MUHAMMAD QASIM KHAN, J. --- Through this writ petition, petitioner has challenged the order dated 09.07.2010, passed by learned Additional Sessions Judge, Hasilpur.
2. Brief facts of the case are that respondent No, 2 got lodged a case F.I.R. No, 80/2010 under Sections 337- F(v)/337-L(ii), PPC at Police Station Qaimpur Tehsil Hasilpur District Bahawalpur against the petitioners. The petitioners filed their pre-arrest bail which was dismissed vide order dated 2.4.2010; resultantly they were arrested by the police and produced before the learned Illaqa Magistrate on 3.4.2010 for obtaining their physical remand. The learned Illaqa Magistrate, at the time of physical remand of the petitioners/accused, observed that presently offences under Section 279/337-H(ii), PPC have been made out which are bailable and also observed that question of recovery is immaterial; hence, he released the petitioners/accused on bail subject to furnishing their bail bond in sum of Rs, 50,000/- with one surety each in the like amount to the satisfaction of learned Illaqa Magistrate. Respondent No, 2/complainant filed a revision petition against the said order and the learned Additional Sessions Judge, Hasilpur vide impugned judgment dated 9.7.2010 set aside the order of learned Illaqa Magistrate and directed the Investigating Officer to arrest the petitioners under Section 337-F(v)/337- L(ii), PPC and investigate the case in accordance with law.
3. Learned counsel for the petitioner contends that the order of learned Maga Magistrate at the time when police requested for physical remand of the accused persons under Section 167, Cr.P.C., has been passed in its executive capacity and it could not be said as judicial order, rather it was an executive order against which, revision petition was not maintainable but learned Additional Sessions Judge did not consider this aspect of the case, entertained the revision petition and set aside the order passed by learned Illaqa Magistrate. Further contends that the impugned order, passed by the learned Additional Sessions Judge being without jurisdiction is liable to be set aside on this score alone. Further contends that learned Illaqa Magistrate had rightly passed the order in the light of report of Medical Board coupled with the conclusion of Investigating Officer that no such occurrence as narrated in the FIR, had taken place and there was only a motor-bike accident and for the same reasons he rightly turned down the request of police for physical remand of the petitioners and also deleted Section 337-F(v) and added Section 279/337-H(ii), PPC which were applicable to the case of petitioners in the circumstances of the case; hence, prayed that the impugned order, passed by the learned Additional Sessions Judge dated 9.7.2009 may kindly be set aside. Relied upon PLJ 2001 Cr. C. (Lahore) 355 titled "NASREEN BIBI versus NAZEER AHMAD and another" and PLD 2009 Lahore 401 titled "MUHAMMAD KHAN versus MAGISTRATE SECTION-30, PINDI GHEB, DISTRICT ATTOCK and 3 others".
4. On the other hand, learned AAG assisted by learned counsel for the complainant argued that the order passed by Illaqa Magistrate under Section 167, Cr.P.C. is a judicial order and Sessions Judge has jurisdiction under Section 435, Cr.P.C. and 439-A, Cr.P.C. to exercise its revisional jurisdiction if any illegality comes to the knowledge of Court. Further contends that Illaqa Magistrate did not discuss the evidence available on the file and he simply followed the police opinion, although there was sufficient material/evidence to support the prosecution story in line with the FIR. Further argued that when report of Medical Board is examined in the light of statement of witnesses recorded under Section 161, Cr.P.C. it becomes clear that prosecution story is more plausible and appeals to reasons. Relied upon 2005 P.Cr.L.J. 1709 (Lahore) titled "MISBAH:UL-HASSAN versus THE STATE and 3 others" and 1984 P.Cr.L.J 51.
5. Heard. Record perused.
6. An important law point is-involved in this case i,e, whether the order passed by Illaqa Magistrate at the time when accused persons were produced before him for physical remand is a judicial order or an executive order? Section 167, Cr.PC is reproduced as under:--
167. Procedure when investigation cannot completed in twenty-four hours: (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty four hours fixed by Section 61, and there are grounds for believing that the accusation or information is well founded, the officer incharge of the police- station or the police-officer making the investigation, if he is not below the rank of the sub- inspector, shall forthwith transmit to the (nearest Magistrate) a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
Explanation : [Omitted by the Ordinance, XXXVII of 2001, dt. 13-8-20011
(2) The Magistrate to whom an accused person is forwarded under, this Section may, whether he has or has not 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 no 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: Provided that no Magistrate of the Third Class, and no Magistrate of the Second Class not specially empowered in this behalf by the Provincial Government shall authorise detention in the custody of the police.
(3) A Magistrate authorizing under this Section detention in the custody of the police shall record his reasons for so doing.
[(4) The Magistrate, giving such order shall forward copy of his order, with his reasons for making it, to the Sessions Judge].
(5) ..........................
(6) ............................
(7) ........................
