' A 'case under section 420/468/471/409, P.P.C. Read with section 5(2)47 of the Prevention of Corruption Act, 1947, was registered against the respondents Nos.3 and 4 on the statement of Mukhtar Hussain with Police Station Lytton Road, Lahore, on 4-10-1990, vide Annexure `A'. According to the allegations, the respondents committed misappropriation of a sum of Rs,47,00,000 by means of opening a bogus account and thereafter they issued forged cheques and obtained the cash in lieu thereof. The respondent No,4 thereafter issued two cheques for a sum of Rs,50 lass in favour of the petitioner. However, on presentation, the cheques were not honoured by the Bank. The investigating agency conducted the enquiry and came to the conclusion that no offence was committed by the accused. A report was, therefore, submitted by the police disclosing that a decree was passed by the Registrar, Cooperative Societies in terms of section 54 of the Cooperative Societies Act, 1924 and as such it was recommended that the criminal case was liable to be cancelled. On 25-4-1991, the learned Magistrate accepted the recommendation of the investigating officer and discharged the accused forthwith.
2. Through this Constitutional petition, learned counsel for the petitioner has questioned the validity of the aforesaid order on the basis of rule laid down by the learned Supreme Court in Bahadur v.
State PLD 1985 SC 62. It is contended forcefully by the learned counsel that it was the duty of the learned Magistrate to have passed a fair, just and proper order keeping in view the facts and circumstances of this case. The learned counsel argues that the learned Magistrate did not apply his judicial mind to the allegations levelled against the accused. He, therefore, submits that the impugned order may be set aside by declaring it to be without lawful authority and the learned Magistrate may be directed to decide the case of the parties keeping in view the principles laid down by the Honourable Supreme Court in the aforesaid case. Learned counsel appearing on behalf of the contesting respondents, however, states that the writ petition is not competent inasmuch as Rai Faqir Muhammad, the petitioner, who filed this petition in his capacity as Secretary, Government Superior Services Cooperative Housing Society Limited, is no more the Secretary of the Society and as such the writ petition should be dismissed on that score alone.
Learned counsel also argues that the writ petition suffers from laches and delay inasmuch as the impugned order was challenged after more than one year without offering any explanation for this delay. He states that the learned Magistrate was competent to discharge the accused on the basis of the recommendation having been made by the investigating agency. In support of his plea, learned counsel has relied upon Khanzada Hadayat Ali Khan v. Mazhar Ali Khan 1985 P Cr. L J 2871, Muhammad Aijaz Ahmad v. The State 1987 P Cr. L J 1320 and Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz), Narowal and 5 others PLD 1992 Lah.
178.
3. I have heard the learned counsel for the parties at considerable length and have also gone through the record with care. There is no substance in the arguments of the learned counsel and as such they are repelled. Rai Faqir Muhammad is the complainant and, therefore, has the right to file this petition before this Court. The delay in filing the petition before this Court in such like cases is immaterial because the impugned order was passed in absence of the petitioner. It is the duty of every authority whether judicial or otherwise to give effect to the law laid down by the Honourable Supreme Court. In my view the learned Magistrate did not follow the principles laid down by the Honourable Supreme Court in Bahadur's case (supra) while discharging the accused in this case. It was observed by the Honourable Supreme Court in the referred case that the learned Magistrate has to act fairly, justly and honestly while passing the order of discharge. It is evident from the impugned order that it was passed by the learned Magistrate in an undue haste without looking into the record and also without applying his judicial mind to the facts and circumstances of this case. The allegations having been levelled against the contesting respondents are, indeed serious in nature inasmuch as a sum of Rs,47,00,000 was allegedly misappropriated by the accused. This being so, the impugned order is declared to be without lawful authority and of no legal consequence. The learned Magistrate shall pass a fresh order keeping in view the principles laid down by the Honourable Supreme Court in the above-noted case: The petition accordingly succeeds and is allowed leaving the parties to bear their own costs.