Malik MUHAMMAD ALI Versus State

ORDER

Through this petition the petitioner has assailed the order dated 10-12-2004 passed by learned Magistrate Section 30, Layyah whereby he agreed with the cancellation report submitted by the Investigating Officer in case F.I.R. No.191 of 1995 dated 1.6-10-1995 under sections 379/468/471/420/406, P.P.C. at Police Station Kot Sultan District Layyah and has prayed for setting aside the same and seeks a direction to respondent No.3-S.H.O. Police Station Kot Sultan District Layyah to proceed with investigation of the case and to act under Rules 25.56 of Chapter 25, Volume III of Police Rules, 1934 and after collecting fresh evidence submit indictment/subsidiary challan against the accused nominated in the F.I.R.

2. Briefly facts of the case as stated in the F.I.R. are that Munawar Ali was appointed as Superdar in connection with Kharif crop of disputed property vide order dated 16-10-1995 passed by A.C. Layyah. The allegation against the accused persons was that they with mala fide intention submitted an application to set aside the order of Superdari before the A.C. Layyah and got cancelled the said Superdari. Later on M.B.R. issued a status quo order and the previous order passed by the A.C. Layyah was remained in tact by way of which complainant Munawar Ali was appointed as Superdar. The complainant got registered the F.I.R. on the grounds that since order passed by the A.C. Layyah dated 16-10-1995 the accused persons were stealing cotton crop from the disputed property.

3. Learned counsel for the petitioner submitted that the impugned order was passed at the back of petitioner being only the aggrieved person in violation of principle of natural justice and fair play; that the impugned order was passed on the wrong premises of law and facts involved in the case as the submission made culminating into status quo order passed by the M.B.R., resulting into previous order passed by A.C., Layyah which remained intact, by way of which complainant of the case Munawar Ali was appointed as Superdar: That the learned trial Court has wrongly relied upon the police file as to the facts than. Superdar was appointed by the order of A.C., Layyah and later on the same was cancelled by the Revenue Staff. Further submits that the impugned order on the face of it has been passed in mechanical manner without applying judicious mind by the learned trial Court. He has relied on Arif Ali Khan and another v. The State and others 1993 SCMR 187 and Bahadur and another v. The State and another PLD 1985 SC 62.

4. On the other hand learned A.A.-G. has opposed the stance taken by learned counsel for the petitioner and submits that the order passed by learned Magistrate is speaking one and no interference is called for in the impugned order.

5. I have heard learned counsel for the parties and perused the record. F.I.R. was got registered as back as on 12-11-1995 and impugned order was passed on 10-12-2004, meaning thereby after about nine years. The case was investigated by the Investigating Agency and the same was sought to be cancelled, cancellation report was prepared and agreed by learned Magistrate Section 30, Layyah vide impugned order, dated 10-12-2004.

6. Perusal of record shows and as observed by the learned Magistrate that during the course of investigation it appeared that accused persons had not prepared any forged document. Moreover, the Superdar was appointed by the order of A.C. Layyah. As far as title of property in dispute is concerned perusal of record shows that civil litigation is pending adjudication between the parties before the Court of competent jurisdiction.

7. It has been observed in Bahadur and another v. The State and another PLD 1985 SC 62 that though a Magistrate in canceling a registered criminal case is required to act judicially in that case he has to act fairly, justly and honestly, a duty common to the exercise of all State functionaries, there is no lis 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 Court. For that reason his order is not amendable to revisional jurisdiction under sections 435 to 439, Cr.P.C. Learned Magistrate Section 30, Layyah has passed speaking order which does not call for any interference.

8. For what has been discussed above instant Criminal Miscellaneous being without any substance stands dismissed.

H.B.T./M-1214/L Petition dismissed.