' This judgment will dispose of Criminal Miscellaneous No,297/Q of 1994 and Writ Petition No,12071 of 1994 as both are interconnected 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 Criminal Miscellaneous No,297/Q of 1994 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 predeceased 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 Nos.448, 527 and 557. It was prayed that by getting those mutations i,e, 436/437/448/527/557 through fraud and misrepresentation offence under section 471/420/468/467, P.P.C. Had been committed. However, on the basis of the application for registration of case, F.I.R. Under section 419/420/468/471, P.P.C. Was registered with Police Station Phalia, District Gujrat.
3. A detailed investigation was conducted by the local police and thereafter, by gazette 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 F.I.R. No,310, dated 1-12-1990.
4. Aggrieved by this order of cancellation, dated 17-8-1993 abashment petition has been moved.
5. Aforesaid Writ Petition No,12971 of 1994 has been moved on the ground that the said F.I.R. No,310, dated 1-12-1990 had since been cancelled on 17-8-1993, therefore, subsequent F.I.Rs, i,e, F.I.R. No, 103, dated 13-7-1994 in respect of Mutation No,557, dated 28-7-1986 and F.I.R. No,104, dated 13-7-1993 ii, respect of Mutation No,527, dated 21-9-1994 both registered at the instance of Waheed-uz-Zaman who was complainant in F.I.R. No,310, dated 1-12-1990 were got registered with mala fide intention and also the registration of these F.I.Rs, is illegal and without lawful authority as second F.I.R. Could not be registered on the basis of same facts and circumstances as alleged in the earlier F.I.R.
Reliance was placed on Malik Anjum Farooq Paracha and others v. Manzoor-ul-Haq Chohan and others 1993 PCr.LJ 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 abashment 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 abashment 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 F.I.R. No,310, dated 1-12-1990. In support of his contention he has cited Bahadur and others v. The State and another PLD 1985 SC 62 and Arif Ali Khan and others v. The State 1993 SCMR 187. 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 had been got effected through fraud and misrepresentation and the accused persons were liable to be prosecuted under section 419/420/468/471, P.P.C.
7. The learned' counsel for the writ petitioner argued that earlier F.I.R. No,310, dated 1-12-1990 had been registered with regard to Mutations Nos.448/527/557 as well, therefore, subsequent F.I.Rs, Nos.103 and 104 could not be registered, as such, their registration is illegal and without lawful authority. Since the complainant in all the F.I.Rs, is one and the same person, therefore, the subsequent F.I. Rs, were also registered with rnala fide intention. Reliance has been placed on Malik Shaukat Ali Dogar v. Ghulam Qasim Khan PLD 1994 SC 281 and Muhammad Sharif and another v.
The State 1997 SCMR 304. Reliance has also been placed on Malik Anjum Farooq Paracha and others v. Manzoor-ul-Haq Chohan and others 1993 PCr.LI 1056. In Bahadur's case the Honourable 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 no 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 focus 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 under section 173, Cr.P.C. He does not function as a criminal Court."
It, therefore, becomes abundantly clear that the Magistrate while cancelling F.I.R. 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 material 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 deprecated. In the present case as well brief order agreeing with the police report has been passed. To set aside such order under section 561-A, Cr.P.C. It has to be seen whether that order is really passed on material available ordering cancellation of the F.I.R. 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 D.S.P. 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, countersigning Officer, opinion by D.S.P. Legal and observed that the case was liable to be cancelled thereafter the learned Magistrate proceeded to cancel the F.I.R. No,310 of 1990 on 17-8-1993. It would have been more proper and appreciable if the Magistrate would have specified briefly the grounds and material on the basis of which report seeking cancellation had been submitted but only on account of that omission application under section 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 IC 1 and subsequently by the Honorable Supreme Court in Shahnaz Begum's case PLD 1971 SC 677 as under:-- "Just as it is essential that everyone 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 the 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 Honorable 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 F.I.R. No,310 of 1990, dated 17-8-1993 has been upheld, therefore, the registration of subsequent F.I.Rs, Nos.103 and 104 both dated 14-7-1994 relating to the mutation which was subject-matter of F.I.R. No,310 of 1990, stands cancelled, is not maintainable. The facts and allegations on the basis of which an F.I.R. Has already been registered, no subsequent/second F.I.R. Is permissible. There is no dearth of case-law on this point. This view is fortified by Kaura's case 1979 PCr.LJ 521 wherein observations made by the Honorable Supreme Court was followed, 1975 SCMR 149, PLD 1975 Lah. 733, PLD 1979 Lah. 263 and 907 and 1983 PCr.LJ 2172.
10. It has also been pointed out by the learned counsel for the petitioner that complainant in all the F.I.Rs, was one and the same person, therefore, the mala fides in getting the F.I.R. Registered cannot be overruled. Since subsequent F.I.R. On the same facts and circumstances is not permissible, therefore, registration of these F.I.Rs, is held to be without lawful authority and without any legal effect.
11. The upshot of the above discussion is that Criminal Miscellaneous No,297/Q of 1994 is dismissed and Writ Petition No,12071 of 1994 is accepted.
12. No order as to costs.