1992 P Cr (PLP)

Mian Muhammad Ashraf for Petitioner. Sheikh Faizan for the State. Mian Rashid Ahmad for Respondents Nos.2 to

9. The petitioner seeks quashment of the order, dated 25‑7‑1991, passed by the Magistrate First Class, Mailsi, District Vehari, cancelling the case registered on a report lodged by the petitioner, vide F.I.R. No.81 dated 20‑4‑1990.

2. The case was initially investigated by Abdur Rashid, A.S.I. and subsequently, on transfer, by the Inspector, C.I.A., Vehari, who opined that the offence under section 440, P.P.C. was not made out. Thereafter, the investigation was transferred to A.S.P., Burewala, who came to the conclusion that the accused persons were innocent and recommended cancellation of the case. The petitioner made an application before the District Magistrate, Vehari who called a report from the District Attorney. After considering the report of the District Attorney, the District Magistrate passed the order that the challan be submitted in the Court but subsequently he withdrew his previous order. The petitioner assailed the order passed by the District Magistrate through Writ Petition No.621 of 1990, which was dismissed by this Court on 6‑4‑1991.

4. The petitioner's learned counsel contends that the Magistrate had taken cognizance of the offence and was not competent to pass the order of cancellation of the case. In this connection, he places reliance on the following (1) Muhammad Alam and another v. Additional Secretary to Government of N.‑W.F.P., Home and Tribal Affairs Department and 4 others P L D 1987 SC 103. (2) Wazir v. The State P L D 1962 (W.P.) Lah. 405.

5. On the other hand, learned counsel for respondent submits that the impugned order is purely of administrative nature which can neither be challenged under section 439 nor section 561 of the Cr.P.C. he adds that, if at all, the order can be challenged through a constitutional petition. In this connection,, he places reliance on Bahadur v. The State P L D 1985 SC

62. He further submits that the Magistrate had never taken cognizance of the offence and merely passed an administrative order, although the learned counsel for the accused persons and A.D.A. were present. Lastly, he submits that the petitioner has no locus standi in the matter, because the State was the proper party which never opted to assail the impugned order.

6. There is considerable force in the arguments raised by the respondent's learned counsel. The impugned order is purely of an administrative nature. There was no obligation on the part of the Magistrate to hear the parties or the A.D.A. as held in the case of Bahadar v. The State and another. The mere fact that the counsel for the accused persons and A.D.A. were heard, would not be sufficient to show that the Magistrate had taken cognizance of the offence. There is no material on the record to indicate that the learned Magistrate had, at any stage, applied his judicial mind to the facts of the case and then summoned the accused to face their trial. Hence, the impugned order, being purely an administrative one, could not be challenged through a revision petition under section 435/439 of the Cr.P.C. and much less under section 561‑A of the Code. The said provisions of the Code can be invoked in relation to judicial and not the administrative orders. The petitioner's learned counsel cited the case of Zubaida Bibi etc. v. The State etc. 19$6 P Cr. L J 192 to urge that the provisions of section 561‑A of the Cr.P.C. could be invoked to set aside the impugned order. In the said case the question whether the provisions of section 561‑A, Cr.P.C. were applicable was neither raised nor determined by the Court. Hence, it cannot be cited as a precedent to support the contention raised .by the petitioner's learned counsel.

7. In view of the above discussion, I find no merit in this petition which is dismissed. N.H.Q./81/G‑L ??????????? Petition dismissed.