' This judgment purposes to decide the instant and the connected Writ Petition (W.P.5792 of 2004) arising in similar circumstances, raising alike questions of law and facts and between. The same parties.
2. Precisely, relevant facts are that on petitioner's complaint a criminal case vide F.I.R. No.270 dated 24-7-2002 under section 337-A (iii)/34, P.P.C. Was registered with Police Station Jalalpur Jattan, District Gujrat against Muhammad Latif and Muhammad Bashir (respondents Nos.2 and 3) on the charge of causing injury on the petitioner's nose in furtherance of their common intention. During the investigation, it is claimed that the police did not record statement of the P.Ws. And that of the complainant and ultimately prepared a discharge report under section 173, Cr.P.C. Recommending cancellation of case. The report of the Investigating Officer for cancellation of case was forwarded to Inspector Legal Gujrat and ultimately Illaqa Magistrate after examining the material and evidence, did not agree with the police report and finding it based on conjectures and surmises, directed the S.H.O. For proper investigation of the case and submission of report under section 173, Cr.P.C. Within the stipulated period vide order dated 17-7-2003.
3. Petitioner on gaining knowledge of cancellation report by the Investigating Officer under section 173, Cr.P.C. Filed a private complaint against respondents Nos.2 and 3 wherein the learned Judicial Magistrate, after recording of preliminary evidence summoned them to face trial vide his order dated 10-7-2003.
4. Feeling aggrieved of the orders dated 17-7-2003 and 10-7-2003 passed by the learned Judicial Magistrate, respondents Nos.2 and 3 filed two separate revision petitions before the learned Additional Sessions Judge, who vide his order dated 21-10-2003 dismissed the revision petition of respondents Nos.2 and 3 filed against the order dated 10-7-2003 passed by the Magistrate in private complaint and accepted their other revision petition and set aside the order dated 17-7- 2003 passed by the learned Magistrate whereby he had disagreed with the police report recommending cancellation of case and ordered discharge of the accused/respondents Nos.2 and 3 besides directing submission of Qalandra under section 182, P.P.C. Against the complainant/petitioner.
5. Petitioner being aggrieved of the order of the learned Additional Sessions Judge, whereby discharge of accused/respondents Nos.2 and 3 was ordered and police was directed to submit Qalandra under section 182, P.P.C., has filed the petition in hand, whereas respondents Nos.2 and 3 being aggrieved of the order of the learned Additional Sessions Judge, whereby their revision petition against an order of the learned Magistrate summoning them in the private complaint was dismissed, have filed the other writ petition (W.P.5792 of 2004).
6. Learned counsel for the petitioner relying on judgments in the cases of Abdullah and 2 others v.
Eidan and another (2001 PCr.LJ 1624), Noor-ud-Din v. Bahadur (PLD 2004 Karachi 13) and Safdar Ali v. Zafar Iqbal and others (2002 SCM R 63), contended that both the challan and private complaint can be tried together and as such learned Additional Sessions Judge erred in setting aside order of the learned Magistrate, whereby he had disagreed with the police report under section 173, Cr.P.C.
He further submitted that the order of the Magistrate disagreeing with the police report and remitting back the case for further investigation was an administrative order and could not have been set aside in revisional jurisdiction. He further submitted that counter-revision petition filed by respondents Nos.2 and 3 is not maintainable because the learned Judicial Magistrate after due appraisal of evidence on the file, summoned them and his order cannot be annulledin Constitutional jurisdiction of this Court, in this behalf, he referred to judgments in the case of Altaf Hussain v. Muhammad Fazil and, another (1979 PCr.LJ 66), Bahadur and another v. The State and another (PLD 1985 SC 62) and Falak Sher and another v.The State (PLD 1967 SC 425).
7. Learned counsel for the respondents Nos.2 and 3 refuted the arguments of the petitioner, supported the order of the learned Additional Sessions Judge to the extent of setting aside order of the Magistrate, whereby he had refused to accept report of the Investigating Officer. Learned counsel for respondents Nos.2 and 3 supporting direction of the learned Additional Sessions Judge to submit a Qalandra under section 182, P.P.C. Against the petitioner, urged that police had properly submitted report under section 173, Cr.P.C. On account of failure of the petitioner to produce any evidence in support of his versions narrated in the F.I.R. He further contended that respondents Nos.2 and 3 are being vexed twice for the one alleged, offence and if the order of the learned Additional Sessions Judge is set aside as prayed by the petitioner, the respondent will have to face both the challan case as well as private complaint containing verbatim one story. According to his submissions, learned Magistrate has incorrectly summoned the respondents No.2 and 3 on the basis of mere verbal statements of few witnesses.
8. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Undeniably, the Investigating Officer had submitted his report under section 173, Cr.P.C. On the ground that petitioner could not produce his evidence in support of his allegations in the F.I.R. This report was not accepted by the learned Magistrate on the ground that it is based on mere surmises. Respondents Nos.2 and 3 have not brought on record anything to show that petitioner was called upon by the Investigating Officer to produce his evidence or to appear himself before him for investigation purposes, through any written notice. Petitioner, who was to produce the eye-witnesses named in the F.I.R. Besides his Medico-legal Report, if could produce his evidence before the learned Magistrate, there appears to be no impediment in his way for producing the same evidence before the Investigating Officer. The learned Magistrate on the same set of evidence found that cognizable offence is made out from the private complaint and thus summoned respondents Nos.2 and 3. Findings of the learned Magistrate disagreeing with the police report under section 173, Cr.P.C. Appears to be more realistic and in accordance with law because he after disagreeing remitted the challan for its -further investigation in terms of section 156, Cr.P.C.
9. The learned Additional Sessions Judge while deciding both the revision petitions filed by respondents Nos.1 and 2, fell into elusions as he passed two contradictory orders which probably escaped his notice. On the one hand, he maintained order of summoning of respondents Nos.2 and 3 in private complaint of the petitioner as lawful and based on evidence and, on the other hand, he set aside the order of the Magistrate whereby the Magistrate had not concurred with the police report. The learned Additional Sessions Judge has also directed the S.H.O. Concerned to submit Qalandra under section 182, P.P.C. Against the petitioner, meaning thereby that same averments which were embodied in the F.I.R. Were found by him to be false, ignoring that he had maintained the order of summoning of respondents Nos.2 and 3 on the basis of same set of allegations and evidence in the complaint case and thus both these findings which are opposed to each other, cannot be allowed to be maintained.
10. It is rightly been argued by the learned counsel for the petitioner that order of the Magistrate differing with police report under section 173, Cr.P.C. Is an administrative order and is not amenable to revisional jurisdiction. Learned Additional Sessions Judge also did not advert to his jurisdictional set back and in spite of it opted to set aside this order, in spite of the fact that he had no material before him justifying the police report which was undisputedly submitted without evidence, as noted above. Since the learned Additional Sessions Judge exercised a jurisdiction not vested in him and that too, without any lawful basis or justification, his order to the extent of setting aside the order dated 7-7-2003 passed by the Magistrate, is declared to be illegal, void and of no legal consequence and resultantly this petition succeeds and the writ prayed is issued.
11. There is no cavil about the proposition that both the complaint and challan case can be tried simultaneously in case each of them give a different narration of facts and in such an eventuality, complaint case is to be processed first, but in the instant case, as observed above, both the F.I.R.
And the complaint case are a verbatim narration of facts. Petitioner's own showing is that complaint was filed in view of report by the police under section 173, Cr.P.C. And since that report has been wiped of by revival of order of the learned Magistrate dated 17-7-2003 and the challan case having been gone to the police for further investigation, keeping the complaint pending would amount to vex the alleged accused persons twice, for one alleged offence, which is neither permissible under law nor the same can be allowed in the interest of justice. It goes without saying that in case of necessity petitioner will have a right of again filing the complaint, but at the present, its pendency would amount to abuse of process of law. Since those matters were not considered by both the learned Additional Sessions Judge and the Magistrate while keeping the complaint intact, thus I accept the other connected Writ Petition No.5792 of 2004 as well and declare the orders dated 21-10-2003 and 10-7-2003 passed by them, respectively, as void and of no legal effect with the result that complaint filed by the petitioner before the Illaqa Magistrate shall be deemed to be dismissed, at the present. Needless to mention here that respondent No.4 is directed to comply with the order of the learned Illaqa Magistrate dated 17-7-2003 in letter and spirit and to submit a fresh report under section 173, Cr.P.C. After properly investigating the case, in accordance with law.
There will be no order is to cost. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.