' The dead body of Bashir Ahmad deceased was found on 17-3-1989 in the area of village Malutc, Police Station Kala Kahar, District Chakwal, and on postmortem examination on the following day it was found to be 'in an advanced stage of decomposition' with a duration of two to four months between the death and post-mortem.
2. On the same day, i,e, 17-3-1989, Sahib Khan complainant, a cousin of the deceased, moved a written application to the police and on its basis formal F.I.R. (No, 58) was registered at the police station for offences under sections 302, 201 and 147, P.P.C. The version in the F.I.R. Was that one and a half months before the report (to the police) the deceased had gone to Mazhar lqbal (petitioner before this Court) in connection with 'Lain, Dain' but when he did not return for 15/20 days, the complainant went to the petitioner who hesitated and then informed that he (Mazhar Iqbal) had heard that Bashir Ahmad had been murdered. The version in the F.I.R. Proceeds that on this information search was made in the area and the complainant reached near the place from where the dead body was found. In this very connection it is mentioned in the F.I.R. That at a distance of 200 yards from there (the place of the dead body) eight persons (who have been named) were standing. Resham Khan is mentioned as one of them, who, on seeing the search party, ran away. So, suspicion was entertained that the occurrence had taken place over there. The motive alleged was that Muhammad Khan, the father of Bashir deceased, had murdered Ghulam Oadir, the grandfather of Rcsham Khan accused.
3. The case was investigated by Muhammad Bashir, Inspector/S.H.O. Of the police station. On 18-4- 1989 the petitioner was produced before Mr. Zafar Abbas Bhatti, Magistrate First Class, Chakwal, by Muhammad Hayat, A.S.I. With an application for physical remand. On this application the learned Magistrate recorded the following order:-- "Mazhar Iqbal accused in police custody. Muhammad Hayat, A.S.I. Police Station Kallar Kahar, states that the Inspector/S.H.O. Had gone to Rawalpindi, so the file could not be completed. Last case diary No,5, dated 7-4-1989 has been prepared by Muhammad Bashir, Inspector/S.H.O. Thereafter the file is incomplete. As to the arrest of the accused or any evidence or reasonable suspicion against him, there is no mention. So, in the circumstances, for the incompetency, mistake or lethargy of the police the accused cannot he punished. The A.S.I. States that due to engagements the case diaries etc. Could not be recorded. Further that the accused had been taken into custody under section 54, Cr.P.C. After examining the file, in my opinion, it is not proper to keep Mazhar Iqbal in further custody. So, he is discharged from the present case. The file produced by the local police is being sent to Superintendent of Police Chakwal in scaled cover so that the matter may be further looked into."
' The District Attorney/Public Prosecutor, Chakwal, moved a revision petition under section 435/439, Cr.P.C. In the Court of Session on 23-4-1989. ' The District Attorney, inter alia, submitted:-- "During the investigation it transpired that Mazhar 1qbal abetted his co-accused for the commission of the crime.
' That the Ilaqa Magistrate erred in law by holding that the arrest was not shown although according to the remand paper presented before the Court the accused was reported to he arrested on 17-4-1989, and moreover the A.S.I. Who as per order of the Magistrate has stated to him that the accused was arrested under section 54, Cr.P.C. Has submitted an affidavit to the effect that he never stated so, rather he told the Magistrate that the arrest of the accused was formal in the case. (The affidavit of the A.S.1. Is enclosed for your honour's kind perusal).
' Mazhar Iqbal was a nominated accused in the F.1.R. And as per statements of three witnesses a specific role was attributed to him, hence the learned Magistrate was not at all justified to discharge the accused."
' The revision petition was entrusted to Mr. Muhammad Ashiq Khan, learned Additional Sessions Judge, Chakwal, and he recorded the following order on 24-4-1989:-- ' Present: Mr. Qaiser Masood Mirza Offg. District Attorney for the petitioner. Heard.
' Contentions raised that the respondent Magistrate was not competent and had rather no jurisdiction at all to discharge the respondent accused from a murder case which exclusively falls within the jurisdiction of the Sessions Court especially when the local police had requested the learned Magistrate to grant physical remand of the respondent accused but it was declined for no reason and the respondent accused was discharged. The contentions need consideration.
