ROZI KHAN BARRECH, J .---This petition has been filed under section 561-A, Cr .P.C. with the following prayer: "It is, accordingly respectfully prayed, that impugned orders dated 25.11.2013 and 7.02.2014 passed by Judicial Magistrate X Quetta in case FIR No. 03/2013 P.S CID Quetta as well as order dated 16.05.2016 passed by ASJ III, Quetta as well as order dated 05.11.2016 passed by SJ Quetta may be quashed with direction for initiating proceedings upon challan already submitted before the District Attorney and now part of record of JM X Quetta, in the interest of justice."
2. Brief facts of the case are that petitioner No.1 lodged a criminal case being FIR No. 03/2013 under Section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter "CNS Act") with Police Station CID Balochistan Quetta against one Abdul Qudoos with the allegation that on 19.1.2013 he received spy information that one person namely Abdul Qudoos is dealing in drugs and that he is currently present at Haza r Ganji for handing over Charas and Opium to other persons; on said information the complainant along with Qutub Khan DSP, Raja Khalid Mehmood IP, Muhammad Ilyas SI, Muha mmad Qasim Head Constable and Gul Hassan constable reached the place of occurrence at about 5:00 p.m., where they apprehended a person holding two bags in his hand who disclosed his name as Abdul Qudoos son of Syed Muhammad and 60 kilograms of charas and 20 kilograms of opium was recovered from the bags, which was taken into possession through recovery memos in the presence of witnesses.
After registration of the case investigation was carried out. The Investigation Officer submitted his report recommending {{URDU TEXT}} before the learned Judicial Magistrate-X Quetta ("JM"). The learned JM being satisfied with the report submitted by the I.O. passed the following order on 25.1 1.2013: .......Record perused, perusal of record reveal that report under section is annexed with it which reveals that investigation officer after investigation find accused Abdul Quddoos innocent and discharged him from the charges, as I am satisfied with the report of investigation officer , therefore, case file after its completion and compilation be consigned to record"
3. Subsequently , in the month of February 2014, the petitioner filed an application before learned JM for review of the above order , which was dismissed vide order dated 7th February 2014.
4. Being aggrieved the petitioner assailed both the above orders of learned JM before learned Sessions Judge Quetta, by filing Criminal Revision Petition No. 06 of 2016 under sections 435 and 439, Cr.P.C., which was subsequently transferred to the court of learned Additional Session Judge-III, Quetta (" revisional court" ).
The revisional court dismissed the revision petition vide order dated 16th May 2016.
5. In the month of November 2016 the petitioner filed an application under section 173, Cr.P.C. bearing No. 83/2016 before the learned Sessions Judge Quetta for submission of challan, which was also dismissed vide order dated 5th November 2016.
Now the petitioner has assailed all the above orders before this court by invoking the jurisdiction of this court under section 561-A, Cr .P.C.
6. Before attending the merits of the case it is deemed appropriate to first discuss the difference between the role of Investigating Of ficer and that of 'Magistrate' in relation to investigation and the outcome thereof.
Every investigation is conducted with reference to Chapter XIV of the Criminal Procedure Code as well as the relevant Police Rules.
The vitality of role of Investigating Officer cannot be denied because it is the very first person, who as per law, is authorized to dig out the truth which too, without any limitations including that of version of informant/complainant.
However , after registration of the FIR, the Investigation Officer has the authority to determine the truthfulness or falsehood of the allegations levelled against the accused but the same is subject to affirmation of the competent Court. If the Investigation Officer comes to the conclusion that the allegations contained in the FIR are incorrect, he may refer the matter under section 63, Cr.P.C. to the Magistrate for discharge of the accused. The Police Officer has also the authority to release accused in terms of section 169, Cr.P.C. if he comes to the conclusion that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of accused to the Magistrate.
Such Officer shall, if such person is in custody , release him on executing bond with or without sureties and direct him to appear , if and when required before the Magistrate empowered to take cognizance of the offence. It is then the Magistrate to pass such order as deemed appropriate under section 173, Cr.P.C. for discharge of such bond or otherwise as he deems fit.
