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Petitioner: Mst. ERAM and 4 others VS Respondent: MUHAMMAD ADNAN CHOUDHRY and another
Court Name: Sindh High Court Judge(s): Shahid Anwar Bajwa Title: Mst. ERAM and 4 others vs MUHAMMAD ADNAN CHOUDHRY and another Case No.: Criminal Revision Applications Nos.158 and 305 of 2009 Date of Judgment:2009-12-24 Reported As: 2010 YLR 1580 Result: Revision allowed
Judgment ORDER ' SHAHID ANWAR BAJWA, J.---Through this order I propose to decide Cr . R. A . No,158/2009 and Cr. M. A . No .305/2009. ' Chaudhry Muhammad Adnan is the applicant in Cr.M.A.No,305/2009. He is the complainant and therefore in this order I shall refer to him as the 'Complainant'. Ms. Eram Adan was wife of the complainant. Besides her four other members, being her father, her mother, her maternal uncle and her brother, are arrayed on the other side. I shall refer to them as the respondents and to said Ms. Eram as respondent (wife). ' It is alleged by the complainant that on 13-4-2009 complainant was present at his house when at about 9-00 p.m. Respondent (wife) served him dinner. Complainant stated that after taking food he started feeling unwell and had to visit wash room again and again. Complainant stated that he is Chief Executive of a Company, whose office is at ground floor of his residence. He stated in the complaint that on 14-4-2009 his Company Manager Tanveer Anjum and Banking Manager Muhammad Ali Shah were having a meeting with him in his office, when at about 9-15 a.m. His wife served him breakfast. He again started felling unwell. He further stated that he had to go out of his office/house to attend to some work. After he had left his house, the respondent (wife) on the pretext of meeting with a neighbour went outside the house and from there she went to school of Taimur Adnan, their child, 8 1/2 of age years. From the school she took the child with her and she alleged that Mr. Saleem, maternal uncle of the respondent (wife) was with her. Complainant was informed on telephone of his wife having left the house. Consequently he went to school of the Child and there he found that his sons had been taken away by respondent (wife). He further stated that he straight away went to the airport, bought an open ticket and went inside the
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departure lounge. There he saw his wife, his son and maternal uncle Saleem going to Islamabad by a Shaheen Airline flight which was scheduled to depart at 1245 hours. He stated that his wife raised commotion and therefore Airport Security Force personnel got hold of the complainant and brought him outside the Airport. He stated that after he came out of Airport his condition became bad and therefore his General Manager Tanveer Anjum took him to Agha Khan Hospital. His tests were conducted and the test, according to the complainant, revealed that during dinner and breakfast his wife had administered him some poison so that he would die and his wife may take over his property in inheritance. He alleged that his wife and the four above referred relatives had given him something in his dinner and in his breakfast. While he was in hospital since he was alleging that he has been poisoned. On 15-4-2009 his statement was recorded by police. However no further action was taken by the police. Subsequently complainant filed an application under section 22-A, Cr.P.C. And on Court's directions F.I.R. Was registered at P.S. Clifton on 7-5-2009. Contents of the F.I.R. Were as has been stated above. ' After registration of F.I.R, police recorded statements under section 161, Cr.P.C. Of Chaudhry Yousaf, father of the complainant, the complainant himself, Mr. Tanveer Anjum and a friend of complainant, Major Mahyar. After investigation police submitted report under section 173, Cr.P.C. And recommended disposal of the case under "C" Class. This report was submitted on 26-6-2009. On this report on 19-10-2009, the Judicial Magistrate held that no sufficient evidence was available, and order agreeing with police disposal of the case under "C" Class. C.M.A. No,305/ 2009 has been filed to challenge order passed by the Judicial Magistrate on 19-10-2009. ' On 24-8-2009 a criminal complaint was filed by the complainant against respondent (wife) and her four relatives, as detailed above. On this complaint statement of complainant under section 200, Cr.P.C. Was recorded. Thereafter, statements of Tanveer Anjum, Major Mahyar and Muhammad Ali Shah were recorded under section 202, Cr.P.C. Thereafter on 15-10-2009 the following order was passed:-- "Admit/Register. Issue Bailable warrant against the accused at sum of Rs,50,000 each." ' Criminal Revision Application No,158 of 2009 has been filed to challenge the above order of Ist Additional District Judge, Karachi South. ' Mr. Khawaja Naveed Ahmed, learned Advocate for respondent (wife) submitted that father of respondent (wife) is