MUHAMMAD NASEEM CHAUDHRI, J.- Muhammad Akram deceased was the son of Muhammad Aslam writ petitioner. Making the allegation that Ghulam Qadir Head Constable respondent No. 4, Bashir Ahmad Constable respondent No. 5 each armed with rifle and Ijaz Ahmad Constable respondent No. 6 armed with Kalashinkove fired at Muhammad Akram who expired; Muhammad Aslam writ petitioner filed previous writ petition No. 16227/1996 on 14.9.1996 against the SHO Police Station Pattoki, District Kasur respondent No. 3 as weil as respondents No. 4 to 6 to get registered a criminal case against the aforesaid assailants. The writ petition was resisted by the concerned respondents. However, the same was accepted on 29.7.1997 and in compliance of the order FIR No. 259 dated 29.7.1997 was registered at Police Station City Pattoki, District Kasur under sections 302/34 PPC. The three accused persons were arrested by the SHO on 29.7.1997. Para 13 of order dated 29.7.1997 has to be referred to:- "13. The SHO shall proceed in the matter as under:-
(i) He shall obtain the physical remand of the three accused persons arrested by him today (19.7.1997) regarding which he has issued the written acknowledgement counter-signed by the learned Assistant Advocate General. Obviously he shall proceed to recover the weapon(s) of offence.
(ii) He shall make the spot inspection today.
(Iii) He shall record the statements of the P.Ws at 10.00 A.M. On . 30.7.1997.
(iv) He shall prepare the case diary.
(v) He shall add a certified copy of the post-mortem report with the police file.
14. He shall complete the investigation of the case within a period of fourteen days as contemplated under section 173 of the Code of Criminal Procedure or shall proceed further in the matter in accordance with law".
2. The matter was taken up on 31.7.1997 when the aforesaid Writ Petition was pending. The statements of the prosecution witnesses were not recorded by the Police Officer when the complainant Muhammad Aslam intimated that he took his witnesses on 30.7.1997 at 10.00 a.m.
Before the SHO who did not examine them. The lame excuses made by Rana Muhammad Bashir SHO were not given the weight and was warned not to show any recalcitrant attitude who was directed to proceed in the matter on 31.7.1997. He recorded the statements of some witnesses and the matter was disposed of on 1.8.1997 with the direction to the Investigating Officer to complete the investigation in accordance with law.
3. The prosecution witnesses namely Bilal Muhammad Latif and Muhammad Usman got recorded their statements under section 164 of the Code of Criminal Procedure from the Assistant Commissioner/Executive Magistrate 1st Class Pattoki wherein they exonerated the accused persons. The SHO Police Station City Pattoki/respondent No. 3 (Investigating Officer) declared the accused persons as innocent on the basis of the aforesaid statements recorded under section 164 of the Code of Criminal Procedure and got verified the same from Rana Tauqir Hayat Deputy Superintendent of Police, Pattoki Circle. Thereafter he prepared the discharge report. He submitted the papers before Mr. Zafar Hussain Judicial Magistrate 1st Class Pattoki, District Kasur who made the perusal of the Police file and referring to the statements of Muhammad Usman, Muhammad Bilal and Muhammad Latif as well as the opinion of the Police Officers, passed the order on the same date discharging the accused persons.
4. Feeling aggrieved Muhammad Aslam petitioner has filed this Writ Petition No. 20042/97 (under disposal) against the six respondents with the assertions that the statements of Muhammad Usman, Muhammad Bilal and Muhammad Latif were not enough for the purpose of the discharge of the accused persons and that the Police Officers had proceeded with mala fide intentions. He maintained that even the Judicial Magistrate 1st Class respondent No. 1 had no jurisdiction to discharge the accused who did not properly go through the file as the investigation as directed by this Court was not concluded. It was asserted that the impugned order dated 9.8.1977 has been passed illegally and improperly and that the SHO has even flouted the direction of this Court. This writ petition has been resisted by the respondents No. 4 to 6.
5. I have heard the learned counsel for the parties and gone through the record before me. I have also put the questions to Mr. Zafar Hussain Judicial Magistrate 1st Class relevant for the disposal of the dispute in had. The main contentions of the learned counsel for Muhammad Aslam petitioner are that only on the statements of three witnesses who have exonerated the accused persons the matter has been dropped and that no effort was made to record the statements of the remaining witnesses and the recovery of the weapons of offence. It was added that no evidence regarding the alleged motive was collected about which the details are in the first Information Report. He maintained that the accused are the members of the police force and that in violation of the rule of law they were declared as innocent within a short period as they were arrested on 29.7.1997 and were got discharged on 9.8.1997. On the contrary learned counsel for the discharged accused laid the emphasis that in addition to the aforesaid three prosecution witnesses who got recorded their statements under section 164 of the Code of Criminal Procedure from the Assistant Commissioner/Executive Magistrate 1st Class, Pattoki Jamil Ahmad eye-witness had submitted his affidavit exonerating the accused persons and that there being no material available against the accused persons they have rightly been discharged.
