' SAHIB KHAN, J.---One Shakoor Khan brother of the deceased Wasal Khan resident of Gohar Abad District Diamer, has filed this petition under sections 561-A and 497(5), Cr.P.C. For quashment of the proceeding taken by the Judicial Magistrate on 20-10-2010 qua cancellation of bail granted on the application of Sub-Inspector/ Investigating Officer (S .1. /I.0.) Police Station Airport Gilgit.
2. The facts disclosed in the F.I.R. Are that one A.S.-I. Saadat Ali sent a Marasila to the S.H.O. Airport Gilgit for lodging F.I.R. In the marasila, he stated that on 20-10-2010 (at night time) at 1-00 a.m., Javed Ali (F.C.) on duty with Eagle-12 informed him on set that someone is found in injured condition in a house situated at the plot of one Majeed. The A.S.-I. Along with other police personnel reached on the spot. He .Found Wasal Khan son of Misir Khan resident of Gohar Abad; who, after receiving bullet shot on his neck, was in serious condition. In his ' report, the. A.S.-I. Alleged to recover 12 cartridges of .30 bore pistol. He further mentioned in the report that the victim had trespassed with ulterior motive hence, Mst. Iqbal Bano wife of Shah Bahram resident of the said house opened fire with .30 bore pistol which hit the victim. The said A.S.I.P. Sent the victim to D.H.Q.
Hospital Gilgit. He added in the marasila that Mst. Iqbal Bano also supported the version he stated above. She handed over .30 bore pistol with three live cartridges to the police.
3. Allegedly the date and time of occurrence is shown to be 1-00 a.m. Of 20-10-2010 and the report/F.I.R. Was lodged at 2-15 a.m. On the same day and date. The Sub-Inspector/Investigating Officer concerned on the date submitted an application to the Judicial Magistrate wherein he requested to the Magistrate for recording the statement of the accused Iqbal Bano with the contention that the victim had entered into the house of accused with mala fide intention and the respondent/accused had opened fire to protect and defend herself from inside the room. For the reason, he further requested her release under section 100 of P.P.C. And also for grant of bail in the charge of 13 Arms Ordinance. .
4. The learned Judicial Magistrate disposed the matter with a single stroke of pen in the following words:-- "Application allowed. Mst. Iqbal Bano be produced for recording her evidence"
(Sd.)
20-10-2010 "Statement of Mst. Iqbal Bano recorded. Copy of statement be given to 1.0. "
(Sd.)
Judicial Magistrate
5. According to Medico-legal Report dated 3-11-2010, the victim could not survive and succumbed to his injures on the same date, e.g., 20-10-2010 at D.H.Q. Hospital Gilgit. The fate of the story narrated above is that the deceased was buried on the, same day and date when the police as well as the Judicial Magistrate buried the facts of case. The record shows that the petitioner tried to nullify the proceedings carried by the Police qua Judicial Magistrate through the Sessions Judge Gilgit, but he showed his incompetence in that regard.
6. I have heard the learned counsel for parties and have gone through the relevant record of the case.
7. The learned, Counsel for the petitioner forcefully argued that the Investigating Officer (I.O.) as well as the Judicial Magistrate acted in clear violation of law and thereby committed abuse of the process of law. The request made by the police through an application for the purpose mentioned therein is beyond the power of Investigating Officer. Seeking bail concession for, the nominated accused in a case of 13-Arms Ordinance and section 324, P.P.C., likewise further request by the police to extend the benefit of section 100, P.P.C. In favour of the accused without any investigation or collecting evidence was nothing except to bulldoze the supremacy of law. The Judicial Magistrate in a heinous case, besides being careless, acted according to the wishes of the Investigating Officer. The Magistrate even lacking jurisdiction to try the charges levelled against the accused acted illegally and disposed the murder case with the single word "Allowed". The request of investigating officer as well as the order of the Judicial Magistrate on such application is well within the definition of abuse of the process of the Court and is liable to be quashed under section 561-A of Cr.P.C. They referred the following case-laws to substantiate their arguments:-
(1) 1994 PCr.LJ 1806 (Lahore),
(2) 1996 PCr.LJ 1153 (F.S.C.),
(3) 2000 PCr.LJ 520 (Karachi),
(4) 1996 PCr.LJ 1187 (Peshawar) and (5) 1999 M LD 1847 (Lahore).
