2004 PLP 2116 (YLR)

WAHID BUX BROHI, J.‑‑‑The petitioner Mst. Hazar Khatoon has invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Pakistan seeking the following relief:‑‑ (a) That this Honourable Court may be pleased to set aside the order dated 6‑8‑2003 passed by learned Additional Sessions Judge, Kashmore being incorrect, improper, not warranted by law and uphold the order dated 16‑7‑2003 passed by learned Civil Judge and F.C.M., Kashmore. (b) The accused Allan released by learned Additional Sessions Judge, Kashmore may be remanded back to jail and proceedings against absconding accused may also be ordered. (c) Costs of the petition. (d) Any other relief which this Honourable Court may be pleased to deem fit and proper under the circumstances of the petition."

2. We have heard Mr. Nisar Ahmed Soomro, learned counsel for the petitioner, Mr. Muhammad Bachal Tunio, learned Addl. A.‑G. and Mr. Abdul Rehman Bhutto who undertook to file Vakalatnama on behalf of respondent. No.

1. The substance of petition in essence represents a revision against a judicial order passed by Additional Sessions Judge, Kashmore which has been assailed therein. All the learned counsel concede that the petitioner should have invoked the revisional jurisdiction of this Court. Since the impugned order suffers from patent illegality and impropriety therefore, in order to save time and inconvenience to the parties we allow the request of learned counsel for the petitioner and convert this petition into a criminal revision within the meaning of sections 435 and 439, Cr.P.C.

3. The background of this case is that the offence in Crime No.63 of 2003 lodged by petitioner Mst. Hazar Khatoon at Police Station, Kashmore on 8‑4‑2003 was investigated and the Investigating Officer on completion of investigation submitted a report to the learned 1st Civil Judge and Judicial Magistrate Kashmore with a request that the case may be disposed of as 'B' Class. Learned Civil Judge took the view that the superior Courts have settled the law that the Court is not bound to rely on the investigation of police. Citing the authority 2002 PCr.LJ 394, he turned down the request and directed that !he Investigating Officer, should submit challan against the accused persons within two B days, which time he extended to police within the meaning of section

344. Cr.P.C. The accused namely Allan being dissatisfied with the said order approached the learned Additional Sessions Judge, Kashmore by filing a criminal miscellaneous application which was heard and allowed and the order passed by the learned Civil Judge on 16‑7‑2003 was set aside. The accused Allan Jakhrani, respondent No.1 herein was directed to be released. Aggrieved by the aforesaid order Mst. Hazar Khatoon has approached this Court through these proceedings which as ordered earlier has been converted into revision proceedings.

4. It is vehemently contended by the learned counsel for the applicant/petitioner that the learned Additional Sessions Judge, Kashmore, had no powers to set aside the order passed by a Magistrate which in essence was an executive/administrative order. Learned Addl. A.‑G. Mr. Muhammad Bachal Tunio concedes to this position to view of proposition laid down by the Honourable Supreme Court. Mr. Abdul Rehman Bhutto learned counsel for the respondent is not in..‑a position to y controvert this legal position, as in a similar situation in Criminal Miscellaneous Application No.71 of 2003 he steered the same view, which was carried.

5. We have noted that the order of learned Additional Sessions Judge, Kashmore suffers from two fold drawback. Initially, the order of a Magistrate dealing with a police report was admittedly an administrative/executive order as observed by the Honourable Supreme Court in Arif Khan v. State 1993 SCMR 187 which was followed in Muhammad Sharif v. State 1997 SCMR

304. With further clarification C it was also relied upon in Hussain Ahmed v. Irshad Khatoon 1997 SCMR 1503. This Court has also dilated upon this proposition and followed the principle laid down by the Supreme Court, in the case of Abdul Kadir v. State 2000 PCr.LJ

520. This Bench too, in Criminal `Miscellaneous Application No.71 of 2003 decided on 15‑1‑2004, respectfully followed the abovesaid principle laid down by the Honourable Supreme Court and affirmed the view taken by our learned brother. There can be no two opinion on this point that in view of the ‑principle enunciated as above, the only course available to a person aggrieved by the order of a Judicial Magistrate in exercise of its administrative or executive powers was to approach the High Court in exercise of its inherent jurisdiction within the meaning of section 561‑A, Cr.P.C. but C these powers have been exercised by the learned Additional Sessions Judge, Kashmore unmindful of the principles laid down in the judgments of the superior Courts. The order is therefore, illegal, perverse and improper, as such it is liable to be set aside.

6. We have also noted that the learned Additional Sessions Judge, Kashmore was empowered by the Government of Sindh to exercise powers under the Notification No.V(3)SOJ of 2001 in the following terms:‑‑ (1) Take cognizance of offences and try accused person in all such cases. (2) Entertain and hear all such appeals as pertains to that District/Division as if the cases had been made over to him by the Sessions Judge for hearing as the case may be,

7. On a plain reading of this notification it is manifestly clear that the powers of revision have not been conferred on the Court although the appellate powers have been spelt out in express terms. It is surprising to note that the revisional powers are being exercised by the Court in the garb of miscellaneous application without having jurisdiction in the matter.

8. Resultantly, we are of the considered view that the impugned order is null and void ab initio and cannot be sustained in law, the same is hereby set aside. The order of learned Civil Judge and Judicial Magistrate, Kashmore will now hold the field and any person aggrieved from that order should approach the appropriate forum in accordance with the law. The application stands disposed of. Application disposed of accordingly. H.B.T./H‑10/K