FAHIM AHMED SIDDIQUI, J. This Criminal Miscellaneous Application under section 561-A, Cr.P.C. is filed against the Order dated 03.04.2019 passed by the learned Judicial Magistrate-II West-Karachi, whereby, the learned Judicial Magistrate approved final report under section 173, Cr.P.C. as 'C' Class in FIR No. 198/2017 under sections 506-B/ 452/ 342/ 504/ 427/ 354/ 109/34, P.P.C. of Police Station Airport, Karachi.
2. The relevant and material facts of the case, as pleaded in the instant application, are that one Mehreen Baloch daughter of respondent No. 1 filed C. P. No. S-854 of 2017 against her husband Asif Ali Baloch and others for recovery of her minor daughters, in which order was passed on 07-06- 2017 by this Court to locate her husband through his CNIC and mobile phone numbers and on being located recover minors in any manner deemed fit. It is further pleaded that respondent No. 1 is a highly influential person and in defiance of orders of this Court just to harass and commit criminal acts and omission got the respondents Nos. 3 to 5 amongst other police officers committed criminal house-trespass of the house of the applicant on 15-06-2017 under the garb of Order dated 07-06-2017. It is further pleaded that after the commission of offences on 15-06-2017, SSP South and SHO P.S. Frere submitted their reports on 16-06-2017 before this Court. It is further pleaded that the respondents Nos. 3 to 5 did not act in the discharge of their official duties or in the discharge of legal/lawful order passed by Court of law rather under influence and to please the respondent No. 1 committed offences. It is further pleaded that the applicant filed Criminal Misc.
Application No. 539 of 2017 in the Court of Ex-Officio Justice of Peace, who by Order dated 23-06- 2017 directed for registration of FIR and subsequently statement under section 154, Cr.P.C. of the applicant was recorded and FIR was registered and assigned to respondent No. 7 for investigation, who after investigation submitted a final report under section 173, Cr.P.C. as "C" Class, which was not conceded by District Prosecution. It is further pleaded that the learned Magistrate by Order dated 28-07-2017 declined the request of disposal of FIR as "C" Class and took cognizance, thereafter, the case was registered as Criminal Case No. 122 of 2017. It is further pleaded that respondent No. 1 then filed Criminal Transfer Application No. 71 of 2017 before this Court, which was granted by consent, and the case was transferred to the Court of Judicial Magistrate-II West- Karachi. It is further pleaded that in the meanwhile, the respondents Nos. 3 to 7 challenged the said Order dated 28-07-2017 in C. P. No.D-8054 of 2017 before this Court, which was allowed by Order dated 18-04-2018 and the Order of learned Magistrate dated 28-07-2017 was set aside and the matter was remanded for re-hearing and upon remand, the learned Judicial Magistrate passed the impugned Order, which has been challenged in the instant application.
3. Respondent No. 1 filed a detailed counter affidavit through her daughter Dr. Mehreen Baloch, wherein, entire story from the inception of marriage, filing of C.P. No. S-854 of 2017 and proceedings of the said C.P. have been pleaded and various orders passed in the said C.P. No. S-854 of 2017 have been annexed with the said counter affidavit.
4. I have heard the learned counsel for the parties in this matter along with C.P. No. S-854 of 2017 on several dates and finally on 10.07.2021 and very carefully perused the material available on the record.
5.. The first point for determination in this application is that whether the raid at the house of the applicant was in compliance of the Order dated 07-06-2017 passed by this Court in C.P. No. S-854 of 2017 or it was an illegal act and offence. To resolve this vital point, it is necessary to discuss relevant admitted or proved facts, which are as follows:- a) Admittedly, Dr. Mehreen Baloch daughter of respondent No 1 filed C. P. No. S-854 of 2017 on 24- 04-2017, which was placed on the same day and this Court by Order dated 24-04-2017 ordered notice with direction to Asif Ali Baloch, the ex-husband of Dr. Mehreen Baloch to produce both the minors on the next date without fail, and the petition was adjourned to 04-05-2017; b) By Order dated 04-05-2017 S.H.O. Police Station Azizabad FB Area, was directed to ensure the recovery and production of both the minor girls on 'the next date of hearing. Nevertheless, he failed to recover and produce both the minor girls before this Court: c) By Order dated 07-06-2017, this Court took a serious view by holding that the conduct of the concerned S.H.O. is not fair and he failed to perform his official act by not recovering both the minors. In these circumstances, the concerned DIG of Karachi-East and Karachi-South were directed to locate Asif Ali Baloch on his mobile numbers and CNIC number in any manner as they deem fit and recover both the minors and handover their' interim custody to Dr. Mehreen Baloch.