8. On the other side, the learned counsel for the respondent/accused opposed the arguments advanced by the opposite side with the contention that the Judicial Magistrate is fully empowered to discharge any person while exercising his power vested under section 63 of Cr.P.C. In this case, the respondent herself has stated that she committed the murder while exercising her right of private defence hence, amenable under section 100 of P.P.C. The petitioner as well as the investigating agency if feel requirement of investigation, they were not restrained by the Magistrate in his impugned order. He referred the following case-laws in favour of his contention:-
(1) 2000 YLR 2857 (Lahore) (2) 2004 PCr.LJ 117 (Peshawar (3) 2008 YLR 1669 (Lahore) (4).2000 PCr. LJ 31
9. It is admitted that the F.I.R. Was lodged by the police under section 324, P. P. C . On 20-10-2010, charging the respondent/ accused for commission of offence (attempt to murder) and the charge was converted under section 302 of P.P.C. (on the eve of death of the deceased) due to the alleged trespass committed by the deceased with ulterior motive. According to the police, the respondent/accused handed over one .30 bore pistol with three live cartridges but neither the police prepared a recovery memo nor sealed the crime weapon and cartridges on the spot in the presence of P. Ws. As was required under section 103, Cr.P.C. The state of affairs did not end there but the police in clear violation of law not bother to probe the matter to find out the factual position of incident (commission of the murder of the deceased). It is also on the record that the Investigating Officer himself filed an application requesting the Judicial Magistrate inter alia for recording statement of accused under section 164 Cr.P.C., release on bail from the charge of 13 Arms Ordinance besides the request of discharging/acquitting the respondent/ accused from the charge of 302, P.P.C. As stated supra, and the injured succumbed to his injuries on the same date. A cursory glance on the stated facts reveals that the chapter of life of the deceased ended on 20-10- 2010 without any probe/investigation by the police. The learned Administrative Judge/Judicial Magistrate endorsed/certified all that desired by the Sub-Inspector/ Investigating Officer clearly visible from the order reproduced supra. From the facts and figures narrated above, the following questions needed reply in the light of relevant law:--
(i) Whether the statement of respondent/ accused itself is sufficient to discharge/acquit her from/the heinous charge 'of murder?
(ii) Whether a Judicial Magistrate can discharge an accused under section 167, Cr.P.C. In a case exclusively triable by the Sessions Judge?
(iii) Whether the power of a Magistrate provided under section 63 Part-V, Chapter-XIV of Cr.P.C.
Also available in the cases falling under Part-VI, Chapter-XV of Criminal Procedure Code?
10. To reply the first question, there is no iota of evidence which might support the defence taken by respondent/accused before the police as have been mentioned in the F.I.R. Or she might have stated in her statement recorded under section 164, Cr.P.C., but the police either wilfully or otherwise did not even attempt to consider B the case otherwise or get any material support to substantiate the, claim of an accused either through oral/factual or documentary evidence. The story narrated by the accused in the absence of any insufficient or reasonable iota of evidence is not reliable.
11. The police, being kind enough with the accused/respondent, write down the application for her release on the same date when the alleged accident had taken place without giving any cause and reason for the request so made to the Judicial Magistrate which is in excess of limit rather reflects the pre-judicious mind of the machinery who believe that the chief thing in the market is the human life. In the circumstances, there is no confusion in my mind that the police had nothing to rely except the story narrated by the respondent/accused without any serious effort to find out the factual position of the commission of heinous offence.
