Muhammad Bilal vs The State etc

ORDER

SARDAR MUHAMMAD SARFRAZ DOGAR, J. Through this constitutional petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973,^[1] read with Section 561-A of the Code of Criminal Procedure, 1898,^[2] the petitioner has assailed the order dated 28.06.2023 passed by learned Duty Magistrate 1st Class, Dera Ghazi Khan whereby he discharged the respondent No.3/Malik Muhammad Bilal from the case FIR No.416 dated 10.06.2023 registered for the offences under section 447, 511 of the Pakistan Penal Code, 1860^[3] with the Police Station Drahma, District Dera Ghazi Khan.

2. The main thrust of arguments of learned counsel for the petitioner is that the Duty Magistrate was not empowered to discharge the accused from the case as he could only authorize further detention of the accused and if he considered further detention unnecessary, he could have just forwarded the accused to a Magistrate having jurisdiction. By arguing so, he referred section 167

(2) of the Cr.P.C relied upon case laws titled as "Safdar Hussain v. Judicial Magistrate Section 30, Ferozewala, District Sheikhupura and 2 others"^[4], "Abid Hussain v. Ikram-ul-Haq Chaudhry and another"^[5] and "Safdar Hussain v. Judicial Magistrate and others"^[6].

3. Heard. Record perused.

4. Briefly, the facts of the case are that the petitioner got a case FIR No.416/2023, under sections 447, 511 of PPC, lodged with the Police Station Drahma District Dera Ghazi Khan wherein he alleged that he is owner of his inherited property in Holding No.255, which after partition has been given Wanda No.2 on 10.05.2023 and the respondent No.3 attempted to commit criminal trespass over the said land. During the investigation of said case, the police arrested the respondent No.3 on 28.06.2023 and produced him before the Duty Magistrate 1st Class, Dera Ghazi Khan for his judicial remand, who instead of granting judicial remand, discharged respondent No.3 from the case vide order dated 28.06.2023. For convenience, the main portion of order dated 28.06.2023 is hereby reproduced hereunder:- "Police has requested for judicial remand of accused person. As per record, there is dispute of land between the complainant and accused person, which shows that the matter between the parties is of civil nature. Record further shows that during course of investigation, nothing was recovered from the possession of accused person. It is settled preposition of law that no one can be detained without concrete evidence. Moreover, the offence is minor in nature. During investigation, police has failed to connect the accused person with the commission of offence. At this stage, no incriminating material is available against the accused to send him to judicial lock up, therefore, request of police is hereby turned down and accused Malik Muhammad Bilal son of Malik Allah Bakhsh is hereby discharged from the case. He be released forthwith, if not required in any other case."

Learned counsel for the petitioner while referring Sub Section (2) of Section 167 of Cr.P.C laid much emphasis on his argument that the Duty Magistrate had no jurisdiction to discharge the accused and he can only forward the accused to the concerned Magistrate.

5. After hearing the arguments of learned counsel for the petitioner, this Court has emphatically noted that the following moot point needs to be addressed in the lis in hand:- "Whether a Duty Magistrate is empowered to discharge an accused produced before him for remand."

Before proceeding further with the question involved, it is in the fitness of things to firstly have some discussion on the classes, appointment, powers and jurisdiction of a Magistrate.

5.A. As per definition of "Magistrate" given in section 4(ma) of Cr.P.C, "Magistrate" means a Judicial Magistrate and includes a Special Judicial Magistrate appointed under Sections 12 and 14. As per Section 6 of Cr.P.C., besides the High Courts and the Courts constituted under any law other than Cr.P.C for the time being in force, there are two classes of Criminal Courts in Pakistan, namely:- (i)

Courts of Session; (ii) Courts of Magistrate. As per Sub Section (2) of Section 6 of Cr.P.C., the Courts of Magistrates have three classes, namely:- (i) Magistrate of the First Class;: (ii) Magistrate of the Second Class; and (iii) Magistrate of the Third Class. The Magistrate is appointed under section 12 and 14 of the Cr.P.C. Section 12 of Cr.P.C bears the heading of "Subordinate Magistrates" and as per Sub Section (1) of Section 12 Cr.P.C., Provincial Government may appoint as many persons as it thinks fit to be Magistrates of the first, second or third class in any district, from time to time, define local areas within which such persons may exercise all or any of the powers, with which they may respectively be invested under this Code. Sub Section (2) of Section 12 Cr.P.C, defines the local limits of jurisdiction and powers of Magistrate which shall extend throughout the district where they have been posted.