The concerned DIG was also directed to give full protection to Dr. Mehreen Baloch, who apprehended dire consequences from Asif Ali Baloch and his family: d) The aforesaid Order dated 07-06-2017 was complied with and a report was submitted to this Court, wherein, it is stated 'that during the raid a person came and introduced himself as Mr. Javed Ahmed Baloch and informed that he is the Judge of ATC Court (presently District and Sessions Judge, Thatta), who at the time of raid, became angry and used harsh language upon the respondent No, 2 and threatened him of dire consequences and also threatened police officials and then made calls to some persons and then went away inside the house; e) SSP South submitted his report along with CDR of Asif Ali Baloch on 16-06-2017 in this Court, wherein, it is stated that most frequent calls were made to Mr. Javed Ahmed Baloch (presently District and Sessions Judge, Thatta) from the number registered in the name of Asif. Ali Baloch and the location was also tracked, which was shown as Block 10, Karachi; f) The applicant then tiled Criminal Misc Application No 539 of 2017 before the learned Sessions Judge, Malir-Karachi, which was allowed by Order dated 23-06-2017 passed by Mr. Shafi Muhammad Pirzada, In-charge Sessions Judge, Malir Karachi and then FIR No. 198/2017 at PS Airport was lodged on 29-06-2017 against the police officials (who complied with the Order of Court) and the respondents Nos. 1 and 2; g) Later on statements of the applicant. Dr Saleem Anmed Baloch and Mr. Javed Ahmed Baloch (presently District and Sessions Judge, Thatta) were recorded under section 161, Cr.P.C.; h) This Court took notice of the aforesaid facts and directed the office to call a report from the learned Sessions Judge, Malir, as to how and why he passed an order for registration of FIR against police officials, who were conducting raids on the direction of this Court by Order dated 11-07-2017. Since the learned Sessions Judge, Malir, did not send his compliance report, the learned MIT-II was directed to call report from the learned Sessions Judge, Malir, by Order dated 10-08-2017; i) In the meanwhile, respondent No. 7 after investigation submitted final Report No. 33/2017 dated 18-07-2017 under section 173, Cr.P.C. as "C" Class. However, Mr. Rasheed Ahmed Naich, Assistant District Public Prosecutor (ADPP),Malir-Karachi, did not concede to this report and gave his Scrutiny Note dated 20-074017 and recommended for taking cognizance. Ultimately, the learned Judicial Magistrate-II, Malir Karachi (Mr. Asghar Ali Tanwiri) by Administrative Order dated 28- 07-2017 declined the request of disposal of FIR as "C" Class and took cognizance; j) After the aforesaid Order dated 28-07-2017 passed by Mr. Asghar Ali Tanwiri, the case was registered as Criminal Case No. 122 of 2017; k) Respondent No.1, subsequently, filed Criminal Transfer Application No. 71 of 2017 in this Court, which was granted by consent, and the case was transferred from the Court of Judicial Magistrate-II, Malir-Karachi, to the Court of Judicial Magistrate-II, West-Karachi; l) Against the aforesaid Administrative Order dated 28-07-2017, the respondents Nos. 3 to 7 filed C.P. No. D-8054 of 2017 before this Court, which was allowed by Order dated 18-04-2018 and the said order was set aside and the case was remanded for re-hearing; m) Upon remand, the learned Judicial Magistrate-H, West-Karachi, by impugned Order dated 03- 04-2019 approved the said final report under section 173, Cr.P.C. as "C" Class; n) It is a matter of surprise that the pre-arrest bail application of respondent No. 1, who is an old and aged man of more than 82 years suffering from various diseases, as is evident from his medical record, is rejected by the learned Additional Sessions Judge-III, Malir Karachi (Mr. Suhail Pervaiz Qureshi). Uitimately he was granted bail by this Court: o) Similarly, the bail application of respondent No. 2 was declined by the Court below and he remained in Jail for 3 months and then he was also granted bail by this Court; p) Likewise, the respondents Nos. 3 to 5 were granted pre-arrest bail by this Court.