a retired Brigadier who is about 80 years old. He joined Pakistan Army in 1949 and retired in 1984. Captain Saleem Umer also about 80 years old, is maternal uncle of the respondent (wife). He retired as Chief Pilot of P.I.A. And has been Chief Executive of Air Malta. Lie fourth relative accused is Sohail Iftikhar, who, it was submitted by Mr. Khawaja Navid Ahmed, is country Manager of -Askari Bank. Learned counsel submitted that relationship between the husband and wife have been acrimonious and wife took the child to Islamabad, where she filed suit for custody of minor. He submitted that respondent (wife), since the minor is a Dutch National, apprehended that the complainant wanted to snatch the minor and send him abroad and thus deprive mother of company of her child, filed suit before the Civil Judge Rawalpindi, who passed a restraint order. Respondent (wife) instead of appearing before the police sent her written statement, wherein she referred to her turbulent marital life and called her father in law abnormally materialistic, violet, cold-blooded and having quarrelsome attitude towards others. She stated that she had been constantly humiliated and degraded. She stated that she sent her husband a divorce notice on August 28, 2008 and in revenge her husband filed F.I.R. Under section 406, P.P.C. Against her brother. F.I.R. Was subsequently discharged by police being false and with mala fide intent. Before her Iddat could expire a conciliation counsel/JIRGA was constituted who brought the two parties together and she returned to Karachi. She accused her husband of drug abuse and regular consumer of anxiety pills. She further stated that she had been kept confined at his home and guards were on instructions not to allow her to go out. She had found an opportunity to
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escape on the morning of April 14, 2004. She stated that she left a written complaint with the S.H.O. Clifton and walked out of her house in three clothes. She hired a taxi and took up her child and went to the Airport. She denied that she had ever poisoned her husband. Similar statement was sent by her father. ' Learned counsel for respondent (wife) made the following submissions:-- (1) That order passed by the Additional District Judge is not a speaking order, which shows that no consideration, whatsoever, had been given to the material before the Judge. He further submitted That there were essential contradictions in the statement recorded by the Additional Sessions Judge. (2) Learned counsel further submitted that the record of earlier police case clearly demonstrated that complaint was false and the Judicial Magistrate has rightly dismissed it as "C" Class. This should have been taken into consideration by the learned Additional Sessions Judge. (3) Learned counsel further submitted that order on complaint must be a speaking order and it must show judicial application of mind. He relied upon Shahida Begum and others v. Muhammad Ramzan and others, 2008 MLD 182 and NLR 2006 Cr.160, (The second is, it appears, a misquotation). ' On the other hand Mr. Ilyas Khan, learned counsel for the complainant referred to the statement recorded by police on 15-4-2002 when, according to him, police was called by Doctors at Agha Khan Hospital. He referred to the sequence of event leading to registration of F.I.R. Learned counsel referred to counter affidavit filed by him and the Medical Certificate as well as Medical papers. Thereafter learned counsel made the following submissions:-- (1) That revision application is not maintainable because remedy available under sections 249-A, Cr.P.C. And 265-K, Cr.P.C. Could have been availed, which remedy has not been available by the respondent. (2) That no reliance could be placed on the written statement submitted by the respondent wife and her father because they were sent from Islamabad and they are not statements recorded under section 161, Cr . P. C . (3) That during investigation police recorded statement of complainant Mr. Tanveer Anjum, Major Mahyar and Chaudhry Muhammad Yousuf, However it did not examine Muhammad Ali Shah, Shanul Haq, Administrative of the School, Colonel Jamshed of ASF, P.I.A. Ticket Counter Officer, Medico Legal Officer, Doctor of Agha Khan Hospital, Roznamcha Muharrar of P.S. Clifton and A.S-I Muhammad Riaz which recorded the statement during investigation. (4) If Court decides to take cognizance on private complaint, it is not required to state reasons for taking such cognizance. (5) If accused is named in the F.I.R. Court has power to summon the accused even if police found the accused innocent. In this regard learned counsel relied upon M. Ashraf and others v. The State PLD 2005 Lah. 85. (6) That Magistrate receiving a report under section 173, Cr.P.C. Is to apply his mind and must pass a speaking order. He relied upon Bahadur and another v. The State and another PLD 1985 SC 