SAYYED MAZAHAR AL! AKBAR NAQVI, J---Through this constitutional petition Pled in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have made the following prayer:- "It is, therefore, most respectfully prayed that this petition may kindly be allowed and the impugned order passed by Learned Sessions Judge, Hafizabad dated 09.05.2015 may graciously be set aside in the interest of justice.
" It is, further prayed, till the final decision of this petition the operation of the impugned order may graciously be suspended."
2. Briefly the facts of the case are that Ali Raza, Muhammad Shahbaz and Tanveer Hussain were booked in a case bearing FIR No.57/2013, dated 13.03.2015, under Section 392, P.P.C., registered with Police Station Vanike Tarar, District Hafizabad, wherein they were arrested and produced before the Judicial Magistrate 1st Class, Hafizabad, on 09.05.2015, who passed the following order:-- ' ORDER 09.05.2015 ' Present: accused Tanveer Hussain, Muhammad Shahbaz and Ali Raza in police custody with muffled face.
' I.O. Amjad Hussain ASI with record.
' I.O. Has requested for judicial remand of accused for his identification parade. Perusal of the record shows that offence under section 392 of P.P.C. Is non-bailable in nature. So, as per request, above said accused are sent to judicial lockup Gujranwala for 14 days on judicial remand and be produced on 23.05.2015. Accused be kept in muffled faces till their identification parade. I.O. Is directed to submit report under section 173 of Cr.P.C. Within stipulated period.
Announced. Sd/-"
3. Prior to producing the Alleghenies before the learned Magistrate 1st Class, Hafizabad, a petition under Section 491 Cr.P.C. Was filed by Zohra Bibi, respondent No.2 on 08.05.2015 for recovery of the alleged detenues, namely, Ali and Shahbaz sons of Aslam, before the learned Sessions Judge, Hafizabad, who issued direction to District Police Officer, Hafizabad, to produce the alleged detenues, namely, Ali and Shahbaz before him on 09.05.2015. Accordingly on the said date, they were produced before the learned Sessions Judge, Hafizabad, where the learned counsel for the alleged detenues took the stance that they were subjected to severe torture and prayed for their medical examination, which was allowed by the learned Sessions Judge, Hafizabad and the alleged detenues were ordered to be produced before the Medical Superintendent, D.H.Q Hospital,Hafizabad, for their medical examination. After the medical examination, they were produced before the learned Sessions Judge, Hafizabad, with their medico legal certificates bearing Nos .58/2015 and 59/2015, which reflected that the alleged detenues, namely, Ali Raza and Shahbaz were subjected to torture. The learned Sessions Judge, Hafizabad, vide order dated 09.05.2015 converted the petition under Section 491, Cr.P.C. Into a petition under Sections 497/498, Cr.P.C. And admitted them to ad- interim pre-arrest bail. However, the learned Sessions Judge further observed in para No.8 of the order impugned, which is reproduced as under:-- "8. A copy of this order be sent to the District Police Officer, Hafizabad, who shall refer the case to the Board, meant for change of investigation, and to get the case investigated by some independent Officer of high rank and shall alsoconsider the application of the petitioner for the registration of the case under sections 452/365/ 337-A (i)/ 337-L(2), P. P. C. Against the delinquents. The District Police Officer shall also file a detailed progress report in this respect."
4. Undeniably this petition is also accompanied by an order dated 09.05.2015 passed by the learned Judicial Magistrate 1st Class, Hafizabad, as referred above, according to which the aforesaid alleged detenues were produced before her and.She remanded them to judicial custody for 23.05.2015 in order to hold their test identification parade. Subsequently, the said learned Judicial Magistrate after passing the order of production of the alleged detenues before her on 23.05.2015 recalled the same on the ground that the order dated 09.05.2015 was procured through concealment by the Investigating Officer as the accused persons, who were produced before her on 09.05.2015, were actually substituted and actual accused were not produced at the time of procuring the order of remand by the Investigating Officer and as such directed for registration of case against Investigating Officer by holding that, which is reproduced as under:-- "Repeated 09.05.15 1.0. Amjad Hussain .AS1 produced three accused namely Tanveer Hussain, Muhammad Shahbaz and All Raza to be sent to the judicial, lock up for their identification parade. Now at this time it has been brought into the notice of undersigned that the counsel for accused had moved a petitionwider section 491, Cr.P.C. Before the learned Sessions Judge, Hafizabad in which the learned Sessions Judge, Hafizabad not only got the accused medically examined but also accepted their pre-arrest bail treating their petition into pre-arrest bail petition.
