' ABDUS SATTAR ASGHAR, J.---Muhammad Ilyas petitioner has invoked the Constitutional jurisdiction of this Court under Article 199 to impugn the order dated 1-12-2011 passed by the learned Judicial Magistrate, Pasroor whereby Muhammad Saqib/respondent No,3 has been discharged on the request of the Investigating Officer.
2. The petitioner is complainant of case F.I.R. No,232 of 2011 dated 27-10-2011 in the offences under sections 302/109/34, P.P.C. Police Station Qilla Kallarwala, Tehsil Pasroor District Sialkot lodged with regard to murder of his son Muhammad Sibtain. Muhammad Saqib/respondent No,3 is nominated accused in the said F.I.R. With particular attribution of causing a fatal fire-shot with his pistol .30- bore at the skull of Muhammad Sibtain who succumbed to the injury at the spot.
3. As per F.I.R. Lodged by Muhammad Ilyas complainant father of Muhammad Sibtain deceased, it is alleged that on 27-10-2011 at 4-30 p.m. His son Muhammad Sibtain (deceased) an employee of Rangers Police Lahore proceeded from home on motorcycle along with his brother Muhammad Irfan; that on road accused Muhammad Saqib met and took them to his Baithak; that in the meanwhile accused Muhammad Saqib had exchanged hot words with Muhammad Sibtain for disengagement with his Khalazad and caused threats to teach him lesson whereupon Muhammad Irfan made a telephone call to his brother Muhammad Usman to reach immediately; that when Usman and Irfan reached in the Baithak' its door was closed which was opened by Usman by pushing the same and saw that accused Akmal son of Muhammad Aslam had grappled Muhammad Sibtain on a chair and the accused Muhammad Saqib fired a .30-bore pistol shot on the temporal of Sibtain who succumbed to the injury at the spot. Motive is that Muhammad Sibtain was engaged to Khalazad of Muhammad Saqib accused, however later on the complainant party had refused to accept the Rishta; that his son has been murdered by the accused on the abetment of Muhammad Aslam who had caused threat to the complainant that on account of refusal to accept Rishta his son will be killed; that after the occurrence accused decamped from the spot.
4. It is argued by the learned counsel for the petitioner that the eyewitnesses cited in the F.I.R. Have joined the investigation and fully corroborated the prosecution version; that the learned Judicial Magistrate has passed the impugned order recklessly without taking into consideration sufficient incriminating material produced by the prosecution available on the record; that the impugned order is violative to the settled principles of law and justice and has resulted into serious miscarriage of justice.
5. It is resisted by the learned counsel for respondent No,3 with the arguments that the Investigating Officer after conducting a detailed inquiry reaching the conclusion that the respondent Muhammad Saqib was innocent has rightly recommended his discharge; that the learned Judicial Magistrate while passing the impugned order has taken into consideration the material available on the police record with full application of mind to concur the police opinion in exercise of powers vested in him under section 173(3), Cr.P.C.; that the impugned order does not suffer from any factual or legal infirmity therefore the petitioner has no case to invoke the Constitutional jurisdiction of this Court.
6. I have given patient hearing to the contentions of the learned counsel for the parties and carefully gone through the record.
7. At the outset it will be expedient to reproduce the impugned order dated 1-12-2011 which reads as under:-- "1-12-2011:- Present accused in police custody. I.O. With record.
' Complainant is absent even he has been informed by police on direction by this Court. However I have canvassed the earlier file. Accused has been initially sent to judicial lock up and police has submitted request to discharge the accused person because deceased Sibtain has committed suicide. Accused has been nominated in F.I.R. Yet police has conducted the investigation and I.O.
Declared that present accused has no involvement in commission of offence. The recovered pistol even has been given by brother of deceased Sibtain to police. There is no eye-witness who has seen the occurrence as eyewitnesses produced by complainant were not present at place of occurrence. Even otherwise accused cannot be included falsely by police when deceased who was also a Jawan of Ranger and how it can be expected that a common man would fire him on his head and he made no resistance. The weapon has been seen to he placed near dead-body of deceased. How it is possible that accused would remain there, dropped weapon at place of occurrence and waited for police. Unquestionably, process of investigation has resulted into innocence of accused and for same reason, where there would be insufficient material accused cannot be sent to jail mere on ground of F.I.R. As F.I.R. Is not a sacred document. It is just initiation of process of criminal administration of justice. So I am inclined to agree with police opinion after relying on dictum laid down in PLD 2001 Lahore 271 and accused is discharged. Be released."
