Haji Muhammad Javed petitioner herein was taken in injured condition to Lady Reading Hospital, Peshawar on 28-1-1989 where at 19-10 hours he made a report that he alongwith his companions was sitting in his Hujra at 18-45 hours when Ghazanfar Bilor and Bashir Bilor respondents Nos. 2 and 3 herein came armed alongwith other companions and started abusing the petitioner and also started-firing as a result of which he was injured on the abdomen. He, however, did not know as with whose fire-shot he was injured. The occurrence had been seen by Haji Tahir Siddiqi, Zahid Baig and Abdur Rehman's. The motive for the offence, as disclosed in the report, was that in the by- election the petitioner had supported the Muslim League candidates as against the candidate of Islami Jamhoori Ittehad. This report was incorporated in F.I.R. No. 47 of Police Station Gul Bahar and investigation was taken into hand. The Investigating Officer on the same day recorded statements of the aforesaid three witnesses under section 161, Cr.P.C. And all the three witnesses charged respondents Nos. 2 and 3 herein for firing at the petitioner as a result of which the latter sustained the injury. It further transpires that on 2-2-1989 the Investigating Officer examined Arshad Ahmad, Zahir Shah, Malik Muhammad Javed, Sheraz Gul and Nawazash Hussain who stated that they had taken out a procession in Gul Bahar Colony after the success of Bilor Sahib in the by-election and they subsequently came to know that the petitioner was injured and that the said injury was caused by a shot fired by his own brother. The Investigating Officer then submitted a report under section 173, Cr.P.C. To the Illaqa Magistrate for cancellation of the case and learned Magistrate made an order on 8-3-1989 stating that the request of the local police was genuine and the ease was cancelled. The petition in hand, filed under section 561-A, ,Cr.P.C. Seeks the quashment of the aforesaid order of the local Magistrate.
2. I have heard learned counsel for the parties at length and have also perused record of the case.
It has been contended by the learned,, counsel for the petitioner that the learned Magistrate had not applied his mind and had by a mechanical order accepted the request of the police and cancelled the case. It was also contended by him that the learned Magistrate had assumed jurisdiction in the matter and as such he could not cancel the case. On the contrary learned counsel for respondents Nos. 2 and 3 had contended that the impugned order was made by the learned Magistrate in his administrative capacity and could not be a subject-matter of scrutiny under section 561-A, Cr.P.C. He also contended that alternatively no damage was caused to the complainant because he could still institute a private complaint.
3. The perusal of the record of investigation would clearly indicate that three independent persons had not only supported the version of the petitioner but had also directly charged respondents Nos. 2 and 3 for firing at and injuring him. On the contrary the persons produced by respondents Nos. 2 and 3 before the Investigating Officer could not be stated to be eye-witnesses of the occurrence. They had stated that subsequently they came to know that the petitioner had been injured by his own brother. The aforesaid three ocular witnesses of the occurrence were examined on the same day when the report was made by the petitioner whereas the persons on behalf of the respondents were examined by the Investigating Officer on 2-2-1989: It shall thus be seen that there was prima facie ocular evidence in support of the report while the persons examined on behalf of the respondents could not be treated as eye-witnesses. The latter had also not deposed about the circumstance of any firing at the time of taking out the procession. As such they. Were neither witnesses of any firing during the procession nor they had seen the injury caused to the petitioner. In this view of the matter the only course of action open to the Investigating Officer was to send the accused Court to stand their trial. It transpires that he assumed to himself the duty of the Court. He examined the pros and cons of the evidence himself and gave the decision that there was no evidence available against the respondents and the case be cancelled. He took upon himself the duty of administering justice between the parties, which was the sole jurisdiction of the Court. He actually usurped the judicial power to himself. This appears to be a case of exercise of arbitrary power by the police. It appears that the learned Magistrate did not peruse the record of investigation and mechanically agreed to the suggestion of the police in cancelling the case. He did not apply his conscious mind. A copy of the report had been forwarded to him and he was seized with the matter as such he had assumed jurisdiction and the order made by him cannot be treated as an administrative order. The impugned order could be treated as an administrative order provided the same has been passed before taking cognizance of the matter by the learned Magistrate. After taking cognizance and even before the issuance of process the normal procedure under the Code of Criminal Procedure should have been followed by the learned Magistrate. The police report would not relieve him of his obligation to continue the proceedings until their proper termination under the relevant law. The cancellation of case under section 173, Cr.P.C. Is not permissible after, the cognizance has been taken. In coming to the aforesaid conclusion I draw support from the case of Muhammad Alam and another v. Additional Secretary to Government of N: W.F.P. Home and Tribal Affairs Department and 4 others PLD 1987 SC 103.
4. I cannot accept the contention of the learned counsel for the respondents that no damage has been caused to the petitioner as he could institute a private complaint for the simple reason that the offence alleged to have been committed by the respondents was cognisable and it was the duty of the police to properly investigate the matter and the State was bound to prosecute the culprits if sufficient material was available after investigation. The impugned order is not only patently unjust but is also a clear abuse of process of the Court. I will, therefore, accept this petition, set aside the impugned order dated 8-3-1989 of the learned Magistrate and would direct him to proceed in the matter in accordance with law.