6. In view of the above-admitted position, I came to the conclusion that the applicant has no case at all and the said FIR is ex-facie false and it was managed to be registered at the instigation of Mr. Javed Ahmed Baloch (presently District and Sessions Judge, Thatta), who took undue advantage of his responsible official post, although he must be aware that no one is above the law. I am sorry to say that the conduct of Mr. Javed Ahmed Baloch (presently District and Sessions Judge, Thatta) is apparently unfair as he being the brother-in-law of the applicant, used his influence upon the other Judicial Officers for illegal favour to his brother-in-law, who was the complainant in the said FIR. The only purpose of lodging this false FIR was/is to pressurize respondent No.1 and his daughter Dr. Mehreen Baloch to withdraw C.P. No. S-854 of 2017 and surrender her legal right of custody of minor girls and nothing else. Apart from this, the order dated 23-06-2017 passed by Mrs. Shafi Muhammad Pirzada, In-charge Sessions Judge, Malir Karachi for lodging FIR against the police officials (who complied with the Order dated 07.06.2017 of this Court) and the respondents Nos. 1 and 2 are in clear defiance of the said Order dated 07.06.2017 as they failed to apply their minds independently to the ingredients of the said Order dated 07-06-2017 passed by this Court. In these circumstances, this Court took notice of the aforesaid facts and directed the office to call report from the learned Sessions Judge, Malir, as to how and why he passed an order for registration of FIR against police officials, who were conducting raids on the direction of this Court by Order dated 11.07.2017. Since the learned Sessions Judge, Malir, did not send his compliance report, the learned MIT-II was directed to call a report from the learned Sessions Judge, Malir, by Order dated 10-08-2017.
7. The matter does not end here, and I have to take judicial notice of the fact that after registration of the said FIR, the police office officials failed to take serious efforts to recover both the minor girls, perhaps they, are afraid of Mr. Javed Ahmed Baloch, who is presently District and Sessions Judge, posted at Thatta, which fact is evident from the following Orders passed from time to time in the said C.P. No. S-854 of 2017:- i) By Order dated 10-08-2018, minor children were considered as missing children and JIT was formed for tracing out their whereabouts and Home Secretary was directed to form JIT comprising responsible officials of Police, MIA, and ISI; ii) By Order dated 21-01-2019, it was observed that JIT failed to understand the object, or they have deliberately avoided complying with the directions. Accordingly, SSP South shall ensure production of minors on the next date and in case of failure he shall appear in person with an explanation; iii) By Order dated 13-02-2019, S.H.O. Police Station Frere Town was directed to provide complete protection to Dr. Mahreen Baloch. It was further directed that AVCC shall provide every assistance to SSP South and concerned police/ police team would be competent to approach concerned Magistrate with the permission of District and Sessions Judge, who shall ensure to join/supervise with the concerned team of such raid; iv) By Order dated 02-04-2019, SSP South was Oven the last chance to recover minors and in case of failure contempt proceedings can be initiated against the delinquent officer; v) By Order dated 19-04-2019 it was observed that law itself provides a complete mechanism for conducting raid search of a place, hence if such course is, per law, same cannot be said to be harassment; vi) By Order dated 24-05-2019, it was observed that prima facie AVCC has lost trust and therefore contempt notice of non-compliance of Order dated 19-04-2019 was issued to SP AVCC; vii) By Order dated 30-05-2019 Anti-Human Trafficking Unit, FIA as well as any representative of ISI would be involved in JIT. Accordingly, SSP AVCC, Additional Director FIA Anti-Human Trafficking Unit Karachi, and the officer not below the rank of Major/AD to be nominated/ assigned by Director ISI to probe the issue and highly competent committee shall use all efforts with modern technology and ensure recovery of minors; viii) By Order dated 09-07-2019 office was directed to send copies of all the orders passed in the instant petition so far to the Secretary of Interior, Government of Pakistan with direction to furnish a report after checking all the exit points of the country whether the minors, as well as Asif Ali Baloch, has succeeded in going out of Pakistan and if so then requisite letters should be issued to the Interpol. The office was further directed to also send copies of all the orders passed in the instant petition so far to the Law Secretary, Government of Sindh as well as the Law Secretary, Government of Pakistan, to take action in this respect; ix) By Order dated 31-07-2019 it was observed that since JIT was constituted earlier as is apparent in the earlier orders, JIT and all the departments involved in the matter have failed to recover Asif Ali Baloch and both the minor girls. Therefore, JIT was reconstituted and relevant directions were also issued; x) By Order dated 19-03-2020, it was directed to the Home Department to constitute a new JIT, who was directed to complete the task regarding recovery of the said missing minors as well as to trace out their father and it was also ordered that JIT is empowered to take every possible efforts/steps regarding recovery of the said missing minors as well as tracing out their father.
8. Later on, the Hon'ble Supreme Court of Pakistan by Order dated 26.02.2021 passed in Civil Petition No.1434-K of 2020, which transpires that C. P. No. D-5839/2019 shall remain stayed in the meanwhile and the Order dated 14-10-2020 passed therein shall be kept in abeyance. Apart from this, in the said Order the Hon'ble Supreme Court of Pakistan has declared both the minors as alleged abductees and directed JIT to take effective steps for the recovery of the said two minors/alleged abductees and file a report before this Court and also a copy thereof before the Hon'ble Supreme Court of Pakistan.
