This Constitutional petition seeks annulment of a revisional order of the learned Sessions Judge, Gujranwala under the Criminal Procedure Code, whereby an order of a Magistrate on a police report cancelling the case registered against the petitioner was set aside.
2. The brief facts of the case are that a case F. I. R. No. 61, dated 24th March, 1982 was registered under section 379, P. P. C. At Police Station Qila Didar Siilgh District Gujranwala on the written complaint of Bashir 8hmad on the allegation that Wagon No. 8304 GT was forcibly taken possession of by the petitioner on 27th February, 1982 on the plea that the complainant bad not paid the balance of instalment of Rs. 7,500 as per agreement deed of the parties. The petitioner on registration of the case moved a bail before arrest application before the learned Sessions Judge, Gujranwala who allowed the interim bail but refused to confirm it by order dated 5th April, 1982. The case of the petitioner is that he was also a patient of cancer. The learned Sessions Judge also ordered suo motu that section 17 of Ordinance VI of 1979 be added. This, it is stated, was done by the police and the petitioner was taken into custody on the same day.
3. Thereupon the petitioner again moved the learned Sessions Judge for bail after arrest on 20th April, 1982. The case was adjourned on two dates and then was fixed for hearing on 8th April, 1982.
There was a development in the meanwhile inasmuch as the complainant Bashir Ahmad moved the Superintendent of Police, Gujranwala for the can--cellation of the case on 29th April, 1982 and also gave an affidavit be--fore the Investigating Officer to the effect that the case was false and should be cancelled. The police accordingly made a report under section 173, Cr. P. C. And put up before a Magistrate Section 30, Gujranwala who cancelled the case on 5th May, 1982 though the phraseology employed was of discharge of the accused. The petitioner was accord--ingly released from Gujranwala Jail. The bail application in the circumstances was withdrawn by the learned counsel for the petitioner from the Court of learned Sessions Judge on 8th May, 1982. The learned Sessions Judge passed the following order on 8th May, 1982:- ---The learned counsel for the petitioner states that the application has become infructuous because case against the petitioner has been cancelled as he has been set at liberty. In view of the above, the application stands finally disposed of.---
4. Thereafter on 23rd May, 1982, a new chapter opened up in this matter. The learned Sessions Judge on this date passed an order, inter alia, in terms "Prima facie there appears no good reasons to cancel the case, there--fore, I want to take action in exercise of my suo motu revisional jurisdiction..."
It was followed by an order dated 15th June, 1982 when it was observed by the learned Sessions Judge that the record pertaining to dis--charge of Mehdi Hassan Shah be requisitioned from the Court of Mohr Ali Akbar, M. I. C. For 5th July, 1982. The S. H. O. Shall bring the record on the said date.
He shall file written statement containing the entire facts and the reasons on which he got discharged the accused. It was further directed that it should be mentioned in the written statement as to whether the recommendation for discharge was made after record--ing statement of alleged eye-witnesses or not. The proceedings of 5th July, 1982 show that the written statement was submitted by the S.H.O. Which was placed on the record. The case was adjourned because the police report and the order of the Magistrate had been received but "the judicial file" bad not been received. He accordingly ordered that "now the learned Magistrate shall be summoned to appear personally along with the ---relevant judicial file--- on 10th July, 1982. S. H. O.
Shall also appear. P, D. S. P. Shall a1so be to asked to appear before me on the said date,"
5. On 10th July, 1982, the learned Sessions Judge recorded an order to the effect that be proposed to dispose of suo motu revision under section 435 read with sections 439 and 439-A, Cr. P. C. After giving the facts and circumstances of the case, the learned Sessions Judge in para. 3 of his order recited the reasons for his declining to confirm the bail of the accused and for rejection of the same. Then coming on to the relevant aspects, he observed that as neither the report of M. S. Nor the record was produced before him on 29th April, 1982 therefore the bail applica--tion was adjourned to 3rd May, 1982 but the same could not be disposed of on that day for want of medical report. Hearing of the bail matter was then adjourned to 8th May, 1982 when he was informed by the learned counsel for the petitioner that be had already been discharged by the Magistrate and "since the discharge of the accused was unusual and moreover there was loud whisper that the accused had manoeuvred his release by some foul means, therefore, in order to safeguard the honour of this Court and respect of law of the land, decided to probe into the matter in exercise of my suo mote revisional jurisdiction." He accordingly issued notice to the respondent accused as well as to the S. H. O., the learned Magistrate and the State. This furnishes the background and the circumstances in which the revisional proceedings were undertaken by the learned Sessions Judge.