12. The second material point above is that the police, i,e,, I.O. Although neither filed any challan against the accused nor sought any remand for her police custody to investigate the matter from the Magistrate. The Magistrate was duty bound to act and exercise jurisdiction within the sphere of law. The initial demand of the law is that the Court should decide his jurisdiction and power before stepping in the matter. Accordingly, the Judicial Magistrate was not immune to travel out from the scope of law and procedure. The only way out identified in the Criminal Procedure Code to meet the situation is under section 167(2) or 190(2) of Cr.P.C.
13. As stated supra, the question of granting of further remand in this case was not requested by the Investigating Officer rather he filed the multiple applications discussed above. In the circumstances, the Judicial Magistrate should have acted under section 190(2), Cr.P.C. Instead of being mis-conceive the matter by entering into the jurisdiction of matter not authorized to exercise under law. Both the provisions referred above reads:- S. 167(1) ..............................
(2) The Magistrate to 'whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case from time to time authorize the detention of the accused in. Such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has not jurisdiction to try_ the case or (send) it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.
S.190(1) ...................
(2) 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 Court of Session for trial.
The whole confusion created by the Judicial Magistrate is exercise of jurisdiction not vested with him and travelled beyond the scope of law rather he acted as per whims and wishes of the Investigating Officer. The active performance of the Investigating Officer seemingly was nothing except to close the chapter as soon as .Possible. All the acts and deeds in this regard clearly amounts abuse of process of law and nothing else.
14. As to the third point framed above for determination which was raised by the learned Counsel for the respondent/accused is concerned, it can be easily replied with reference and context of subject dealing with section 63 of Cr.P.C. Which has been provided under Chapter (V) Part (XIV) of the Criminal Procedure Code (Cr.P.C.), this chapter deals with matters of arrest, escape and retaking etc.
15. Section 63 of the said chapter can be read:-- Discharge of person apprehended: "No person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate."
Section 63 in Chapter (V) of Part (III), Cr.P.C. By its clear language attracted in the cases falling under Part (III) Chapter (V) dealing with the subjects mentioned therein cannot be starched in the cases falling under Chapter (V) dealing with the information and power of investigation. Therefore, cannot be applied in the cases falling under Chapter (V) of Cr.P.C.
16. Careful reading of section 167, Cr.P.C. Shows that it does not empower the Magistrate to discharge an accused but only empowers a Magistrate either to grant physical remand or to refuse the same to authorize detention in the police custody; he has to record reasons for such order. It is thus clear and no confusion in the subject or context of the first part of section 167, Cr.P.C, that the accused cannot be discharged under this provision of law, While in the matters of falling under chapter (V), the Magistrate can release an accused on execution of bond. The matter in hand pertains to be cognizable and non-bailable cases besides being out of jurisdiction of the Magistrate; hence, both the provisions cannot be applied conjointly.
17. Section 167(2) reproduced above authorizes and empowers a Magistrate to authorize the police to keep the accused in custody but not for more than the period of 15 days on the whole. On the expiry of the period:- If he got no jurisdiction to try the case, send it for trial to the Court of competent jurisdiction.
18. The procedure adopted in a case falling under Chapter (XV), Part (VI) of Cr.P.C. By the police as well as by the I Magistrate is clearly abuse of process of law as such required to be dealt in accordance with the provisions contained in the referred provisions. All the case-laws referred by the learned Counsel for petitioner fully support their contentions which I respectfully agree with the law in the referred authorities. I, for the reasons, have accepted the petition under section 561-A, Cr.P.C. Vide short order dated 25-5-2012:--- "Petition is accepted. The order dated 20-10-2010, passed by the Judicial Magistrate Gilgit is set aside. The Investigating Agency as well as the Judicial Magistrate Gilgit is directed to follow the provisions contained vide Part-V Chapter-XIV and Part-VI Chapter-XV of Criminal Procedure Code strictly."
19. The investigating agency is directed to proceed with the investigation fairly, independently and without being prejudice, and submit the report/challan before the Court of law within shortest possible time. File.