62, Mushtaq Raj v. Magistrate Ist Class and others 1994 PCr.LJ 497. (7). That revisional jurisdiction is limited jurisdiction and is only for purpose of the satisfaction as to correctness, legality and propriety of any finding, sentence or order recorded and as to regularity of . Any proceedings of any inferior Court and the revisional Court can interfere with order of the inferior Court only if it suffers from an infirmity and revisional Court cannot go into the evidence and reverse findings of fact but has to consider the propriety of an order of proprietary of adopting any particular procedure. In this regard he relied upon Abdul Rehman Bajwa v. Sultan and 9 others, PLD 1981 SC 522. Learned counsel also relied upon Muhammad Rafique and another v. The State and another 1999 PCr.LJ 1848, Asghar Ali v. The State through. Pakistan Coast Guards, Karachi, 1991
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MLD 228, State through Advocate-General, Sindh v. Asif Ali Zardari, PLD 1999 Karachi 144, Karamat Hussain v. Faraqat Hussain and 20 others, 1988. PCr.LJ 2421, Mahr Mukhtar Ahmad and another v. S.H.O., Police Station Rangpur and 3 others, 2005 YLR 1876 and Arif Ali Khan and another v. The State and 6 others, 1993 SCMR 187. ' Coming to Crl. Miscellaneous. Application No,305/2009 learned counsel for complainant made the following submissions:-- (1) Police report is not a detailed report and name of witnesses have not been mentioned. (2) Order passed by the Judicial Magistrate is not in accordance with the law. (3) Judicial Magistrate could not have relied upon statement not recorded under section 161, Cr.P.C. (4) It is an offence triable by the Court of Session. Therefore the Magistrate could not have ordered cancellation of F.I.R. In "C" Class. Learned counsel relied upon Muhammad Zaffar Saleem v. The State, 2009 YLR 489, Zafar Sarwar v. The State, 1969 PCr.LJ 181, M. Ashraf and others v. The State, PLD 2005 Lahore 85, Bahadur and another v. The State and another PLD 1985 SC 62, Mushtaq Raj v. Magistrate Ist Class and others , 1994 PCr.LJ 497; and Muhammad Daiem Shattari v. The State, 2007 YLR 2038. ' Learned Additional Prosecutor General made the following submissions:- (1) That offence with which accused have been charged is offence under section 337-J, which offence relates to hurt by poisoning. (2) There is no role whatsoever stated in respect of other accused besides respondent (wife). Their names have not been mentioned in the statement of witnesses recorded by the Court below in enquiry under section 202, Cr.P.C. (3) An order passed under section 204, Cr.P.C. Must show application of judicial mind by the Court to the materia1 before it and the material before the Court can only be firstly the complaint, secondly statements under section 200, Cr.P.C. And thirdly statement of witnesses under section 202, Cr.P.C. (4) That food given was not tested by any laboratory and Benzodiazene is poison in which death is very rare. Learned counsel referred to the Medical papers of Agha Khan Hospital and Medical report submitted by the Agha Khan Hospital by one Dr. Muhammad Mehmood Riaz to the Investigating Officer on May 26, 2009. He submitted that there is no medical evidence. (5) On the question whether a Magistrate, who is not competent to try an offence, can order cancellation of F.I.R. Learned counsel submitted that cancellation of F.I.R. Takes place in terms of rule 24.7 of Police Rules and section 173, Cr.P.C. ' Exercising his right of reply, learned counsel for complainant submitted that police rules cannot override provisions of section 173, Cr.P.C. ' I have considered the submissions made by the learned counsel. I have also gone through the record of the two matters as well as law cited by the learned counsel. ' I will first take up legal questions raised by learned counsel. First question which has been raised by Mr. Ilyas Khan, is that if the Magistrate is not competent to try an offence upon receipt of report under section 173, Cr.P.C., he cannot decide and approve the police report for cancellation of the F . I . R. ' In most of the judgments that I have seen emanating from this Court starting point frequently cited in Sufi Abdul Qadir v. The State and others v. 2009 PCr.LJ 520. Question before the Division Bench of this Court was whether Sub-Divisional Magistrate, admittedly an Executive Magistrate, under the scheme of law was competent to concur with the police report submitted under the provisions of section 173, Cr.P.C. And to dispose of the F.I.R. As cancelled class. The Division Bench of this Court noted provisions of section 169, Cr . P. C . Section 170, Cr.P.C. And section 173 of the Code. Thereafter the Bench observed that plain reading of the above sections makes it clear that there can be no cavil with the authority of the Investigating Officer to dispose of F.I.R. As cancelled class
