' MIAN NAZIR AKHTAR, J.---This judgment will dispose of ICA No,186/90 (arising out of Writ Petition No,5129/90) along with connected ICAs bearing Nos.184, 185, 187 of 1990 (arising out of W.Ps.Nos.5428, 5427 and 5426 of 1990) respectively.
2. Mian Aftab Saigal respondent No,1 herein had challenged the orders passed by the Ilaqa Magistrate, accepting the police reports and cancelling the cases registered on his report vide F.I.R.
No,232/90 dated 2-5-1990 (under section 452, P.P.C., P.S. Gulberg) and F.I.R. No,333/90, dated 2-7- 1990 (under section 420/468/471, P.P.C. South Cantt.), District Lahore against the appellants, his two real brothers and two sisters-in-law. Another F.I.R. No,297/90 was lodged by Mrs. Aftab Saigal under section 448/342/148/149, P.P.C. At P.S. Gulberg, Lahore. The police conducted the investigation into the cases and prepared a final report under section 173 of the Cr.P.C., seeking cancellation of the cases. Accordingly, the case registered vide F.I.R. No,333/90 was cancelled under the order of the Ilaqa Magistrate on 25-7-1990. The cases registered vide F.I.Rs, Nos.236 and 297 were cancelled by the Magistrate vide his order dated 14-6-1990. In W.Ps. Nos.5426, 5427 and 5428 orders of cancellation of the F.I.Rs, were challenged, while W.P.No,5129/90 was faded by respondent No,1 for a direction to the S.H.O. To investigate the case against the accused persons and submit challan in the Court.
3. The petitions came up for hearing before a learned Single Judge of this Court, who was pleased to allow the same with a direction to the Magistrate to reconsider the reports submitted to him by the investigating agency and pass a speaking order after hearing the parties concerned. This order has been assailed in the present ICAs.
4. The learned counsel for the appellants has urged that the writ petitions were disposed of without formal admission and notice to the appellants who had no occasion either to file the written statement or to make oral submissions before the Court. He clarified that Mr. Ilyas Komal, Advocate had a watching brief on behalf of appellants Nos.4 and 5. The other four appellants (Nos.1, 2, 3 and 6) had gone abroad and never instructed the learned counsel to appear on their behalf before the learned Single Judge. He further urged that had the petitioners been given a proper notice and heard, they would have raised legal points to show that the impugned orders of cancellation of the F.I.Rs, were not open to judicial review. He pointed out that the orders for the cancellation of F.I.Rs, could be competently passed by the Magistrate without hearing the parties and recording a reasoned order. In this connection he referred to the case of Bahadur and another v. The State and another (PLD 1985 SC 62). On the other hand, learned counsel for respondent No,1 urged that all the appellants were represented by Mr. Ilyas Komal, Advocate, who appeared before the Court and conceded that the impugned orders were illegal. He urged that mere absence of power of attorney was not sufficient to conclude that Mr. Ilyas Komal was not a duly appointed counsel. He placed reliance on sub-rule (5) of rule 4 of Order III of the C.P.C. To contend that no formal power of attorney was needed for pleading alone. He explained that Mr. Ilyas Komal, Advocate, was the counsel for the appellants in a number of cases pending before the Civil and Criminal Courts and had appeared in the Court under instructions from the appellants. He made a concession on a law point which was rightly taken into consideration by the Court. He placed reliance on Banwari Rai v.
Chethru Lai Rai (AIR 1924 Pat. 114). Lastly he urged that the learned Single Judge had rightly passed the order in the light of law laid down in Zubaida Begum etc. v. The State (NLR 1980 Criminal 50).
5. After hearing the learned counsel for the parties we feel that all the appellants were not afforded a reasonable opportunity of being heard before the learned Single Judge. No doubt Mr. Ilyas Komal, Advocate, was marked present on behalf of the accused but his power of attorney or memo. Of appearance was not available on the file of any writ petition. Obviously, he could not represent the four appellants who were stated to be abroad at the relevant time, which fact was not seriously disputed by respondent No,1 (who was personally present in the Court). Under the provisions of Order III, Rule 1 of the C.P.C. a party or his recognized agent or pleader may appear, apply or act in a Court of law. The recognized agent can enter appearance, make application or act on behalf of the party after obtaining power of attorney. Under Rule 4, sub-rule (1) a pleader cannot act on behalf of a party unless appointed for such purpose through a document in writing signed by the party or by his recognized agent and such document in writing has to be filed in the Court. If a counsel has been engaged for pleading only then under sub-rule (5) of rule 4, he has to submit a memo. Of appearance signed by himself, stating therein the names of the parties to the suit, the - name of the appellant for whom he appears and the name of the person for whom he is authorized to appear. In the case of Ramzan and others v. Gupal Das and others (AIR 1936 Lah. 199), a pleader had entered appearance and made a compromise with the other party. His power of attorney was not available on the record. However, the Court noted that there was no doubt about his appointment as a counsel for the petitioners because he had submitted a list of documents on their behalf and had appeared in the Court on two occasions. Moreover, it was not denied that Mr. Ghulam Mohi-ud-Din, Advocate, was the petitioner's counsel who had himself referred to him as such. Under these circumstances, the Court concluded that the mere absence of the written instrument in writing authorizing the counsel to appear was an irregularity not affecting the validity of the compromise and the decree passed thereon. However, the Court emphasized that an Advocate or Wakil engaged for the purpose of pleading only must file in Court a memorandum of appearance. There is no cavil with the proposition that where a pleader merely "appears" on behalf of his client B and does not either act or plead on his behalf then he does not require either a power of attorney or a memo. Of appearance. It was so held in the case of Zahoor Alam v. Haji Allah Bakhsh and others (AIR 1935 Pesh. 2). The relevant portion from the judgment is reproduced below:- - "In Rule 4 a pleader who is acting for a client is required to present a power of attorney. In Rule 4(5) a pleader who is only pleading on behalf of a party, is required to file a memorandum of appearance. In our opinion when a pleader appears to plead in a case he must also be considered to be appearing on behalf of his client and that for the purpose of appearance on behalf of his client neither a power of attorney nor a memorandum of appearance is necessary."
