2004 PLP 1179 (MLD)

WAHID BUX BROHI, J.‑‑‑This application under section 561‑A, Cr.P.C. impugns the order‑dated 29‑5‑2003, passed by the learned Sessions Judge, Jacobabad whereby he set aside the order passed by the learned Additional Sessions Judge, Jacobabad Kashmore on 25‑4‑2003.

2. The background of the matter as gathered from the document annexed to this application is that in Crime No. 16 of 2003, Police Station Gudu for an offence under sections 337‑A(ii), A‑(i), 337‑F(i), 147, 148, P.P.C., the Investigating Officer moved an application in the Court of Judicial Magistrate Kashmore praying that the accused persons, Jumo and Mir arrested by him may be released, as during investigation he found them to be innocent. Learned Judicial Magistrate Kashmore by his order dated 23‑4‑2003 turned down the request of the Investigating Officer and remanded the accused persons to custody and directed the Investigating Officer to submit the challan in Court within three days. Against this order accused Jumo and Mir filed a revision application directly in the Court of Additional Sessions Judge, Kashmore who entertained the same and after hearing counsel for the parties passed an order on 25‑4‑2003 setting aside the aforesaid order of learned Judicial Magistrate. He passed specific order for releasing the applicants Jumo and Mir. Against that order present respondent Mazari son of Punhal filed a revision application in the Sessions Court, Jacobabad, which was heard by learned Sessions Judge. Jacobabad, who by order dated 25‑9‑2003 held that the order of Additional Sessions Judge, Kashmore was illegal, incorrect and improper and without jurisdiction since the Additional Sessions Judge, Kashmore could decide a revision petition only when it was transferred to him by the Sessions Court Consequently, the order was set aside and the earlier order of Judicial Magistrate was upheld with directions that the accused nominated in the F. I. R. be joined as accused in the case.

3. We have heard Mr. Ali Nawaz Ghanghro and Mr. Abdul Khalid Bhutto learned Advocates for respondent No.1 and Mr. Muhammad Ismail Bhutto, learned counsel for the State and perused the orders.

4. Mr. Ali Nawaz Ghanghro learned counsel for the respondent contended that initially the order passed by the learned Judicial Magistrate Kahsmore executive, in nature passed in exercise of administrative powers and was not amenable to revisional jurisdiction, therefore, the order passed in revision by the Additional Sessions Judge was not correct We agree with him: as the law on this point is well -settled. The Honourable Supreme Court in the case of Arif Khan (1993 SCMR 187) and Hussain Ahmed 1997 SCMR 1503 and in earlier case has dilated upon this legal proposition which has been fully considered and allowed by this Court in 2000 PCr.LJ 520 Abdul Qadir v. State. This relevant portion is reproduced hereinbelow:‑‑ "With reference to treatises on Justice and Administrative Law by different well‑known authors, Supreme Court expressed the view that some of the powers of the Magistrate and administrative, executive or ministerial and he discharges theses duties not as a Court but as person designata. This view was followed in Arif. Khan v. State (1993 SCMR 187) and Muhammad Sharif v. State (1997 SCMR 304) which was also referred in the latest case of Hussain Ahmed v. Irshad Bibi (1997 SCMR 1503). Ratio decided in all the cases appears to be that since the Magistrate while concurring with a police report submitted under section 1/3, Cr.P.C. does not act as a Criminal Court inferior to the Court of Session and the High Court, his order cannot be revised and modified under the provision of sections 435, 439, Cr.P.C. but in that case it is amenable to inherent jurisdiction of the High Court under section 561‑A, Cr.P.C. provide the order is abuse of process of Court." Respectfully we agree with the afore‑mentioned view which is founded on the dicta of Honourable Supreme Court laid in the afore-mentioned authorities.

5. Moreover, the Additional Sessions Judge; `Kashmore was not competent to entertain directly a petition in revision under section 439‑A, Cr.P.C., the powers conferred on the Additional Sessions Judge, Kashmore enumerated in the relevant notification read as under:‑‑ (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 cases had been made over to him by the Sessions Judge for hearing as the case may be.

6. The revisional jurisdiction in the notification is not included. Thus, from the procedural point of view this defect is also apparent on the face of record as the Additional Sessions Judge has exercised a jurisdiction not vested in him. Even the learned Sessions Judge, Jacobabad has proceeded in that direction and set aside the order. Although, we will not agree, as discussed below, with the learned Sessions Judge, Jacobabad that he was competent to set aside the order of Additional Sessions Judge in revision nevertheless we would hold that the order of Additional Sessions Judge, Kashmore was without jurisdiction.

7. Mr. Ali Nawaz Ghangro and other learned counsel urged that the order of learned Sessions Judge, Jacobabad also suffers from patent illegality, Mr. Muhammad Ismail Bhutto, learned counsel for the State conceded to this. We agree with them. The order of learned Additional Sessions Judge, Kashmore, if suffered from irregularity, incorrectness or impropriety, it could be set aside by High Court and not Sessions Court. In the above‑said authorities it has been observed that such legal infirmity as arising out of the administrative order passed by the Magistrate could‑ be challenged or assailed in the High Court exercising jurisdiction under section 561‑A, Cr.P.C., if the abuse of process of Court is established. We are of the considered opinion that there was not such a situation as to empower the learned Sessions Judge, Jacobabad to pass an order in exercise of revisional jurisdiction as the Court of Additional Sessions Judge is not inferior Criminal Court to Sessions Court for the purpose of exercise of revisional jurisdiction under section 435, Cr.P.C. Reference in this context may be made to Kamra v. Muran Lal (AIR 1955 Allahabad 694). Since the order was absolutely without jurisdiction the same cannot be sustained.

8. In view of the foregoing discussion we set aside the order passed by the learned Sessions Judge, Jacobabad as well the order passed by the learned Additional Sessions Judge, Kashmore, it is clarified that in result of the foregoing, order of learned Judicial Magistrate will remain in the field and by virtue of this order the same shall not be deemed to be upheld. It is open to question. Any party aggrieved, may approach the competent forum. The application stands disposed of. H.B.T./G‑19/K Application accepted.