MIAN NAZIR AKHTAR, J.- The petitioner seeks quashment of the order dated 15.4.1990 passed by the learned Addl: Sessions Judge Pakistan whereby a revision petition filed by the State against the order of the petitioner's discharge from case was accepted.
2. A case under section 307/34 PPC was registered against the petitioner and three others vide FIR No. 121/88 dated 17-5-1988 at P.S. Malkhanas District Sahiwal for launching murderous assault on Muhammad Hafiz. Mansoor Shah complainant and Hamid Shah. The investigating officer submitted incomplete challan in the court of Magistrate Sec: 30 (Judicial) Sahiwal Camp at Pakistan on 29.7.1988, pending receipt of the medico legal report of Hamid Shah injured person from the Mayo Hospital, Lahore. The court took cognizance of the offence and framed the charge against the accused persons on 1-2-1989. Copies of the statements of the prosecution witnesses recorded under section 161 Cr.P.C. Were delivered to the accused and the case was fixed for recording of the prosecution evidence. In the meanwhile, the case was reinvestigated by the SSP, Multan who came to the conclusion that the petitioner was innocent. Hence the SHO PS Malkhanas prepared a report for cancellation of the case against the petitioner and submitted it before the A.C. Magistrate 1st Class, Pakpattan who passed an order on 17-9-1989 discharging the petitioner from the case. The maker of the FIR preferred a revision petition against the said order which was allowed by the learned Addl: Sessions Judge, Pakpattan vide order dated 15.4.1990.
3. The petitioner's learned counsel contends that the order whereby the petitioner was discharged being an administrative order, was hot open to revision. He places reliance on the case of Bahadar and another vs. The State and another (PLD 1985 SC 62) On the other hand the learned counsellor the complainant submits that the case could not be cancelled after taking of cdgnizance by the trial court. In this connection he places reliance on the case of Muhammad Alam and another vs. Additional Secretary to Government of NWFP, Home and Tribal Affairs Department and 4 others (PLD 1987 SC 103 and Wazir vs The State (PLD 1962 (WP) Lahore 405)
4. The learned Addl: Sessions Judge had passed the impugned order in the exercise of his revisional jurisdiction. No second revision is competent against an order passed under section 435/439 of the Cr.P.C. Confronted with this difficulty the petitioner's learned counsel submits that the present petition be treated as a criminal miscellaneous petition under section 561-A of the Cr.P.C. The request is allowed. The office should number the petition accordingly.
5. Admittedly after submission of challan the trial court (M.S.30 (Judl) Sahiwal with Camp at Pakpattan) had taken cognizance of offence and framed a charte. After delivering copies of the prosecution witness to the accused persons, the case was fixed for recording of evidence.
Thereafter it was not open to the Ilaqa Magistrate to entertain the report for cancelling the case and discharging the petitioner therefrom. Even the court taking cognizance of the offence was incompetent to pass an order for discharge of the accused. The proceedings before the trial court had to continue and could terminate on acquittal or conviction of the accused in accordance with the procedure prescribed under the Criminal Procedure Code. No doubt, the Magistrate is at liberty to acquit an accused person at any stage of the proceedings by virtue of the provisions of section 249-A of the Cr.P.C, if after hearing the prosecutor and the accused, he considers that the charge is ground-less or that there is no probability of conviction of the accused for any penal offence. This power cannot be exercised whimsically or arbitrarily and the trial court is bound to record reasons to justify an order of acquittal under section 249-A of the Cr.P.C. The view that after taking cognizance of an offence, the court is not competent to cancel the case finds support from the judgment in the case of Muhammad Alam relied upon by the complainant's learned counsel. The relevant portion from the judgment is reproduced below: - "After taking the cognizance and even before the issuance of the process the normal procedure under the Code or the regulation, as the case may be, would be followed. The police report would not relieve the court of its obligation to continue proceedings until their proper termination under the relevant law. Cancellation of case under section 173 is not permissible after the cognizance has been taken. But it could have been done before that stage".
The same view was expressed in Wazir's case, which was approved by the Hon'ble Supreme Court.
6. In view of the above legal position, I do not feel persuaded to interfere in the exercise of my inherent powers under section 561-A of the Cr.P.C, to set aside the impugned order as it would amount to perpetuating an illegality. The petitioner's learned counsel vehemently urged that the report qua the petitioner's innocence was prepared in the light of thorough investigation conducted by a senior police officer and could not be simply brushed aside. He prays that the investigating Agency be directed to put up the said report before the trial court. Obviously, the report prepared after re-investigation has to be placed by the investigating agency before the trial court and the accused persons may take advantage of the same as permissible under the law.
The Magistrate conducting the trial may also consider its effect and pass orders in relation thereto in accordance with the law.