6. After hearing both the sides, he concluded that in accordance with law, no doubt the Magistrate has power to discharge the accused on the request of the police but he was not expected to become tool in the hands of the police and blindly sign the palters without applying his mind. He observed-'His every order is judicial order and open to revision by the Sessions Court as well as High Court." Again he observed "Apart from that, while disposing of the pre-arrest bail application, I had also held that prima facie case against the accused was made out under section 17 of the said Ordinance. Since the said offence was exclusively triable by the Sessions Court and more-- over I had observed that there was prima facie case against the accused still the learned Magistrate ignored all these aspects and passed illegal order . . . . ."
He finally ordered:- ---In the light of above discussion, I feel that the impugned order is illegal and improper, therefore I set aside the same in exercise of my suo mote revisional jurisdiction. The accused was in Jail when he was released on the basis of illegal order. The police as well as the learned Magistrate should get him arrested and send him to jail. The Police shall proceed with the case in accordance with law.--- Hence this criminal miscellaneous petition under section 561-A, Cr. P. C. A prayer has been made through a written application that in order to overcome any technical hurdle, the application he treated as a constitutional petition and a court-fee of Rs. 100 has been affixed for that purpose. I ordered accordingly.
7. The impugned suo motu revisional order of the learned Sessions Judge has been assailed before me on the principal contention that the order of the Magistrate on a police report under section 173 of the Cr. P. C. Was in fact and in substance an older of cancellation of the case which the Magistrate was competent to pass in terms of section 173(3), Cr. P. C. And it was only as a misnomer that it was described as an order of discharge. The learned counsel for the petitioner submits that it was neither in fact an order of discharge nor could be such an order because on the own showing of the learned Sessions Judge no evidence had been led at the trial. The order therefore, being in substance and reality one of cancellation of the case, it was submitted, this was an administrative order which was not subject to scrutiny or interference by the learned Sessions Judge in his revisional jurisdiction.
8. Reliance has been placed by the petitioner on a Single Bench judgment of this Court given in criminal revisional jurisdiction In re : Mst. Fatima Bibi v. Rana Alf Hassan and 2 others (1970 P Cr. L J 178). In the precedent case, a Magistrate had agreeing with the report of the police made under section 173, Cr. P. C., ordered the cancella--tion of case registered against the accused under sections 342, 347, 364 and 365/34, P. P. C. There was a revision petition filed before the High Court and the ground urged was that there was good ground for pro--ceeding with the case and that the Magistrate's order cancelling the F. I. R. Was not justified. The learned Single Judge relying on the Full Bench judgment of this Court In re: Wazir v. The State (PLD 1962 Lab. 405), held that the revision petition was not competent. The following dictum of the Full Bench decision was relied upon:-- ---Where a Magistrate has cancelled a case there is no occasion for the Sessions Judge to hold that the accused has been discharged or that consequently he has power to order the retrial. The accused can be discharged only if some evidence has been recorded.--- Such a case does not fall within the revisional jurisdiction of the Sessions Judge and any order for further inquiry would be set aside by the High Court.---
9. Next in line reference may be made to the decision of this Court In re: Bashir Ahmad v. Allaqa Magistrate, Jaranwala and 4 others (PLD 1980 Lab. 28). There was a revision petition filed before the High Court by a com--plainant in case registered under section 302/34, P. P. C. Questioning the order of a Magistrate cancelling the police case. The view taken in this case, on reading of section 169 and section 173(3), Cr. P. C., was that accused if found innocent in police investigation and police in its report under section 173, Cr. P. C. Also praying for discharge of accused found innocent, an order of discharge passed by a Magistrate on police report would tantamount to cancellation of a case against such innocent accused person. It was further held that order of discharge by a Magistrate of a person accused of an offence triable by a Court of Session therefore would be a valid order. Such an order was administrative in nature. Reliance for the last proposition had been placed on a judgment of this Court reported as Sardar and others v. Muhammad Nawaz and another (PLD 1949 Lab. 537) decided by Kayani, J. Further support was sought from the Full Bench decision of this Court in the case of Wazir v. The State already noticed above. In the ultimate analysis, it was held that recent amendment in--troduced by Law Reforms Ordinance, 1972 had not affected the powers of the Magistrate under section 173 (3) to cancel a case triable by Court of Session.
10. The learned counsel appearing for the State while supporting the petitioner's ease cited the case of Bashir Ahmad v. Bashir Ahmad and others (PLD 1975 Lab. 373) decided by a learned Single Judge of this Court for the pro--position that where a Magistrate cancelled a case registered on the basis of police report under section 173 read with section 190, Cr. P. C., it did not amount to an order of discharge of accused based on merits after recording evidence. It was further held that the order of discharge passed in a case without recording evidence did not amount to an order of discharge, as it was not an order on merits. The Hon'ble Judge in this case had again relied on the decision of Wazir's case. Counsel also relied on the case of Abdullah v. Khan Muhammad and another (1975 P Cr. L J 680). This case does not appear to be directly applicable to the facts of the present case. However, an indirect benefit may be obtained from it inasmuch as on the facts of that case a petition under section 561-A, Cr. P. C. Had been dismissed on the ground that a Magistrate's cancellation of a case on police report under section 173(3), Cr. N. C. Did not debar a com--plainant from lodging a private complaint.
