lie dismissed in "C" Class. Then another Magistrate would be asked to do that and yet another Magistrate and yet another Magistrate. There would not be end to it. Consequently this Miscellaneous Application is dismissed.
23. The question still remains hanging in the air. What are duties and powers of an Illaqa Magistrate to whom report under section 173, Cr.P.C. Is submitted by police in respect of an offence which he is not competent to take cognizance. If police report is for taking cognizance and he agrees with it there is a question nor a difficulty because he in any case has to send it for trial to the Court competent to try the offence. However if report is for cancellation of F.I.R. Or for discharge of the accused persons or he does not agree with the report of police that the matter be sent up for trial or if after his order or reinvestigation result is any of the above situations (cancel or discharge) is he to act merely as a post office or is he to apply his mind and pass a speaking order and if it is the latter, what is status and legal position of such an order. In the present case, after first remand the alleged contemnor acted as a post office but Sessions Judge sent it back to him. In my opinion even if he is not competent to pass an order, he must apply his mind to the material before him and record his opinion and conclusions giving cogent reasons for his opinion and his conclusions.
Thereafter he should send it to the Court competent to take cognizance and it is for that Court to decide whether cognizance is to be taken or not. Thus his order would be in the nature of recommendations or report to the competent Court. It must not be lost sight of that his order is merely an administrative determination. And in administration recommendations by lower functionaries to competent authority are the norms.
' M.A. No,2683 of 2008 is consequently dismissed.