Section 435, Cr.P.C. is also reproduced as under:---
435. Power to call for records of inferior Courts: (1) The High Court or any Sessions Judge may call for an examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying, itself or himself as to the correctness, legality or propriety of any finding, sentence or order ,recorded or passed, and as to the regularity of any proceedings of such inferior Court.
(2) ................
(3) ...........................
(4) ...................
Section 439, Cr.P.C:---
439. High Court's Powers of revision. (1) In the case of any proceeding the record of which has been called for by itself, [....] or which otherwise comes to its knowledge the High Court may, in its discretion, exercise any of the powers conferred on a Court of appellate by Sections 423, 426, 427 and 428 or on a Court by Section 338, and may enhance the sentence, and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by Section 429.
2. ....................................
3. .......................
4. ..................
5. ..................
6. .................
7. By bare perusal of Section 435, Cr.P.C. it becomes obvious that High Court or any Sessions Judge may call for and examine the record of any proceedings before any inferior Criminal Court situate within its local or his jurisdiction for the purpose of satisfying itself as to vie correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court.
8. I have gone through the facts and circumstances of the case referred by learned counsel for the petitioners i,e, 2001 P.Cr.L.J. Criminal Cases (Lahore) 355. In the referred case, the learned Judge while declaring the proceedings before the Magistrate under Section 167, Cr.P.C. as executive, was of the view that as no proceedings remained pending before the Magistrate 1st Class so the order passed is an executive order as jurisdiction under Section 435, Cr.P.C. could only attract when any proceedings are pending before any inferior Court. I am of the humble view that in this case proper assistance and all the relevant case-law was not referred before the learned Judge in Chamber nor proper assistance was rendered. The word 'Proceedings' used in this Section could not be confined to the proceedings pending before the Magistrate, rather any matter which is referred before the Magistrate and it has been decided either way, is covered by the word 'proceedings'.
9. "Proceeding" means any action, hearing, investigation, inquest, or inquiry (whether conducted by a court, administrative agency, hearing officer, arbitrator, legislative body, or any other person authorized by law) which, pursuant to law, testimony can be compelled to be given. The word 'proceeding' when interpreted generally in connection with a criminal case is to carry vast meanings and to cover any action taken in case from its inception up till execution of judgment.
10. In Words & Phrases by Baby Krishnan, Prafulla C.Pant, 'proceeding' is defined as under:-- "the word 'proceeding' would depend upon the scope of the enactment wherein the expression is used with reference to a particular context where it occurs. It may mean a course of action for enforcing legal rights. In the journey of litigation, there are several stages, one of which is the realization of the judicial adjudication which attained finality".
11. The word 'proceeding' used in Sections 435 to 439-A, Cr.P.C., connotes the judicial proceedings and not executive proceedings. The revisional powers of High Court under the above-mentioned Sections can be exercised with regard to inferior Criminal Courts which are functioning under the Code of Criminal Procedure and not in respect of proceedings while they are exercising judicial functions.
12. In Words 8 Phrases by Mian Muhibullah Kakakheel (Vol. III) it is defined that:-- "In the Criminal Procedure Code in which Section 4(m) defines the term "judicial proceedings" the word "proceeding" is sometime used in the restricted sense of judicial proceedings. The word "proceeding" in this Section is used in the sense of inquiry or trial, that is, it is used in the sense of judicial proceedings. Similarly, in Section 435 of the Code of Criminal Procedure, it must be held that the word "proceedings" is used in the sense of judicial proceedings. It is true that in Section 496 of the Criminal Procedure Code, "proceedings before a court" are used in a wider sense and not in the restricted sense of judicial proceedings alone".
13.In A.I.R. 1965 All. 172, it was observed that the word 'proceeding' is wider than the word "case" and it was further observed in P.L.D. 1950 Baghdad-ul-Jadid 48 the word 'proceeding' in the light of Section 435 to 438 Cr.PC was defined as that, it connotes any proceedings before any Inferior Criminal Court and in PLD 1961 Karachi 29 the word 'proceeding' used in Section 435 to Section 439, Cr.P.C. is confined only to the proceeding before any Inferior Court and cannot be treated to include proceedings which are not held by criminal Courts.
14. In PLD 1950 Baghdad-ul-Jadid 48, it is held that in Sections 435 and 438 of the Criminal Procedure Code the word "proceeding" occurs prominently. It connotes any proceeding before any inferior Criminal Court. And it was further elaborated in PLD 1964 Lahore 426, DLR 1964 W.P. 173, PLC 1964 Lahore 470. The revisional powers of High Court under Section 435 and under Section 439, Cr.P.C. can be exercised only with regard to inferior Criminal Courts which are functioning under the Code of Criminal Procedure and not in respect of the proceedings before the Criminal Courts which may be created by special statutes.