11. From a review of the above precedents therefore, it seems clear that the view of this Court has been that the order of a Magistrate in substance cancelling a case on the police report filed under section 173, Cr. P. C. Cannot be treated as discharge nor would amount to it unless some evidence had been recorded. Such an order would be administra--tive in nature and thus not open to interference in revisional jurisdiction under sections 435, 439 and 439-A, Cr. P. C.
12. Coming to the facts of the present case, it is to be noticed that a criminal case had been registered against the accused petitioner. On the statement and affidavit of the complainant, who did not support his own case, the police statedly made a report under section 173, Cr. P. C. To the Magistrate that there was no sufficient evidence against the accused as a result of the investigation. Since in this case no evidence had bee recorded at the trial, the order in question on being properly construed was in substance an order cancelling the police case. The learned Sessions Judge therefore fell into a serious legal error in treating it to be an order of discharge and on that misconception to exercise his revisional jurisdiction.
13. I may further observe with reference to the interim order of the learned Sessions Judge dated 23rd May, 1992 that he has himself observed therein "prima facie there appears no good reason to cancel the case, therefore, I want to take action in exercise of my suo mot revisional jurisdiction." It would thus appear that at the initial stage the learned Sessions Judge was himself conscious of the fact that the order with which he was proposing to interfere was an order to cancel the Police case. This aspect seems to have been lost sight of by the learned Sessions Judge when proceeding in the matter subsequently. The error of approach being apparent on the face of the proceedings, the order of the learned Sessions Judge which runs contrary to the law as laid down by the superior Courts and noted above is liable to be quashed. Reference may advantageously be made to Abdul Rehman Bajwa's case (PLD 1981 SC 522).
14. 1 may however, deal with the further view of the learned Sessions Judge that the case was triable by him and therefore the Magistrate was not competent to cancel the case. The answer to this is to be found in the decision of this Court In re : Bashir Ahmed v. Allaqa Magistrate, Jaranwala and 4 others noticed above.
The concern for the propriety of the proceedings undertaken by the police or the learned Magistrate or loud-whispers about accused manoeuvring his release or "honour of this Court and respect of the law of the land" expressed by the learned Sessions Judge in his im--pugned order no doubt shows that he was motivated to act in the matter bona fide and in good faith. It ought not to have been overlooked at the same time that the motive or intention, howsoever laudable, would not constitute a valid basis for assumption of jurisdiction by a Court when under the law it is precluded from exercising it. Moreover, on of the reasons which weighed with the learned Sessions Judge in arriving at the impugned decision was that the learned Magistrate had acted in oblivion of the observation of the learned Sessions Judge made in the bail order to the effect that a prima facie case was made out against the petitioner. The learned Sessions Judge in taking this view overlooked that bail granting orders are not stricto senso judgments and any obser--vation made by the Court in the course of it are confined to those proceedings. It is settled law that opinion expressed in a bail order is not to influence the Court at the trial. They are also not to influence sub -g sequent proceedings of other kind in respect of such an accused. They are by their very nature always tentative and not determinative. This enunciation of law and rule of caution has been often reiterated by superior Courts and the learned Sessions Judge ought not to have acted in ignorance of it. The question of propriety may have arisen in a case where after the bail on merits was disallowed by a Sessions Court, a learned Magistrate was to allow it on the same material and grounds. In the present case, however, the complainant himself was not supporting his case and had sworn an affidavit that the case was false. This certainly constituted fresh material and circumstance on the basis of which police report was made and the Magistrate passed the order cancelling the case which was an order altogether of nature different from a bail order. The impugned order of the learned Sessions Judge, therefore, being based o an irrelevant consideration, would stand vitiated. The competency o the Magistrate to pass the order of cancellation of case and the conditions and qualifications for exercise of jurisdiction were conceded on be half of the State.
15. It is unnecessary to deal with other reason that the learned Sessions Judge has advanced in this case for the simple reason that it has been found and held that he had no jurisdiction to interfere in revision with the order of cancellation of case passed by the Magistrate. It is enough to observe that if a Court has no jurisdiction in the matter, the reason or findings given by it on merits of the case cannot be blessed with any sanctity.
16. Before parting with this case, I must observe that throughout the hearing of this matter, one thing has dominated my mind and that is as to what are the criteria available for a learned Magistrate to order cancella--tion of a police case or to refuse to do so when he decides to act other--wise as he thinks fit in exercise of his powers under section 173 (3) read with section 169, Cr.
