' This is a petition under section 561-A, Cr.P.C. In which request has been made for setting aside the order, dated 7-8-2004 passed by learned Sessions Judge, Sheikhupura, whereby he had accepted the revision petition filed by the complainant i.e, respondent Muhammad Nazir against the order, dated 26-7-2004 of learned Judicial Magistrate refusing to extend physical remand of the petitioners in case F.I.R. No, 186 of 2004, dated 5-5-2004 registered under section 392, P.P.C. At Police Station Bhikhi.
2. Learned counsel for the petitioners submits that the order passed by the Judicial Magistrate in the matter of remand under section 167, Cr.P.C. Is an executive order and not a judicial one, therefore, revision was not competent. He further adds that section 493, Cr.P.C. Was fully attracted and only public prosecutor could have moved the Sessions Court and revision filed by the complainant, who has no locus standi, was incompetent. In support of this stance the learned counsel has produced before me, two judgments, dated 21-7-2004 passed in just the similar cases of remand whereby the learned Sessions Judge had dismissed the revision petitions holding that order in the matter of remand is an administrative order and also the complainant had no locus standi to file the revision petition. Learned counsel has taken exception to the conflicting and discriminating position of the learned Sessions Judge. Submits that in different cases and on different dates he is passing different orders, which is also against the law and it is a case of discrimination, which should not be allowed by this Court. He further submits that case is false; that F.I.R. Was registered on 5-5-2004 while the occurrence had taken place on 24-4-2004 with the delay of 11 days by the complainant with mala fide intention. He has relied upon PLJ 2000 Karachi 10 (DB), 2000 PCr.LJ 520, 1989 PCr.LJ 2241, 1997 SCM R 304, 2001 M LD 1578, 1996 PCr.LJ 827, 2001 PCr.LJ 160, 1995 PCr.LJ 1835 and 1975 PCr.LJ 400.
3. On the other hand, learned counsel for the complainant submits that complainant is an aggrieved person, he could have filed the revision petition so the same was competent and maintainable, that under sections 435 and 439, Cr.P.C. Any person can bring to the notice of the Court any illegality committed by Lower Courts. He has also relied upon 1995 PCr.LJ 1835 titled as Iqbal Hussain v. State and 1975 PCr.LJ 400 titled as Nisar Ahmad v. State.
4. At the same time, learned Addl. A.G. Submits that after the amendment in section 417 (2-A), Cr.P.C. Complainant has been declared to be an aggrieved person, that he even can file an appeal against acquittal before this Court. Further submits that the order passed by the learned Judicial Magistrate in refusing the remand is a judicial order. He has referred to subsections (3) and (4) of section 167, Cr.P.C., whereby such order is to contain reasons and also to be submitted to the Sessions Judge. The learned Addl. A.-G. Has however submitted that it is very sad on the part of the learned Sessions Judge to pass conflicting judgments on the same facts and law. The judicial discretion has been exercised by the learned Sessions Judge in a most arbitrarily and discriminate manner, which should not be left unnoticed by this honourable Court.
5. I have heard learned counsel for the parties. First of all I will deal with the controversy whether it is an executive order or a judicial order. All the judgments cited and produced by learned counsel for the petitioner are not applicable in this case because in none of these judgments there was controversy about the refusal or allowing the physical remand, all these judgments relate to the discharge order passed by the learned Magistrate. As far as, sections 435 and 439, Cr.P.C. Are concerned, this Court has got the powers under section 439, Cr.P.C. While the learned Sessions Judge has got the powers under section 435, Cr.P.C. To call for records of inferior Courts to see the legality and irregularity of the orders. For the just decision of this case, section 435, Cr.P.C. Is reproduced below:-- "The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any findings, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court".
6. The word "satisfaction" of the learned Sessions Judge about the correctness, legality or regularity of any proceedings are very necessary for the just decision of the case, so is the position of section 439, Cr.P.C., relating to power which lie with this Court.
7. Learned counsel for the complainant has rightly relied upon 1995 PCr.LJ 1835 titled as lqbal Hussain v. State and 1975 PCr.LJ 400 titled Nisar Ahmad v. State. The earlier one was about the physical remand while the latter one was about the locus standi of the complainant. On the analogy of section 417 (2-A), Cr.P.C. And after going through the case-law relied upon by learned counsel for the complainant I am of the considered opinion that complainant in the instant case was an aggrieved person because according to the contents of the F.I.R. Rs,6,90,000 was snatched from him on the show and threat of fire-arm and the case was registered under section 392, P.P.C., so the complainant had got the locus standi to tile revision petition in this case. The order for not granting the physical remand passed by learned Magistrate 1st. Class in a case registered under section 392, P.P.C. Is a judicial function. The reliance in this respect can be safely placed on 1984 PCr.LJ 2588 titled as Ghulam Sarwar and another v. The State and 1969 PCr.LJ 873 (Lahore) titled as Muhammad Rafi v. The State and 2 others and subsections (3) and (4) of section 167, Cr.P.C., which are reproduced below:-- "167. Procedure when investigation cannot be completed in twenty four hours.---(1)
(2)...............................................................
(3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing.
(4) The Magistrate giving such order shall forward a copy of his order with his reasons for making it, to the Sessions Judge."
8. Now the question is whether the learned Magistrate was right in not granting further remand, I may observe here, that occurrence had taken place on 24-4-2004 while the F.I.R. Was registered on 5-5-2004. Moreover, the petitioner remained on physical remand for seven days but no progress whatsoever had taken place, so in this situation, the learned Magistrate was right in not granting the further physical remand of the petitioner. The learned Magistrate could not be compelled to give full 14 days remand, if for seven days the police could not give any progress while the Investigating Agency has been separated from Watch and Ward Agency and the Investigating Agency has full time to investigate the criminal cases and their only duty is to investigate the criminal matters while Watch and Ward duties are assigned to other Police Officers. Even the offices of both the agencies are different and they are being supervised by different Supervisory Officers.
9. For what has been stated above, this petition is accepted and the order passed by learned Sessions Judge, Sheikhupura is set aside.
10. Before parting with judgment, it is to be noted that learned counsel for the petitioner has produced before me two other orders passed by the same learned Sessions Judge in two different revision petitions" titled as Mst. Surriya Bibi v. The State and Saif Ullah and titled as Muhammad Hafeez v. Dr. Bashir and State on 21-7-2004. The controversy in both these cases was the same as it is in the instant case because in both the cases the learned Magistrate had refused to give further physical remand to the police and moreover the learned Sessions Judge in both the cases vide his order, dated 21-7-2004 had declared the order of learned Magistrate as an Administrative Order and also came to the conclusion that no revision petition is competent. The learned Addl. A.-G. Is right to take exception to such conflicting and discriminatory judgments passed by the learned Sessions Judge on the-same facts and law because it amounts to discrimination on the part of learned Sessions Judge which should not take place in the Courts where people come to get justice. Under these circumstances, the learned Sessions Judge is directed to submit his explanation within one month from today without fail before this Court. Copy of the order of this Court shall be sent to learned Sessions Judge within five days from today without fail.