' SH. IJAZ NISAR, J.---Leave is sought against the order, dated 21-12-1998, passed by the Lahore High Court, Lahore, in issuing Suo Motu Notice in Criminal Miscellaneous No,5496-B of 1998.
2. The facts, in brief, are that a case under section 9(c)-15 of the Control of Narcotic Substances Act, 1997, was registered on 5-8-1998 at Police Station Anti-Narcotics Force, Lahore, against one Parvez Salem for allegedly making an attempt to smuggle heroin. During investigation it was found that two other persons, namely, Asimullah and Haq Nawaz were also associated with him.
Consequently, they were arrested. However, it was discovered subsequently that Asimullah aforementioned had been discharged by Dr. Waqar Hussain Chaudhary, Judicial Magistrate, Lahore (petitioner herein) vide order, dated 4-9-1998. It was alleged that Dr. Waqar Hussain had illegally discharged Asimullah on getting bribe from him. Consequently, a case under sections 9/15 CNSA/1997, 219, 223, 109, 120-B, P.P.C. And 5(2)/47 of the Prevention of Corruption Act, was registered against him on ' 25-9-1998. He was arrested and admitted to bail by the learned Special Judge Central, Lahore, vide order, dated 5-11-1998, under section 5(2)/47 of the Prevention of Corruption Act and offences under sections 161/223/219/109 and 120-B, P.P.C. On 21-12-1998 the learned Advocate-General, Punjab made a statement before the learned High Court that the offences alleged against the petitioner under the Control of Narcotic Substances Act, 1997, were not made out and that he had already been released on bail by the learned trial Court in the offences relating to the Prevention of the Corruption Act, 1997 for his misconduct.
3. Feeling not satisfied with the situation and purportedly discharging their obligation under Article 203 of the Constitution, a learned Division Bench of the High Court issued Suo Motu Notice to the petitioner to show cause why the bail allowed to him by the learned Special Court Anti-Corruption, at Lahore, may not be recalled.
4. Feeling aggrieved, Dr. Waqar Hussain petitioner filed Criminal Petition for Leave to Appeal No,1-L of 1999 in this Court. By order, dated 18-1-1999 he was admitted to ad-interim bail and proceedings before the High Court in Criminal Miscellaneous No,5496-B of 1998 were stayed. Later the Supreme Court by order, dated 26-1-1999 confirmed the interim bail granted to him on 18-1-1999.
5. Nevertheless, the learned High Court considered it expedient to proceed with the Suo Motu Notice to the petitioner for the cancellation of his bail in the anti-corruption case.
6. Feeling aggrieved, the petitioner again approached this Court by filing the instant petition. On 3- 6-1999 the order quoted below was passed by a learned Single Judge of this Court:-- "On 18-1-1999, following order was passed by this Court:- "It is stated by the learned counsel that the bail petition of the Petitioner is not being disposed of expeditiously by the High Court. He has pointed out that there is no evidence on record to connect the petitioner with the commission of the crime. Even the learned Advocate-General and the Special Prosecutor have stated that the petitioner is not involved in the commission of the offence.
' Notice shall issue to the learned Advocate-General. In the meantime, the petitioner is admitted to ad-interim bail in the sum of Rs,50,000 with one surety in the like amount to the satisfaction of the Assistant Registrar of this Court. Till then 'proceedings in Criminal Miscellaneous 5496-B of 1998 are also stayed."
"The above order was confirmed by this Court on 26-1-1999 after hearing the learned counsel for the petitioner and the learned Advocate-General, Punjab. This petition for leave to appeal has been moved by the petitioner. Dr. Waqar Hussain stated that the High Court is proceeding in the case in which finally bail was allowed by this Court to the petitioner. In such a situation, proceedings before the High Court are stayed. Notice shall issue to the Advocate-General, Punjab and the Special Prosecutor. Anti-Narcotic Force Lahore for their appearance before this Court Copy Dasti."
7. Mr. Munir Ahmed Bhatti, learned counsel for the petitioner, states that since the learned Special Judge (Central) had granted bail to the petitioner on 4-12-1998 by a detailed and well-reasoned order, there was no legal justification for initiating suo motu proceedings by the learned High Court.
The bail granting order reads as under:-- "I have considered the above arguments. Legality or otherwise of the discharge order is not to be seen for the purpose of disposing of this application. It is not to be controverted that the petitioner was. Not Ilaqa Magistrate or Police Station Anti-Narcotics Force duly notified under C.N.S.A. He was, however, appointed as A.N.F. Magistrate along with learned Sessions Judge, Lahore, vide his order/endorsement No,1451-P dated 27-6-1998 as a result of redistribution of 1st Class and Section 30 Judicial Magistrates work amongst the Judicial Magistrates. The photo copy of the said order has been produced along with the application by the learned counsel for the petitioner. Similarly photo copy of the order, dated 1-9-1998 passed by the learned Sessions Judge, Lahore which has been endorsed vide No,1932, dated 1-9-1998. Ch. Muhammad Ismail, Judicial Magistrate, had been repatriated to the Executive vide Notification, dated 25-8-1998, therefore, he stood relieved and Dr. Waqar Hussain petitioner was authorised to look after the work of Ch. Muhammad Ismail, Magistrate as Duty Magistrate till further orders. The learned SPP had not controverted the pointation made by the learned counsel for the petitioner that even the Anti-Narcotics Force people have been getting the discharge order of the accused persons from the petitioner. He has only confined himself to say that the said discharge order shall also be challenged, if passed by the petitioner and that the Anti-Narcotics Force people have been producing the accused persons illegally before the Court of the petitioner. In view of all the discussion above, I am of the considered opinion that mala fide on the part of the petitioner to pass the discharge order is yet to be determined. The petitioner remained on physical remand and no incriminating material has been recovered from him. He is in judicial lock-up and no more required for any purpose of further investigation. Evidence of conspiracy is neither mentioned in the F.I.R. Nor has any such evidence been collected during the investigation. The case as such definitely calls for further inquiry. I, therefore, accept the application and admit the petitioner to bail in the sum of Rs,5,00,000 with one surety in the like amount to the satisfaction of this Court."
