1984 PLP 1408 (MLD)

Lal Khan Baluch for Petitioner. Altaf Muhammad Khan for Respondents Nos. 1 and

4. Shakir Ali Rizvi for Respondent No.3 Dates of hearing: 23rd, 26th and 27th May, 1984. A case under sections 302/307/324/325/34, P.P.C. was registered by the Police Station Rabwah against Salehon, Shera and Daulat for having allegedly murdered Shahadat at the instance of Shahamand petitioner vide F.I.R No 17 dated 19-2-1982.

2. The respondent No.3 was connected with the commission of the offence during the investigation conducted by the S.I./S.11.0. Police Station Rabweh on the complaint of the petitioner. After the completion of the investigation the challan was prepared on 4th April, 1982. However, respondent No. 3 was placed in column No.2 of the challan. The same was forwarded by the S.H.O. Rabwah to the D.S.P. Chiniot on 17th April, 1982. The challan was submitted on 28th August, 1982 to the Resident Magistrate Rabwah. He vide his order dated 28th August. 1982 sent up the challan to the Court of Session, Jhang for trial with the date as 4th September, 1982. On 4th September, 1982 as alleged by the petitioner the accused were brought before the Court of Session. The case was entrusted by the learned Sessions Judge, Jhang to the Additional Sessions Judge, Jhang on 19th January, 1983. On 27th January, 1983 the accused in the challan were provided with the copies of the statements under section 161, Cr.P.C. The case was fixed for trial to commence on 26th February, 1983.

3. When the case had already been sent up to the Court of Session the S.H.0, Rabwah on 29th January, 1983 submitted a report through the D.S.P. Chiniot to the Resident Magistrate Rabwah for the discharge of respondent No.3 on the ground that he had been found out as innocent as a result of his investigation. The Resident Magistrate discharged respondent No.3 on the report so made on 31st January, 1983.

4. In the present writ petition having been brought from the order dated 31-1-1983 of the learned Magistrate the learned counsel for the petitioner has contended that after having sent up the challan of which the cognizance had been taken by the Court of Session which alone was competent to proceed with the Resident Magistrate could not discharge respondent No.3 on the report made to him, so the order dated 31-1-1983 passed to that effect is without lawful authority. The learned counsel has in support of his contention relied upon Ali Asghar v. The State and another (1982 P Cr. L J 415), in which it was held in a similar situation that after sending up the challan to the Court of Session the Magistrate became functus officio. He had, therefore, lost all jurisdiction in the case. He had no jurisdiction to dispose of the application submitted by the police for the discharge of the respondent.

5. The learned counsel appearing for the State has submitted as to the proposition involved in this case that there cannot be two opinions. According to him after submitting the challan to the Court of Sessions the learned Magistrate had ceased to have any jurisdiction to deal with any of the matters arising out of the challan which had been sent up by him. He has also submitted that the only course open to the learned Magistrate was to have forwarded the report made for the discharge of respondent No.3 to follow the challan.

6. Mr. Shakir Ali Rizvi, Advocate has resisted the issuance of writ in this case on the ground that an alternative remedy by way of a revision petition was available to the petitioner which had not been availed of, so in that circumstance the writ cannot be issued.

7. As to the objection raised by the learned counsel for respondent No.3 suffice it to say that the order passed by the learned Magistrate is basically a void order. The power of the Magistrate to discharge an accused after having submitted the challan to the Court of Session has also been analysed recently in writ petition No. 5297 of 1983 entitled "Muhammad Abbas v. Sultan Ahmad etc." by a learned Judge of this Court, in which the question in issue was that whether the Magistrate after having sent up the challan could discharge an accused person placed in column No. 2 at the behest of the police. The learned Judge after examining Ali Asghar v. The State and another (1982 P Cr. L J 415), Habib v. The State (1983 S C M R 370), Bashir Ahmad v. The Ilaqa Magistrate, Jaranwala and 4 others (P L D 1980 Lah, 428) and Raja Khushal Khan v. The State and another (Petition for Special Leave to Appeal No. 259/78) concluded that the Magistrate was not competent to deal with the second report after he had already sent the case to the Court of Session, further observing, "...the guilt or innocence of the accused persons including those mentioned in column who again find mention in the second report of the Investigating Officer, could be judged only by the competent Court and not by the Magistrate who had become functus officio in view of the rule laid down in the case of Khushal Khan referred to above." Resultantly the learned Judge allowed the writ petition and set aside the order of the Magistrate discharging the accused, directing the putting up of the second report under section 173, Cr.P.C. to the Court of Session and that for the Court to consider the merits of the report. This decision fully covers the case of the petitioner in the present writ petition, therefore, relying upon the same this writ petition is accepted, the order dated 31-1-1983 of the learned Resident Magistrate, Rabwah whereby respondent No.3 was discharged is declared as without lawful authority and of no legal effect. In the result a direction is issued the learned Resident Magistrate Rabwah to forward the report submitted to him by the S. H .O. for the discharge of respondent No.3 to the Court to which the challan had been sent up by him which hereafter will be competent to deal with the matter in any way it finds as conforming to the Law. In the circumstances of this case there is order as to costs. S. G. D. Writ issued.