15. In PLJ 1979 Criminal Cases (Quetta) 94 and PLD 1979 Quetta 1 the word "proceeding" was defined as under":--- "the word "proceeding" would require such construction which may be best suited and best ,fitted in the scheme of a particular enactment. Generally it would mean "all what is done in a case" and would include every step and transaction commencing from the first step whereby the machinery of law is put into action upto the stage of the case where it concludes and does not require any further action. This last stage would not necessarily mean in the stage of judgment, for it may further include all steps taken till the stage of the execution of the judgment".
Judicial Proceedings:-
16. The 'judicial proceedings' are defined in Section 4(m) of the Code of Criminal Procedure as under:-- "(m) "Judicial Proceeding". "Judicial Proceeding" includes any proceedings in the course of which evidence is or may be legally taken on oath".
In Black's Law Dictionary (SIXTH EDITION), "Judicial Proceeding" is defined as under:--- "Any proceeding wherein judicial action is invoked and taken. Any proceeding to obtain such remedy as the law allows. Any step taken in a Court of justice in the prosecution or defense of an action. A general term for proceedings relating to, practiced in, or proceeding from, a Court of justice; or the course prescribed to be taken in various cases for the determination of a controversy or for legal redress or relief. A proceeding in a legally constituted court. A proceeding wherein there are parties, who have opportunity to be heard, and wherein the tribunal proceeds either to a, determination of facts upon evidence or of law upon proved or conceded facts".
17. By seeking guidance from the judgment reported in PLD 1957 SC 91, PLD 1985 SC 62 & PLD 1961 (W.P) Karachi 29 and principle laid down by the High Court and Supreme ,Court of Pakistan, these ingredients should be observed necessary to declare any function of a Court as `judicial proceeding'. The proceeding should be taken in a Court of justice performing its functions under the Constitution or Statute that:---
1. Any law of the Country allows these proceedings.
2. The Court has taken into consideration/state all the material facts for issuing the order.
3. The proceedings have the character of judicial proceedings as defined by Section 4(m) of the Code of Criminal Procedure.
4. An opportunity is to be given to the parties to show cause against the order.
5. The opinion/decision is not absolutely and not excludes the authority under revisional jurisdiction.
6. There will be no distinguish between the order passed after recording the evidence and order passed after considering the material which is available with the file of-Court.
7. Any person aggrieved by it can apply that it should be altered or rescinded.
8. The decision of the Court has to determine:---
(i) the dispute;
(ii) the dispute relates to the right or liability which, whatever its immediate aspects, is ultimately referable to some right or liability, recognized by the Constitution or statute or by a custom or equity which - by the domestic law is declared to be the rule of decision;
(iii) Since every right or liability depends upon a fact the Court is under an obligation to discover relevant facts;
(iv) The ascertainment of the facts in the presence of the parties either of whom is entitled to produce evidence in support of its respective case and to question the truth of the evidence produced by his opponent.
(v) After an investigation of the facts and hearing legal arguments the Court renders a judgment which so far as the Court is concerned terminates the dispute.
18. In the light of these parameters to determine whether any function/proceeding are judicial function/judicial proceeding or is an executive order this Court go through Section 167, Cr.P.C. The word used in first paragraph of Section 167, Cr.P.C. when investigation is not completed within 24 hours for further remand first necessary requirement is accusation or information is well founded and it could only be establishes after examining the evidence collected by the Investigating Officer or produced before the Court during the proceedings. The second important aspect is that alongwith copy of entries in the diary forward the accused to the Magistrate so that accused could show cause against the request of the Investigating Officer and submit any material/evidence relevant before the Court to protect his opportunity granted under the Constitution of Islamic Republic of Pakistan, 1973 and even by the Code of Criminal Procedure and sub-section (2)
Magistrate is competent to authorize the detention of accused any such custody as such Magistrate think fit it means he cut the liberty of citizen although in accordance with law but for this purpose he has to narrate all the facts of the case, any explanation given by the accused, evidence produced by him and if necessary, he could record the statement in the light of Section 4(m) and make a binding decision but sub-section (4) then bound down the Magistrate that he shall forward a copy of this order with reasons for making it to the Sessions Judge, it means order will be passed with the reasons. It will be a judicial order and it is sent to the Court of Sessions only for the purpose in the light of Section 435 read with Section 439-A, Cr.P.C. which comes to his knowledge and if he comes to the conclusion that any illegality or irregularity has been committed, he can exercise his revisional jurisdiction under Section 435, Cr.P.C. read with Section 439-A, Cr.P.C.; hence, by bare reading of Sections 435 to 439-A read with Section 167, Cr.P.C. it becomes clear that the order passed under Section 167, Cr.P.C. is a judicial order and revisable by Sessions Judge/Additional Sessions. Reliance is placed upon 2005 YLR 805. 19.For what has been discussed above, it is crystal clear that the order passed by the learned Magistrate under Section 167, Cr.P.C. is a judicial order and passed in judicial proceedings; hence, learned Additional Sessions Judge, Hasilpur in the case in hand has rightly entertained the revision petition and passed the impugned order. Therefore, the writ petition having no force of law is dismissed.