MUHAMMAD ASHRAF Versus MUHAMMAD HANIF

Through this petition under section 561-A, Cr.P.C. (which was later on converted into Constitutional petition), the petitioner seeks quashment of the order of the learned Magistrate 1st Class, dated 30-1-1992 whereby he discharged the accused on the report of the S.H.O. respondent No.2 arising out of F.I.R. No.193, dated 1-12-1991 under sections 420/467/468 and 471, P.P.C. read with sections 10 and 11 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, registered at Police Station Urban Area, Sargodha.

2. The brief facts relevant for the decision of this petition are that Mst. Najma Mushtaq respondent No3 daughter of the petitioner is a teachress in Public Model School Aaheer Colony, Sargodha where Julian Michal respondent No.4 is Excise and Taxation Inspector who by deceitful means enticed away Mst. Najma Mushtaq respondent No.3 and thus on 2-9-1991 she did not return from her school and the petitioner, was told by the P.Ws. that they saw Mst. Najrna Mushtaq respondent No.3 and Julian Michal respondent No.4 boarded a wagon at Sillanwali Road. In the F.I.R. it is further alleged that at the time of leaving the house of the petitioner Mst. Najma Mushtaq respondent No.3 took away Rs.30,000. During the investigation she made statement before the learned Magistrate in which she requested that she may be sent to Darul Aman, so she was sent to Darul Aman. Thereafter, she moved another application with the request to join her father and accordingly she was allowed to join her parents. According to Nikahnama Mst. Najma Mushtaq respondent No.3 entered into marriage with respondent No.4 on 8-10-1990. Respondent No.2 S.H.O. carried out the investigation and submitted report before the learned Illaqa Magistrate for the cancellation of the case on the ground that no offence is made out from the investigation. The learned Magistrate vide impugned order, dated 30-1-1992 passed the following orders:--

3. The learned counsel for the petitioner vehemently contended that the learned Magistrate instead of deciding the matter judiciously, fairly and justly has cancelled the case arbitrarily on the report of the police without conscious application of his mind.

4. The learned counsel appearing for the respondents has taken up a preliminary objection that the petition under section 561-A, CI.P.C.. is not maintainable as the order of the Magistrate cancelling the case is of administrative nature, hence it can only be assailed through a Constitutional petition. In this regard, he has relied on Behadur v. State P L D 1985 SC 62 and Arif Ali Khan and another v. The State and 6 others 1993 S C M R 187.

5. Vide my order, dated 10-11-1993; I directed the learned counsel for the petitioner to make up the deficiency in court-fee, so he has paid the requisite court-fee for treating this petition as Constitutional petition. Now this petition is being disposed of as Constitutional petition.

6. I have considered the submissions of the learned counsel for the parties with care. I find great force in the submission of the learned counsel for the petitioner. It is a well-settled principle of law that the learned Magistrate while functioning as a persona designate in discharge of his administrative A duty, has to act fairly, justly and honestly but in the instant case, the learned Magistrate has acted quite arbitrarily and in a mechanical manner inasmuch as he did not care to open any file on administrative or judicial side; that he did not apply his conscious mind to the facts of the case and the evidence collected by the police; that he did not give any reason in support of his order while concurring with the investigation conducted by respondent No.2. It appears that he has not even examined the F.I.R. and the police file as is apparent from the impugned order referred to above.

7. The upshot of the above discussion is that the impugned order of the learned Magistrate is declared to be without lawful authority and of no legal effect. The case is remanded to the learned Magistrate for its decision in accordance with law after hearing the complainant. As the complicated law point was involved in this case, the parties are left to bear their own costs.

N.H.Q./M-1277/L Case remanded.