1999 PLP 2053 (YLR)

This application under section 561-A, Cr.P.C. has been moved by Muhammad Suleman petitioner for the quashment of order, dated 5-4-1999 passed by Mr. Abdul Ghafoor Qureshi, Judicial Magistrate, Hari pur whereby Muhammad Nazir and Rashid accused-respondents have been discharged of the case registered vide F.I.R. No.340, dated 13-10-1997 under section 337-A(iii)/34, P.P.C., of Police Station Saddar, Haripur'.

2. The brief facts of the case are that on 9-10-1997 at 11-30 hours the petitioner, in injured condition, recorded his report in Police Station Saddar, Haripur, to the effect that at 07-30 hours he came to Bazar to buy some vegetable where accused namely Nazir, Rashid and Shafique were already present. No sooner did accused Rashid see him he commanded Nazir and Shafique co-accused to assault, whereupon Nazir caught hold of him and Shafique boxed at his nose. The motive for the offence was stated to be a quarrel between the children of the parties.

3. During the course of investigation the Investigation Officer reached the conclusion that accused Nazir and Shafique were falsely implicated in the case, therefore, the said two accused were not reported in the challan submitted under section 173, Cr.P.C. before the Court on 8-1-1998. Therefore, in a separate application, appended to the challan the accused were recommended for discharge under section 169, Cr.P.C. Notwithstanding the absence of the names of Nazir and Rashid accused in the challan, the learned Judicial Magistrate summoned both the accused. They appeared before the Court on 4-9-1998 and submitted an application praying for their discharge on the basis of the reports of the inquiries conducted- by Mr. Anwar Khan, S.H.O., Police Station Saddar, Haripur and Deputy Superintendent of Police, Haripur. The learned Judicial Magistrate therefore, through the impugned order, discharged both the accused.

4. Mr. Muhammad Ayub Khan Tanoli, Advocate appearing for the petitioner, at the very outset, pre-empting the objection from the other side regarding the maintainability of this petition under section 561-A, Cr.P.C. requested for its conversion into a revision petition. It may be observed that the impugned order passed by Judicial Magistrate is not amenable to the revisional jurisdiction under sections 435 to 439, Cr.P.C., in that, where the Magistrate concurring with the report submitted under section 173, Cr.P.C., does not function as criminal Court and the only remedy available against the impugned order is the application under section 561-A, Cr.P.C. In this context reference tray be made to 1993 SCMR 187 and 1997 SCMR 304(b).

5. Taking exception to the impugned order of discharge of the accused- respondents, the learned counsel went on to argue that once the accused were summoned to the Court they should have been examined and after recording the evidence if found innocent they could have been acquitted. Resisting the submission of the learned counsel for the petitioner Mr. Muhammad Wali Khan, Advocate assisted by Malik Amjad Ali, Advocate for the State contended that the accused were rightly discharged in light of recommendation of the police under section 169, Cr.P.C.

6. I am persuaded to agree with the submission advanced by the learned counsel for the petitioner. Once the learned Magistrate has taken cognizance he should have proceeded with the trial of the accused and if at any stage of the trial the learned Court was of the view that the charge was groundless and there was no probability of the accused being convicted of the offence he might have been acquitted under section 249-A, Cr.P.C. The absence of the names of the accused-respondents from the challan submitted under section 173, Cr.P.C. would not debar the trial Court from the proceeding with the case against the accused. Police has no authority to decide the cases before presenting them to the competent Court of jurisdiction. Under section 169, Cr.P.C. when it appears to the Police Officer, conducting investigation, that there is no sufficient evidence available to justify the forwarding of the accused in custody to the Magistrate, he may only release him on executing a bond with or without sureties. But the Investigation Officer is not empowered to omit the name of the accused from the challan. Furthermore the powers under section 169, Cr.P.C. can only be, exercised by the police during the course of investigation when accused is in custody of the police. Once the challan is submitted under section 173, Cr.P.C. the provisions under section 169, Cr.P.C. would not be attracted.

7. In the circumstances, the present petition is hereby accepted, the impugned order passed on 5-4-1999 by the learned Judicial Magistrate, Haripur is set aside with the direction that the respondents/accused herein, who are on bail, may be treated as accused and trial against them may be held in accordance with law. The respondents, accused who are present in Court today are directed to appear before the trial Court on 22-7-1999. N.H.Q./419/P Petition accepted.