HUSSAIN AHMAD Versus IRSHAD BIBI

ORDER

1. AJMAL MIAN, J. ‑‑‑This is a petition for leave to appeal against the judgment dated 23‑6‑1996 passed by a learned Single Judge of the Peshawar High Court in Criminal Miscellaneous No.40 of 1993, filed by respondent No. l under section 561‑A, Cr.P.C., against the order of M.I.C., Nowshera, dated 24‑12‑1991 ordering the release of Azhar Ali Shah son of Syed Kararr. Shah, Hussain Ahmed Madni son of Karam Ali, Athar Ali Shah son of Syed Karam Shah, who are nominated for murder of their brother by the wife of the deceased in F.I.R., No.371 dated 6‑12‑1991 registered under section 302/34, P.P.C. It seems that respondent No. l lodged the above F.I.R. on 6‑12‑1991 at 7‑30 p.m. (in respect of the incident which had taken place at 6‑30 p.m.), alleging therein that she was in her house when her above three brothers‑in‑law came and enquired about her husband and their brother, Tahir Ali Shah. Thereupon, she informed them that he had gone outside. After hearing the same, they went outside and after a shortwhile she heard fire‑shots. Thereupon, she ran towards the road and saw the above three accused duly armed running. She also noticed that near to that place, her husband was lying stained with blood and he had expired. She further stated that reason of his murder was a dispute about the property. It appears that in response to the above report, aforesaid three brothers including the present petitioner Hussain Ahmad were arrested. On 22‑12‑1991, police produced four witnesses including Syed Mumtaz Shah, the elder "on of the deceased, before the Magistrate who recorded their statements under section 164, Cr.P.C., in which they stated that the above three accused were innocent. After that on 24‑12‑1991, the D.S.P. (i.e. the Investigating Officer) filed an application purporting to be under section 169, Cr.P.( stating therein as follows:‑‑‑

2. On the above application, the M.I.C., Nowshera, recorded the following order:‑‑‑

3. "Released under 169, Cr.P.C., as requested by Crime Branch, N.‑W. F. P. Peshawar."

4. Against the above order, respondent No. 1 moved the learned Sessions Judge, Nowshera, through Criminal Revision No: l of 1992, but the same was dismissed on the ground that the above order dated 24‑12‑1991 was an executive order and, therefore, was not amenable to revisional jurisdiction. Against the aforesaid order, respondent No. l filed aforementioned Criminal Miscellaneous Petition, which has been allowed as under:‑‑‑

5. "The sum conclusion of the case in hand is that the order dated 24‑12‑1991 of the learned Magistrate is only concurring, mechanical, without application of mind, unfair and unjust. Therefore, the order dated, 24‑12‑1991 of the learned Magistrate in the case F.I.R. No.371 dated 6‑12‑1991 Police Station Akora Khattak, District Nowshera under section 302/34, P.P.C. is quashed."

6. The petitioner i.e. one of the above three brothers, namely, Hussain Ahmad, has filed the present petition for leave to appeal.

2. In support of the above petition Mr. Zahoorul Haq, learned Senior Advocate Supreme Court for the petitioner, has vehemently contended that the High Court was not justified to interfere with the above order dated 24‑12‑1991 of the M.I.C., Nowshera as the same was an executive order.

3. In our view, the above contention is devoid of any force. There is no doubt that in the case of Bahadur and another v. The State and another (PLD 1985 SC 62) this Court has held that when a Magistrate concurs with a police report under section 173, Cr.P.C., apparently wrongly invoked by the Investigating Officer section 169, Cr.P.C., the same is an executive order not amenable to revisional jurisdiction of High Court under sections 435 ' to 439, Cr.P.C. However; at the same time, the following observations were made:‑‑

7. "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 of all State power, there is no Its before him, there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order. The party is left free to institute a complaint on the same facts, and the same Magistrate does not even after passing such an order render himself functus 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 Courts."

8. Besides the above observation reference may be made to the case of Arif All Khan and another v. The State and 6 others 1993 SCMR 187 and to the case of Muhammad Sharif and 8 others v The State and another 1997 SCMR 304.

9. In the above first case this Court has held that though sections 435 to 439, Cr.P.C., cannot be pressed into service by a High Court in a case in which a Magistrate concurs with the report of an investigating officer under section 173, Cr.P.C., but the High Court can invoke aid of section 561‑A, Cr.P.C. It will be advantageous to reproduce the relevant observations which read as under:‑‑‑

10. "But this does not mean that where the Court reaches a positive conclusion in a case that a particular order passed by the subordinate criminal Court amounted to an abuse of the process of Court, it would be powerless to rectify the injustice. In the case before us, firstly, the application filed by respondent No.2 before the High Court was not under sections 435 to 439, Cr.P.C., but it was a petition under section 561‑A, Cr.P.C. Secondly, on the facts of the case the learned Judge in Chamber reached the conclusion that exclusion of the names of petitioners from the first challan submitted to the Court was a mala fide act on the part of police and the manner in which the orders were obtained from the Magistrate by the police for discharge of petitioners from the case clearly amounted to an abuse of the process of the Court. On these considerations, the learned Judge in Chamber in our view was fully justified in setting aside the order of Magistrate under section 561‑A, Cr.P.C., and direct him to dispose of the case in accordance with the law. No interference is called for with the order of High Court. The petition is dismissed."

11. The above view has been recently reiterated in the above second case with vehemence as follows:‑‑

12. "6. 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 value in our social set‑up, loss of moral direction, the development of culture of 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."

4. The procedure adopted by the M.I.C. in the present case namely, that he examined four witnesses under section 164, Cr.P.C. after about 16 days from the date of the F.I.R. who were not named in the F.I.R., and on the basis of their statements, he concurred with the above request of the Investigating Officer, amounts to pre‑empting the trial by a competent Court. A Magistrate has no power to hold a trial in a murder case for the purpose of deciding the question of innocence of the accused involved. Once an F.I.R., is registered in a murder case and the witnesses mentioned therein support the allegations contained in the F. I. R. the Magistrate has no power to hold a trial and to, conclude that the accused is innocent. The question of guilt or innocence can be decided by a Sessions Court. We depreciate the procedure adopted by the M.I.C., in the instant case. The High Court, in our view, has rightly invoked its jurisdiction under section 561‑A, Cr.P.C. There is no merits in the above petition. Leave is refused. However, at the request of Mr. Zahoorul Haq, learned Senior Advocate Supreme Court for the petitioner, the present petitioner (Hussain Ahmad) (who was granted bail by this Court on 18‑9‑1996 in this case) shall remain on bail for a period of two weeks from today in order to enable him to approach the Sessions Court for bail. On the expiry of above period of two weeks on 3‑6‑1997, the above bail shall stand lapsed.

13. N.H.Q./H‑263/S ???????????????????????????????????????????????????????????????????????????????? Leave refused.