NAZIR AHMAD Versus ILLAQA MAGISTRATE FIRST CLASS SAMUNDRI, DISTRICT FAISALABAD

This judgment shall dispose of Writ Petitions Nos. 1568 of 1995 and 1579 of 1995 as both of them involve identical questions of law and facts.

2 Facts briefly are that an application was given by the petitioners on 6-3-1993 before the Deputy Commissioner/Collector, Faisalabad to the effect that Muhammad Shafi respondent No.4 in Writ Petition No.1579 of 1995 had illegally removed 6 Sheesham trees from the State land comprising Killas Nos.5, 7 and 16 of Square No.28 situated in Chak No.47/G.B. Tehsil Samundri, District Faisalabad. An enquiry under the order of Deputy Commissioner was conducted by Tehsildar who visited the spot alongwith Halqa Girdawar. He verified the contents of the application and recommended that the action be taken against the delinquent. Thereupon Colony Assistant/Collector, Faisalabad vide his letter No:2148-M/CA/COMP, dated 11-4-1993 requested the Senior Superintendent of Police, Faisalabad for the registration of the case. Consequent to this request, F.I.R. No.244 was registered on 1-6-1993 at Police Station ' Samundri at the written report of Colony Assistant under section 379, P.P.C.

3. Grievance is made that the Investigating Officer without recording the statements of Tehsildar/Halqa Girdawar who recommended action after spot visit and without associating the petitioners submitted false report under section 173, Cr.P.C. making recommendations for the cancellation of the case. Subsequent to the submission of this report, Ilaqa Magistrate Samundri passed the following order on 25-8-1994 agreeing with the report:--

Proceedings under section 182, P.P.C. have also been initiated against the petitioners, which is subject-matter of Writ Petition No. 1568 of 1995.

4. Argument has been advanced that the impugned order was passed by the Ilaqa Magistrate in a slipshod manner without appreciating the record. Had he examined the record, mala fide on the part of the Investigating Officer would have been noticed. `

5. Learned counsel has also stated that the proceedings under section 182, P.P.C. cannot be initiated against the petitioners as the F.I.R. in this case was recorded after detailed enquiry at the instance of Colony Assistant. Mr. Farooq Bedar learned Additional Advocate-General has totally supported the stance taken by the petitioners. He has in categorical terms stated at the Bar that the impugned order of the Magistrate cannot be sustained on any ground.

6. Learned counsel for the respondent Mr. Muhammad Afzal Wahla could not advance any solid reason in support of the impugned cancellation. He, however, has simply stated that the order is of executive nature as such the reasons for the same are not required.

7. I have considered the contentions. I agree with the learned counsel for the petitioners that the orders of the Ilaqa Magistrate, dated 25-8-1994 has been passed in a slipshod manner without looking into the contents of the record. Even if it is an executive order even then the Ilaqa Magistrate was required to apply his judicial mind and give reason for the same. A Division Bench of this Court in a case reported in Khalil A. Malik etc. v. Mian Aftab Saigol and others 1994 MLD 1659 after considering the law laid down by the Supreme Court in Bahadur's case reported in PLD 1985 SC 62 observed as under:--

"The three pre-conditions to act fairly, justly and honestly cast a duty on the Magistrate to apply his mind to the material placed before him and after duly consideration the pros and cons of the matter, pass a speaking and well-reasoned order. He is not expected to put his signatures on the dotted line, or blindly ditto and report of the police signifying his lack of application of mind or giving the impression of being led by the case by them. "

Reliance is also placed upon Muhammad Siddique v. S.H.O. Sadar, Sialkot and others PLD 1994 Lah. 407, Mushtaq Raj v. Magistrate 1st Class and others 1994 PCr.LJ 497 and Falak Sher v. Illaqa Magistrate and others 1994 PCr.LJ 515.

8. The upshot of the above discussion is that the impugned order of the Magistrate, dated 25-8-1994 is declared to have been passed without lawful authority and is of no legal effect. The case is remitted to the learned Magistrate for his decision afresh in accordance with law after hearing both the parties.

9. As far the proceedings initiated against the petitioners under section 182, P.P.C. are concerned the same cannot be continued as these are the direct result of the cancellation of the F.I.R.. The base of the proceedings initiated against the petitioners under section 182, P.P.C. having been declared illegal as such the superstructure cannot be sustained. Reliance in this respect is placed upon Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC (Pak.)

104. Accordingly the proceedings pending in the Court of Ilaqa Magistrate against the petitioners under section 182, P.P.C. are also hereby declared to have been initiated without lawful authority and of no legal effect. There shall be no order as to costs.

N.H.Q./N-341/L Petitions accepted.