1990 PLP 12 (SCMR)

S.561-A

Constitution of Pakistan (1973), Art.185(3)

Magistrate discharged accused on police request

Order of discharge was set aside in revision by Sessions Judge- Hi Court set aside order of revisional Court on the ground that order of discharge was an administrative order

Held, cognizance of case had already been 4 1 ken by the Magistrate

Order of High Court passed under S.561-A, Cr. P. C. could not be maintained

Order of High Court set aside. Bahadur and another v. The State and another P L D 1985 S C 62 and Muhammad Aslam and another v. Additional Secretary to Government of N.W.F.P., Home and Tribal Affairs Department and others P L D 1987 S C 103 ref. Sh. Shaukat AU, Senior Advocate Supreme Court instructed by Hamid Aslam Qureshi, Advocate-on-Record for Appellant. A. Asim Jaffri Advocate-on-Record for Respondent No.l. S. M. Zubair, additional Advocate-General, Punjab for the State. Date of hearing 27th April, 1988. MUHAMMAD AFZAL ZULLAH, J.--This appeal through leave of the Court is directed against judgment dated 29-9-1986 of the Lahore High Court; whereby in exercise of power under section 561-A, Cr.P.C., a revisional order passed by the Sessions Court, was set aside.

2. The respondents Nos.l to 7 are stated to be accused persons in a criminal case. According to the position now admitted, after considerable delay which could have been avoided, a learned Magistrate had taken cognizance of the case against them. As mentioned in the High Court judgment. "On 28th of September, 1984, the Illaqa Magistrate discharged Muhammad Aslam petitioner (respondent No.l herein) and six others on Police request". The learned Sessions Judge, on a revision, set aside the order of the Illaqa Magistrate on 1-4-1985. The High Court relying on Bahadur and another v. The State and another P L D 1985 S C 62 set aside the order of the revisional Court on the ground that the order of discharge was an administrative order. This petition for leave to appeal was then filed by the complainant side. Leave was granted to examine, whether the cognizance of the case having been taken by a learned Magistrate having jurisdiction in the matter, could the order, dated 28th September, 1984 passed by the Illaqa Magistrate be restored by the High Court.

3. All the learned counsel agree that the judgment of this Court in Muhammad Alam and another v. Additional Secretary to Government of N:-W.F.P., Home and Tribal Affairs Department and others P L D 1987 S C 103 is attracted to this case. The learned Additional Advocate-General stated that according to the law declared by this Court, cognizance has already been taken by a learned Magistrate; the impugned order passed by the High Court cannot be maintained. The learned counsel for respondent No.l remained unable to urge anything in support of the judgment of the High Court.

4. After hearing all the learned counsel, it is held that cognizance having been taken by a learned Magistrate in this case, the impugned judgment of the High Court, in exercise of its power under section 561-A, Cr.P.C. has to be set aside. Therefore, while allowing this appeal, we order accordingly. M.A.K./N-182/S Appeal accepted.