2. It is noted with great concern that Amjad Hussain ASI/1.0. Has concealed the major and most related fact of injuries on the bodies of accused. Probably, he produced some other persons who claimed themselves as accused of case FIR No.57/2015, Under Section 392, P.P.C., Police Station Vanike Tarar, Hafizabad. Thus in the light of these facts and circumstances especially the orders of the learned Sessions Judge, Hafizabad, the 1.0. Has committed, prima facie, an offence under Section 201, P.P.C., so, S.H.O. Of concerned police station is ordered to register a criminal case under Section 201, P.P.C. Against the 1.0. And submit a copy of FIR on 11.5.2015 at 8.00 a.m. Because tomorrow is Sunday. A copy of this order be submitted before the learned Sessions Judge, Hafizabad.
Announced.09.05.2015 Sd/- Nuzhat Jabeen D/Judicial Magistrate 1st Class, Hafizabad.
09-5-15 Consequently, in pursuance of the order passed by the Judicial Magistrate, Hafizabad, a case bearing FIR No.103/2015 dated 10.05.2015, offence undersection 201, P.P.C. Was registered with Police Station Vanike Tarar, District Hafizabad, hence, the instani Constitutional Petition.
5. The main crux of the arguments advanced by the learned counsel for the petitioners is that the orders passed by the two courts below (learned Sessions Judge, Hafizabad and learned Judicial Magistrate 1st Class, Hafizabad) simultaneously pertain to dated 09.05.2015. He vehemently argued before this Court that it is an admitted fact that an application under Section 491 Cr.P.C. Was filed by respondent No.2 on 08.05.2015 whereupon the learned Sessions Judge, Hafizabad, directed the District Police Officer to produce the alleged detenues on 09.05.2015, which was complied with accordingly. As a consequent when the alleged detenues were produced, they were found to be severely tortured and as such, an order was made for the irproduction before the Medical Superintendent, D H . Hospital, Hafizabad for their medical examination. Hence, they were medically examined and as such medico legal reports were produced before the learned Sessions Judge, Hafizabad. He further argued that a petition under Section 491, Cr.P.0 was filed before the learned Sessions Judge, Hafizabad, however, same was converted under Sections 497/498, Cr.P.C. It was next submitted that although, prima-facie, reasonable material is available on the record to connect the alleged detenues with the commission of offence, however, in a hasty manner not only they were admitted to bail rather the learned Sessions Judge made certain observation qua the petitioners which may prejudice their case. Learned counsel submitted that the impugned order dated 09.05.2015, passed by the learned Sessions Judge, Hafizabad, has resulted into grave miscarriage of justice, therefore, the same is not sustainable in the eyes of law.
6. On the other hand, learned Assistant Advocate-General assisted by learned counsel for respondent No.2 supported the order impugned with the submission that as the petitioners had misused the authority and also committed an offence of impersonation couple with severe torture committed by them, therefore, the learned Sessions Judge has rightly passed the order impugned.
7. Arguments heard. Record perused.
8. It is strange enough that the learned Judicial Magistrate while remanding the alleged detenues on the request of the Investigating Officer has not even bothered to ask about their identity and as such passed order to sending them on judicial remand for fourteen(14) days while further directing them to be produced on 23.05.2015 for their test identification parade. Subsequent to that, when the learned Sessions Judge passed the order impugned dated 09.05.2015, she recalled her earlier order and directed for registration of case without probing into matter or issuing any direction for A investigation to know whether act of the Investigating Officer was in fact a matter of impersonation or not. The whole process adopted by both the Judicial Officers was performed in a very hasty manners for the reasons best known to them. Even they have not bothered to get the matter investigated from the Investigating Agency or opted to refer the matter to the quarter concerned to surface the truth out of the facts and circumstances. Apart from this, perusal of the order impugned dated 09.05.2015 clearly reflects that the learned Sessions Judge has rendered observations in the case while mentioning the details of the occurrence, the offences committed and issuing direction to the District Police Officer for transfer of the investigation through a board and simultaneously ordered respondent No.2 for moving an application for redressal of her grievances. While scanning the whole process adopted by both the Judicial Officers, this Court has arrived to the conclusion that (para No.8) of the order impugned dated 09.05.2015, passed by the learned Sessions Judge, Hafizabad, is uncalled for having been passed without adopting the proper procedure of law on the subject. Undeniably, it is salutary principle of law that "Justice delayed is justice denied", however, in contrast another principle of law that "justice hurried is justice buried"is equally applicable, hence, balance is to be struck between the two principles." In this regard, respectful reliance is placed upon the cases ofSaeed Muhammad Shah and another v.
The State(1993 SCMR 550), "Muhammad Sharif Shar v. The State (2000 PCr.LJ 1882), Muhammad Javed v. The State (2001 MLD 1206) and Mst. Kishwar Bibi and others v. Mst. Fazal Bibi and 2 others (PLD 2004 Lahore 717). In the case of Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550), the august Supreme Court of Pakistan has laid down the dictum that:-- "---S.8---Purpose and purport of the Act is expeditious lisposal of the case, but speed is not to be construed as haste---There is perceptible difference between speed and haste---Object of speed can be achieved even after observing all legal requirements without indulging in haste-- "Justice delayed is justice denied" and "justice hurried is justice buried", so balance is to be struckbetween the two principles."
