2018 PLP 1777 (MLD)

ALI BAIG, J.

The petitioner namely Amir Khan SIP son of Sheli Bar resident of Gupis District Ghizar has filed the present petition under section 561-A, Cr.P.C for the quashment of administrative order dated 06-3-2018 passed by the learned Judicial Magistrate Gupis /Yasin District Ghizar during the trial of Criminal case No.62/2017 registered under section 337-A(ii)/34, P.P.C. at Police Station Phander vide FIR No.12 of 2017, whereby the learned trial Magistrate has directed the SHO Police Station Phander to lodge FIR against the petitioner.

2. Brief but relevant facts giving rise to the filing of this petition are that petitioner was performing his duties as SHO Police Station Phander in the year 2017. On 21-8-2017 the complainant namely Shezada Khan son of Shukoori resident of Chasi Teshil Phander submitted a written complaint to the SHO Police Station Phander stating therein that on 21-8-2017 at about 0800 hours accused namely Muhammad Sadiq and Muhammad Saeed sons of Haji Bazo assaulted on the brother of complainant namely Shah Zaman and belabored him. Resultantly he received injuries. In the light of written complaint the Incharge SHO Phander namely Bahadur Wali ASIP chalked FIR against the above named accused under section 337-A(ii)/34, P.P.C., as present petitioner namely Amir Khan the then SHO Police Station Phander was out of station. After lodging FIR the present petitioner conducted investigation in this case. During investigation the petitioner/SHO police station Phander released accused namely Mohammad Saeed on bail as he was juvenile at the time of occurrence.

3. Anyhow, after completion of usual investigation the petitioner submitted complete challen/charge sheet against the above named accused in contemplation of section 173, Cr.P.C. in the court of learned Judicial Magistrate Gupis/Yasin. The learned Judicial Magistrate registered the case against above named accused vide criminal case No. 62/ 2017. During the trial of case the learned Judicial Magistrate Gupis/Yasin. Vide impugned order dated 6-3-2018 issued directions to present SHO Police Station Phander stating therein that since the petitioner/the then SHO Police Station Phander has released the juvenile accused on bail, whereas the accused has committed non-bailable offence and has misused his powers, therefore, FIR be registered against the petitioner.

4. Feeling aggrieved and dissatisfied from the impugned order passed by the learned Judicial Magistrate Gupis/Yasin, the petitioner has filed the instant petition under section 561-A, Cr.P.C. for quashment of the impugned order.

5. The learned counsel appearing on behalf of the petitioner contended that the impugned order passed by the learned Judicial Magistrate Gupis/Yasin is contrary to law and facts on the record of the case as such the impugned order passed by the learned trial Magistrate is not maintainable and liable to be set aside. The learned counsel for the petitioner further argued that the learned trial Magistrate has exercised the jurisdiction not so vested in him and has failed to exercise the jurisdiction so vested in him. The learned counsel for the petitioner further contended that under section 10(5) of Juvenile Justice System Ordinance, 2000, offence under section 337-A(ii) is bailable as accused namely Mohammad Saeed was juvenile at the time of commission of offence and the petitioner being SHO was competent to release the accused in bailable cases under section 496, Cr.P.C. The learned counsel for the petitioner further argued that the learned trial Magistrate has committed gross/sheer irregularities and illegality while passing the impugned order.

6. On the other hand Mr. Sarfaraz Ahmed learned Deputy Advocate General GB while representing the State supported the impugned order passed by the learned trial Magistrate and maintained that the SHO/ petitioner was not competent to release the juvenile accused on bail, as such the learned Judicial Magistrate has rightly ordered to lodge FIR against the petitioner.

7. We have heard the learned counsel for the petitioner as well as the learned Deputy Advocate General and perused the available record with their able assistance.

8. From perusal of impugned order it transpires that the trial Magistrate has directed SHO Police Station Phander to lodge FIR against the petitioner on the ground that he has released a juvenile accused on bail in non bailable offence.

9. Admittedly accused namely Mohammad Saeed was juvenile at the time of commission of alleged offence. Under provisions of section 496, Cr.P.C. the SHO/Officer In-charge Police may release an accused person in bailable offence on his furnishing bail bonds. Under provision of section 10(5) of Juvenile Justice System Ordinance, 2000 offence allegedly committed by the juvenile accused is bailable. In this connection we would like to reproduce the relevant provisions of Juvenile Justice System as under:-- Section 10(5) "Where a child under the age of 15 years is arrested or detained for an offence which is punishable with imprisonment of less than ten years, shall be treated as if he was accused of commission of a bailable offence".

10. The juvenile accused has allegedly committed an offence under section 337-A(ii), Cr.P.C. and punishment provided for the aforesaid offence is 5 years imprisonment as such, the offence allegedly committed by the juvenile accused is bailable.

11. From bare reading of above mentioned provisions of Juvenile Justice System Ordinance, 2000, it reveals that above named juvenile accused has committed bailable offence and under section 496, Cr.P.C. the SHO concerned is not only competent to release the juvenile accused on bail, rather an officer in-charge Police Station is bound to grant bail in bailable eases on modest/nominal security bonds.

12. In the present case if the Officer In-Charge Police Station lacks jurisdiction or has no powers to grant bail to the accused then at the most bail granting order of SHO can be cancelled by the competent court of jurisdiction and Judicial Magistrate cannot issue order for lodging FIR against the petitioner as he has not committed any offence. Hence, the learned trial Magistrate has travelled beyond his jurisdiction while passing the impugned order and the impugned order is found arbitrary. The learned trial Magistrate has passed the impugned order in a hasty manner and has failed to apply his judicious mind while passing the impugned order, which is against the basic norms of law and is not sustainable. It is well settled principle of law that the administrative order of subordinate court if find arbitrary, it can be quashed by this Court/High Court in exercise of jurisdiction under section 561-A, Cr.P.C. In this connection reliance can be placed on the reported judgments of superior Courts reported in 2006 PCr.LJ 518 and 1997 SCMR 1503.

13. In view of above discussion, this petition is allowed. Consequently the impugned order dated 06-03-2018 passed by the learned Judicial Magistrate is hereby quashed in exercise of powers available under section 561-A, Cr.P.C.

14. Before parting with this order it is observed that we depreciate/deprecate the act/procedure adopted by Judicial Magistrate Gupis/Yasin in this case. Accordingly he is strictly directed to avoid abuse of process of court in future. Copy of this order be sent to the learned Judicial Magistrate Gupis/Yasin for his information and compliance. File. JK/3/GB Petition allowed.