Through this application under Section 561-A Cr.P.C. validity of order dated 19.12.2008, passed by the learned Additional Sessions Judge, Faisalabad, has been challenged whereby he while accepting the revision petition filed by Respondent No, 4, set aside order dated 8.12.2008, passed by the learned Judicial Magistrate 1st Class, Faisalabad, discharging the petitioner from the case FIR No, 049/2008, dated 22.9.2008, under Section 376 PPC, registered at Police Station.
Mansoorabad, District Faisalabad.
2. Brief facts leading to filing of this petition are that Mst. Firddus mother of Respondent No, 4 lodged FIR No, 549/2008, dated 22.9.2008, under Section 376 PPC at Police Station Mansoorabad, District Faisalabad alleging therein; that on 20.9.2008 when she returned home after shopping from market along with her maternal uncle then she heard screaming from her drawing room. She rushed towards the drawing room and saw that Faisal Naseer was forcibly committing zina with her daughter Anam Javaid alias Iqra while the present petitioner was standing naked nearby.
Seeing them Ghularn Murtaza aimed at us his pistol and he fled away after wearing clothes. Her daughter told her that Faisal Naseer and the present petitioner had committed zina with her while Faisal Naseer prior too had been committed zina with her and she did not disclose it upon other family members because Faisal Naseer had threatened her that on her uttering voice about this act of his, he would kill her brother and father. Whereupon the present petitioner was arrested on 24.9.2008, he remained under physical remand of the police but being found to be innocent the police preparing discharge report from the case under reference and presented before the learned Judicial Magistrate 1st Class, Faisalabad, who vide order dated 6.10.2008 issued notice to the complainant. The complainant of the case FIR under reference appeared before the learned Judicial Magistrate submitted her affidavit deposing therein that she had got satisfaction from her daughter that the present petitioner had not committed zina with her daughter and it was Faisal Naseer who had committed zina with her daughter. Thus, the learned Magistrate having fully satisfied with the innocence of the petitioner, vide order dated 8.10.2008 discharged the petitioner from the case. In response, Mst. Anam Javed filed a revision petition before the learned Sessions Judge, Faisalabad, contending therein that though she was not the complainant of the case FIR under reference yet she was a victim and would have been summoned and heard before discharging the petitioner from the said case FIR. The learned. Additional Sessions Judge acceding to her plea taken, vide his order dated 19.1.2008 set aside the order dated 8.10.2008, while allowing the revision petition.
3. It is contended by learned counsel for the petitioner that the order dated 8.10.2008, passed by the learned Magistrate on the discharge report submitted by the investigation officer under Section 173 Cr.P.C. is an executive order there against a revision petition is not competent. The learned counsel added that matter behind the scene is that father of Mst. Anam Javed/Respondent No, 4 had been working in Saudi Arabia who in the garb of sending the petitioner abroad/Saudi Arabia received an amount of. Rs, 3,50,000/- from him and delivered a bogus visa to him which on verification was found to be bogus one, thereupon, the petitioner demanded his money and documents back but in rebuttal he was got implicated in the false case. He further added that during his custody with the police under threat a sum of Rs, 200,000/- were extracted from him besides two cheques. On 15.11.2008 the petitioner made a complainant under Section 22-A Cr.P.C. before the learned Justice of Peace whereupon the revision petition had been got instituted at the instance of Respondent No,
4. Lastly, the learned counsel prays that impugned order being illegal, void, without lawful authority and nullity in law may be set aside.
4. The learned D.P.G. vehemently opposes this petition.
5. I have heard learned counsel for the petitioner as well as the learned D.P.G. and perused the available record. It is settled law that the order passed by a learned Judicial Magistrate agreeing or disagreeing to the discharge report submitted by the police is an administrative order and the revision against such order is not maintainable before the learned Additional/Sessions Judge.
Furthermore, such order by the learned Additional/Sessions Judge is a nullity in the eye of law, thus, the same is set aside.
6. It is clear from the above observation that the revision is not maintainable against the order of learned Judicial Magistrate while agreeing or disagreeing to the discharge report submitted by the police but the fact remains that this Court has also to see the merits of the case. This case being registered under Section 376 PPC and the Investigating Officer did not record statement of the victim namely Anam Javaid with whom zina had been committed. She is the star witness of the occurrence and who has stated in the revision petition filed before the learned Additional Sessions Judge. Faisalabad that the petitioner had been nominated by her for the alleged offence. As such the learned Magistrate did not apply his judicial mind whether sufficient material existed against the present petitioner or not and he has committed an illegality while discharging the present petitioner from the above said case FIR. Statement of Mst. Anam Javaid/victim, prima facie, connects the present petitioner with the alleged offence, The learned Magistrate should have considered the statement of the victim as well.
7. For what has been discussed above, the orders dated 8.10.2008 and 19.12.2008, passed by the learned Judicial Magistrate and the learned Additional Sessions Judge, Faisalabad respectively, are set aside, and the case is remanded to the learned Judicial Magistrate with the direction to decide the matter afresh after hearing both the parties, in accordance with law, as early as possible. Disposed of.