ASIF MUHAMMAD SULEHRI Versus ADDITIONAL SESSIONS JUDGE SIALKOT

SHAHID HAMEED DAR, J.--- Through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the petitioner calls in question the legality of order dated 19.7.2011 passed by the learned Additional Sessions Judge, Sialkot, whereby a revision petition filed by Khawaja Muhammad Hussain (respondent No.3) was allowed at the cost of order dated 26.10.2010 passed by the learned Magistrate first class, Sialkot.

2. The facts relevant to the instant petition are that Khawaja Muhammad Hussain (respondent No.3) got registered case-FIR No.171, dated 4.4.2009, for offences under sections 420, 468, 471, P.P.C. at Police Station Uggoki, district Sialkot against Asif Muhammad Sulehri (petitioner); the investigating officer on finalization of the investigation found the case false and submitted a cancellation report before the learned area Magistrate, Sialkot, who vide order dated 26.10.2010 agreed to it; being aggrieved of the said order, the complainant (respondent No.3) filed a revision petition under section 439-A, Cr.P.C. before the court of sessions, which was allowed by the learned Additional Sessions Judge, Sialkot, vide order dated 19.7.2011. Hence, the instant petition.

3. The main argument pressed into service by the learned counsel for the petitioner was that the magisterial order agreeing or disagreeing with the report submitted under section 173, Cr.P.C. by the investigating officer is an administrative order and not a judicial one, therefore, the revision petition filed by respondent No.3 was not competent. Reliance in this regard has been placed on Bahadur and another v. The State and another (PLD 1985 SC 62) and Muhammad Sharif and 8 others v. The State and another (1997 SCMR 304).

4. On the contrary, learned counsel for respondents Nos.3 to 6 supported the impugned order, passed by the learned Additional Sessions Judge, Sialkot and submitted that a magistrate while cancelling a criminal case, acts on the report of the police under section 173, Cr.P.C., is required to act judicially, therefore, order passed by him as to cancellation of the case would be amenable to revisional jurisdiction under sections 435 to 439, Cr.P.C.; the impugned order may be considered sustainable by all means and titled petition filed by the petitioner may be dismissed.

5. After hearing learned counsel for the parties and perusing the record, let us see whether the impugned order of magisterial jurisdiction discharging the petitioner and cancelling the case is tantamount to an abuse of the process of the law so as to warrant interference, through revisional jurisdiction, exercised by the learned Additional Sessions Judge, Sialkot, on a revision petition filed by respondent No.3.

6. The brief facts of the case as contained in FIR No.171/2009 (supra) got lodged by Khawaja Muhammad Hussain (respondent No.3) were that he joined by Asif Muhammad Sulehri (petitioner), Dr. Muhammad Arif Malik (respondent No.5), Dr. Zahid Ghani Dar (respondent No.4) and Sajjad Ghani Dar (respondent No.6) set up a Firm in partnership inter se on 18.11.2004 at Sialkot to manufacture and export abroad the sport-wares/accessories (martial-arts); the capital was provided by respondents Nos.3 to 6 and Asif Muhammad Sulehri (petitioner) was inducted as a partner merely on the basis of his technical expertise with 20% share,; the petitioner disbursed some profit amongst partners of the Firm till May 2007; respondent No.3 asked the petitioner for rendition of accounts at the end of year 2007, but he put off the matter on various pretexts and finally informed them that the Firm stood dissolved as all the partners with their mutual consent had sold it to him (petitioner) on the strength of a 'dissolution deed'; the aforesaid deed had been forged by the petitioner as ' Firm' could not be dissolved or rendered dysfunctional, without the consent of respondent No.3 nor could it be alienated to any one; he (respondent No.3) learnt that an agreement-deed and some other documents had been forged by the accused, Asif Muhammad Sulehri (petitioner), who kept all original documents pertaining to the partnership and establishment of Firm in his custody from day one: he (respondent No.3) made the request in his written application that the documents forged be sent to a handwriting-expert so as to verify his signatures. The petitioner too moved an application against respondent No.3, complainant of the FIR, which led to recording of a cross-case against him during investigation and it was still pending adjudication, when Investigating Officer of the case prepared a cancellation report under section 173, Cr.P.C. qua the FIR case, which was concurred with by the learned area magistrate on 26.10.2010. The operative part of the order is reproduced hereunder:-

"Perusal of the record shows that there is no dispute with regard to the factum of partnership. Controversial point was that whether dissolution deed was a fake documents or not as according to plaintiff. He and other partners never signed the same. But on the other hand, report of Forensic Science Laboratory Lahore belies the stance of the complainant as according to the said report, signatures present on the dissolution deed was similar to the signature present on the partner-ship deed. In view of the above discussion, I agree with the cancellation report and cancellation report in hand is consigned to the record room after its due completion."

7. Khawaja Muhammad Hussain (respondent No.3) being aggrieved of the said order of the learned area magistrate invoked the revisional jurisdiction of the sessions court concerned and succeeded in having the order challenged undone on acceptance of his revision-petition by the learned Additional Sessions Judge, Sialkot vide order dated 19.7.2011, impugned herein. The learned Additional Sessions Judge did not touch the subtle point in the impugned order as to maintainability of the revision-petition filed before him and he allowed it, as per para 9 of the order in following words:-

"The proceedings against I.O. and SHO have been recommended by Mr. Nadeem Gulzar learned ASJ, Sialkot. Clearly the Regional Investigation Branch held that in FIR case Asif Muhammad Sulehri and in cross-version Doctor Zahid Ghani Dar are guilty but by suppressing the facts the local police submitted a cancellation report to the learned Magistrate. In these circumstances, the order passed by learned Magistrate is not sustainable in the eyes of law, therefore, this revision petition is accepted and order passed by learned Magistrate is set aside and the local police is directed to act according to law keeping in view the findings of Regional Investigation Branch. Moreover, Doctor Zahid Ghani Dar also filed an application under sections 22-A/22-B, Cr.P.C. which has been decided today and it has been directed to the police that his petition under sections 22-A/22-B, Cr.P.C. be treated as his cross-version and this cross-version be also investigated."

