SHAUKAT AZIZ SIDDIQUI, J.---Brief facts of the case are that:- Petitioner lodged a Complaint dated 09.12.2014, alleging therein that accused/Respondent No,2, worked as Medical Officer in Ganga Ram Hospital, Lahore from 04.10.2006 to 17.03.2009 and during her service she had obtained Pakistani Passport No, BV5179821 dated 23.05.2008 by concealing her occupation and marital status by showing herself as divorcee.
After preliminary inquiry, FIR No, 05/2015 dated 23.07.2015 offence under section 6, Passports Act, 1974 was registered, after due investigation, report under section 173, Cr.P.C. Was submitted before the Illaqa Judicial Magistrate (FIA) seeking cancellation of FIR, who vide impugned order dated 11- 07-2016 accorded the concurrence. Feeling aggrieved, Petitioner filed revision petition before the learned Sessions Judge, Islamabad (West), which on entrustment has been dismissed by the learned Additional Sessions Judge vide impugned order dated 22.10.2016, while seeking guidance from the dictum laid down by the Hon'ble Supreme Court of Pakistan in case of Bahadur and another v. The State and another reported as (PLD 1985 SC 62), on the ground that Revision petition is not maintainable against the executive order, hence instant petition under section 561-A, Cr.P.C.
2. Learned Counsel for Petitioner submitted that learned Magistrate accorded the concurrence to the cancellation report under section 173, Cr.P.C. In an arbitrary manner and without appreciating the fact that Respondent No,2, through misrepresentation and concealment of facts obtained passport and travelled abroad for good. Learned counsel further submitted that impugned order passed by the learned Magistrate is illegal, therefore, learned Additional Sessions Judge, should have exercised the jurisdiction vested in him.
3. I have heard the learned Counsel and perused the impugned orders.
4. On Court's question that how revision petition could have been entertained against the executive order passed by the Illaqa Magistrate, whereby concurrence has been accorded on cancellation Report under section 173, Cr.P.C., learned Counsel opted not to press instant Petition to the extent of order passed by the learned Additional Sessions Judge.
5. For convenience to examine, as to whether Petition in hand under section 561-A, Cr.P.C. Fulfills the criteria of an order impugnable under the provision, is reproduced herein-below:- "561-A. Saving of inherent power of High Court.---Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code; or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. ".
Admittedly, impugned order passed by learned Illaqa Magistrate (FIA) is an executive order, which was not passed by Court after taking cognizance of matter and during pendency of Judicial Proceedings. Plain language of the provision clearly suggests that it can be invoked by any aggrieved person in order to give effect of any order under the Criminal Procedure Code, or to prevent abuse of the process of any Court, or otherwise to secure the ends of justice. Petition in hand does not relate to any order passed by Court in Judicial Capacity, there is no order under the Code, effect of which has been sought and to secure the ends of justice. In the case of Bahadur and another v. The State (PLD 1985 SC 62) the august Supreme Court of Pakistan has held as under: "The only question requiring determination is whether the Magistrate in cancelling the case acts as a criminal Court. Criminal Procedure Code contains no definition of Court nor does the Penal Code. In section 20 of Penal Code "Court of Justice" is defined as "a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially". This definition is of avail for the purposes of Criminal Procedure Code as subsection (2) of section 4 thereof provides "all words and expressions used herein and defined in the Pakistan Penal Code, and not hereinbefore defined shall be deemed to have the meanings respectively attributed to them by the Code". The High Court has taken the view, and we think rightly so, that under the Criminal Procedure Code a Magistrate is entrusted with diverse duties and in discharging the same does not always function as a Court, conduct judicial proceedings or is amenable to the revisional jurisdiction. Some of his powers and duties under the Code are administrative, executive or ministerial and he discharges these duties not as a Court but as a persona designata. Mere name or designation of a Magistrate is not decisive of the question because as observed, "Judges often administer and administrators often judge".
Through the most recent dicta laid down by the apex Court, in the case of Muhammad Ali v.
Additional 1. G. Faisalabad and others (PLD 2014 SC 753) same question has been answered in the following words:- "Inherent power of High Court under S. 561-A, Cr.P.C.--- Scope---Provisions of S. 561-A, Cr.P.C.
Had relevance only to judicial proceedings and actions and not to any executive or administrative action or function---Jurisdiction of High Court under S. 561-A, Cr.P.C. Could be exercised only in respect of orders or proceedings of a Court---Provisions of S. 561-A, Cr.P.C.
Had no application vis-a-vis executive or administrative orders or proceedings of any non judicial forum or authority".
6. In the facts and circumstances of the case and by following the law laid down by august Supreme Court (supra), it can be safely held that Petition under section 561-A, Cr.P.C., against the impugned order passed by the Illaqa Judicial Magistrate (FIA) whereby, concurrence has been accorded to cancellation Report submitted under section 173, Cr.P.C., being order passed on the executive side is not maintainable.
Moreover, as order passed by the learned Magistrate (FIA) also qualifies the test set forth in the case of Bahadur and another supra, therefore instant petition is dismissed.