IJAZ NISAR, J.- This is a petition under Section 561-A Cr.P.C, to quash the order of the learned Additional Sessions Judge, Chiniot dated 9.12.1992 and the orders of Resident Magistrate, Chiniot dated 1.6.1992.
2. The facts in brief are that Mahmood Ali petitioner got a case registered against Atta-ul-Jamia, Siddique, Barkhurdar, Khadim and Khuda Bakhsh for the murder of his son Muhammad Arif deceased and causing hurt to Safdar Javed P.W. With firearms on 7.4.1992. Besides him, two other persons witnessed the occurrence.
3. The case was still under investigation when Atta-ul-Jamia, Muhammad Siddique and Barkhurdar accused/respondents submitted an application to the Ilaqa Magistrate for their discharge from the case on the ground that they had been found innocent during investigation. The learned magistrate sent for the record on the same day from the concerned police station and discharged them on 1.6.1992 on the basis of observations of the Investigating Officer contained in Zimni No.18 dated 13.5.1993. However, he permitted the police to arrest the discharged accused on the availability of material against them.
4. Feeling aggrieved, Mahmood Ali complainant filed a revision in the Sessions Court, Chiniot.
Learned Additional Sessions Judge vide his order dated 9.12.1992 dismissed it. The ground which weighed with him in dismissing the revision petition was that the conclusion of the first Investigating Officer was also confirmed by Mr. Zulfiqar Ali Inspector Crimes Branch, Faisalabad.
Hence this petition.
5. It is contended that without any report submitted by the police under Section 173 Cr.P.C. the Ilaqa Magistrate was not empowered to discharge the accused/respondents.
6. Learned counsel for the respondents has tried to justify the order passed by the Ilaqa Magistrate and the learned Addl. Sessions Judge. He has cited Bahadur and others Vs. The State and another (PLJ 1985 S.C.63) to show that order passed by the Magistrate was not amenable to a revisional jurisdiction under sections 435 to 439 Cr.P.C.
7. It is an admitted position that when the learned Ilaqa Magistrate passed the order of discharge, no final report as contemplated by section 173 Cr.P.C, had been submitted by the police. Case was still under investigation and the Investigating Officer had deferred the matter till the investigation conducted by him was verified by the D.S.P, but before the D.S.P, could verify the investigation, the learned trial Magistrate discharged the respondents. The order of the Magistrate cannot be justified on the ground that the opinion of the first Investigating Officer was confirmed in the subsequent investigation carried out by the Crimes Branch. The learned Ilaqa Magistrate should have waited for the final report of the police under section 173 Cr.P.C, before passing the order of discharge of the respondents.
Anomalous situation would arise if on the mere observations of one Investigating Officer without proper verification by the competent authorities, accused arc discharged in a case of serious nature like this. Anyhow, since the challan is reported to have been sent up to the Court of Sessions placing the respondents in column No.2 of the challan, it would be open to the learned trial Court to consider the desirability of summoning them to face trial. The petitioner can also make an application in this behalf to the learned trial Court. If moved, the learned trial Court shall proceed strictly in accordance with law uninfluenced by any of the observations made by this Court.
Disposed of accordingly.