This petition under section 439, Cr.P.C. By Muhammad Hanif, complainant, seeks the revision of an order of the Magistrate Section 30, Lahore, dated 5-5-1985; it has arisen in the following circumstances.
2. The petitioner instituted a complaint under sections 467, 471 etc. Of the P.P.C. Against the respondents, Mr. S.D. Laghari, Mr. Qamar A.I Khan etc. In the Court of Magistrate 1st Class, Lahore.
The learned Magistrate summoned the respondents to stand their trial. Against the order of the learned Magistrate, the respondents approached this Court under section 561-A Cr.P.C. To have the proceedings against them quashed. That petition was disposed of by my learned brother Muhammad Munir Khan J's order with the observation that the learned trial Magistrate should consider and determine the questions of sanction/jurisdiction and 'probability of conviction first on the application of the accused 249-A Cr .P. C. Was made by the respondents. Before the learned Magistrate counsel for the parties agreed that the learned Magistrate had no jurisdiction to try the case and that the case lay within the jurisdiction of the Special Judge under the Pakistan Criminal Law Amendment Act, 1958. The learned Magistrate was, however, of the view that "Criminal Procedure Code is not applicable, so direct cognizance is being taken by the Central Special Judge Anti-Corruption in such like cases. As this Court has no jurisdiction to try this case so the alleged accused are discharged of their bonds of appearance before this Court. As Criminal Procedure Code is not applicable, so this case cannot be sent by a Magistrate to the Central Special Judge Anti-Corruption who is authorised to take the direct cognizance of the case". In this view of the matter, the learned Magistrate "filed" the case. Learned counsel for the petitioner says that in view of the admitted position that the learned Magistrate was not competent to try the case, the only course open to the Magistrate was to proceed in accordance with section 201 Cr.P.C. Learned counsel for the respondents on the other hand maintained that as the learned Magistrate had recorded some proceedings, he was right in thinking that he could not send the case to the Special Judge, for, that would have amounted to committing the accused persons to the Court of the Special Judge.
3. I am persuaded to agree with the learned counsel for the respondents that subsection (1) of the section 201, Cr.P.C. Is directly in point. It provides that if the complaint has been made in writing to a Magistrate who is not competent to take cognizance of the case, he shall return the complaint to the complainant for presentation to the proper Court with endorsement to that effect. This provision, it is plain, was intended to meet the situation like the one presented by this case. It does not require the Magistrate to send the case to the proper Court; what it requires is that the complaint shall be returned to the complainant for being presented to the proper Court. True that the case not being within the competence of the Magistrate, the Code of Criminal Procedure did not apply to it for the purposes of its trial,' but that did not exclude the application of Section 201, Cr.P.C.
4. Learned counsel for the respondents tried to make three more points; (i) that the revision petition should have been filed in the Sessions Court; (2) that the Magistrate's order is not revisable because the Magistrate was not competent to hear the complaint and (3) that the respondents are Government servants and the sanction of the appropriate Government is necessary for their prosecution and the appropriate Government has already refused to give sanction. True that the order in question could be challenged in revision under section 439-A Cr.P.C. Before the Sessions Court and ordinarily the petitioner should have approached the Sessions Court. Learned counsel for the petitioner, however, maintains that this matter had earlier been dealt with by this Court and it was on a direction of this Court that the petitioner had applied under section 249-A Cr.P.C. Be that as it may, the revisional jurisdiction is a concurrent jurisdiction; this revision petition was admitted to hearing and has been pending in this Court since October, 1985 and it will not be fair to the petitioner to direct him after more than three years now to approach the Sessions Court.
Respondents Nos. 2 to 5 had entered appearance before this Court on 1-3-1986, and respondent No. 1 had also entered appearance on 25-4-1987, but no objection to the maintainability of this revision was raised. As, in my opinion, section 201 Cr.P.C. Applied, and the provisions of that section, were not complied with by the learned Magistrate, there should be no question that the order of the learned Magistrate is revisable. The question of the sanction for the prosecution of the respondents will arise before the learned Special Judge; it could not have arisen before the learned Magistrate, for, to the proceedings before him, provisions of the, Pakistan Criminal Law Amendment Act, 1958, did not apply.
5. For these reasons, the revision petition is accepted and the order of the learned Magistrate in so far as it "filed" the case is set aside and the learned Magistrate is directed to return the complaint to the complainant for its presentation before the proper Court.