ZAFAR PASHA CHAUDHARY, J. - This judgment will dispose of Crl. Misc. No. 297-Q-94 and W.P. No. 12071/94 as both are inter-connected- and any order passed in the criminal miscellaneous petition is bound to affect the order to be passed in the writ petition.
2. Briefly the facts giving rise to Crl. Misc. No. 297-Q-94 are that one Meer. Ghazanfar expired in 1973 and mutation No. 436 regarding his inheritance was. Attested on 15.2.1986 but four brothers and four sisters of the deceased were got deliberately excluded from the inheritance. On 15.2.1986 another Mutation No. 437 regarding inheritance of Meer Muhammad Azam Khan who had pre- deceased was effected in the name of Akbari Begum, Mahboob Azam Khan, Jehangir Azam, Khalid Azam Khan', and Tariq Azam Khan. Meer Azam Khan deceased had left two widows Akbari Begum and Farida. Akbari Begum had four sons and three daughters from the deceased but mutation was effected only in favour of four sons. The remaining heirs were excluded. Similarly Farida Begum had three sons. They were also deprived of their inheritance. An application was moved before the Collector praying for review of the mutation which was sanctioned on 30.1.1990. Accordingly the aforesaid two mutations were set aside. Both of the mutations were got effected by Bashir Ahmad and Jameel fraudulently and by misrepresenting the facts. Both of the said persons i.e. Bashir Ahmad and Jameel got the land subject-matter of the mutation transferred in their favour vide mutations No. 448, 527 and 557. It .Was prayed that by getting those mutations i.e. 436/437/448/527/557 through fraud and misrepresentation offence u/S. 471/420/468/467 PPC had been committed. However, on the basis of the application for registration of case, FIR under sections 419/420/468/471 PPC registered with Police Station Phalia District Gujrat.
3. A detailed. Investigation was conducted by the local police and thereafter by gazetted officers comprising of D.S.Ps. On conclusion of the investigation it was found that no case against the accused persons could be proved, therefore, it was recommended that the case should be got cancelled from the concerned Magistrate. Consequently an application was moved before the learned Illaqa Magistrate who vide his order dated 17.8.1993 cancelled the said FIR No. 310, dated 1.12.1990.
4. Aggrieved by this order of cancellation dated 17.8.1993 quashment petition has been moved.
5. Aforesaid Writ Petition No. 12971/94 has been moved on the ground that the said FIR No. 310, dated 1.12.1990 had since been cancelled on 17.8.1993, therefore, subsequent FIRs i.e. FIR No. 103, dated 13.7.1994 in respect of Mutation No. 557, dated 28.7.1986 and FIR No. 104, dated 13.7.1993 in respect of mutation No. 527, dated 21.9.1994 both registered at the instance of Waheed-uz-Zaman who was complainant in FIR No. 310, dated 1.12.1990 were got registered with mala fide intention and also the registration of these FIRs is illegal and without lawful authority as second FIR could not be registered on the basis of same facts and circumstances as alleged in the earlier FIR. Reliance was placed on Malik Anjum Faruq Paracha & others v. Manzoor-ul-Haq Chohan and others (1993 P.Cr.L.J. 1056). The petition was admitted to regular hearing and notice was issued to the respondents. Since the question for determination in both the cases i.e. Writ petition as well as quashment petition was same and identical and, therefore, both the petitions were ordered to be heard together.
6. I have heard the arguments advanced by the learned counsel for the parties as well as for the State. Relevant record has also been examined. The main contention raised by Mr. Naveed Shehryar, Advocate, the learned counsel for the petitioner in quashment petition is that the impugned order dated 17.8.1993 is not a speaking order and the learned Magistrate has not applied his independent mind while cancelling the case FIR No. 310, dated 1.12.1990. In support of his contention he has cited Bahadur and other v. The State and another (PLJ 1985 S.C. 63), (PLD 1985 SC 62) and Arif Ali Khan, etc. v. The State etc. (NLR 1993 Criminal 240). It has, therefore, been argued that the order of cancellation be struck down and the cases be remanded to the trial Court for looking into the merits of the case afresh. It has also been added that on review the mutation No. 437 had been ordered to be reviewed, therefore, it was established beyond doubt that the previous mutations has been got effected through fraud and misrepresentation and the accused persons were liable to be prosecuted u/Ss. 419/420/468/471 PPC.
7. The learned counsel for the writ petitioner argued that earlierm FIR No. 310, dated 1.12.1990 had been registered with regard to mutations Nos. 448/527/557 as well, therefore, subsequent FIRs No. 103 and 104 could not be registered, as such, their registration is illegal and without lawful authority.
