1. The present application under section 561-A, Cr.P.C. Has been filed to challenge the order, dated 18th May, 2005 passed by Ilnd Civil Judge and Judicial Magistrate Ubauro, by which he directed the police to submit the challan against the accused persons nominated in the Crime No.58 of 2003 of Police Station Wasti Jiwan Shah.
2. ' The facts given rise to the present application are that after registration of the case the police investigated the same but found the case to be disposed of under cancelled class, therefore a report was submitted before the Magistrate who concurred with the findings of the police officer and cancelled the case vide order, dated 22-10-2003. It appears that learned Magistrate after 2-1/2 years took suo motu notice and without recalling his earlier order dated 22-10-2003, the impugned order was passed.
3. ' I have heard learned Advocates for applicant, Respondent No.1 and the State Counsel. Learned Advocate for the applicants has relied upon a decision of Division Bench of this Court Zafarul Haq Khan v. Muhammad Amin (PLD 2005 Karachi 375) and argued that after cancellation of case the police have no authority to re-investigate case or the Magistrate has power to issue process without recalling his earlier order of cancellation of the case.
4. ' Learned Advocates for the complainant and State after going through the case-law have conceded the legal position and have stated that the order, dated 18-5-2005 was passed, without jurisdiction in view of the above-cited authority. However, learned Advocate for the respondent No.1 has pointed out that the earlier order has been challenged before this Court and the petition has not yet been decided.
5. ' The case of Zafarul Haq Khan (supra) was authored by me while sitting as Division Bench in which the detailed discussion has been made on the above subject. In the case it has been held that without recalling the earlier order of cancellation of case, the Magistrate cannot initiate further proceedings. In the present case earlier order dated 22-10-2003 is still intact and has not been recalled by the Magistrate or set aside by this Court, therefore the Magistrate was not competent to pass the impugned order, as such the order was passed without jurisdiction. The rule laid own in the case of Zafarul Haq Khan (supra) is fully applicable to the facts and circumstances of the present case. Consequently the application is allowed and the order, dated 18-5-2005 is set aside.