9. In view of the above discussion, I came to the definite conclusion that the said raid at the house of the applicant was in compliance of Order dated 07-06-2017 passed by this Court in C. P. No. S- 854 of 2017 and it was not an illegal act and offence. Hence, Order dated 23-06-2017 passed by Mr. Shafi Muhammad Pirzada. In-charge Sessions Judge, Malir Karachi for lodging FIR is in clear defiance of the said Order dated 07-06-2017 and thus ab-initio illegal and unlawful. Consequently, the said FIR being false is nothing but nullity in law.
10. The second point for determination in this application is that whether the respondent No. 7, being Investigation Officer, has submitted final report under "C" Class as per law or he was required under the law to submit final report under "B" Class.
11. It is very essential and relevant to mention here that as per Bombay Presidency Police Rules, only three classes were provided for disposal of a State Case namely (i) A-Class, (ii) B-Class and (iii) C- Class. It was then when Sindh was the part of Bombay but such practice is continued and this continuous practice has become usage and is not inconsistent with or in derogation of fundamental rights as prescribed by Article 8 of the Constitution of Islamic Republic of Pakistan, 1973 and hence such usage has force of law and now such practice is a part and parcel of the procedural law. In fact, these Classes were prescribed by Bombay Presidency Police Rules.
According to Bombay Presidency Police Rules, report of investigation under section 173 of Cr.P.C. has to be filed either in the form of a charge-sheet if the accused is sent for trial or in the form of a Final Report, in other cases. As per practice/usage, the Class 'A', "B" and "C" are defined as:- a) CLASS 'A': FIR is true, but accused is untraceable, therefore Magistrate fan dispose of the case till the appearance/arrest of the accused; b) CLASS 'B': FIR is maliciously false and after passing summary orders by directing the SHO to initiate proceedings for offence punishable under section 182, P.P.C. against the complainant/ person, who gives information, which he knows or believes to be false; c) CLASS 'C': FIR can be disposed of being non-cognizable offence,
12. In view of the facts and circumstances discussed hereinabove, the instant case comes within the ambit of B-Class and not C-Class. Accordingly, the final report under "C" Class submitted by the respondent No. 7, being Investigation Officer, is not in accordance with law but under the law, he should have submitted final report under "B" Class.
13. I have also gone through the impugned Order passed by the learned Judicial Magistrate.
Though the learned Judicial Magistrate has properly discussed the substance of the instant matter and passed speaking order with sound reasons but at the same time he failed to apply his mind to the ingredients of the Order dated 07-06-2017 passed by this Court and the substance of the matter, if he would have applied his mind, he would came to the conclusion that the instant matter comes within the ambit of B-Clas and not C-Class and he should have disposed of the instant matter in B-Class.
14. Nevertheless, section 561-A, Cr.P.C. confers upon this Court inherent powers to make such orders as may be necessary to give effect to any order under Cr.P.C. or to prevent abuse of process of any Court or otherwise to secure the ends of justice. Reliance can be placed upon the cases of (i) The State v. Asif Ali Zardari and another (1994 SCMR 798) and (ii) Maqbool Rehman v. The State and others (2002 SCMR 1076).
15. While exercising the power under section 561-A, Cr.P.C., I hereby modify the impugned order by disposing of the instant matter in B-Class.
16. In view of the above discussion, this Criminal Misc. Application is dismissed.
17. Before parting with this Judgment, I would like to say that in the light of the judgment of Hon'ble Supreme Court of Pakistan reported in Miss Nusrat Yasmeen v. Registrar, Peshawar High Court (PLD 2019 Supreme Court 719), I am constrained not to give any remarks against the responsible judicial officers, whose names have appeared earlier and who have acted in derogation of the Orders passed by this Court in C.P. No.S-854 of 2017. Nevertheless, following the dictum laid down in the case of Miss Nusrat Yasmeen (supra), I have addressed a confidential administrative note to the Registrar of this Court took place there a matter along with a copy of this judgment before the Honourable Senior Puisne Judge (Competent Authority) of this Court for considering regarding disciplinary action against them as per law and rules while the Registrar is also directed to place copy of this judgment in their personal files after seeking such approval. Similarly, Mr. Rasheed Ahmed Naich (the then ADPP, Malir-Karachi) also acted in derogation of the Orders passed by this Court in the aforementioned constitutional petition, therefore, Law Secretary, Province of Sindh, is directed to take action against him as per law and rules and this judgment should be placed in his service record.
18. Office is directed to send copy of this Judgment to the Registrar of this Court, Home Secretary, Law Secretary, Province of Sindh, IG, Sindh District and Sessions Judges, Malir and Karachi (West) and concerned DIGs, SSP-Malir, SSP-South and SSP-East immediately for compliance.