7. The authoritative view of Hon'ble Apex Court, given in the case of Mst. Sughran Bibi v. The State (PLD 2018 SC 595 ), reads as follows: "(iv) During the investigation conducted after the registration of an FIR the investigating officer may record any number of versions of the same incident brought to his notice by different persons which versions are to be recorded by him under section 161, Cr.P.C. in the same case. No separate FIR is to be recorded for any new version of the same incident brought to the notice of the investigating officer during the investigation of the case;
(v) During the investigation the investigating officer is obliged to investigate the matter from all possible angles while keeping in view all the versions of the incident brought to his notice and, as required by Rule 25.2(3) of the Police Rules, 1934 "It is the duty of an investigating officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person."
(vi) ......
(vii) Upon conclusion of the investigation the report to be submitted under section 173, Cr.P.C. is to be based upon the actual facts discovered during the investigation irrespective of the version of the incident, advanced by the first informant or any other version brought to the notice of the investigating officer by any other person."
8. From above, it is quite clear that an investigating officer is not bound to base his conclusion on version of informant or defence but on 'actual facts', discovered during course of investiga tion'. Such conclusion shall be submitted in shape of prescribed form, as required by section 173 of the Criminal Procedure Code.
9. At this juncture, it would be relevant to refer the provision of section 173 of the Criminal Procedure Code, which reads as follows: "173 (1) Report of Police Officer . Every investigation under this Chapter shall be completed without unnecessary delay , and, as soon as it is completed, the Officer Incharge of the police station shall through the public prosecutor - --.
(a) forward to a Magistrate empowered to take cognizance of the offence on a police report, in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the, persons who appear to be acquainted with the circumstances of the case and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and
(b) Communicate, in such manner as may be prescribed by the Provincial Government, The action taken by him to the person, if any , by whom the information relating to the commission of the offence was first given.
(2) Where a superior officer of police has been appointed under section 158, the report shall, in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer , and he may, pending the orders of the Magistrate, direct the Officer Incharge of the police station to make further investigation.
(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
10. A bare perusal of the above provision explicitly makes it clear that on conclusion of every investigation, a police report shall be forwarded to the Magistrate so empowered to take cognizance thereon which must include all details, as directed in above provision.
It no where describes as to how the Magistrate shall deal with such report, it howe ver empowers the Magistrate to agree or disagree B with the act of Investigating Officer in releasing an accused during investigation under section 173, Cr .P.C. which too, to extent of discharge of bonds.
11. The petitioner assailed the order passed by the trial court with regard to discharge of the accused Abdul Qudoos by filing Criminal Revision Petition No. 06 of 2016 under sections 435 and 439, Cr.P.C. before the Additional Session Judge-III, Quetta.
Let us now refer to the nature of the order passed by the Executive Magistrate in such eventualities and whether such order is revisable by this Court or the Court of Sessions Judge in exercise of revisional jurisdiction in terms of sections 435 and 439, Cr .P.C.
The above question came up before the full bench of Hon'ble Supreme Court in the case. of Bahadur v. State PLD 1985 SC 62 wherein it has authoritatively been, laid down that a Magistrate in cancelling a registered criminal case is required to act judicially in that he has to act fairly, justly and honestly , a duty common to the exercise of all state powers, there is no lis before him, there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order. It was ruled that the party is left free to institute a complaint on the same facts and the same Magistrate does not even after passing such an order render himself functus officio. On the contrary he is quite competent to entertain and deal with such a complaint on material presented to him. After such assessment Hon'ble Supreme Court concluded that these peculiarities establish beyond doubt that in so concurring with a report submitted under section 173, Cr.P.C. he does not function as a criminal court. With reference to treatises on Justice ad Administrative Law by different well-known authors, the Hon'ble Supreme Court expressed the view that some of the powers of the Magistrate are administrative, executive or ministerial and he discharges these duties not as a court but as a 'personal designate'. This view was further followed in the case of Arif Ali Khan v. State 1993 SCMR 187 and Muhammad Sharif v. State 1997 SCMR 304 and Hussain Ahmed v. Irshad Bibi 1997 SCMR 1503.
