RIAZ-UL-HAQ and another vs MUHAMMAD NAVEED and another

ORDER

This is a petition u/S. 561-A Cr.P.C. in which request has been made for setting aside the order dated 7.8.2004 passed by learned Sessions Judge, Sheikhupura, whereby he had accepted the revision petition filed by the complainant i.e. respondent Muhammad Nazir against the order dated 26.7.2004 of learned Judicial Magistrate refusing to extend physical remand of the petitioners in case FIR No. 186/2004 dated 5.5.2004. registered u/S. 392 PPC at Police Station Bhikhi.

2. Learned counsel for the petitioner submits that the order passed by the Judicial Magistrate in the matter of remand u/S. 167 Cr.P.C. is an executive order and not a judicial one, therefore, revision was not competent. He further adds that Section 493 Cr.P.C. was fully attracted and only public prosecutor could have moved the Sessions Court and revision filed by the complainant, who has no locus standi was incompetent. In support of this stance the learned counsel has produced before me, two judgments dated 21.7.2004 passed in just the similar cases of remand whereby the learned Sessions Judge had dismissed the revision petitions holding that order in the matter of remand is an administrative order and also the complainant has no locus standi to file the revision petition. Learned counsel has taken exception to the conflicting and discriminating position of the learned Sessions Judge. Submits that in different cases and on different dates he is passing different orders, which is also against the law and it is a case of discrimination, which should not be allowed by this Court. He further submits that case is false; that FIR was registered on 5.5.2004 while the occurrence had taken place on 24.4.2004 with the delay of 11 -days by the complainant with malafide intention. He has relied upon PLJ 2000 Karachi 10 (DB), 2000 P.Cr.L.J. 520, 1989 P.Cr.L.J. 2241, 1997 SCM R 304, 2001 M LD 1578, 1996 P.Cr.L.J. 827, 2001 P.Cr.L.J. 160, 1995 PCr.L.J. 1835 and 1975 PCr.L.J.

400.

3. On the other hand, learned counsel for the complainant submits that complainant is an aggrieved person, he could have filed the revision petition so the same was competent and maintainable, that u/S. 435 & 439 Cr.P.C. any person can bring to the notice of the Court any illegality committed by Lower Courts. He has also relied upon 1995 P.Cr.L.J. .1835 titled as Iqbal Hussain Versus State and 1975 P.Cr.L.J. 400 titled as Nisar Ahmad Versus State.

4. At the same time, learned Addl. A.G. submits that after the amendment in Section 417 (2-A)

Cr.P.C. complainant has been declared to be an aggrieved person, that he even can file an appeal against acquittal before this Court. Further submits that the order passed by the learned Judicial Magistrate in refusing the remand is a judicial order. He has referred to such Sections 3 & 4 of 167 Cr.P.C., whereby such order is to contain reasons and also to be submitted to the Sessions Judge.

The learned Addl. A.G has however submitted that it is very sad on the part of the learned Sessions Judge to pass conflicting judgments on the same facts and law. The Judicial discretion has been exercised by the learned Sessions Judge in a most arbitrary and discriminate manner, which should not be left unnoticed by this honourable Court.

5. I have heard learned counsel for the parties. First of all I will deal with the controversy whether it is an executive order or a judicial order. All the judgments cited and produced by learned counsel for the petitioner are not applicable in this case because in none of these judgments there was controversy about the refusal or allowing the physical remand, all these judgments relate to the discharge order passed by the learned Magistrate. As far as, Sections 435 & 439 Cr.P.C. are concerned, this Court has got the powers u/S. 439 Cr.P.C. while the learned Sessions Judge has got the powers u/S. 435 Cr.P.C. to call for records of inferior Courts to see the legality and irregularity of the orders. For the just decision of this case, Section 435 Cr.P.C. is reproduced below: The High Court orally Sessions Judge may call for and examine the record of any proceeding before any inferior criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any findings, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court.

6. The word "satisfaction" of the learned Sessions Judge about the correctness, legality or regularity of any proceedings are very necessary for the just decision of the case, so is the position of Section 439 Cr.P.C., relating to power which lie with this Court.

7. Learned counsel for the complainant has rightly relied upon 1995 P.Cr.L.J. 1835 titled as lqbal Hussain versus State 1975 P.Cr.L.J. 400 titled Nisar Ahmad Versus State. The earlier one was bout the physical remand while the latter one was about the locus standi of the complainant. On the analogy of Section 417 (2-A) Cr.P.C. and after going through the case law relied upon by learned counsel for the complainant I am of the considered opinion that complainant in the instant case was an aggrieved person because according to the contents of the FIR Rs. 6,90,000/- was snatched from him on the show and threat of firearm and the case was registered u/S. 392 PPC, so the complainant had got the locus-standi to file revision petition in this case. The order for not granting the physical remand passed by learned Magistrate 1st Class in a case registered u/S. 392 PPC is a judicial function. The reliance in this respect can be safely placed, on NLR 1984 Criminal 39 titled as Ghulam Sarwar & another Versus The State and 1969 PCr.L.J. 873 (Lahore) titled as Muhammad Rafi Versus The State & 2 others and sub-sections (3) & (4) of Section 167 Cr.P.C., which are reproduced below: "167. Procedure when investigation cannot be completed in twenty four hours.--(1).......

(2) ..........

(3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing.

(4) The Magistrate giving such order shall forward a copy of his order with his reasons for making it, to the Sessions Judge."

8. Now the question is whether the learned Magistrate was right in not granting further remand, I may observe here, that occurrence had taken place on 24.4.2004 while the FIR was registered on 5.5.2004. Moreover, the petitioner remained on physical remand for seven days but no progress whatsoever had taken place, so in this situation, the learned Magistrate was right in not granting the further physical remand of the petitioner. The learned Magistrate could not be compelled to give full 14 days remand, if for seven days, the police could not give any progress while the Investigating Agency has been separated from Watch and Ward Agency and the Investigating Agency has full time to investigate the criminal cases and their only duty is to investigate the criminal matters while Watch and Ward duties are assigned to other Police Officers. Even the offices of both the agencies are different and they are being supervised by different Supervisory Officers.

9. For what has been stated above, this petition is accepted and the order passed by learned Sessions Judge, Sheikhupura is set-aside.

10. Before parting with judgment, it is to be noted that learned counsel for the petitioner has produced before me two other orders passed by the same learned Sessions Judge in two different revision petitions titled as Mst. Surriya Bibi versus The State & Saif Ullah and titled as Muhammad Hafeez Versus Dr. Bashir & State on 21.7.2004. The controversy in both these cases was the same as it is in the instant case because in both the cases the learned Magistrate had refused to give further physical remand to the police and moreover the learned Sessions Judge in both the cases vide his order dated; 21.7.2004 had declared the order of learned Magistrate as an Administrative Order and also came to the conclusion that no revision petition is competent. The learned Addl.

A.G. is right to take exception to such conflicting and discriminatory judgments passed by the learned Sessions Judge on the same, facts and law because it amounts to discrimination on the part of learned Sessions Judge which should not take place in the Courts where people come to get justice. Under these circumstances, the learned Sessions Judge is directed to submit his explanation' within one month from today without fail before this Court. Copy of the order of this Court shall be sent to learned Sessions Judge within five days from today without fail.