8. A perusal of the above order shows that the reasons which prevailed' with the learned Special Court (Central) were that no incriminating material had been recovered from the possession of the petitioner during the period of his physical remand, that he was no longer required for the purpose of further investigation and that there was neither any mention of the alleged conspiracy in the F.I.R. Nor had any such evidence been collected during the investigation and hence it was a case of further inquiry.
9. Learned counsel for the petitioner maintains that presumably the learned High Court had sent for the record of bail application disposed of by the Special Judge (Central) in exercise of powers vesting in it under sections 435 and 439, Cr.P.C. According to him, section 439 provides that "in the case of any proceedings the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 423, 426, 427, 428 or on a Court by section 338, Cr.P.C." but it is silent in respect of section 497(5), Cr.P.C., which empowers the High Court to cancel bail granted by any Court, for, never this power has been exercised in suo moto proceedings when an accused is declined bail by Court of competent jurisdiction.
10. We have also heard the learned counsel for the State, who has vehemently opposed the petitioner's prayer for quashing the proceedings in the High Court arising out of the suo motu notice. According to him, the High Court was legally competent to issue suo motu notice to the petitioner for the cancellation of his bail in the anti-corruption case, notwithstanding the grant of bail to him by the Supreme Court in the narcotics case.
11. The intention of the law to confer suo motu powers of revision on the High Court is to ensure that the Courts subordinate to it act strictly within the legal bounds and do not transgress their jurisdiction and the findings, sentence or orders, recorded or passed by them are just and legal, but, nevertheless, in order to avoid any impression of arbitrariness in the exercise of this power the order of initiating suo motu proceedings by the High Court should mention the ostensible error or irregularity in the orders or proceedings of the subordinate Courts. This would help the parties in knowing the reasons for such an action. So far as the power of the High Court under section 439, Cr.P.C. Are concerned, it may be stated that it is not a power only but a duty whenever facts for its jurisdiction are brought to the notice of the Court, or otherwise come to its knowledge because the revisional jurisdiction is in the nature of corrective jurisdiction. To see what types of orders the High Court can pass under section 439, Cr.P.C., the case of Emperor v. Varjivandas alias Kalidas Bhaidas (ILR 1903 (Bombay) Vol.XXVII, page 84) may be cited wherein it was observed as under:-- "the fact that this particular power which is conferred by section 423 on Courts in the exercise of their appellate jurisdiction, is excluded in express terms in section 439 seems clearly to point to the conclusion that all the other powers not expressly excluded may be exercised by the High Court as a Court of Revision."
' The following observations of this Court in Mushtaq Ahmad v. The State (PLD 1966 SC 126, at page 128) may also be advantageously quoted:-- "....Under section 439 of the Criminal Procedure Code the High Court has a power to interfere upon information in whatever way received, as the section clearly says that it may do so in any case in which it has itself called for the record or which has been reported for orders or ' which otherwise comes to its knowledge'. These are words of wide import. In the present case the record of the case was placed before the learned Judge in the course of his inspection and the facts of the case thus came to his knowledge. Under this section the High Court has also the right to exercise its power on its own initiative and there can be no warrant for the proposition that the High Court is debarred from examining the record suo motu."
' Ramgopal Ganpatrai Ruia and another v. State of Bombay (PLD 1958 SC (Ind.) 293, at page 303) is another authority on this proposition. It was held therein:-- " We have, therefore, to look into section 423 to find out not the cases in which the High Court can interfere but only the nature of the power that it can exercise in a case, in its revisional jurisdiction, that is to say, we have to incorporate only the several powers contained in section 423, into section 439, except the power to convert a finding of acquittal into one of conviction".
' The case of Khatija v. The State and another (PLD 1978 Karachi 348, at page 356) may also be cited where it was held that:- ....Both under section 439 and under section 561-A (a) of the Criminal Procedure Code this Court can act suo motu and it is not necessary that it should have the application of any person before itself."
12. In view of the above discussion, there can be no cavil with the jurisdiction of the High Court to initiate suo motu proceedings by issuing notice to the petitioner, but so far as the reasons justifying the issuance of suo motu notice are concerned, we are of the opinion that, in view of the well- reasoned order of the learned Special Judge (Central) granting bail to the petitioner, there existed no circumstances justifying the suo motu action against the petitioner by the learned High Court.
13. In consequence, we convert the petition into appeal, allow it and quash the proceedings initiated by the High Court against the petitioner.