2011 YLR 2587 (PLP)

ABDUS SATTAR ASGHAR, J.

Bakhat 'Bedar petitioner is one of the accused in case F.I.R. No.100 of 2009, dated 6-6-2009, under section 336, P.P.C., Police Station Abe Hayat, District Rahimyar Khan. The said F.I.R. was lodged on the complaint of Shamasuddin Gillani alleging that on 25-5-2009 he reached the Baithak of Bakhat Bedar on his call to resolve the dispute of the land and house between complainant's sister Mst. Makhdoom-un-Nisa, Sarfraz Hussain and Imtiaz where co-accused Sarfraz Hussain and Imtiaz were also present; that Sarfraz and Imtiaz caught hold of him whereas Bakhat Bedar gave a fist blow on the mouth of the complainant in result whereof his tooth was broken; that on his hue and cry P.Ws. Liaqat Ali and Ramzan were attracted to the spot to his rescue and took him to Sheikh Zaid Hospital; that on 2-5-2009 he lodged an application to the District and Sessions Judge Rahimyar Khan for medical examination which was entrusted to the Illaqa Magistrate and on the order of the Illaqa Magistrate he was medically examined and as per report of the Dental Surgeon the injury was declared as Itlaaf-i-Salahyyat-i-Udw attracting the offence under section 336, P.P.C. After registration of the case and investigation by the police the S.H.O. 'submitted report dated 12-11-2009 under section 173, Cr.P.C. to the Court of Ilaqa Magistrate with recommendation to cancel the case on the grounds that as per investigation the alleged occurrence had never taken place rather the F.I.R. was got registered on the basis of false and baseless concocted story and that the accused were innocent in the case. The learned Magistrate Section 30, Rahimyar Khan vide order dated 10-12-2009 disagreed with the cancellation report on the grounds that the complainant has strongly implicated the accused persons and is not satisfied with the investigation carried out by the police and has requested to call for prosecution evidence. In the above circumstances the learned Magistrate section 30 opined that innocence or the guilt of the accused will be determined after recording the prosecution evidence therefore he ordered to summon the accused for trial.

2. Feeling aggrieved of the order dated 10-12-2009 passed by the learned Magistrate all the three accused preferred a revision petition under sections 435 and 439, Cr.P.C. before the Additional Sessions Judge, Rahimyar Khan which was also dismissed on the ground that the complainant and his witnesses have got recorded their statements under section 161, C.P.C. to support the prosecution version; that the MLC of the complainant is also available on the record which prima facie supports the prosecution case and that in the attending circumstances innocence or otherwise of the accused can only be determined during the trial after recording the evidence. Learned Additional Sessions Judge finding no illegality in the order dated 10-12-2009 passed by the Magistrate dismissed the revision petition vide order dated 22-3-2011.

3. Bakhat Bedar one of the accused through the instant writ petition under Article 199 of the Constitution has called in question the orders dated 10-11-2009 passed by the Magistrate Section 30/ respondent No.3 and order dated 22-3-2011 passed by the Additional Sessions judge, Rahimyar Khan/respondent No.2 on the grounds that both the said orders are illegal, against law and facts, void, without lawful authority and liable to set aside. He has also sought a direction to respondent No.3 to accept the cancellation report under section 173, Cr.P.C.

4. I have given patient hearing to the counsel for the petitioner and gone through the record with his able assistance.

5. The term 'Magistrate' has been--defined under clause (ma) of subsection (1) of section 4 of the Criminal Procedure Code, 1898, inserted vide Ordinance XVII of 2001 w.e.f. 14-8-2001. It means Judicial Magistrate and includes a Special Judicial Magistrate appointed under sections 12 and 14 of the Code. The insertion of the above definition was made in the process of separation of Judiciary from the Executive in terms of Article 175(3) of the Constitution. Before separation of the Judiciary from the Executive, Magistrates used to try criminal cases as part of the executive. In that arrangement an order passed by an Executive Magistrate before taking cognizance under section 190, Cr.P.C. was considered an administrative and not a judicial order not revisable under sections 435 and 439, Cr.P.C. It was so observed in the case of Bahadar and another v. The State and another (PLD 1985 SC 62). However, consequent upon the separation of Judiciary from the Executive and in view of the definition of 'Magistrate' as quoted above, the situation now has changed. In the changed state of affairs w.e.f. 14-8-2001, an order passed by a Judicial Magistrate is to be considered a judicial act and thus revisable under sections 435 and 439, Cr.P.C. Legality and propriety of such an order can also be looked into by the High Court under Article 199 of the Constitution read with section 561-A, Cr.P.C. A cancellation report falls within the ambit of section 173, Cr.P.C. therefore Magistrate has power to agree or disagree with the report under section 173, Cr.P.C. in exercise of his lawful authority. It is also settled by now that a report under section 173, Cr.P.C. as to the guilt or innocence of an accused person is a mere opinion of the Investigating Officer certainly not binding upon the court. Such a report under section 173, Cr.P.C. cannot be termed as an evidence. Reliance be made upon Muhammad Bashir v. Station House Officer, Okara Cantt. and others (PLD E 2007 SC 539).

6. In the light of the above legal position perusal of both the impugned orders passed by the learned Magistrate and the learned Additional Sessions Judge makes it crystal clear that both the learned courts have passed the impugned orders after due application of judicial mind while taking into consideration the statements of the complainant and the P.Ws. under section 161, Cr.P.C. as well as medicolegal certificate of the complainant wherein the alleged injury is declared as Itlaf-i-Salahiyyat-i-Udw attracting the offence under section 336, P.P.C. There is no cavil to the finding that in the attending circumstances innocence or the guilt of the accused can only be determined after recording evidence of the parties. I, therefore, do not see any illegality or misuse of authority in both the impugned orders.

7. In view of the above, there is no merit in this writ petition, which is dismissed in limine. H.B.T./B-29/L???????????????????????????????????????????????????????????????????????? Petition dismissed.