2008 PLP 17 (MLD)

A.R. FAROOQ PIRZADA, J.

Granted.

2. Granted subject to all just exceptions.

3. This criminal revision is directed against order, dated 24-9-2007, passed by learned Civil Judge and Judicial Magistrate-IV, Shikarpur, thereby directing the concerned I.O. to challan the case before the competent Court. Learned counsel has contended that during investigation the I.O. had duly recorded the statements of the witnesses and disposed of the case under "B" class. He has also argued that there was no sufficient material to connect the applicant/accused with the case, and that the learned Magistrate did not apply his judicious mind, while passing the impugned order. Learned State Counsel states that he has not received the relevant papers, for the purpose of giving his opinion. Learned State Counsel is directed to obtain the relevant papers, to properly assist the Court. Issue notice to the I.O. to appear on next date of hearing, along with all the relevant papers. Adjourned to 30-10-2007.

4. By this application under section 561-A, Cr.P.C. a prayer is made for suspending the operation of impugned order, dated 24-9-2007, passed by Civil Judge and Judicial Magistrate-IV, Shikarpur in F.I.R. No. 147 of 2007, P.S. New Faujdari Shikarpur, until the final disposal of present criminal revision before this Court. He has relied upon the order, dated 4-12-2006, passed by High Court of Sindh, Bench at Sukkur in C.P. No.D-924/06; the order, dated 6-6-2005, by High Court Bench at Sukkur in Criminal Miscellaneous Application No. 45' of 2005 and the order, dated 6712-2002, by the High Court of Sindh, Karachi in Criminal Miscellaneous Application No. 197 of 2002, on the point of grant of stay in the identical proceedings. He has also cited the authority Sufi Abdul Qadir v. the State and others reported in 2000, PCr.LJ

520. However from the perusal of this authority (relevant pages 524 and 525), it reveals that the Magistrate while acting under section 173, Cr.P.C., does not act as a criminal Court inferior to the Court of Session and the High Court, and his order cannot be revised and modified under the provisions of sections 435, 439, Cr. P. C. but in that case it is amendable to the inherent jurisdiction of the High Court under section 561-A, Cr.P.C. provided the order amounts to abuse of process of Court. On this point the learned counsel would be required to satisfy this Court as to whether the criminal revision before this Court would be maintainable or not. However, since the learned counsel for applicants has argued that there is no sufficient material on record to incriminate the accused and the learned Magistrate did not apply his judicious mind to the facts and circumstances of the case, as such in the interest of justice, this application under section 561-A, Cr.P.C. is allowed, and the operation of the impugned order, dated 24-9-2007, is suspended, till final decision in the present matter before this Court. Issue notice to I.O. and complainant: Adjourned to 30-10-2007. H.B.T./A-121/K Application allowed.