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when he arrives at a conclusion that the same is false, founded on mistake of law, a dispute of civil nature or untraceable after taking all necessary steps to the best of his endeavor and ability but order of cancellation of must be obtained from a Magistrate competent to, take cognizance of the offence and to try' the case or to send the matter for trial to higher Court. The Honourable Bench further observed that rule 24.7 of Police Rules is inconsistent with section 173, Cr.P.C. As it incorporates the word "Magistrate having jurisdiction and being a Magistrate of the First Class". The Bench observed that words "Magistrate of the First Class", are seemingly unnecessary as inherent qualification for Magistrate as provided in the Criminal Procedure Code is one who is competent to take cognizance of the offence and not necessarily the one being vested with powers of a First Class Magistrate. His lordships went on to hold in the reported case that since offence fell under section 302, P.P.C. And since the offence was triable by the Court of Session, Magistrate was not vested with jurisdiction to take cognizance of said offence and he while canceling F.I.R. On police report had acted without jurisdiction and the order passed by him was coram non judice. This order of Division Bench has been followed by this Court consistently and also finds support from dicta from other jurisdiction. In this regard reference may be made to the following:-- (1) Ghulam Shabir v The State 2000 PCr.LJ 1411. (2) Sardar Muhammad v. Zaffar Javaid Awan and others PLJ 1996 Lahore 680. (3) Ashique Hussain v. Sessions Judge, Lodhran and 3 others, PLD 2001 Lahore 271. (4) In the last mentioned case in para- the Court observed that "it may be clarified that an order regarding discharge or otherwise of an accused person under section 63 or under subsection (3) of section 173 of the Code of Criminal Procedure is within the competence of Magistrate competent to take cognizance of offence in question and it has no relevance to the question as to which Court is to ultimately decide the said offence unless, of course, a special statute provides otherwise". Thereafter the Court summarized the position in the para-28 in the following words:-- "28. It may be necessary to mention here that under the present dispensation under the Code there are two kinds of Magistrate i.e, Judicial Magistrates and Executive Magistrates and both have their respective jurisdiction vis-a-vis competence to take cognizance of specified offences. It has already been mentioned above that the power of a Magistrate to discharge an accused person under the Code is relatable to his competence to take cognizance of an offence. Thus, an Executive Magistrate having no jurisdiction to take cognizance of a particular offence is not competent to discharge an accused person involved in such an offence and, likewise, a Judicial Magistrate having not been conferred jurisdiction to take cognizance of a particular offence is not empowered to discharge an accused person involved in such an offence. An order of discharge passed by an incompetent Magistrate is, therefore, an order passed without lawful authority and the same is of no legal effect." ' Reference may also be made to' Muhammad Zaffar Saleem v. The State, 2009 YLR 489, which is a judgment authored by, incidently, learned counsel for the respondent (wife). Abdul Qadir's case (supra), was extensively quoted and in conclusion it was held as under:-- " Regardless of the fact whether the Magistrate had applied her judicial mind to the facts stated in the report submitted by the police, since she was not vested with the jurisdiction to take cognizance of the offence, I am of the definite view that she acted without jurisdiction and the order passed by her are coram non-judice and are accordingly quashed. Resultantly, the petitions succeed and are hereby allowed." Therefore the question whether Magistrate, who is not competent to take cognizance of an offence, is competent to B concur with the police that the complaint be disposed of as cancelled, is no longer an alive question. Such a Magistrate is not competent to cancel such an F.I.R. ' Having laid this question to rest, the next question would be when a report is presented to the Magistrate under section 173, Cr.P.C. And report is not in respect of offence which the Magistrate is
