Through the instant constitutional petition moved under Article 199 of The Constitution of Islamic Republic of Pakistan, 1973, Saif Ali (petitioner) has called in question the legality and validity of the order dated 23.01.2025 passed by the learned Magistrate Section 30, Ahmadpur Sial, District Jhang, whereby, he while refusing the request of the police for physical remand of Muhammad Saleem (respondent No.4) discharged him from the case.
Arguments heard and record perused.
Perusal of record reveals that there is an ongoing litigation between the parties regarding partition of land falling in Square No.49, Killa No.11, 13/2, 18 to 23 measuring 60-Kanals & 09 Marlas situated at Chak No.13/3-L, Tehsil Ahmadpur Sial, District Jhang and at present a review petition No.513/2024 titled as "Muhammad Ameen vs. Muhammad Saddique etc" is pending adjudication before Member (Judicial-III) Board of Revenue Punjab, Lahore in which Saif Ali (petitioner) was appointed as Superdar on 24.10.2024 who was assigned the duties to supervise the standing crops with further direction to report to the Tehsildar in case of any mischief is caused to it. Subsequently, the petitioner got registered a criminal case vide F.I.R.No.28/2025 on 13.01.2025 at police station Ahmedpur Sial District Jhang with specific allegation that on 25.12.2024 he was appointed Superdar for the land belonging to the Touqeer Abbas Qaiser etc, however, Muhammad Saleem (respondent No.4), Muhammad Nadeem along with 05 unknown persons committed theft of rice crop weighing 260 maunds valuing Rs.13,00,000/- and on the basis of which police arrested the accused in accordance with law and produced him before the Learned Judicial Magistrate Section 30 Ahmadpur Sial on 23.01.2025 with a request for obtaining his 14 days physical remand but instead of taking into consideration the allegations which were not leveled by any private person rather by the Superdar, the Learned Judicial Magistrate Section 30 Ahmadpur Sial while relying upon the case reported as "MUHAMMAD ASLAM vs. S.H.O. POLICE STATION SADDAR, MAILSI and another (2004 YLR 2161 Lahore) discharged the accused and ignored the fact that the aforementioned case law is having distinguishable features from the present case and has no bearing effect upon the instant case which was registered on the complaint of the Superdar, duly appointed in accordance with the established revenue procedure, serves as the custodian of public property and he was also instructed by the Tehsildar not only to oversee the crops but also to report any instance of wrongdoing. Furthermore, the case law cited by the Learned Judicial Magistrate Section 30 Ahmadpur Sial is specifically applicable to a dispute between the private parties. In contrast, the current case involves Muhammad Saleem (respondent No. 4), who was implicated by the Superdar, an official appointed to oversee and supervise the property in question. This distinction between the two situations is significant, as it highlights that the circumstances of the present case are not merely a private matter but involve allegations made by a designated authority responsible for the protection of public property. The role of Muhammad Saleem (respondent No.4) can only be determined after proper investigation in accordance with law. No doubt it is the discretion of the Magistrate concerned to pass order under Section 63 of the Code of Criminal Procedure to discharge an accused, however, the discretion must be exercised by the concerned magistrate justly, fairly. Nevertheless, in the instant case on the first day of arrest, respondent No.4 has been discharged by the learned Magistrate despite the fact that statements of complainant and witnesses recorded under section 161, Cr.P.C. were available on record.
4. It is not the case that the learned Magistrate already granted physical remand of the accused and the police could not collect incriminating evidence against him, thus, such mechanical order cannot be allowed to hold in field. Even during the course of arguments before this Court, learned counsel for respondent No.4 has miserably failed to establish his innocence, however, the Learned Judicial Magistrate, instead of properly considering the available evidence, hastily discharged the accused despite allegations of theft of rice crops valuing Rs.13,00,000. Given the unique facts and circumstances of the case, this Court believes that the Learned Judicial Magistrate did not allow the Investigating Officer sufficient opportunity to complete the investigation in accordance with the law. If any reference in this regard is needed, that can be made to the cases reported as IFTIKHAR AHMED vs. The STATE and others (PLD 2020 Lahore 931) & KHADIM HUSSAIN SHAH vs. JUDICIAL MAGISTRATE and others (2019 MLD 363 (Lahore)
5. In view of the above discussion and while placing reliance on the judgments supra, the constitutional petition in hand is allowed, impugned order is set aside and the request of the Investigating Officer for physical remand of the accused person i.e. respondent No.4 will be deemed to be pending before the learned Magistrate, who shall pass appropriate order keeping in view the observations made above. Office is directed to transmit copy of this order to the learned Magistrate concerned immediately.