P. C. On a police report being submitted before him.
Nevertheless, the decision of the learned Supreme Court In re: Mir Hassan v. Tariq Saeed and 2 others (PLD 1977 SC 451) and a subsequent decision of the same Court in re: Saad Shibli v. The State (P L D1981 SC 617) arising out of cases under section 494 of the Criminal Procedure Code appear to me to be apt for guiding the Magistrates in exercising their power of cancellation of police cases. 1 am alive to the distinction in the effect and the nature of two orders which are permissible for the Magistrates and the trial Courts to pass under sections 494 and 173, Cr. P. C. It admits of no doubt that an order of acquittal or discharge passed in terms of section 494, Cr. P. C, with the consent of the Court is a judicial order liable to revision by Courts. While in cases coming up under section 173 (3). Cr. P. C: an order would not amount to discharge and it will be still open for the police to carry out the investigation to put up a fresh challan or for an aggrieved person to file a private complaint. In the cases arising under section 494, the superior Courts have laid down certain guidelines and principles. I may advantageously quote from the precedent case of Mir Hassan v. Tariq Saeed and 2 others and in particular the following enunciation of law made therein ---Section 494 is an enabling provision, and vests in the public prose--cutor the initiative and the discretion to apply to the Court for its consent to withdraw from the prosecution of any person.
What the Court has to determine in such a case, for the purposes of giving consent, is whether the general executive discretion given by law to the public prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for reasons not related to the public interest. The applic--ation for withdrawal can be made on many possible grounds which may include the inexpediency of prosecution on grounds of public policy or in the interest of public peace, or the undesirability of permitting the prosecution to continue where there is insufficient or meagre evidence to justify a conviction.--- ---The discretionary power having been vested in the public prosecutor by the statute, the Court acts, so to say, in a supervisory capacity, to see that the power is not abused in any manner, exercised arbitrarily and contrary to the public interest so as to amount to an interference with the ordinary course of justice. The Court must, therefore, satisfy itself that there do exist on the record grounds to sustain the reason advanced by the public prosecutor for his withdrawal from the prosecution------------------ Similarly, in Saad Shibli's case, the learned Supreme Court had further elaborated the matter in the light of peculiar facts of the case. A dis--tinction was drawn between cases involving an individual and originating on a personal note and those based on policy decision, uniformly applied to all sections without discrimination, in a matter of public concern not affecting an individual nor localized territorially.
The broad distinctions in the nature of the two jurisdictions notwith--standing, the criteria laid down by the Supreme Court as would stand attracted to proceedings under section 173 (3) read with section 169 of the Criminal Procedure Code must never be lost sight of by learned Magistrates.
17. On the legal plane therefore, I am clear in my mind that the power conferred on the Magistrates under section 173 (3), Cr. P. C. Is not an arbitrary power and must proceed on relevant principles akin to those enunciated by the, above-mentioned decisions. However, even if these criteria are taken into consideration in the facts of the present case it would be seen that the complainant who lodged the F. I. R. Himself had moved the Superintendent of Police that the case was false and he had sworn an affidavit to the same effect before the Investigating Officer that his complaint was false and misconceived. The result of the investiga--tion was also similar and thus request for cancellation of the case made. The order passed by the learned Magistrate could not be said to be arbitrary or contrary to the purpose of law in the face of patent facts and circumstances of the case.
18. I may, however, emphasize that while exercising power under section 173 (3), Cr. P. C. The learned Magistrates are not to act as pawns in the hands of the police and pass mechanical orders without application of their conscious mind to the facts and the material as placed before them notwithstanding the facts that no evidence in the case had been recorded by the Court. The learned Magistrates must be made to realise that the power to cancel a police case is of wide amplitude which has the effect of bringing to a halt the criminal prosecution which otherwise would entail a detailed process. Such a power therefore, by its very nature, cannot be designed to be exercised on mere ipse dixit of the police. Otherwise, the very purpose for conferring this power on the Magistrates on responsible level in supervisory capacity would stand defeated. On competently instituted proceedings, other than revision, where it appears clear to the Courts placed at higher pedestal in the hierarchy that there has been an attempt at stifling the prosecution in its infancy in the absence of conscious application of mind or on considera--tions other than public policy, preventing abuse of process of taw, and to secure the ends of justice, or if it is for ulterior purposes, they would not hesitate to interfere in fit cases and compel observance of law. In either case the orders affecting criminal prosecution, whether administrative or judicial in character, must flow from full application of mind of the learned Magistrates to the facts of a given case and the decision must be based on considerations of purpose of law and advancing the interest of justice.
19. The result is that this writ petition is accepted and the impugned order of the learned Sessions Judge is declared to be without lawful authority and of no legal effect. There will however, be no