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competent to take cognizance of then what is it the, Magistrate can and should do? Should he act merely as a post office and send the report to the Sessions Judge or should he apply his mind to the facts before him? And if he is required to act only as a post office, why to submit report to him in the first place. Should this decision be left to the police and the Public Prosecutor to decide whether they should submit report to the Ilaqa Magistrate or -directly to the Sessions Judge? ' I will first refer to Bahadur's case (supra), law was succinctly summed up by the Supreme Court in the following words: "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 power, 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 compliant 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. This appeal is, therefore, allowed, and the impugned order of the High Court is set aside, as one without jurisdiction." ' In Mushtaq Raj's case (supra), Single Judge of the Lahore High Court observed as under:-- "6. I have considered the submissions of the learned counsel for the parties with care. I find great force in the submission of the learned counsel for the petitioner. It is well-settled principle of law that the learned Magistrate while functioning as a persona designate in discharge of his administrative duty, has to act fairly, justly and honestly but in the instant case, the learned Magistrate has acted quite arbitrarily and in a mechanical manner inasmuch as he did not care to open any file on administrative or judicial side; that he did not apply his conscious mind to the facts of the case and the evidence collected by the police; that he did not give any reason in support of his order while concurring with the investigation conducted by respondent No,2. It appears that he has not even examined the F.I.R. And the police file as is apparent from the impugned order referred to above." ' In Muhammad Daiem's case (supra), it has been held that while reaching conclusion the Magistrate is required to judicially examine documents and report submitted under section 173, Cr.P.C. It was held that it should not be disposed of in a slipshod manner, simply by saying that he has gone through the entire record. It was further observed that Magistrate being Judicial Magistrate is required to express himself and should explain his opinion. The above discussion leads me to the conclusion that a Magistrate while exercising his powers under section 173, Cr.P.C. Does not act in a mechanical manner. His order must show his application of mind, his opinion must be supported by reasons and his conclusion C must be laced with evidence that judicial mind has been applied. Though he is required to apply his judicial mind but the order passed by him is not a judicial order, it is an administrative order. Inspite of being an administrative order it must be a judicious order. This brings up to the answer of the question. Even if the Magistrate is not competent to take cognizance of the offence he must apply his mind and thus pass a speaking order. Further this speaking order shall have only effect of recommendation and thereafter the matter should be sent to the Court competent to take cognizance, who can pass final order either concurring with the Judicial Magistrate or disagreeing with the Judicial Magistrate. ' On the criminal complaint, order was passed by the Additional Sessions Judge. I have quoted above that order in extenso. Does it reflect any application of mind? Does it reflect expression of any opinion? If this order is not mechanical, I would be at loss to know as to what orders would be
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mechanical. Therefore the order passed by the learned Additional Sessions Judge cannot be sustained. ' Extensive arguments were addressed by both the learned counsel on factual aspect of the controversy. Learned Prosecutor General is correct when he says that before a Court acting on the basis of complaint there are three sets of materials: (i) Firstly the complaint; (ii) secondly statement of the complainant under section 200, Cr.P.C.; and (iii) statements of witnesses under section 202, Cr.P.C. He should not and he cannot consider any extraneous material. ' In the present case, in the complaint, as detailed above, history of acrimony was stated. Thereafter alleged facts relating to dinner on 13-4-2009, feeling sick, breakfast on 14-4-2009, feeling sick, leaving office by the complainant, thereafter surreptitiously leaving house by the respondent (wife), complainant being informed by his employee, complainant going to school, complainant going to the airport, fracas in the departure lounge, complainant feeling sick and at 4-00 p.m. Being taken to Agha Khan Hospital, hospital calling his contact next day and allegation of poisoning are stated. Not a single word is stated in the complaint regarding other four accused besides respondent (wife) except in para.20, which para is in the following words:-- "20. That all the accused persons with their common intention and abetment have committed heinous offences punishable under sections 324/337-J read with section 109/34, P.P.C. Within the cognizance of the honourable Court of Session. It is crystal clear that prima facie evidence has been collected which is supported by Medical evidence as well as circumstances evidence." '…
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