Since the complainant in all the FIRs is one and the same person therefore, the subsequent FIRs were also registered with mala fide intention. Reliance has been placed on Malik Shaukat Ali Dogar v. Ghulam Qasim Khan (PLD 1994 S.C. 281) and Muhammad Sharif and another v. The State (1997 SGMR 304). Reliance has also been placed on Malik Anjum Faruq Paracha and others v. Manzoor- ul-Haq Chohan and others (1993 P.Cr.L.J. 1056). In Bahadur's case, the Hon'able Supreme Court has held:- "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 all State powers, there is na 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 parties left free to institute a complaint on the same facts, and the same Magistrate does not even after passing such an order renders 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 u/S. 173 Cr.P.C, he does not function as a criminal Court.
It, therefore, becomes abundantly clear that the Magistrate while cancelling FIR and discharging the accused does not function as a Court and that order cannot be treated as judicial order. It is however expected that the Magistrate should pass a speaking order indicating as to how and on the basis of what materia] he finds himself in agreement with the police report. Any order passed in a mechanical manner without indicating that independent application of judicial mind has been made is depreciated. In the present case as well brief order agreeing with the police report has been passed. To set aside such order u/S. 561-A Cr.P.C, it has to be seen whether that order is really passed on material available ordering cancellation of the FIR. To remand the case on mere technical ground will not promote the ends of justice. A plain reading of Section 561-A Cr.P.C, reveals that High Court may make such orders to prevent abuse of process of any Court or otherwise to secure the ends of justice. Therefore, keeping in view the letter and spirit of the section it is necessary that entire record available should be perused and considered. In the instant case investigating agency conducted the investigation and thereafter came to the conclusion that the charge was found to be baseless and false. Recommendation was made by DSP Legal on forwarding the case to him by the Investigating Officer as well as by the supervising authority. After completing investigation the Superintendent Police Gujrat was moved who also concurred with the findings of the investigating officer, counter-signing officer, opinion by DSP Legal and observed that the case was liable to be cancelled thereafter the learned Magistrate proceeded to cancel the FIR 310/90 on 17.8.1993. It would have been more proper and appreciable if the Magistrate would have specified briefly the ground and material on the basis of which report seeking cancellation had been submitted but only on account of that omission application u/S. 561-A Cr.P.C, cannot be accepted. The petitioner should have shown to the Court that sufficient material was available connecting the accused with the alleged offence and also the material was sufficient to warrant conviction of the accused. In the present case no such material has been pointed out rather on the contrary the dispute in between the parties is basically of civil nature. Every civil wrong does not give rise to commission of criminal offence. To establish guilt of accused person it is necessary that all the ingredients of alleged sections of law should have been fulfilled. In the case in hand an erroneous mutation had been affected. The mistake was subsequently rectified by the appellate authority and as such the wrong was redressed. Merely because the Collector has found the mutation as incorrect or false does not by itself constitute a criminal offence.
8. It has been consistently laid down by the privy Council in The King Emperor v.Khawaja Nazir Ahmad (1945 I.C. 1) and subsequently by the Hon'able Supreme Court in Shahnaz Begum's case (PLD 1971 SC 677) as under:- "Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry."
Respectfully following the dictum laid down by Hon'able Supreme Court order of cancellation should not be lightly interfered unless the same is found to be perverse, not based on any material and has been passed arbitrarily without application of independent judicial mind. No interference is, therefore, called for in the impugned order dated 17.8.1993 which is upheld and maintained.
9. As the order of cancellation of FIR No. 310/90, dated 17.8.1993 has been upheld, therefore, the registration of subsequent FIR Nos. 103 and 104-both dated 14.7.1994 relating to the mutation which was subject-matter of FIR No. 310/90, stands cancelled, is not maintainable. The facts and allegations on the basis of which an FIR has already been registered, no subsequent/second FIR is permissible. There is no dearth of case law on this point. This view is fortified by Kaura's case (NLR 1979 LHR 3) wherein observations made by the Hon'able Supreme Court was followed, 975 SCMR 149, PLD 1975 LHR 733, PLD 1979 LHR 263 and 907 and also 1983 P.Cr.L.J. 2172.
10. It has also been pointed out by the learned counsel for the petitioner that complainant in all the FIRs was one and the same person, therefore, the mala fides in getting the FIR registered cannot be over-ruled. Since subsequent FIR on the same facts and circumstances is not permissible, therefore, registration of these FIRs is held to be without lawful authority and without any legal effect.
11. The upshot of the above discussion is that Cr. Misc. No. 297-Q-94 is dismissed and W.P. No. 12071/94 is accepted.
12. No order as to costs.