Ratio decidendi in all the above cases appears to be that since the Magistrate while concurring with a police report submitted under section 173, Cr.P.C. does not act as a Criminal Court inferior to the Court of Session and, the High Court, his order cannot be revised and modified under the provisions of sections 435, 439, Cr.P.C. but in that case it is amenable to the inherent jurisdiction of the High Court under section 561-A, Cr.P.C. provided the order amounts to abuse of process of Court.
The petitioner assailed the order dated 25.11.2013 passed by the learned JM by filing criminal revision petition before the learned Session Judge, in the year 2016 i.e. almost after three years.
For what has been discussed above we are convinced that the order for discharge of the accused Abdul Qudoos being an executive order was not amenable to revisional jurisdiction.
12. Learned counsel for the petitioner contended that the challan was forwarded to learned JM by the investigating officer through the District Attorney and he further contended that after taking cognizance, the learned JM had no jurisdiction to discharge the accused on the basis of report of the investigating of ficer under section 173, Cr .P.C.
It is worthwhile to mention here that challan was received by the District Attorney on 05.03.2013 but same was returned to the I.O. by the District Attorne y on 12.04.2013 and it was not forwarded to the learned Sessions Judge through the Judicial Magistrate, meaning thereby that the learned JM or the trial court had taken cognizance of the case.
13. It is well settled principle of law that discharge of an accused by a Magistrate is not legally possible after taking cognizance of the case. It may be added here that after taking cognizance by the trial court only three results are possible in a criminal case, firstly conviction of the accused either upon admission of guilt by him or on the basis of the evidence led by the prosecution; secondly , acquittal of the accused either under sections 249-A/265-K, Cr.P.C. or on the basis of failure of the prosecution to prove its case on merits beyond reasonable doubt; and thirdly , withdrawal from prosecution by a Public Prosecutor under section 494, Cr .P.C.
In the case of Muhammad Alam and another v. Addi tional Secretary to Government of NWFP Home and Tribal Affairs Department and 4 others PLD 1987 SC 103, it has been held by the Hon'ble Supreme Court that discharge of an accused or cancellation of case by a Magistrate are not legally possible after cognizance of the case has been taken by the trial court.
The above judgment was followed and the said principle was reiterated by the Hon'ble Supreme Court of Pakistan in the case of Nasira Surriya v . Muhammad Aslam and 7 others 1990 SCMR 12 .
14. In the case in hand the trial court and the court of session have not taken cognizance of the case and the investigating officer filed his report {{URDU TEXT}} for cancellation of the FIR before the learned JM, who agreed with the report of IO and discharged the accused Abdul Qudoos from the case in exercise of its executive jurisdiction.
15. It was further contended by learned counsel that accused was discharged by learned JM despite the fact that the case was triable by learned Sessions Judge/Special Judge Control of Narcotic Substances; that learned JM had no jurisdiction to discharge the accused Abdul Qudoos in the said case.
It is worthwhile to mention here that in a case triable exclusively by learned Sessions Judge, the Judicial Magistrate's power to discharge an accused under the Code remain unaf fected.
In the case of Mehar Khan v. Yaqub Khan and another 1981 SCMR 267 the Hon'ble Supreme Court has declared that even in cases triable exclusively by a Court of Sessions, the Magistrate's power under the Code remained intact till such time the case was formally sent by him to the Court of Sessions for trial.
The law declared by the Hon'ble Supreme Court in the subsequent case of Habib v. The State 1983 370 (sic.) left no doubt about the legal position that the Magistrate's power to discharge an accused person of his bond under subsection (3) of section 173 of the Code even in cases triable exclusively by a Court of Session remains unaffected by the amendments introduced by the Law Reforms Ordinance, 1972 and also that in such cases the power of discharge remains vested with the Magistrate and not with the trial Court, i.e. the Court of Session.
For the above reasons, there is no substance in the contention raised by learned counsel for the petitioner on the above points.