' Admit. Since the impugned order of the learned Magistrate is prima facie without jurisdiction and the murder cast is a warrant case, hence non-bailable warrants of arrest be issued against the respondent accused and notice to the learned Magistrate for 4-5-1989."
' The order of the learned Additional Sessions Judge and the consequent proceedings are desired to be quashed in the present petition under section 561-A, Cr.P.C.
4. Learned counsel for the petitioner and the learned State counsel have been heard at length. The case diaries which were kept in Court in sealed cover have also been perused after desealing the same. It is an admitted fact on the record that after the case diary of 7-4-1989 no case diary was recorded by the Inspector/S.H.O., the investigator of the case, till the petitioner was produced before the Magistrate on 18-4-1989. It is also stated before the Court by Mian Muhammad Inspector/S.H.O. And Muhammad Hayat, A.S.I. Who arc present in Court, that the application for physical remand moved before the Magistrate on the said date was in the hand of said Muhammad Bashir, Inspector. It does not indicate that the accused, i,e, the petitioner, had been arrested under section 54, Cr.P.C.; it only recites with reference to case F.I.R. No, 58 that the accused had been arrested yesterday and as at his instance articles of the deceased were to be recovered, so physical remand for ten days may be granted. There is dispute as regards the observation of the Magistrate in his order to the effect that the A.S.I. Stated before him that the accused had been arrested under section 54 of the Cr.P.C. While his (A.S.I's) affidavit filed with the revision petition is to the contrary. In normal course, the order recorded by a competent Court in due discharge of its functions should be accepted as correct, but this aspect of the case need not detain us any longer as for the disposal of the present petition it is not of much importance.
5. Under section 167, Cr.P.C. Whenever investigation cannot be completed within twenty-four hours and there are grounds for believing that the accusation or information is well-founded, the officer- in-charge of the police station shall forthwith transmit to the nearest Magistrate a copy of the entries in the case diary and shall also forward the accused to him. Learned counsel for the petitioner has correctly referred to The State v. Wazir Khan PLD 1968 Pesh. 140 to bring out the dictum and well-established rule of law that when the accused is produced before the Magistrate/Court of law under section 167, Cr.P.C. The case diaries are to be examined and material seen to ascertain whether there are grounds to grant physical remand. Thus, the Magistrate while observing that no case diary had been recorded right after 7-4-1989 till the accused/petitioner was produced before him was well within his jurisdiction to note down that no such case diary including the one indicating the arrest of the petitioner had been recorded. FIe was only left with the case diaries recorded till then. The Inspector had recorded the case diaries on 17-3-1989 (when he examined Ashraf and Hanif P.Ws. Under section 161, Cr.P.C.), 26-3-1989 and 7-4-1989. I asked the learned State counsel to go through these case diaries and to point out if there was any incriminating material against the petitioner and he frankly conceded that except the statements of the abovementioned two witnesses and mention in the F.I.R. That one and a half months before the dead body was found, the deceased had gone to the petitioner, had not returned and then on inquiry after 15/20 days the petitioner had informed that he had heard that the deceased had been murdered, there was nothing against him. The statements of the two witnesses in the F.I.R. Seem to run on similar rails. This would mean that the only mention of the petitioner in the investigation till his pr.Oduction before the Magistrate was that the deceased had gone to him one and a half months before the dead body was found, 15/20 days thereafter he was contacted and pressed, whereupon he divulged that he had heard that the deceased had been murdered. Now this circumstance, without any corroborative piece of evidence connecting the petitioner with the alleged crime, is, prima facie, not incriminating. I am purposely not making definite comments in this regard lest the future course of the case may be affected.
6. In the above circumstances of the case the order recorded by the learned Magistrate is eminently just and proper. (At this stage, Pir Altaf Hussain, Advocate, learned counsel for the complainant, has entered appearance). Since neither the arrest of the petitioner had been shown in the case diaries nor any case diary had been recorded incorporating any incriminating material against him till he was produced before the Magistrate, the latter, after examining the case diaries produced before him, I must say, very correctly recorded the order keeping in view the provisions of sections 63 and 167, Cr.P.C.
