This revision petition preferred - by Muhammad Farid, Muhammad Murid sons of Inayat Ullah and 'Muhammad Ali son of Fateh Muhammad, is directed against the order of the District Magistrate, Sheikhupura, dated 23rd July 1962.
2. The facts of the case briefly are, that a case under section 307 read with sections 149 and 148 of the Pakistan Penal Code was registered at Police Station, Narang, on 12th October 1961, at the instance of Noor Muhammad respondent No. 2 bearing F. I. R. No; 91; alleging that he and Atta Muhammad had been injured by the petitioners. A cross-- case under section 302 of the Pakistan Penal Code, bearing F. I. R. No. 90 of 1961, was registered at the same police station, in which aforesaid Atta Muhammad was one of the accused. After investigation, the police came to the conclu--sion, that the party of Noor Muhammad complainant was the aggressor and that the challan should be submitted against that party in Court. It was also found, that the case against the petitioners was not proved and as a result, on a report made by the police, Mr. Muhammad Shaukat Tarar, Section 30 Magistrate, Sheikhupura, passed an order discharging the petitioners on 10th February 1962.
3. Aggrieved with the aforesaid order of discharge, Noor Muhammad complainant filed a revision petition under sections 435 and 436 of the Code of Criminal Procedure, in the Court of District Magistrate, Sheikhupura, who by his order dated 23rd July 1962, now being , impugned, set aside the order of discharge and remanded the case to the Court of Malik Abdul Hamid, Section 30 Magistrate, Sheikhupura, for trial.
4. The only question raised in this petition, is that the order of discharge of the petitioners passed by the Magistrate, was not open to revision, it not being 'a judicial order in its strict sense. Parties have been heard.
5. In support of the aforesaid contention, raised by the learned counsel for the petitioners, he has placed reliance on Muhammad Ishaq Khan v. Abdul Hamid Khan etc. (PLD 1958 Azad J & K 42) and Wazir v. State (PLD 1962 Lah. 405). The facts of the first case appear to be similar to the facts of the case before me. That case was registered against Abdul Hamid Khan and nine others under section 325, A. P. C. With Rawalakot Police. After investigation, the police made a report that the case was not proved and as a result, the Magistrate, agreeing with the police report, direc--ted that the case be struck of. When -the complainant approached the District Magistrate, the latter did not agree that the order was open to revision. He observed, that it was an executive-cum- judicial order and, therefore, not open to revision. It' is thereafter, that the complainant filed a revision in the High Court, contending that the order of the Magis--trate was a judicial order. After considering: the, provisions of section 204 of the Criminal Procedure Code, which occur in Chapter XVII entitled, "of the commencement of proceed--ings before Magistrate", it was `held, that the proceedings commence before the Magistrate only, when he takes cogni--zance whether on a complaint or on a police report submitted to him either under section 173, Criminal Procedure Code or after an enquiry under section 202, Criminal Procedure Code made by the police. Proceedings before a Magistrate before he takes cognizance on a police report are not judicial, pro--ceedings and any order passed at that stage is not a judicial order. It is thus not open to revision.
6. A similar question came up for consideration before this Court in the second case, although its facts were slightly different. It was a case of cross firing between to parties, one of these being led by Tikka Khan and the other by Karani Dad. One person was killed on the side of Tikka Khan. During the course of investigation, relating to the murder, the police registered a case against Tikka Khan and his party under sections 307, 325, 148 and 149, P. P. C. Incomplete challan was presented in Court. However, before any action could be taken, the prosecuting D. S. P. Sent a report for the discharge of the accused, i.e. The party of Tikka Khan. The members of his party were discharged by the Magistrate. Karam Dad went in revision to the Court of Sessions which was allowed and a further inquiry into the matter was ordered. It was thereafter, that Tikka Khan and his party came up in revision to the High Court. This matter in the first instance, came up before the late Chief Justice, Mr. Justice M. R: Kayani, who referred it to a Full Bench. The question raised was: "Whether after the police has sent a report under sec--tion 173 for the trial of a case and before any steps have been taken towards the commencement of the trial, the Magistrate can, on a second report by the police recom--mending cancellation, accept the second recommendation and not proceed with the trial of the first challan."
It' was held, that the police report by itself, when received by the Magistrate, did not, constitute the taking of cognizance. It was reasonable to expect, that something more would be done to show, that the Magistrate intended to start the proceeding.
It was also observed :- "In the case of an incomplete challan, as in this case, although the Magistrate could start the trial, if he keeps it waiting until another report should come or until whatever is wanting should be made up, he clearly does not take cognizance of the offence. If, therefore, the case is at that stage and a second report is received, showing that no offence is committed, the Magistrate can accept the report and cancel the case."
7. In view of these observations, M: R. Kayani, Chief Justice, held :- "Since in the present case, the Magistrate had power to cancel the case and he cancelled it, there was no occasion for the Sessions Judge to hold that the accused had been discharged and that consequently he had power to order a trial. The accused could have been discharged only if some evidence had been recorded. The case does not fall within the revisional jurisdiction' of the Sessions Judge, whose order directing further inquiry is, therefore, set aside."
8. Following these authorities with respect, I hold that B the order of discharge passed by Mr. Muhammad Shaukat Tarrar, Section 30 Magistrate, Sheikhupura, on the police report, was not open to revision and interference of the District Magistrate in it was not justified. The revision petition is, therefore; accepted and the order of the District Magistrate, Sheikhupura, is set aside.