8. Perusal of the record transpires that Muhammad Irfan and Muhammad Usman cited eye- witnesses of the F.I.R. Have appeared before the Investigating Officer and got recorded their statements under section 161, Cr.P.C. Fully supporting the complainant's version. Simultaneously the postmortem report of Muhammad Sibtain deceased also corroborates the attribution of fire-arm injury made to accused A Muhammad Saqib respondent No,3.
9. On the other hand, it is argued by learned counsel for respondent No,3 that in fact the parents of Sibtain deceased had disconnected his engagement on account of domestic disputes, however Muhammad Sibtain deceased was adamant to continue the engagement but his parents did not agree; that Muhammad Sibtain deceased asked accused Muhammad Saqib/respondent No,3 to take initiative to restore his engagement with his cousin but Saqib declined; that Sibtain deceased made Muhammad Saqib a telephone call and while disgusting from the situation committed suicide at the Haveli of Muhammad Saqib.
10. Perusal of the record transpires that the occurrence allegedly took place at 4-30 p.m. On 27-10- 2011 and the F.I.R. Was lodged promptly the same evening at 5-45 p.m. Promptitude shown in reporting the occurrence therefore prima facie excludes chances of false implication. The defence version advanced by the accused is not supported by any independent witnesses of the locality.
Investigating Officer has declared the accused innocent in his investigation merely on the basis of the statement of the accused and his secret information. No reason is assigned to discard the supporting statements of the alleged eye-witnesses namely Muhammad Irfan and Muhammad Usman under section 161, Cr.P.C. No reason is substantiated on the record to falsely implicate Muhammad Saqib/respondent No,3 and his brother Muhammad Akmal when there was no direct motive against them. It is also noteworthy that the occurrence took place in the `Baithak' of Muhammad Saqib accused. The deadbody was also recovered from the spot. No independent evidence is produced from the defence side to substantiate their contention that the deceased had himself reached theBaithak' of the accused.
11. There is no cavil to the proposition that in exercise of the powers under subsection (3) of section 173, Cr.P.C. Magistrate has got the power to discharge an accused while agreeing with the opinion of the police. However, the fact remains that while passing an order of discharge a Magistrate is expected to apply his judicious mind to the material placed before him by the police. In the instant-case learned Judicial Magistrate instead of taking into consideration the ocular and documentary material available on the record supporting the prosecution version has illegally concurred the police opinion merely on the basis of conjectures and surmises. It is also wrongly observed by the learned Judicial Magistrate that there was no eye-witness of the occurrence.
Certainly the Magistrate cannot make order of discharge considering extraneous elements to legal proceedings without application of mind. In the peculiar circumstances of this case, it cannot be said that there was no evidence or reasonable ground for forwarding the accused to the court of competent jurisdiction to face the trial. In the circumstances of this case opinion of the Investigating Officer apparently arbitrary and capricious in nature being ipse dixit of the police was not binding upon the learned Judicial Magistrate. Reliance is made upon Falak Sher and another v.
The State (PLD 1967 SC 425). And Muhammad. Bashir v. SHO (PLD 2007 SC 539,548). The impugned order passed by the learned Judicial Magistrate on wrong premises of law and facts amounts to abuse of the process of the court and untenable in law. Reliance is made upon Arif Ali Khan v. State (1993 SCMR 187). Therefore the impugned order suffering from factual and legal infirmities and causing serious miscarriage of justice is liable to set aside.
12. For the above discussion and reasons, this writ petition is allowed, the impugned order dated 1- 12-2011 is set aside and the learned Judicial Magistrate is directed to forward the report under section 173, E Cr.P.C. To the court of competent jurisdiction for further proceedings in accordance with law. Office is directed to transmit a certified copy of this order to the learned Judicial Magistrate concerned through District and Sessions Judge, Sialkot for immediate compliance.
13. Before parting with this order it is pertinent to mention that observations made in the order are tentative in nature and will not prejudice the merits of the case of the parties during the trial.