6. In the case of Banwari Rai v. Chethru Lal Rai (AIR 1924 Pat. 114) relied upon by the learned counsel for respondent No,1, Banwari Rai petitioner-appellant had received information that his property had been sold in pursuance of a Court decree and sent his nephew Tilak Dhari Rai to find out for a fact whether the sale had really taken place and instructed him that if the sale had taken place then he should file a petition for setting it aside. On finding that the sale had taken place Tilak Dhari Rai engaged a pleader and signed a Wakalatnama authorizing the pleader to act on behalf of his uncle Banwari Rai. The pleader accordingly filed the application for setting aside the sale. No objection was taken to this mode of filing the application before the learned Munsif. It was raised for the first time on appeal before the learned District Judge. The appellate Court remanded the case to the Munsif to consider the objection and record evidence. After recording the evidence the learned Munsif held that the Wakalatnama was a proper one and binding and that in any event if there was any irregularity then it was not such a one as went to the merits of the case and came within the purview of section 99 of the Code and ought not to be treated as sufficient to permit of the sale being set aside. The appellate Court again set aside the order of the Munsif against which appeal was filed before the High Court. In the above background it was held as under:-- "The circumstances show that it (Vakalatnama) was not literally signed by him although it was signed by his name, and I have no hesitation in coming to the conclusion upon the facts found and accepted by the learned District Judge that Tilak Dhari was authorized to sign the Vakalatnama instructing the pleader because he was authorized to file an application in-order to have the sale set aside. He could not file the application himself; the only way in which he could put it before the Court was by instructing a pleader and, therefore, it must be taken that the authority given to him to file the petition included the authority to instruct a pleader."
Hence the Court concluded that the irregularity in signing the Vakalatnama was a trivial one, allowed the appeal and set aside the judgment of the District Judge. This judgment is clearly distinguishable on facts and cannot be pressed into service in the circumstances of the present case. In the present case four of the appellants were abroad and had no occasion to instruct their counsel to appear, act or plead on their behalf. There is no power of attorney or memorandum of appearance on the record to show that Mr. Ilyas Komal, Advocate was authorized to appear on behalf of the appellants. Hence we are inclined to believe that he had no authority to appear or plead on behalf of appellants Nos.1, 2, 3 and 6. They were not given any opportunity of being heard before the learned Single Judge.
7. There also appears to be some weight in the argument of the learned counsel for the appellants that correct law, in the light of the judgment of the Supreme Court in Bahadur's case, was not placed before the learned Single Judge. It was held in Bahadur's case as under:-- "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 1 before him, there is no duty to hear the parties. There is no decision given (underlining is ours) no finality or irrevocability attaching to the order...."
8. The three preconditions to act fairly, justly and honestly cast a duty on the Magistrate to apply his mind to the material placed before him and after duly considering the pros and cons of the matter, pass a speaking and well-reasoned order. He is not expected to put his signatures on the dotted line, or blindly ditto the report of the police signifying his lack of application of mind or giving the impression of being led by the nose by them. However, according to the above dictum he is not bound to hear the parties. The judgment in Zubaida Bibi's case does not go to the extent of allowing a right of hearing to the parties before an order of cancellation is passed by the Magistrate on the administrative side. So the direction given by the learned Single Judge for allowing a hearing to the parties appears to be beyond the scope of the Rule laid down in Bahadur's case as well as in Zubaida Bibi's case.
9. For the foregoing reasons we allow the appeals, set aside the impugned orders and remand the case to the learned Single Judge for deciding the writ petitions afresh after hearing the parties and keeping in view the law laid down by the said precedents. The parties are left to bear their own costs.