1. The facts giving rise to the present application are that Crime No,6/2003 under sections '457, 380, 511, 337-H(ii), P.P.C., of Police Station, Miani Katcho was investigated by the Police. On 26-3-2003 after completing the investigation, the Investigating Officer submitted an application before the Civil Judge and F.C.M. Kashmore for disposal of the case under 'B' Class, as no evidence was found against the accused persons. The learned Magistrate after perusing the investigation papers and statements of witnesses recorded under section 161, Cr.P.C., did not agree with the report of Investigating Officer but directed the police to submit the challan within two days vide order dated 26-3-2003. In pursuance of the said order on 29-3-2003 the police submitted the challan/police report as required under section 170, Cr.P.C., showing four assused persons in Column No,2 and one accused person in custody. In the said police report the Investigating Officer opined that no case was made out against the accused persons, therefore, it was requested to the Magistrate to release the accused persons and dispose of the case under 'B' Class.. But before the submission of said challan/police report under section 173, Cr.P.C., on 27-3-2003 the respondent No,1 filed a revision application before Additional Sessions Judge, Kashmore, who after hearing the parties'
2. Advocates set aside the order of Magistrate and ordered for the release of the accused persons vide order dated 5-4-2003. The applicant was dissatisfied with the said order, therefore, he has preferred the present criminal miscellaneous application. The learned advocate for the applicant has stated that the order of the Magistrate was an administrative order, therefore, Additional Sessions Judge had no jurisdiction to entertain the revision application against such order. On the above proposition, he has relied upon Bahadur v.
3. State (PLD 1985 SC 62), Arif Ali Khan v. State (1993 ' SCMR 187) and Federation of Pakistan v. Malik Mumtaz Hussain (1997 SCMR 299). Op the other hand, the Advocate for the respondent No,1 has stated that the Additional Sessions Judge had jurisdiction to entertain the revision application as the order was illegal; and that the order of the Magistrate was revisionable by the Sessions Court He has relied upon Maqbool Ahmed v. State (1999 PCr.LJ 1198) and Muhammad Siddique v. State (1994 PCr.LJ 1137). The learned` A.A.-G. Has adopted the arguments of learned advocate for the applicant and further added that the order of the Magistrate was passed in accordance with the provisions of section 173, Cr.P.C., therefore, there was no illegality in the said order. He has not supported the impugned order. I have given due consideration to the arguments and have gone through the case-law cited at the bar. The point involved in the matter has been thoroughly examined in the case of Bahadur (supra) wherein their lordships have observed that such type of orders are passed by the Magistrates in their administrative capacity, therefore, the said orders are not amenable to revisional jurisdiction.
4. The said authority was relied upon in the case of Arif Ali Khan (supra) wherein their lordships have observed that the aggrieved party can invoke the jurisdiction as provided under section 561-A, Cr.P.C., if the order is as abuse of process of law. The above mentioned authorities are fully applicable in circumstances of the present case, therefore, the Sessions Court had no jurisdiction to entertain the revision application. I have also examined the application dated 26-3-2003 moved by the police before the Magistrate for disposal of the case under '8' Class and the order passed by the Magistrate. The said application is on a paper. It is not made in the form provided under section 173, Cr.P.C. Under the scheme of Criminal Procedure Code if upon an investigation, the Investigating Officer forms the opinion that sufficient evidence to justify forwarding the accused to Magistrate for trial is not forthcoming then, as provided under section 169, Cr.P.C, if the accused is in custody he shall release him on his executing a bond with or without sureties, and direct him to appear whenever required, before a Magistrate empowered to take cognizance of the offence on a police report. In such situation the Investigation Officer is required under section 173, Cr.P.C., to submit a police report which is commonly known as challan to the Magistrate having jurisdiction, in the form prescribed by the Provincial Government.
5. If upon the investigation, the Investigating Officer finds that the evidence is sufficient to forward the accused person for trial then he is empowered to do so under section 170, Cr.P.C. In that case also the Investigation Officer is required under section 173, Cr.P.C., to submit the challan in the form prescribed by Provincial Government to the Magistrate having jurisdiction. In both the cases either under section 169 or 170, Cr.P.C., the police is bound to submit the police report/challan as required under section 173, Cr.P.C. Reliance is placed on a case of Habib v. State reported in 1983 SCMR page 370 and at page 372, it has been observed as under:-- "Whether he proceeds under section 169 or under section 170, the Investigating Officer is required by section 173, Cr.P.C., to submit a report (Known as the 'final report') to the Magistrate having the required power "in the form prescribed by the Provincial Government" giving his conclusions in either case i,e, whether he has formed the view mentioned in section 169 i,e, that there is no sufficient evidence against the accused or has come to the conclusion mentioned in section 170 as to the guilt of the accused persons."
6. In the present case, the learned Magistrate did not ask the police to submit the challan/police report by putting the names of accused persons in Column No,3 or 4 of the form, but simply ordered the police to submit the, challan within two days. This does not mean that the Magistrate had interfered with the opinion of police at that stage, but simply directed them to adopt proper procedure as required under section 173, Cr.P.C. After passing of, the said order, the police had submitted the police report/challan in the required from of 173, Cr.P.C. Now it is for the Magistrate to exercise his powers under section 173(3), Cr.P.C., either to release the accused or to pass any other order, as he deems fit. Thus the order of the Magistrate dated 26-3-2003 is legal and proper. He has committed no illegality in the passing of the said order. Reliance is also placed on Muhammad Alam v. Additional Secretary to Government of N.-W.F.P (PLD 1987 SC 103). The authorities relied upon by the Advocate for the respondent No,1 are not applicable in the circumstances of the case. As the Court of Session had no jurisdiction to entertain the revision application against the order passed by the learned Civil Judge and F.C.M dated 26-3-2003, therefore, the impugned order is set aside. The application is allowed.