' Through the instant writ petition, the petitioner has challenged the vires of order dated 30.4.2014, passed by the learned Additional Sessions Judge, Chakwal, whereby he upheld the order dated 28.02.2014 passed by the learned Judicial Magistrate Section-30, Talagang, whereby the learned Judicial Magistrate disagreed with the cancellation report and SHO was directed to submit report under Section 173 Cr.P.C. After mentioning the names of the witnesses in the relevant column for the purpose of trial within 14 days.
2. Brief facts of the case are that one Mst. Zulekhan Begum widow of Ghulam Shabbir resident of Talagang got lodged FIR No. 128,dated 02.08:2013 offence under Section 365 PPC in Police Station Talagang, District Chakwal contending therein that her son Imtiaz Shabbir was an employee in the Pharmaceutical company of the present petitioner Javed Iqbal Satti. Due to some differences, he left the job and arrived in Talagang. On 11.06.2013, the present petitioner came to Talagang and convinced him to resume his job and took him to Islamabad. Later, the complainant was informed through telephone that an FIR has been lodged against her son Riaz Shabbir. When the complainant inquired, she came to know that the present petitioner allegedly has abducted her son and has been illegally detained in his custody. Firstly, the matter was reported to the Police Station City Talagang, but no FIR was lodged. Finally, she approached DPO Talagang and on his intervention, the instant FIR was registered.
3. On 13.12.2013, the SHO Police Station City Talagang submitted report for cancellation of the instant FIR before the Court of learned Judicial Magistrate Section 30, Talagang by assigning reasons that the allegations leveled in the FIR were ill founded and alleged abductee Ghulam Shabbir was found to have joined M/s. Enterprises Pharmaceutical Company, Raiwind, Lahore and was in self hiding.
On this, the Police raided the premises of said Pharmaceutical Company and recovered the alleged abductee.
'4. The alleged abductee was presented before the learned Judicial Magistrate Talagang where his statement under Section 164 Cr.P.C. Was recorded. In said statement, the alleged abductee supported the contents of FIR and maintained that he had been forcibly detained by the petitioner/accused in a factory situated at Raiwind, Lahore and he was subjected to forced labour.
The Police also gave opinion that the statements of management and other staff of the said Pharmaceutical company at Lahore were recorded, according to the same, the petitioner was their regular employee and was drawing monthly salary. On these basis, the SHO concerned recommended for cancellation of FIR which was not agreed upon. The said decision was assailed by way of filing criminal revision before the learned Additional Sessions Judge, Talagang who dismissed the same and upheld the order of the learned Judicial Magistrate, Talagang. Hence, the instant writ petition.
5. The learned counsel for the petitioner contends that both the Courts below have wrongly exercised their jurisdiction while not concurring with the findings of the Police. He has placed reliance on the case law reported in Arif Ali Khan and another vs. The State and 6 others (1993 SCM R 187), Hussain Ahmad vs. Mst. Irshad Bibi and others (1997 SCMR 103), Soofi Abdul Qadir vs: The State and others (2000 P.Cr.L.J 520), Ehsan Ullah vs. Illaqa Magistrate, P.S. Wohwa, District D.G. Khan and 5 others (PLJ 2013 Lahore 612), Nazir Ahmad vs. State and others (PLJ 2013 Lahore 686) & Bahadur and another vs. The State and another (PLD 1985 Supreme Court 62). While seeking guidelines from the above quoted judgments, the learned counsel for the petitioner placed emphasis that jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 is available to interfere with the findings of the learned Additional Sessions Judge, as well as the learned Judicial Magistrate Section-30 and further that the inherent jurisdiction of the High Court under Article 199 of the Constitution and 561-A of Cr.P.C. Cannot be curtailed. He finally argued that both the judgments of the Courts below may be set-aside and FIR may be cancelled.