' In the case of Mst. Kishwar Bibi and others v. Mst. Fazal Bibi and 2 others (PLD 2004 Lahore 717), it has been held that:-- "---Justice delayed is justice denied, but there is equally the other aspect of the matter that some times justice hurried is justice buried---Court being charged with the duty of administering justice is expected to maintain a balance, so that neither the matter is delayed unnecessarily not it is disposed of in such a hasty manner that it may be violative of basic principles of law."
9. As far as the aspect of recalling or review of the order passed by the learned Judicial Magistrate is concerned, question arises whether the learned trial court/ Judicial Magistrate was competent enough to recall or review her earlier order, this Court is of the opinion that it was well within her jurisdiction provided that:--
(i) It was procured through misrepresentation,
(ii) the same does not fall within the ambit of section 369 Cr.P.C. And
(iii) it would have amounted against natural justice.
' Reliance in this regard is placed upon the cases of Kh. Muhammad Rafiq v. The State (PLD 1967 Lahore 833) and Mohsin Raza v. Dr. Bashir Ahmad and another (1980 PCLU 180). In the case of Kh. Muhammad Raft v. The State (PLD 1967 Lahore 833), it has been held that:-- ............. Criminal Procedure Code (V of 1898), S.369---Review--Barred only in respect of judgment.
Or final order in nature of judgment-- Interlocutory order can be reviewed by Court---Magistrate summoning person as Court witness---May recall his order even after issuing summons to witness.
' However, the learned Magistrate has not adopted the proper procedure to scrutinize. Whether it was actually procured through misrepresentation. It would have been Much better if the said accusation would have been ordered for its probe to hilt, which was not done and straight away order was issued for registration of the case, which is deprecated.
10. The second limb of the arguments that the learned Sessions Judge ordered for conversion of petition under Section 491, Cr.P.C. Into a petition under Sections 497/ 498, Cr.P.C. Is concerned, the same is backed by the High Court Rules and Orders and the same is provided under Rule 3 of Part- F, Chapter 4, Volume V of Lahore High Court Rules and Orders, which is well supported by the delegation of powers given by the High Court to the learned Sessions Judges.
11. As far as the scope of Section 491, Cr.P.C. In its entirety is concerned, the same can be evaluated from very salutary judgment rendered in the case of Muhammad Shafi v. Muhammad Boota and another (PLD 1975 Lahore 729), the relevant portion of which is reproduced as under:-- ----"S. 491 and Constitution of Pakistan (1973), Art. 199---Illegal detention-Court can order immediate release but has no power to grant any other relief---Person illegally detained should enforce his remedies against illegality committed in order to check terror let loose by police.
Section 491 of the Code of Criminal Procedure and Article 9 of the Constitution of the Islamic Republic of Pakistan provide a remedy in all cases of wrongful deprivation of personal liberty. The Court secures the liberty of the person by ordering his immediate release from unlawful detention.
It cannot grant any other relief to the detenu in respect of allegations of wrongful detention or any allegation of torture or some other inhumane acts committed on his person. This, however, does not mean that such a person has no remedy in law. For every wrong there is a remedy, and for every injury caused to a person he can claim damages in the form of compensation. Wrongful detention is also an offence under the Pakistan Penal Code, and if the police is reluctant to register a case or investigate it, the complainant may file a complaint direct to the Magistrate. If only persons in Pakistan were to become conscious of their rights under law, and enforce their claims for damages for wrongful detentions under the law of Torts against Police Officers guilty of such highhandedness and illegal acts, the reign of terror let loose by them will, to a great extent, come under control. They indulge in these activities without compunction, because they fear no harm. The Court, on finding that the detention is illegal, orders release, and the detenu, feeling satisfied with the release, taken no further action. With such an apathy on the part of suffering people one cannot expect any change in the conduct of delinquent Police Officers. Unless there is a realization of one's rights, and consciousness of the fact that the miscreants should be brought to book, there cannot be a hope for their better conditions."
12. As a consequence of the whole discussions stated above, this Court has arrived at the conclusion that the learned Sessions Judge, Hafizabad, should have refrained from making observations in para No.8 of the order impugned enabling both the parties to have access of fair trial, which is otherwise guaranteed under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. Hence, para No.8 of the order impugned to the extent of observations made by the learned Sessions Judge, Hafizabad, is set aside. The alleged detenues, who suffered severe torture, are directed to move an application to the quarter concerned for redressal of their grievances against the delinquent police officials as per law.
13. The instant petition stands disposed off in the above terms.
14. Before parting with the order, it has been made clear that observations made by this Court are tentative in nature, which are meant only for disposal of the petition in hand. The District Police Officer, Hafizabad, is further directed to probe into the allegation of impersonation as is reflected from the order passed by the learned Judicial Magistrate 1st Class, Hafizabad, and submit report in this regard F to Deputy Registrar (Judicial) of this Court.