ARIF ALI KHAN and anothers vs THE STATE and 6 others

1. ' SAEEDUZZAMAN SIDDIQUI, J.---The petitioners are seeking leave to appeal against the order of Lahore High Court dated 23-5-1992, whereby the learned Judge in Chamber, accepted the Criminal Miscellaneous Application No,40/Q of 1991 filed by respondent No,2 (Nawab Khan), set aside the order of trial Magistrate dated 20-8-1991, discharging the petitioners in criminal case registered under section 324/147/148, P.P.C. (F.I.R. No,344 of 1991) and directed the trial Court to proceed with the case in accordance with the law.

2. ' The facts of the case are that respondent No,2 lodged F.I.R. No,344, dated 5-8-1991 at Police Station Wah Cantt. Under section 324/147/148, P.P.C. Alleging that the petitioners alongwith 3 others caused eleven injuries to his son Ghulam Habib with intention to kill him. In the F.I.R. Petitioner No,2 was clearly shown armed with a Kulhari with which he allegedly caused injuries on the forehead and head of Ghulam Habib while others caused injuries to him with Dandas. The petitioners obtained interim bail before arrest in the case from the Additional Sessions Judge, Rawalpindi, on the same day e.g. 5-8-1992, but subsequently the interim bail was not confirmed and the application for pre- arrest bail was rejected by the Additional Sessions Judge on 19-8-1991. It is stated in the impugned order that Khaliq Dad, I.O. In the case was present before the Court, alongwith the record when the pre-arrest bail applications of petitioners were rejected by the Additional Sessions Judge, Rawalpindi. In spite of the order of Additional Sessions Judge, Rawalpindi, declining pre-arrest bail to the petitioners, the same I.O. Submitted an application on the next day, e.g. 20-8-1991, before the R.M./Ilaqa Magistrate praying for discharge of petitioners from the case on the ground that during investigation of the case the petitioners have been found to be innocent by the police. The Ilaqa Magistrate in a mechanical manner passed the following order:-- "Allowed as per request."

3. ' Challan submitted in the case before the Court on 27-8-1991, however, contained the names of the petitioners in column No,2 of the challan, meaning thereby that action against them was left at the discretion of the Court. This challan was subsequently withdrawn from Court and a fresh challan was submitted on 31-8-1991 in which the names of petitioners were omitted. The learned Judge in Chamber found that in the first challan submitted before the Court, the words {{URDU TEXT}} was made to read through unauthorised cutting and interpolation.

4. ' Considering the above circumstances, the learned Judge in Chamber declared the order of Magistrate discharging the petitioners from the case and the act of police officers in amending the first challan in the case, as without lawful authority, and consequently directed the Magistrate to proceed with the case in accordance with the law.

5. ' The learned counsel for the petitioners very vehemently contende'' before us that the order of Magistrate dated 20-8-1991 having been passed on the report of police officer submitted to him under section 173, Cr.P.C., the order was not revisable under sections 435 to 439, Cr.P.C. In support of his above contention the learned counsel relied on the case of Behadur v. State PLD 1985 SC 62. It is true that in the above cited case this Court clearly laid down that a Magistrate while cancelling a registered criminal case, acting on the report of police submitted to him under section 173, Cr.P.C., though required to act judicially but his orders so passed are not amendable to revisional jurisdiction under sections 435 to 439, Cr.P.C. 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.