16. Reverting to merits of the case, perusal of the record reveals that FIR No. 03 of 2013 was registered under section 9(c) of the CNS Act with Police Station CID Quetta on the report of the petitioner Bilal Ahmed against Abdul Qudoos with the allegation of recovering 60Kg Charas and 20Kg opium from his possession during a raid conducted on spy information. The said FIR was registered on 19.01.2013 at 6:00 p.m. On the other hand another FIR bearing No. 03 of 2013 Police Station Bijli Road Quetta was registered against the petitioner and co-accused by the complainant Lieutenant Ghulam Murtaza of Ghazabund Headquarters, FC Balochistan with the allegation that on 19th January 2013 at 17:45 p.m. a person namely Abdul Baqi came to him at FC Headquarters Ghazabund with the report that his brother namely Abdul Qudoos was kidnapped and the kidnappers are demanding ransom of Rs. 50,00,000/- for his release; that the kidnapper called him from the cell-phone of his brother and told his name as Iqbal and that he is an employee of ANF and also threatened him for dire consequences in case he asked for help from FC in release of his brother . On receiving said information a team was constituted for raid and the raiding party reached Double Road on the time given by Muhammad Iqbal, where it found a person namely Hussain Langov who was caught red handed while receiving Rs.300,000/- and he disclosed that he made a phone call with the fictitious name of Muhammad Iqbal and that he does not work for any department rather he' works for his 'officers. He further disclosed that he was sent to receive the ransom amount by CID officers namely SP Tariq Manzoor , DSP Qutub Khan and DSP Bilal. He further disclosed that Abdul Baqi's brother Abdul Qudoos is with CID.
On such disclosure of Hussain Langov FC personnel raided the CID office and recovered Abdul Qudoos and arrested the concerned officers of CID as well, who were handed over to police later on. Hence, the aforesaid criminal case being FIR No. 03 of 2013 was registered with PS Bijli Road Quetta under sections 365-A, 342, 416 and 34, P .P.C. against the petitioner and others.
17. The investigation of case registered by the petitioner against accused Abdul Qudoos under section 9(C) of the CNS Act vide FIR No.03/2013 PS CID Quetta was transferred to Crimes Branch police by the Inspector General of Police. Perusal of the report of investigation officer for {{URDU TEXT}} reveals that the signature of first witness of recovery memo namely Muhammad Ilyas SI/CID is not available on the recovery memo with regard to allegedly recovered 60 kg charas and 20 kg opium mentioned in FIR No. 03/2013 PS CID Quetta.
Statement of Muhammad Ilyas was recor ded by the investigating officer under section 161, Cr.P.C. in the case in hand and he denied his signature on the recovery memo and also denied the recovery of contraband from Abdul Qudoos in his presence.
Similarly ,- the name of investigation officer was mentioned as Khalid Mehmood IP/CID in the said FIR whose statement was also recorded under section 161, Cr.P.C. in the present case and he stated that neither he was appointed as I.O. nor he went to the place of occurrence.
It is also mentioned in the {{URDU TEXT}} report that neither the above contraband was sealed nor any parcel was made and the same was lying open in the CID police station.
18. In respect of preparation of forged recovery memo and falsely mentioning the name of Muhammad Ilyas as a recovery witness, another FIR bearing No. 13 of 2013 dated 05.11.2013 for an offence under sections 420, 467, 468 and 471, P .P.C. was registered at Police Station CID Quetta against the petitioner .
It is also mentioned in the final report of the investigation officer that the petitioner arranged the alleged charas and opium just to save himself and the co-accused from consequences of the FIR which was registered against them under sections 365-A, 342, 416 and 34, P .P.C. with Police Station Bijli Road Quetta.
19. It is worth mention here that for the allegedly recovery 60 kg charas and 20 kg opium, another FIR bearing No.22 of 2013 was registered with Police Station CID against the petitioners under section 9(c) of CNS Act with the allegation that they (petitioners) themselves arranged the said contraband.
It is also important to mention here that the petitioners namely Bilal Ahmed and Qutub Khan were DSPs and petitioner No.3 Manzoor Ahmed was SP at CID police station at the relevant time and after departmental inquiry they have been dismissed from service by the Inspector General of Police on 5th June 2014 on the basis of the above allegations.
20. For what has been discussed above, it is concluded that no illegality or irregularity has been committed by the learned Judicial Magistrate-X, Quetta while passing the impugned order dated 25.11.2013, warranting interference by this Court in exercise of its inherent jurisdiction under section 561-A, Cr.P.C. For the above K reasons, the petition is dismissed.