' RUSTAM ALI MALIK, J.---This petition has been filed under section 561-A, Cr.P.C. As per contents of the petition, case F.I.R. No.462 of 2003 was registered against respondent No.2 on 29-9-2003 under section 324, P.P.C. On the specific allegation that he had caused fire-arm injury to the petitioner and which fact was confirmed by the Medico-legal report. The petitioner remained in the hospital for a pretty long time and second Investigating Officer joined hands with the respondent and that from the very beginning the police was in league with respondent No.2 as they did not arrest him at all; that it was the duty of the Court to have examined the entire case particularly the statements of the witnesses or the trial Court while abusing the process of Court, whimsically passed orders relying mainly on the police report and denying to the petitioner his right to prove the case; that the second investigation conducted by the Inspector Shoaib, P.A. To S.S.P. (Investigation) was challenged through a petition under sections 22-A and 22-B of Cr.P.C. Before the learned Sessions Judge, Lahore and it was held that the investigation conducted by the said officer was without any lawful justification and that the learned Magistrate/respondent No.3 passed orders for the discharge of respondent No.2 on 14-6-2004 in an arbitrary, whimsical and illegal manner and without applying independent mind to the facts and circumstances of the case.
2. It has been prayed that the order dated 14-6-2004 passed by the learned Magistrate/respondent No.3 be set aside and the order dated 14-6-2004 be declared to have been passed in abuse of process of law and therefore, be set aside and respondent No.3 be directed to proceed with the matter in accordance with law.
3. It may be mentioned here that on 19-7-2004 this Court had directed that a notice be also issued to respondent No.2. However, on the previous date this Court was informed that the learned counsel for respondent No.2 is unwell and is admitted in the hospital. However, no one has appeared on his behalf before this Court today.
4. I have heard the arguments of the learned counsel for the petitioner and also of the learned counsel for the State.
5. The learned counsel for the petitioner has argued that ipse dixit of the police is not binding on the Court; that Court has to apply his own judicial mind for reaching the conclusion. He has argued that from the very beginning the police had not arrested respondent No.2 and it was due to the same reason that erroneous finding was recorded in his favour as a result of investigation and in consequence of which the learned Magistrate/respondent No.3 had erroneously dischaiged the accused/ respondent No.2.
6. In support of his contentions the learned counsel for the petitioner has placed reliance on Arif Ali Khan and another v. The State and 6 others 1993 SCM R 187 and Jamshed Khan and 4 others v. The State and 3 others 1999 PCr.LJ 1891 (SC) AJ&K. On the basis of authority reported as 1993 SCM R 187 he has argued that a petition under section 561-A, Cr.P.C. Is competent and that the report prepared by the police which has been submitted before the learned trial Court was a mala fide act of the police and the manner in which the order had been obtained from the learned Magistrate by the police for the discharge of the accused from the case clearly amounted to an abuse of process of Court.
7. On the basis of the authority reported as 1999 PCr.LJ 1891 (SC) AJ&K the learned counsel for the petitioner has argued that the learned Magistrate was under no obligation to act in accordance with the police report made under section 173, Cr.P.C. And on the basis of the material described in the report, he could take cognizance of the case against the person whom the Investigating Officer had declared to be innocent and when the learned Magistrate takes such an action before he records any evidence within the meaning of clause (b) of subsection (1) of section 190, Cr.P.C. He has argued that the order passed by the learned Magistrate on 14-6-2004 whereby he had discharged respondent No.2 in the case is illegal and has resulted in abuse of process of law and hence the same be set aside.
8. The learned counsel for the State has resisted the petition.
9. I have carefully considered the arguments advanced by the learned counsel for the petitioner and the learned counsel for the State. The learned counsel for the petitioner on the basis of the aforesaid case-law has asserted that the learned Magistrate was not bound to act mechanically on the basis of the police report submitted under section 173, Cr.P.C. And to pass order accordingly and that after applying his judicial mind to the material on record he could take a different view. He has argued that although the revision petition against the order in question was not competent in the light of the authority reported as 1993 SCM R 187, a petition under section 561-A, Cr.P.C. Before this Court against such an order is clearly competent.
10. After hearing the arguments of the learned counsel for the petitioner and the learned counsel for the State and after going through the documents appended with this petition, I am of the view that it would be appropriate if the matter is sent back to the learned Illaqa Magistrate/respondent No.3 for affording to the petitioner and to respondent No.2 fresh opportunity of being heard, before passing an order on the police report under section 173, Cr.P.C. Accordingly this petition is accepted, the impugned order dated 14-6-2004 whereby the learned Magistrate had discharged the accused/respondent No.2 is set aside and the matter is sent back to the learned Illaqa Magistrate/respondent No.3 before whom report under section 173, Cr.P.C. Shall be deemed pending, whereon he will pass a fresh order in accordance with law, after hearing the petitioner and respondent No.2 personally or through their counsel.