JUDGMENT S.M.ZUBAIR, J.- Through this constitutional petition, the petitioner has assailed the order dated 13-12-1993, passed by the learned Ilaqa Magistrate, whereby she discharged respondent No.4 and also directed the S.P.(Sadar), Lahore to register a case against the petitioner and respondent No. 3, Haji Ghazanfar Ali, S.L, PS Gulshan Ravi, Lahore.
2. The brief facts relevant for the decision of this writ petition are that a case under section 380 PPC was registered at the instance of the petitioner against respondent No. 4, at Police Station Gulshan Ravi, Lahore, vide FIR No. 462/93, dated 10-12-1993. After the arrest of accused-respondent No.4, he was produced by respondent No. 3 before the learned Magistrate for physical remand, who after going through the Zimnis and recording the statements of three persons passed the impugned order, purportedly under section 63 Crispbread with section 167 Cr.P.C.
3. The learned counsel for respondent No.4 has taken up a preliminary objection that this constitutional petition is not maintainable as the impugned order is amenable to the revisional jurisdiction of the Sessions Court under section 439-A, Cr.P.C.
Conversely, the learned counsel for the petitioner vehemently contended that^ the impugned order is an administrative order passed by the learned Magistrate and is totally alien to the concept of the Code of Criminal Procedure; hence is nullity in the eye of law being coram non judice, without availing any other remedy, if available, it can be challenged in this constitutional petition and has placed reliance on Bahadur and another vs. The State (P.L.D.1985 S.C.62), Muhammad Waseem vs. Addl. Sessions Judge (1985 P.Cr.L.J.244), Arif Ali Khan vs. The State (1993 S.C.M.R. 187), Mazhar Iqbal Vs. The State (1989 P.Cr.L.J. 2241), and Muhammad Ali Vashon (1994 P.Cr.L.J.1806), and-relied upon the following observations of their lordships in Bahadur's case:- "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 of judicial proceedings or js 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 designate. Mere name or designation of a magistrate is not decisive of the question, because 'Judges often administer and administrators often Judge'".
Even the learned counsel for respondent No.4 relied upon Muhammad Ali vs. SHO and submitted that when the Police applied for the physical remand of an accused person under section 167 Cr.P.C, if the learned Magistrate refuses or rejects the prayer of the police and discharges the accused under section 63 Cr.P.C., he performs the judicial function as he decides the lis between the accused and the State and this order cannot be termed as an administrative or executive order.
4. The learned counsel for the petitioner then argued the case on merits and submitted that the police applied to the learned Magistrate for physical remand and there were two courses open to the learned Magistrate; one was that the learned Magistrate should have acceded to the request of the police and granted physical remand for unearthing the allegation of theft levelled against respondent No.4 or if the learned Magistrate disagrees with the police then after giving some reason, the learned Magistrate -would either discharge the accused under section 6 Cr.P.C, or remand the accused to judicial custody, but the learned Magistrate has no jurisdiction under law to record the statements of three persons, referred to above, which function can only be performed by the learned Magistrate when she has taken cognizance of a case under section 190 Cr.P.C. As the learned Magistrate has transgressed her jurisdiction, thus the impugned order being coram non judice is open to the constitutional jurisdiction of this Court.
The learned Law Officer has supported this contention of the learned counsel for the petitioner.
5. The learned counsel for respondent No.4 submitted that the learned Magistrate after going through the police zimnis formed an opinion that it is a case in which the initial arrest of respondent No.4 is tainted with malice due to the injuries found on his person when produced before the learned Magistrate: hence there was no justification to grant physical remand to the same police. As the conduct of the investigating officer was open to serious objection, the learned Magistrate recorded the statements of three persons for the purpose of initiating inquiry against the relevant police officer, thus she has not transgress her jurisdiction vested in her under the Code of Criminal Procedure.
6. After considering the preliminary objection, I do not think sat this belated stage, it would be advisable to return the constitutional petition on this preliminary objection that this Court has no jurisdiction, as there is diversity of views between the superior Courts what order is administrative and what order is judicial one. Placing reliance or Muhammad Ali's case I think that this controversy can be resolved by this Court as I have' heard the arguments at full length. The contention of the learned counsel for the petitioner that the impugned order is nullity in the eye of law is devoid of force, because when the police produced respondent No.4 before the learned Magistrate for the purpose of procuring his physical remand under section '167 ChP. C.,it was incumbent on the learned Magistrate to look into the police diary to find out whether it is a fit case in which physical remand be given or not. After going through the Zimnis and keeping in view the past conduct of the complainant and the police officer, the learned Magistrate rightly came to the conclusion that it is not a fit case in which physical remand be given to the police. After this, two courses were open to the learned Magistrate, either the learned Magistrate sends the accused respondent to the judicial lock-up or to discharge him under section 63 Cr.P.C., which order, of course, would not prevent the complainant to agitate that matter other on fresh evidence or file a proper complaint before the learned Magistrate. No doubt, the learned Magistrate recorded the evidence of some persons, as mentioned above, but that was for ascertaining whether any excesses were committed by the investigating officer and when satisfied the learned Magistrate directed the SP (Sadar) that he should take appropriate action against the complainant and the police officer, as serious allegations were levelled against the them, by the respectables of the locality where the occurrence took place. There is no embargo on the powers of the learned Magistrate to refer the matter for further inquiry even under section 156 Cr.P.C. In the circumstances, the impugned order cannot be termed as without lawful authority or nullity in the eye of law. Resultantly, this petition being devoid of force is dismissed.
As complicated questions of law and facts are involved in this case, so I leave the parties to bear their on costs.