5.B. Coming to the powers of a Magistrate, the Magistrates have been given ordinary and special powers to play a role in the processes like remand, issuance of arrest warrants, search warrants, proclamation, inquest, bails, recording of statements & confessions, etc. Such ordinary and special powers are entrusted u/s 36 & 37 of Cr.P.C which are as follows;

36. Ordinary Powers of Magistrates: All Magistrates have the powers hereinafter respectively conferred upon them and specified in the Third Schedule. Such powers are called "their ordinary powers"

37. Additional powers conferrable on Magistrates: On the recommendations of the High Court, the Provincial Government may, in addition to the ordinary powers, invest any Magistrate with any powers specified in the Fourth Schedule."

The mode of conferring powers as mentioned in Section 39 of Cr.P.C reflects that powers can be conferred upon the Magistrates by the Provincial Government either by name or by virtue of their office or classes of officials generally by their official title. Once the power is given, the Magistrate shall unless the Provincial Government otherwise directs or has otherwise directed, exercise the same powers in the local area in which he is so appointed. Until the Provincial Government withdraws all or any powers once conferred under this Code on any Magistrate, he shall continue exercising such powers wherever he is appointed as a Magistrate as ordained in section 40 of Cr.P.C, which reads as follows:-

40. Powers of officers appointed: Whenever any person holding an office in the service of Government who has been invested with any powers; under this Code throughout any local area is appointed to an equal or higher office, of the same, nature, within a like local area under the same Provincial Government, he shall, unless the Provincial Government otherwise directs, or has otherwise directed, exercise the same powers in the local area in which he is so appointed.

From the above discussed statutory provisions, it stands crystal clear that there exists no "term" as "Duty Judge" or "Duty Magistrate" or any other provision in the Cr.P.C. which abridges the powers of a Magistrate duly appointed as such in a District in accordance with the provisions enumerated above and the term Duty Magistrate is nothing but alien to the provisions contained in Cr.P.C.

However, these terms i.e. "Duty Judge or Duty Magistrate" are being used in pursuance of "Distribution of Business" by the Sessions Judge of the District, who under Section 17 of Cr.P.C can also frame rules or give special orders consistent with Cr.P.C as to the distribution of business among such Magistrates because they are subordinate to the Sessions Judge by virtue of said Section. For ready reference, section 17 of Cr.P.C. is reproduced verbatim:-

17. Subordination of Magistrates and Benches to Sessions Judge:

(1) all Magistrates appointed under section 12, 13 and 14 and all Benches constituted under section 15, shall be subordinate to the Sessions Judge and he may, from time to time, make rules or give special orders consistent with this Code and any rules framed by the provincial government under Section 16, as to the distribution of business among such Magistrates and Benches.

(2) All Executive Magistrates appointed under sections 13 and 14 shall be Subordinate to the district Magistrate and he may, from time to time, make rules or give social orders consistent with this Code and any rules framed by the Provincial Government under section 16 as to the distribution of business among such Magistrates.

(2-A) Every Executive Magistrate (other than a Sub-Divisional Magistrate) in a subdivision shall also be subordinate to the Sub-Divisional Magistrate, subject, however to the general control of the District Magistrate.

(3) Subordination of Assistant Sessions Judges to Sessions Judge: All Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction, and he may, from time to time, make rules consistent with this code as to the distribution of business among such Assistant Sessions Judges.

(4) The Sessions Judge; may, also when he himself is unavoidably absent or incapable of acting, make provision for the disposal of any urgent application by an additional or Assistant Sessions Judge and such judge shall have jurisdiction to deal with any such application.

