Gul Muhammad complainant got recorded F.I.R. No. 149 dated 3-11-1992 at Police Station City Rajanpur under section 420/467/468/471, P.P.C. With the allegation that there was litigation of civil nature between him, his brothers and sisters and that on 17-3-1990 his brother Dur Muhammad got prepared a forged and fictitious document of Tamleek pertaining to Shops Nos.83, 84 which he later on transferred in the name of his son Muhammad Ishaque whereby they deprived him. After getting an order passed from the District Magistrate, Rajanpur the F.I.R. Was registered.
2. The case was investigated. The Investigating Officer did not find the allegations mentioned in the F.I.R. As correct who submitted the report before Malik Rafique Ahmad, Magistrate 1st Class, Rajanpur in terms of section 169/173, Criminal Procedure Code for the cancellation of the F.I.R. Vide order, dated 4-10-1994 the said Magistrate 1st Class, Rajanpur cancelled the F. I. R.
3. Feeling aggrieved Dur Muhammad complainant filed the criminal revision petition before the District Magistrate, Rajanpur under section 435, Criminal Procedure Code to get set aside order, dated 4-10-1994. After hearing the parties Ch. Muhammad Azhar, District Magistrate, Rajanpur accepted the revision petition vide order, dated 28-1-1996 and set aside the aforesaid order dated 4-10-1994. He passed the order for reinvestigation .Of the case and submission of the challan. He sent a copy of the said order, dated 28-1-1996 to the Superintendent of Police, Rajanpur.
4. Feeling aggrieved Muhammad Ishaque petitioner has filed this writ petition before this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 to get declared order, dated 28-1-1996 passed by Ch. Muhammad Azhar, District Magistrate, Rajanpur as having been passed without lawful authority and of no legal effect.
5. During the preliminary arguments learned counsel for the petitioner relied on Bahadar etc. v. The State PLD 1985 SC 62 in support of his contention that the order for cancellation of F.I.R. Is not revisable under section 435/439, Criminal Procedure Code.
6. The comments were called from the District Magistrate, Rajanpur who took up the stand that he was competent to revise the order, about the cancellation of the F.I.R./case. He submitted that Malik Rafique Ahmad, Magistrate 1st Class was nor the Ilaqa Magistrate who passed the order dated 4-10-1994 for the cancellation of the F.I.R. As Mr. Azhar Hussain Chandia was in fact the Ilaqa Magistrate. According to him instead of producing discharge report before the Ilaqa Magistrate it was manipulated to be produced before another Magistrate who passed the order mechanically without applying his mind. A portion of the comments is reproduced as under:-- "9 (i).---That the order of the Magistrate for cancellation of case F.I.R. No. 149 of 1992 was not justified hence revised under section 435, Cr.P.C. Which fully empowers (District Magistrate) as such. The expression 'Satisfying itself as to correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior Court, is wide enough to justify the interference, where injustice is being done. Beneficial effect of power under this section should not be confined to narrow perimeters on basis of quotations from some decisions rendered by the Courts in peculiar situation of each case. Interpretation should be inspired with a feeling that any order found to be tainted with miscarriage of justice should be knocked out. A hair splitting exercise by rushing to case-law, ignoring the spirit of law would be defeating the purpose for which the power was given. (The dictum 1991 PCr.LJ 65 and PLD 1968 Lah.
537 referred)."
7. At one stage Mr. Zafar Ullah Khan Dareshak, Advocate appeared on behalf of the complainant side. However, afterwards he did not appear.-
8. I have heard the learned counsel for the petitioner as well as learned Assistant Advocate- General and gone through the record before me. Learned counsel for the petitioner argued that the dictum enunciated in Amir Ali v. The State and others PLD 1968 Lah. 537 has not been approved by the Supreme Court of Pakistan in the ruling published as Bahadar and another v. The State and another PLD 1985 SC 62. He added that the ruling published as Muhammad Azam v. Mahboob Iqbal 1991 PCr.LJ 65 (Federal Shariat Court) is also not applicable because the judgment was passed by the Court of competent jurisdiction while in the instant matter the District Magistrate was not competent to pass the impugned order, dated 28-1-1996 in the light of the aforesaid ruling PLD 1985 SC 62. Learned Assistant Advocate-General could not produce any case-law contrary to that relied upon by the learned counsel for the petitioner who rather frankly conceded that the District Magistrate, Rajanpur was not competent to pass the impugned order.
9. In the case-law reported as Bahadar and another v. The State and another PLD 1985 SC 62 the dispute of the instant nature has been disposed of clearly. .The judgment relied upon by the District Magistrate and reported as PLD 1968 Lah. 537 has not been approved by the Supreme Court of Pakistan Thus, in the light of the initial order, dated 29-2-1996 a copy of which was sent to the District Magistrate, Rajanpur wherein the dictum enunciated in PLD 1985 SC 62 was referred to, there was no legal necessity to rely on PLD 1968 Lah. 537. In the "'reproduced para. Of the comments of the District Magistrate, Rajanpur there is reproduction of a portion of the judgment reported as 1991 PSC 593 (Federal Shariat Court). However, the important aspect of the matter is that the Federal Shariat Court was competent to hear the revision petition while the District Magistrate, Rajanpur was not competent to hear the revision petition against the order, dated 4- 10-1995 passed by the Magistrate 1st Class regarding the cancellation of the F:I.R. In case the matter was produced before the Duty Magistrate and not before the Ilaqa Magistrate, this aspect of the matter could be considered by the competent Court and that could be the Constitutional Court before whom the writ petition could be filed as no revision petition is maintainable against an order passed by a Magistrate 1st Class concurring with police report submitted under section 173, Cr.P.C. Discharging the accused and cancelling the criminal case as he does not function as a Criminal Court g especially when before the competent Court the efficacious remedy of filing the criminal complaint in terms of section 190, Criminal. Procedure Code is available. Consequently it can safely be held that it is a case of transgression of judicial authority on the part of the District Magistrate, Rajanpur who stuck to his stand in the comments to project his authority in the matter without any legal justification who was bound to follow the dictum enunciated in the ruling published as PLD 1985 SC 62.
10. For what has been said above, I accept this writ petition and hold that order, dated 28-1-1996 passed by Ch. Muhammad Azhar, District Magistrate, Rajanpur is without jurisdiction, illegal and inoperative.