6. Conversely, the petition has been vehemently opposed by the learned AAG assisted by the learned counsel for the complainant. They have raised objection on the maintainability of the present writ petition in the light of judgments passed by the Honourable Superior Courts reported in Muhammad Fiaz Khan vs. Ajmer Khan another (2010 SCM R 105), Saddar Din vs. Deputy Inspector- General of Police (Investigation), Capital City Police. Lahore and 6 others (PLD 2009 Lahore 585), Director-General, Anti-Corruption Establishment Lahore and others vs. Muhammad Akram Khan and others (PLD 2013 Supreme Court 401) & Bakht Bedar Ali Shah vs. State and 5 others (PLJ 2012 Lahore 95). They maintained that since the judicial Magistrate has acted in the administrative capacity while disagreeing with the cancellation report of the SHO, hence same cannot be interfered with by this Court in revision jurisdiction. They placed emphasis that the Investigating Officer of the criminal case is not authorized to render any opinion regarding guilt or innocence of an accused person under the relevant statutory provisions contained in Cr.P.C., the Police Order 2002 and the Police Rules 1934. Further contended that the Investigating Officer is only to collect all the relevant evidence and to submit his report and the collected evidence and material before the concerned Magistrate, so that he or the trial Court can then form their own independent opinion.
Finally concluded that opinion of Police officer regarding guilt or innocence of an accused person is inadmissible in evidence being irrelevant.
7. I have given anxious consideration to the submissions made by the learned counsel for the parties as well as the learned AAG and have also gone through the judgments referred above.
8. Both the petitioner and the complainant has relied upon the renowned pronouncement made by the Honourable Supreme Court of Pakistan in Bahadur and another vs. The State and another (PLD 1985 Supreme Court 62). In the said celebrated judgment, the Honourable Supreme Court had discussed the role of Magistrate, both in Administrative and in Judicial capacity. Finally, it is concluded that Magistrate seized of the report under Section 173 Cr.P.C., discharging the accused and canceling a criminal case, does not function as criminal Court and order of cancellation of criminal case for that reason is not amenable to the revisional jurisdiction of High Court under Sections 435 to 439 Cr.P.C. The said view has been substantiated by the. Honourable Supreme Court of Pakistan in Hussain Ahmad vs. Mst. Irshad Bibi and others (1997 SCM R 1503). It is held that the High Court although cannot press into service, Sections 435 to 439 Cr.P.C., but it can invoke aid of Section 561 Cr.P.C. Against such order. So, this is the settled that jurisdiction of High Court under Sections 435 to 439 Cr.P.C. Is barred in such like cases, but the inherent jurisdiction of this Court under Section 561-A Cr.P.C. Can be pressed into service if the order of the Judicial Magistrate is not in accordance with law.
9. So, far as the instant case is concerned, since the recommendations of the Police have been controverted by the alleged abductee Imtiaz Shabbir by way of recording statement under Section 164 Cr.P.C., fully supporting the prosecution version and maintained that he was allegedly abducted by the present petitioner, needs proper appreciation of evidence both from prosecution and defence side. The Judicial Magistrate Section-30, while disagreeing with the cancellation report of the Police has directed the SHO concerned to submit the report under Section 173 Cr.P.C.
After mentioning the names of-the witnesses in the relevant column for the purposes of trial, contains no illegality. The learned Additional Sessions Judge, with a speaking order has rightly upheld the order passed by the learned Judicial Magistrate. The Investigating Officer of the case is obliged to file report under Section 173 Cr.P.C. Before the Court of competent jurisdiction even after placing the name of the petitioner in column No. 2 of the said report. This is the learned trial Court which_ after recording evidence has to determine either the present petitioner is guilty of commission of offence or not? Moreover, the petitioner can invoke the provision of Section 265-K Cr.P.C. before the learned trial Court, if he considers that the charge framed against him is groundless and the learned trial Court can decide the same in accordance with the law and guidelines contained in the judgment of the Honourable Supreme Court of Pakistan reported in case of Director-General, Anti-Corruption Establishment Lahore and others vs. Muhammad Akram Khan and others (PLD 2013 Supreme Court 401).
10. In view of above, no interference is called for by this Court in the findings of learned Additional Sessions Judge as well as the learned. Judicial Magistrate Section-30. Consequently, the instant writ petition is, hereby, dismissed.