(5) [Omitted by the Ordinance, XXXVII of 2001, dt: 13.8.2001] 5.C. But, even making of rules in respect of Distribution of business by the Sessions Judge with respect to performance of duty by an available Magistrate in case of absence of a Magistrate to whom the Sessions Judge after making rules or giving social orders has allocated a specific Police Station or category of cases, does not restraint the powers of such Magistrate and also ousting of Jurisdiction of such Magistrate. As such, to all intents and purposes, pursuant to above discussed provisions of Cr.P.C, it is held that the Magistrate who passed the impugned order dated 28.06.2023 in absence of Magistrate to whom the business to deal with was allocated by the Sessions Judge, had the territorial jurisdiction and jurisdiction of said offence i.e. offence falling under sections 447/511 of PPC, being triable by "Any Judicial Magistrate" and his jurisdiction cannot be put to halt on the misconstruction of said Magistrate's being "Duty Magistrate".

6. Coming to the argument of learned counsel for the petitioner whereby he while referring the Section 167 (2) of Cr.P.C. questions the jurisdiction of Duty Magistrate. For the sake of ready reference and convenience for the upcoming discussion, Section 167 of Cr.P.C. is reproduced hereunder:-

167. Procedure when investigation cannot be 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.

(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) ..................

(4) ..................

(5) ..................

(6) ..................

(7) ..................

Although, the perusal of above said provision of Cr.P.C restrains a Magistrate from passing any order other than authorizing the detention of accused so produced before him, however, it is noted that the said section in respect of jurisdiction has been misconstrued by the learned counsel for the petitioner and language of the specific portion of the said section i.e. "If he (the Magistrate) has no jurisdiction to try the case or [send] it for trial, and considers further detention unnecessary, he (the Magistrate) may order the accused to be forwarded to a Magistrate having such jurisdiction means that whenever an accused is arrested and produced by the Police before the nearest Magistrate in order to validate the detention of such accused, the Magistrate before whom the accused has been produced, if he had no jurisdiction (territorial jurisdiction) to try the offence or to send it for trial (in respect of gravity of offence as has been prescribed by the Cr.P.C) and considers the further detention of the accused so produced before him unnecessary he would forwarded the accused to a Magistrate who would have the territorial jurisdiction to try the offence as well as to send the same for trial before the concerned Court. The best example can be given while referring the section 186 of Cr.P.C which enables a Magistrate in whose local jurisdiction, an accused is arrested and the police produce such accused before said Magistrate, for the purpose of obtaining transitory remand of such accused from the said Magistrate. Nevertheless, in the case in hand, the Magistrate had the jurisdiction to entertain the matter and in doing so he while exercising the powers conferred upon him under section 63 of Cr.P.C (in respect of discharge of accused) passed the impugned order in accordance with law. For the purpose of convenience, section 63 of Cr.P.C is reproduced hereunder for ready reference:-

63. Discharge of person apprehended. No person who has been arrested by a police-officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate.

Law requires Magistrate to judicially examine the police report and to act fairly, justly and honestly.

He is supposed to go through the material collected during investigation, see its admissibility in evidence and then to pass an order in accordance with law. Magistrate is not supposed to rely upon the case diary or a piece of document not admissible in evidence e.g. confession of accused before the Police Officer which evidence is not admissible under articles 38 and 39 of the Qanun-e- Shahadat, Order 1984.^[7]

7. Learned counsel for the petitioner has failed to put forth any viable legal as well as factual reason or ground which could have put a question mark upon the jurisdiction of said Magistrate. In respect of subject being discussed in this case in hand, the findings of Division Bench of this Court passed in case titled "Abdul Sattar v. Amir Muhammad Khan and others"^[8] are, however, more instructive. Relevant excerpt therefrom is reproduced hereunder:- "After hearing the arguments of both the sides and going through the record, we have observed that while deciding the question of grant of physical remand, Judge Anti-Terrorism Court-II Multan, had directed the Investigating Officer to delete Section 7 of the Anti-Terrorism Act, 1997 while acting as Duty Judge. The Duty Judge enjoys the same powers as the incumbent Judge enjoys. While deciding the question of remand, the concerned Court is not expected to act blindly and as such orders are expected to be passed with due application of judicial mind. Impugned order cannot be set aside simple on the ground that the same was passed by the Duty Judge."

(Emphasis added)

8. In view of what has been discussed above, impugned order dated 28.06.2023 warrants no interference by this Court, hence, instant petition having no force, is dismissed.