1989 P Cr (PLP)

Rabnawaz Khan Noon for the Complainant. Muhammad Nawaz Abbasi, Assit. A.‑G. with Raja Abdul Ghafoor for the State. This order will dispose of the following three matters as they are connected with each other:‑ (1) Criminal Miscellaneous No. 18/Q of 1987 Mazhar Iqbal v. Additional Sessions Judge. (2) Criminal Miscellaneous No. 24/0 of 1987. Mazhar Iqbal v. Additional Sessions Judge. (3) Criminal Revision No. 122 of 1987 . Liaqat Ali v. The State and others.

2. Facts giving rise to these petitions in brief, are that a case under section 302/148/149, P.P.C. was registered against five persons, namely, Mushtaq Ahmad, Mian Khan, Muhammad Fazal, Muhammad Ashraf and Mazhar Iqbal, at P.S. Saddar Beruni, Rawalpindi, vide F.I.R. No. 81, dated 31‑8‑1986. During investigation, police found Mazhar Iqbal accused (petitioner in Criminal Miscellaneous Nos. 18/Q of 1987 and 24/ Q of 1987) innocent and got him discharged from the Ilaqa Magistrate on 18‑12‑1986. Feeling aggrieved, Liaqat Ali complainant filed a private complaint against all the rive accused named in the F.I.R. including Mazhar Iqbal petitioner on 19‑3‑1987. He also preferred a revision petition against the order of the Magistrate discharging Mazhar Iqbal petitioner. It appears that when submitting the challan, police had also placed Muhammad Ashraf accused in column No.2 thereof. Learned Additional Sessions Judge by order dated 10‑6‑1987 passed in the challan case summoned Muhammad Ashraf accused as also Mazhar Iqbal petitioner. Since Mazhar Iqbal was summoned in the State case, complainant felt satisfied and he, therefore. withdrew his complaint which accordingly was dismissed as withdrawn by the learned Additional Sessions Judge vide order dated 16‑6‑1987. By another order dated 22‑7‑1987, learned Additional Sessions Judge allowed the complainant's revision petition and set aside the Magistrate's order dated 18‑12‑1986 holding that the Magistrate had passed it without assigning any reason and without applying his mind. Since Mazhar Iqbal already stood summoned, learned Additional Sessions Judge did not pass any further order in that behalf.

3. Mazhar Iqbal petitioner feeling aggrieved with the order of the learned Additional Sessions Judge dated 10‑6‑1987 summoning him in the State case sought its quashment in a petition filed under section 561‑A, Cr.P.C. (Criminal Miscellaneous No. 18/Q of 1987). He has moved another petition under section 561‑A, Cr.P.C. (Criminal Miscellaneous No. 24/Q of 1987) for quashment of the order of Additional Sessions Judge, dated 22‑7‑1987 whereby order of Magistrate discharging him was set aside. Liaqat Ali complainant has filed Criminal Revision No. 122 of 1987 to assail the order of the learned Additional Sessions Judge dated 16‑6‑1987 dismissing his private complaint. All these petitions have been heard together and are being disposed of by a single order.

4. I have heard the learned counsel for the parties as also the learned Assistant Advocate‑General for the State.

5. Learned counsel appearing for the petitioner Mazhar Iqbal submits that the petitioner having been discharged by the Magistrate on the police report that he was found innocent during investigation it was not competent for the Additional Sessions Judge to have summoned him without recording some evidence in the State case disclosing his complicity in the alleged offence. Reliance for this submission is placed on Muhammad Ibrahim v. Qudrutullah Ruddi P L D 1986 Lah.

256. The case cited by the learned counsel support; his contention. Learned Assistant Advocate‑General and the learned counsel for the complainant have not been able to cite any authority to the contrary. It may be; observed that it is an admitted position that the learned Additional Sessions Judge summoned the petitioner without recording any evidence showing his involvement in my of the offences. The impugned order of the learned Additional Sessions Judge dated 10‑6‑1987, therefore, deserves to be set aside

6. It is next contended by the learned counsel appearing for Mazhar Iqbal petitioner that the order of the Magistrate discharging the petitioner was not open to revision and, therefore, the order of the learned Additional Sessions Judge, dated 22‑7‑1987 passed in exercise of his revisional powers was without jurisdiction. Learned counsel relies on Bahadur and another v. The State and another P L D 1985 SC

62. It was held in the precedent case that a Magistrate cancelling a criminal case on the police report does not function as a criminal Court and his order is, therefore, not amenable to revisional jurisdiction under section 435/439, Cr.P.C. No authority to the contrary has been cited by the other side. Learned Assistant Advocate‑General has, m fact, conceded the proposition canvassed by the learned counsel for the petitioner. That being so, the impugned order of the learned Additional Sessions Judge, dated 22‑7‑1987 setting aside in revision the discharge order of the Magistrate cannot be sustained and is hereby quashed. This, however, does not conclude the matter because even the order oil the Magistrate discharging Mazhar Iqbal petitioner cannot stand as it is shown to have been passed without application of mind to the facts of the case and the allegations made against Mazhar Iqbal. Learned counsel appearing for Mazhar Iqbal has quite candidly conceded that the order of the Magistrate lacks application of mind and, therefore, requires to be set aside. In the circumstances, the order of the Magistrate, dated 18‑12‑1986 discharging Mazhar Iqbal petitioner is also set aside leaving it open to the Magistrate to pass a fresh order on the application report of the police after duly applying his mind to all the facts and particularly the allegations made against Mazhar Iqbal. Criminal Miscellaneous No. 24/Q of 1987 is thus disposed of with these observations.

7. As regards Criminal Revision No. 122 of 1987 directed against the dismissal of the private complaint filed by Liaqat Ali complainant, suffice it to observe that the complainant himself having offered to withdraw it, he cannot make any legitimate grievance against .its dismissal. Learned counsel appearing for Liaqat Ali, however, submits that the complainant withdrew the complaint because in the meantime, the learned Additional Sessions Judge had decided to summon Mazhar Iqbal, the discharged accused. Be that as it may, since the complaint was dismissed on the statement made by the complainant himself. I am persuaded to interfere with 'the order of the learned Additional Sessions Judge dismissing the complaint particularly when the Magistrate's order discharging Mazhar Iqbal has been set aside as noted in para. 6 ante. Resultantly, Criminal Revision No. 122 of 1987 is dismissed but it is observed that if on remand, the Magistrate upholds his previous order and again discharges Mazhar Iqbal accused, it will be open to Liaqat Ali complainant to file a fresh complaint. All the three matters (Criminal Miscellaneous Nos. 18/Q, 24/0 and Criminal Revision No. 122 of 1987) thus stand disposed of with the observations aforementioned.

8. This order will be placed on the file of Criminal Miscellaneous No. 18/Q of 1987. S.A./M‑999/L Order quashed.