NOOR MUHAMMAD vs THE STATE

Through this petition under section 561-A, Cr.P.C., the petitioner Noor Muhammad is asking for quashment of proceedings which have been initiated against him under section 182, P.P.C. By the Judicial Magistrate with powers under section 30, Jand, District Attock.

2. Briefly the facts of the case are that F.I.R. No,155 dated 22-9-1998 under sections 447 and 427, P.P.C. Was registered at the instance of the petitioner by Police Station Jand, District Attock.

Mohabbat Khan and Sher Afgan were 'the accused. It is said that challan against them after due investigation was submitted before. The Court of the .Learned Judicial Magistrate. Subsequently, while the trial was to proceed, a D.S.P. Headquarters Attock started re-investigating the case and after reinvestigation, directed the local police to ask for discharge of the accused Mohabbat Khan and who was discharged by the learned Judicial Magistrate on 27-2-1999. It is further said that his son Sher Afgan later moved an application under section 249-A, Cr.P.C. And he too was acquitted on the same day.

3. While discharging the accused Mohabbat Khan, the learned Judicial Magistrate made the following observations:-- "Accused on bail, the application stands forwarded by S.H.O. And Legal Inspector of Court. The discharge report stands filed due to a 'Zimni' by D.S.P. Agreeing with the report; I proceed to discharge the accused to the extent of above case. Copy to D.S.J., Attock." Apparently, the learned Judicial Magistrate did not apply his own mind but had mechanically followed what was stated in the report of the police. It is said that no notice was given to the complainant side of the application under section 249-A, Cr.P.C. -

4. After having accomplished this, it is stated that the accused Mohabbat Khan moved an application against the petitioner-complainant in that case under section 182, P.P.C. It is stated that the Judicial Magistrate took cognizance of this application and vide his order dated 24-5-2001 directed the S. H . 0 . , Police Station Jand to initiate the proceedings under section 182, P.P.C.

Against the petitioner and whereupon a Qaiandra was submitted and the Judicial Magistrate is now proceeding with the case and this has caused a grievance to the petitioner and he has come up before this Court asking for quashment of these proceedings.

5. Learned counsel for the State has also been heard.

6. Section 182, P.P.C. Reads as follows: "False information with intent to cause public servant to use his lawful power to the injury of another person.--Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it be likely that he will thereby cause, such public servant---

(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or

(b) to use the lawful power of such public servant to the injury or anyone of any person. shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

7. Reference may also be made to section 195(a), Cr.P.C. Which reads as follows: "Prosecution for contempt of lawful authority of public servants: Prosecution for certain offences against public justice: Prosecution for certain offences relating to documents given in evidence.--

(1) No Court shall take cognizance--

(a) of any offence punishable under sections 172 to 188 of the Pakistan Penal Code, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate;

(b) ..

(c) ...

8. Learned counsel for the petitioner has argued that a Court cane only take cognizance under the provisions of section 195(b) and (c), Cr.P.C. Whereas action can only be taken under section 195(a), Cr.P.C. On the written complaint of the public servant. That the public servant was the S.H.O., Police Station Jand and who had refused to initiate the written complaint against the petitioner. That the learned Judicial Magistrate involved himself too much with the accused side in asking for the filing of the Qalandra although he had no powers in law to make such recommendations and strangely, enough he passed a written order to that effect which was illegal in law. It is argued that the police could not have moved the Qalandra on the asking of the Judicial Magistrate and could have only taken its own initiative. In this connection reference is made to Khan Ghulam Qadar Khan Khakwani v. A.K. Khalid PLD 1960 (W.P.) Lah. 1039; Mian Zahid Sarfraz v. The State 1989 PCr.LJ 1831; Haji Muhammad Aslam v. Inspector-General and others PLD 2001 Lah. 84 and Mst. Sarwat Ilays v. The State 1991 PCr.LJ Note 86 at p.62.

9. This was a case where after proper investigation and after satisfying himself, the Investigating Police Officer had decided to submit the report under section 173, Cr.P.C. Recommending that the case was fit for trial against Mohabbat Khan and his son Sher Afgan. After submission of the challan, the trial had to commence afresh but investigation was re-started by D.S.P. At a belated stage. Although the police can always investigate the matter even where the challan has been submitted but what controls their action is the propriety aspect because after submitting the challan, there ought to have been extraordinary circumstances calling for a fresh investigation at the end of the D.S.P. One also finds that the learned Judicial Magistrate mechanically agreed with the report of the police asking for discharge of Mohabbat Khan and without applying his mind passed an order for his discharge and very abruptly he also accepted the application under section 249-A, Cr.P.C. Against the co-accused who was acquitted. What does all this show? Prima facie it reflected the action at the instance of the accused party and rather completely under its influence. It also appears that the learned Judicial Magistrate while acting as he did expose himself as a friend of the accused side and not one acting as an arbiter in the case. This conduct appears unfortunate. Learned counsel for the State agrees that as per circumstances of the case the position so emerges.

10. A copy of this order be immediately sent to the learned Sessions Judge Attock, who should see the record, call an explanation of the Magistrate and then submit a report to this Court.

11. As the entire proceedings appeared to be tainted with prejudice and bias and as the matter was initiated by the. Judicial Magistrate all by himself although he was not the public servant within the connotation of a "public servant", as per section 182, P.P.C. Read with section 195, Cr.P.C., the proceedings before him were nothing but a farce having no value in law and while exercising its visitorial jurisdiction, this Court quashes those findings.

12. In view of what has been stated above, this petition is accepted.