7. What is to be observed is that against an order which was legally, competently and properly recorded by the Magistrate, the Superintendent of Police, instead of inquiring into the matter, as desired by the Magistrate, who had sent him the case diaries in sealed cover highlighting the inefficiency and incompetency of the investigating Inspector, and the District Attorney, who it prima facie appears, made it a point to file the revision petition contradicting the observation in the order of the Magistrate as to the statement of Muhammad Hayat, A.S.I., with regard to the arrest of the petitioner under section 54, Cr.P.C. Portions of the revision petition filed by the District Attorney have been quoted above to higLtight the point that perhaps without looking into or properly appreciating the record it was so drafted as to impeach the order of the Magistrate. The Superintendent of Police failed to submit a report to this Court, was, therefore, called and heard in Court, whereafter he did submit one. This has been examined. It also tries to justify the stand that the order of the Magistrate was illegal and the Superintendent of Police has even the temerity to say: `... The order in question has caused grave miscarriage of justice as the same was based on mala fides and under ulterior motive. Therefore, the revision was filed'. As if he is the competent authority to make observations whether there has been miscarriage of justice and to pass contemptuous remarks about a judicial officer when the matter is still sub judice. Astonishingly enough the learned Additional Sessions Judge also seems to fall in line. He made the observation that the impugned order of the learned Magistrate was, prima facie, without jurisdiction (how and on what basis there is no indication) and the murder case is a warrant case (again incorrect observation showing as if the learned Additional Sessions Judge had not read the Code of Criminal Procedure as amended by the Law Reforms Ordinance, 1972, omitting Chapter XXI relating to warrant cases altogether) and went to the extent of ordering that non-bailable warrants of arrest be issued against the petitioner, in spite of the fact that no notice of the revision petition at all had been issued to him. It is' very clear from a bare reading of sections 435 and 439, Cr.P.C. That no order to the prejudice of the accused can be made unless he has had an opportunity of being heard either personally or by a pleader in his defence. The learned Additional Sessions Judge was perhaps out to set aside the order of the Magistrate which had been recorded in the due exercise of his jurisdiction and so without any rhyme and reason and without looking to the provisions of law under which he was exercising his jurisdiction, proceeded to admit the revision petition and to issue non-bailable warrants of arrest. His order,l is, therefore, clearly illegal and cannot be maintained.
8. As discussed above, there was no incriminating material with the police as against the petitioner till he was produced before the Magistrate and the order of discharge recorded in his favour. In the circumstances, the contention raised by the learned counsel for the petitioner must be accepted that the resort to revisional jurisdiction, the entertainment of the revision petition and the continuation of the proceedings therein would be a mere essay in futility. Learned counsel for the petitioner also sought support from the dictum laid down in Bahadur v. The State PLD 1985 SC 62.
In the case before their Lordships the police had submitted report under section 173, Cr.P.C. For cancellation of the case and the Magistrate concurring had recorded the order of discharge. On matter being taken to the High Court, it was laid down that the decision of the Magistrate was subject to revision under section 439, Cr.P.C. The same was set aside and the case remitted back to examine the question of guilt of the accused. Leave to appeal was granted to examine whether a Magistrate concurring with the police report submitted under section 173, Cr.P.C. Discharging the accused and cancelling a criminal case acts as Court in judicial proceeding and is for that reason subject to the revisional jurisdiction of the High Court and it was laid down:- "Though 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 power, 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. 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. These peculiarities establish beyond any doubt that in so concurring with a report submitted under section 173, Cr.P.C. He does not function as a criminal Court. For that reason his order is not amenable to revisional jurisdiction under sections 435 and 439, Cr.P.C."
The present case is still under investigation and if the police collects sufficient material incriminating the petitioner, They can submit challan against him and, request for a warrant of his arrest. The matter is not finally clinched by the order' D of discharge recorded by the Magistrate.
What it amounts to is that there was not incriminating material and so no ground to keep the accused/petitioner in custody. This is an order which is analogous to one under section 63 of the Code, and as laid down in Muhammd Wasecm v. Additional Sessions Judge, Dera Ghazi Khan, etc. 1985 P Cr. L J 244 is an administrative order and sb not susceptible to interference by the Sessions Court in exercise of its revisionall jurisdiction.
9. For what has been discussed and concluded above, the petition is accepted and the order of the learned Additional Sessions Judge dated 24-4-1989 and the consequent proceedings based thereon arc set aside and qiiashed.
10. Before parting with the order it is made clear that the police can and may proceed with the investigation in normal course and if they collect incriminating material against the petitioner they may move the learned Ilaqa Magistrate for his arrest who would, of coin-se, hear him before passing any order.