Learned Additional Sessions Judge, though not dealt with the question of maintainability of the revision-petition, yet, allowed it by certainly bearing in mind that order passed by the learned magistrate was revisable, which notion, however was not well conceived, as in discharging the accused and cancelling a registered criminal case on a report under section 173, Cr.P.C., a magistrate does not act as court and order passed by him is administrative not amenable to revision under any of the provisions of sections 435 to 439, Cr.P.C., the following judgments may be referable in this context:- i) Bahadur and another v. The State and another (PLD 1985 SC 62); ii) Muhammad Sharif and 8 others v. The State and another (1997 SCMR 304); iii) Wazir v. The State (PLD 1962 Lahore 405); iv) Brahm Dev v. Emperor (AIR 1938 Lahore 469); and v) Ramsarup v. State (AIR 1951 Raj. 146).

It has been held in Muhammad Sharif's case (supra) that a revision-petition filed against an order of discharge passed by a magistrate is not competent, as he, while concurring with a report submitted by the police under section 173, Cr.P.C. does not function as a criminal court and the order so passed by him is not amenable to the revisional jurisdiction under sections 435 to 439, Cr.P.C. It has been held by the Hon'ble Supreme Court in Bahadur's case (supra) that a magistrate stood entrusted with diverse duties under the Code of Criminal Procedure, 1898, and in discharging the same, he does not always function as a court. The relevant paragraph at page 67 is reproduced hereunder:-

"The revisional powers under the Criminal Procedure Code (sections 435, 436, 439 and 439-A, Cr.P.C.) are exercisable only in respect of "any proceeding" conducted by "inferior", "criminal Court". The order cancelling a case qualifies as proceeding, equally so the Magistrate passing the order as inferior, in relation to Court of Session and the High Court. The only question requiring determination is whether the Magistrate in cancelling the case acts as a criminal Court. Criminal Procedure Code contains no definition of Court nor does the Penal Code. In section 20 of the Penal Code "Court of Justice" is defined as "a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially". This definition is of avail for the purposes of Criminal Procedure Code as subsection (2) of section 4 thereof provides "all words and expressions used herein and defined in the Pakistan Penal Code, and not hereinbefore defined shall be deemed to have the meanings respectively attributed to them by that Code". The High Court has taken the view, and we think rightly so, that under the Criminal Procedure Code a Magistrate is entrusted with diverse duties and in discharging the same does not always function as a Court, conduct judicial proceedings or is amenable to the revisional jurisdiction. Some of his powers and duties under the Code are administrative, executive or ministerial and he discharges these duties not as a Court but as a persona designata."

While dealing with the request of the police under section 173, Cr.P.C. about cancelling a criminal case, a magistrate is required to act judicially in that he has to act fairly, justly and honestly, a duty common to the exercise of all State powers. The judgment, PLD 1985 SC 62 (supra), deals with the subject, under discussion in the concluding paragraph thereof:-

"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 powers, 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 amenable to revisional jurisdiction under sections 435 to 439, Cr.P.C."

A non-judicial act, order or decision is potentially open to attack for any material error or law or fact in either direct or collateral proceedings and it cannot reconstitute res-judicata. It is sometimes considered that a legislative or administrative act may always be rescinded by the body making it, whereas a valid judicial determination cannot save on very limited grounds. A judicial decision made within the jurisdiction is binding and conclusive insofar as it cannot be impeached in collateral proceedings and it cannot in general be rescinded by the tribunal itself, as expressed in "DeSmith Administrative Laws 3rd Edition". It may, however remain a practical difficulty to find out as to at which point the administrative phase ends and judicial phase begins. The subtle line dividing the two remains unsurpassable inter se when it comes to making an executive order, as a persona-designata or a judicial order as a court. Therefore, it does not necessarily envisage that an executive order is prone to revisional jurisdiction of a court of law, whereas it is certainly so when it comes to a judicial order, categorized latterly as above.

An order regarding discharge of an accused or cancellation of a case pending investigation etc. is not amenable to revision under sections 435 and 439-A, Cr.P.C. for the reason that the said order would necessarily constitute an administrative order. There is no cavil to the proposition that a judicial order is open to revision but not an administrative order. A learned area magistrate shall be deemed to have taken cognizance of an offence as a court of law and perform as a judicial officer when he would formulate an opinion through application of mind, as to summoning of an accused under section 204, Cr.P.C. Earlier to the stage of submission of challan under section 173, Cr.P.C., the orders made by a magistrate, pending investigation of a case, have little to do with the exercise of judicial powers, vested in him under the law.

8. The submissions made by the learned counsel for the petitioner, as to the impugned order having been passed gratuitously and injudiciously by the learned Additional Sessions Judge, Sialkot, in a revision petition filed by respondent No.3 against aforesaid order of the learned magistrate, are convincingly weighty, and they easily overwhelm the contentions of the learned counsel appearing on behalf of respondents Nos.3 to 6. This petition, therefore, is allowed and impugned order of the learned Additional Sessions Judge is set aside as one without jurisdiction, with no order as to the cost.

HBT/A-21/L Petition allowed.