6. I, however, hold the view that Rana Muhammad Bashir SI/SHO Police Station City Pattoki and Rana Tauqir Hayat Deputy Superintendent of Police Pattoki Circle District Kasur acted malafide with respect to the conclusion of the investigation. Without prejudice I am tempted to express that neither the Police Officer nor Mr. Zafar Hussain Judicial Magistrate 1st Class took up the matter with all the seriousness even though the FIR was got registered by an order dated 29.7.1997 passed by this Court wherein the SHO Police Station Pattoki was subsequently directed to proceed in accordance with law. As is usual with the Police Officers who always are out to defend and protect their subordinates both the aforesaid Police Officers have proceeded in routine. Rana Muhammad Bashir SI/SHO Police Station City Pattoki obtained the physical remand of the accused persons, but no effort at all has been made for the recovery of the Kalashinkove and rifles used during the occurrence by the accused persons. No evidence about the alleged motive was collected. The circumstantial evidence is also available keeping "in view the matter in had which is that of important nature wherein the judicial inquiry has also been conducted and the Bar Association Pattoki had also to raise the protest for considerable time. The investigation was not concluded at all and on the basis of the statements got recorded under section 164 of the Code of Criminal Procedure from an Executive Magistrate 1st Class whole of the edifice of the prosecution case was fallen on the ground by the aforesaid act(s) of the Police Officers. It is important to express that Mr. Zafar Hussain Judicial Magistrate 1st Class, Pattoki as the Area Magistrate in discharge of his aforesaid duty had to act fairly, justly, honestly and with competence; who in the instant matter proceeded in a perfunctory, mechanical and arbitrary manner. A perusal of his order has made me to hold that he did not go through the file. The mere narration in th s regard is not enough. This murder case was registered at the direction of this Court. He did. Not issue the notice to the complainant who has been condemned unheard. The statements of some of the witnesses recorded under section 164 of the Criminal Procedure Code are not enough for the purpose of the exoneration of the accused persons. Muhammad Aslam writ petitioner got the assistance -of this Court to get registered the case and to set the law in motion. I make bold in expressing that unfortunately the trend of passing such slip shod orders, impugned through the filing of this writ petition, is increasing alarmingly and generally which has laid down the foundations of injustice in most of the subordinate Courts. It is a case wherein the investigation was not yet completed as the evidence was not recorded in toto by the Investigating Officer and even then the report for the discharge of the accused was prepared by the SHO, verified. By the Deputy Superintendent of Police and agreed to by the Area Magistrate. It would be proper to repeat that Muhammad Aslam complainant has not been heard by the Area Magistrate when the impugned order of discharge of the accused persons was passed and obviously the complainant could have brought his view point before him.
7. Last of all an important aspect of the matter has to be touched which is regarding the jurisdiction of the Area Magistrate and being conspicuous towards the maintenance of rule of law has to be referred to by this Court. It is in the FIR that Ijaz Ahmad Constable respondent No. 6 was armed with a Kalashinkove at the alleged time of occurrence who used the same by effecting the Tiring on Muhammad Akram deceased. This being the position and particularly when no effort was made for the recovery of the Kalashinkove during the investigation, the impugned order dated 9.8.1997 for the discharge of the accused persons could n6t be passed by the Area Magistrate. Kalashinkove is a scheduled weapon in the Suppression of Terrorists Activities Act, 1975 as well as a scheduled weapon in the Anti Terrorism Act, 1997. This being the position Mr. Zafar Hussain Area Magistrate had no jurisdiction and was not competent to pass the impugned order dated 9.8.1997 about the discharge of the accused persons. This is also one of the aspects that I have expressed supra that the said Judicial Magistrate Pattoki has passed the impugned order arbitrarily as well as in a mechanical and perfunctory manner. On this ground as well the exception has to be taken to the impugned order.
8. For what has been said above, I accept this writ petition, set-aside the impugned order dated 8.9.1997 and direct the fresh investigation of Crime Case No. 259 registered on 29.7.1997 under sections 302/34 Pakistan Penal Code at Police Station City Pattoki, District Kasur. Ghulam Qadir Head Constable, Bashir Ahmad Constable and Ijaz Ahmad Constable respondents No. 4 to 6 have been put under the custody of Rana Muhammad Bashir SI/SHO Police Station City Pattoki, District Kasur who shall had over them to the Superintendent, District Jail, Kasur for keeping them in the judicial lock up therein in accordance with law.
9. In view of the conduct of the local police pass the order for the transfer of the investigation to the Crimes Branch, Lahore. Mr. Qamar-uz-Zaman Inspector (Legal), Kasur and Rana Muhammad Bashir SI/SHO Police Station City Pattoki are directed to place the police file before the Superintendent of Police, Kasur who shall send the same to the Inspector General of Police, Punjab, Lahore to enable him to had over the investigation of the case to an officer of the Crimes Branch, Punjab under his administrative control, but not less than the rank of a Deputy Superintendent of Police.
10. The Investigating Officer shall also proceed about the recovery of the weapon(s) allegedly used in the occurrence which must have been procured by the accused persons from some Police Station and in this regard physical remand may be obtained as some days in the matter are still available under section 167 of the Code of Criminal Procedure. In short whole of the prosecution evidence shall be collected and Muhammad Aslam complainant shall also be joined in the investigation alongwith the accused persons. The investigation shall be conducted in accordance with law.
11. In view of the allegation of use of Klahashinkov, in case of submission of challan, the challan indictment shall be sent to the Court of competent jurisdiction.