' Through this Constitutional petition the petitioner has challenged the order, dated 15-6-1995 passed by Syed Najamul Hassan Naqvi, Magistrate 1st Class, Sheikhupura whereby he discharged the accused-respondents as also the order, dated 25-9-1995 passed by Mr. Ijaz Mehmood Chaudhry, Additional Sessions Judge, Sheikhupura whereby he dismissed petitioner's revision against the afore-referred order in a case registered vide F.I.R. No,99 of 1995, dated 23-3-1995 under section 302/148/149/379, P.P.C. Read with Article 14, Ordinance VI of 1979, Police Station Khanqah Dogran, Sheikhupura registered for the murder of Manik son of Saleh.
2. The prosecution story as given in the afore-referred briefly stated is that on the fateful day and time respondents Muhammad Aslam son of Bakhsha armed with .222 bore rifle, Muhammad Ashraf son of Bakhsh (not respondent herein) armed with rifle, Fateh Muhammad son of Amir armed with rifle, Haider son of Shan armed with 7 mm rifle, Bakhsha son of Shah Muhammad armed with .12 bore gun, Umer Hayat son of Murid armed with single barrel gun, Fateh Muhammad son of Muhammad Ali armed with .12 bore gun .And Amir son of Haider armecrwith double barrel gun ambushed the complainant party near the wheat crop field. Muhammad Aslam fired at Manik which hit him on the front side of his chest, Ashraf fired with his rifle which hit Manik on his right thigh, Fateh Muhammad fired which hit on the left flank of Manik, Haider's fire hit him on his left thigh, Bakhsha fired which hit Manik on his chest, Fateh Muhammad son of Muhammad Ali fired which hit Manik on his right rib, \mir's fire hit Manik on his chest and Umar Hayat fired which hit Manik on his left thigh whereafter he fell down and in the falling condition all the accused allegedly kept firing at him.
' The motive alleged in the F.I.R. Was that Shahadat son of Bakhsha was killed with regard to which case F.I.R. No,321 of 1994, dated 9-8-1994 Police Station Khanqah Dogran, Sheikhupura was registered against the father of the complainant and others. To avenge the said murder it was alleged that they killed complainant's brother Manik.
3. During investigation, the police declared all the respondents innocent and submitted report under section 173, Cr.P.C. And challaned only three accused, namely, Muhammad Ashraf, Ghulam Abbas and Shafqat were found guilty of the murder of Manik. The learned Magistrate 1st Class vide the impugned order referred to above concurred with the police report and observed as under:--
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5. The afore-referred order was challenged in revision. The learned Additional Sessions Judge dismissed the revision solely on the ground that the order of discharge being a executive order revision was not competent. However; on merit he opined as under:-- "While going through the record of the case I do not feel satisfied with the impugned order of the learned Magistrate. It is not based on reasons."
6. Learned counsel for the petitioner has challenged the afore-referred order on the ground that the same has not been passed with conscious application of mind; that the case being cognizable and triable by the Court of Session the same could not have been discharged by a Magistrate 1st Class and that the case accused-respondents having been specifically named in the F.I.R. And a definite role assigned to them there was no material justifying their discharge.
6. Learned counsel for the respondents has supported the impugned order by submitting that the Magistrate has ample power to pass the order in question and that in any case the accused- respondents having been summoned in a private complaint filed by the petitioner-complainant controversy which is subject-matter of this petition has been rendered academic and that the order of discharge being a quasi-judicial does not merit interference in the Constitutional jurisdiction of this Court.
7. 1 have heard learned counsel for the parties and have also given anxious thoughts to the arguments addressed at the bar.
8. There is no cavil to the proposition that the Magistrate while cancelling a case or 'discharging an accused on police report under section 173, Cr.P.C. Is not amenable to revisional jurisdiction of this Court but this does not mean that the High Court is denuded of its power to interfere when the order of discharge by a Magistrate on. a police report is on the face of it an abuse of the process of the Court. In Arif Ali Khan and another v. The State 1993 SCM R 187 the order of the High Court was upheld and the High Court set aside the order of the Illaqa Magistrate whereby on police report he discharged the accused without conscious application of mind and in a mechanical manner by merely observing, "allowed as per request". The afore-referred view was reiterated in Mansha and 7 others v. The Illaqa Magistrate, Police Station Bahlak, District Faisalabad and 4 others PLD 1997 SC 339 wherein at page 341, it was held as under:-- "In the present case the High Court was within its Constitutional jurisdiction to declare the order, dated 15-12-1994 to be without lawful authority and of no legal effect. Besides, what the High Court has done is, to remit the case to the Magistrate for passing appropriate order in the circumstances of the case where investigation was not allowed to be carried on independently. No exception can be taken to the impugned judgment."
' In Muhammad Sharif and 8 others v. The State and another 1997 SCM R 304 the Honourable Supreme Court set aside the order of this Court wherein the order of the Magistrate discharging the accused was set aside and the High Court had remitted the case for reinvestigation to some senior police official of the Range Crimes. However, while doing so, the Honourable Supreme Court in para. No,7 of the judgment referred to the facts of the case and observed that as both the parties admitted Muhammad Sharif and Mst. Naran to be sui juris and that no exception could be taken to the order whereby the accused was discharged on police report and case was cancelled. However, by setting aside the order of the High Court and distinguishing facts of the said case to that of facts in Arif Ali Khan and another v. The State and 6 others 1993 SCM R 187, the ratio laid clown in the afore-referred case was reiterated and it was observed at page 308 as under:-- "The precedent of Arif Ali Khan supra has slightly made a distinction in the law declared in the case of Bahadur (supra). Looking to the erosion of positive values in our social set-up, loss of moral direction, the development of culture or corruption, ever increasing and unbridled tendency of abuse of power and lack of complete accountability in almost all walks of life, we find that it would be in the interest of justice that ratio in Arif Ali's case (supra) which tends to counter the deterioration pervading in the society at this juncture is followed and the order passed by a subordinate criminal Court which clearly amounts to an abuse of process of the Court, the High Court remains empowered to rectify the injustice."
9. Examining the facts of the instant case in the light of the law laid down by the Honourable Supreme Court to which reference has been made above ... It is to he noted that the Magistrate while concurring with the police report did not advance any reason which could reflect a conscious application of mind on his part. By merely observing that the D.S.P. Concerned had after investigation, "attempted to prove" six accused to be innocent was not a judicial exercise of the power which a Magistrate is to exercise pursuant to submission of report by the police under section 173, Cr.P.C. The accused-respondents who were discharged by the Magistrate were named in the F.I.R. And a specific role of having caused fire-arm injuries to the deceased was assigned to them and there was material in support of the F.I.R. In the face of such an evidence on record, the learned Magistrate should have given some reason for disbelieving the same after concurring with the police report. In absence of such an exercise, the order of the Magistrate is tantamount to an abuse of the process of the Court which merits interference. The order, dated 15-6-1995 passed by Syed Najamul Hassan Naqvi, Magistrate 1st Class, and Sheikhupura is, therefore, held to be without lawful authority and of no legal effect. The case is remitted to the Magistrate for a fresh order in accordance with law. As the trial Court has already taken cognizance of the matter pursuant to a private complaint filed by the petitioner, it is directed that the Magistrate shall pass an 'order within a weak of the presentation of this order.
10. For what has been discussed above, this petition is allowed in terms noted above with no order as to costs.