2007 P Cr (PLP)

NADEEM AZHAR SIDDIQI, J.

The applicants have challenged the order, dated 29-4-2005 passed by learned IV Additional Sessions Judge, Mirpur Mathelo dismissing the revision filed by the applicants against the order dated 6-10-2004 passed by the learned Civil Judge and Judicial Magistrate Deharki directing for submission of challan against the nominated persons in Crime No.106 of 2003 of Police Station Deharki under sections 392 and 394, P.P.C. In short the facts of the case are that Muhammad Sharif got registered F.I.R. on 4-9-2003 against Shahzado and Sharif wherein it is alleged that Shahzado fired from his pistol and Sharif inflicted Lathi blow upon P.W. Mumtaz and Shakeel Ahmed and both the accused have taken away their motorcycle. The police has submitted its report before the learned Judicial Magistrate recommended the case may be filed untraced under "A Class" after rectify the lacunas. The learned Judicial Magistrate has not accepted the report and by its order, dated 6-10-2004 directed that challan be submitted against nominated accused within 14 days. The applicants have challenged the above order by filing revision before the learned Sessions Judge, Ghotki, which was heard by IV Additional Sessions Judge, Mirpur Mathelo and has dismissed the same. The applicants have challenged the order of Additional Sessions Judge by filing this criminal miscellaneous application under section 561-A, Cr.P.C. The learned counsel for the applicants has submitted that the learned Magistrate without any material before him and without any justification disbelieved the report of the police. He further submits that the learned Magistrate has no jurisdiction to compel the police to submit the challan against its findings. Learned A.A.-G. has supported both the orders and submits that applicants were nominated in the F.I.R. with specific role of firing, causing Lathi blow to P.Ws. and robbing the motorcycle of the complainant. He submits that the learned Magistrate has rightly disbelieved the report submitted by the police. He further submits that order passed by the learned Magistrate was administrative in nature and cannot be challenged by way of filing revision and can only be challenged by way of filing of application under section 561-A, Cr.P.C. In rebuttal learned counsel for the applicants has placed reliance on unreported case of Pakarji v. Bhagwandas and others Criminal Miscellaneous Application No.201 of 2001 in support of his contention that criminal revision is maintainable. In unreported case the learned Single Judge of this Court has held that the order was passed by Civil Judge and F.C.M. Deharki and cannot he termed as an administrative order and further held that order could have been challenged under revisional jurisdiction or in alternate under section 249-A, Cr.P.C. I have heard the learned counsel for the parties and perused the record made available before me. It is now well-settled principle of law that police opinion is not binding upon the Court and the learned Judicial Magistrate can take cognizance even in case of negative report and can issue process against persons who appear to him to be concerned in the commission of offence. From the F.I.R. it is clear that the applicants were nominated with specific role and the learned Magistrate has rightly ordered for submission of challan. Regarding filing of the revision before the Sessions Judge it is suffice to say that the order passed by the learned IInd Judicial Magistrate is administrative in nature and cannot be amenable to revision jurisdiction. Reliance is placed on reported case of Bahadur and another v. The State and another PLD 1985 SC

62. In view of the reported judgment the revision was wrongly filed and entertained. However, since the revision was dismissed the position was not changed or altered as the order passed by the learned Magistrate remain intact. In view of the above I do not find any illegality or irregularity in the order passed by learned Magistrate and also do not find any justification to interfere with orders passed by two Courts below. Criminal miscellaneous application is dismissed. H.B.T./S-74/K Application dismissed.