A case under section 302/148/149, P.P.C. Was registered against Wajid Ali etc. With Police Station Farooqabad District Sheikhupura vide F.I.R. No.507/90, dated 10-11-1990 The allegations were that Ghulam Mustafa was done to death by Wajid Ali id his co-accused on 10-11-1990 within the area of Police Station Farooqabad. Wajid Ali and Muhammad Ramzan were armed with .12 bore guns and the remaining co-accused were also armed with deadly weapons. It is argued that S.H.O. Police Station Farooqabad, D.S.P, of the same Police Station D.S.P., C.I.A., D.S.P. Headquarters, Inspector Crime Branch, Lahore and the S.P. Crime Branch, Lahore, conducted intensive investigations in the case and all of them came to the conclusion that Wajid Ali Muhammad Ramzan were wholly innocent and the remaining accused and were involved in the commission of the crime. The result of the investigations about the innocence of Wajid Ali and Ramzan was finally confirmed by the D.I.-G., Lahore, who also recommended that the accused may be got discharged. The Investigating Officer, thereafter prepared a report for discharge of the accused Muhammad Ramzan and Wajid Ali under section 173, Cr.P.C. This report was presented before the learned Magistrate on 3-4--1991.
The learned Magistrate did not agree with the report of the investigating officer and directed the Investigating Officer to place the present petitioner in column No.2 of the challan. In consequence, no order of discharge of the petitioner was passed by the learned Magistrate. The order of the learned Magistrate was challenged before the learned Additional Sessions Judge. The learned Judge declined to interfere on the basis of the law laid down in Bahadur v. The State PLD 1985 SC
62. Accordingly, the revision was dismissed on 12-8-1991. The petitioner has assailed the vires of the said orders of the learned Magistrate dated 3-4-1991 and the learned Additional Sessions Judge, dated 12-8-1991, before High Court by filing this Constitutional petition.
2. Learned counsel contends that it is now settled that it was the duty of the learned Magistrate to have passed a speaking order. In this behalf the learned counsel has relied upon the rule laid down in Bahadur v. The State PLD 1985 SC 62. Rana Muhammad Arshad Khan, learned Additional Advocate---General says that he is unable to draw distinction between the rule laid down by the Honourable Supreme Court in Bahadur's case (Supra) and the case in hand. He is of the view that the learned Magistrate should have applied his judicial mind while passing the impugned order.
3. I have heard the learned counsel for the parties at length and have seen the record. The position which emerges in the case is that six Investigating Officer on different occasions conducted investigation and they came to the unanimous conclusion that Muhammad Ramzan and Wajid Ali were innocent. From the impugned order, dated 3-4-1991 it is evident that the learned Magistrate did not look into the record before him and he passed the impugned order in routine without applying his judicial mind. The rule laid down in Bahadur's case is that the order should be just, proper, fair and honest. In my view impugned orders are illegal when they are seen at the touch- stone of the law laid down by the Honourable Supreme Court in Bahadur's case. Consequently, the impugned orders dated 3-4-1991 and 12-8--1991 are set aside being without lawful authority. The case is remanded to the learned Magistrate to pass a speaking order in the light of the judgment of the learned Supreme Court referred to above. The petition succeeds and is allowed with no order as to costs.