' Muhammad Aslam and six others have filed this petition under section 561-A, Cr.P.C. To seek setting aside of the order, dated 14-5-1995 passed by the learned Additional Sessions Judge, Bhalwal, District Sargodha as being .Illegal, void and beyond jurisdiction.
2. The facts, in brief, are that a case F.I.R. No, 45/1995 under section 324/337/148/149/109, P.P.C. Was registered with Police Station Bhalwal against the petitioners at the instance of respondent No,1.
The petitioners were arrested and sent to judicial lock-up. During the investigation, they were found innocent and the police requested Il4qa Magistrate to discharge the petitioners. The learned Magistrate concurring with the police report, discharged them. Respondent No,1 filed revision petition against the order of the Magistrate and the learned Additional Sessions Judge while accepting the revision petition directed the police to place the names of the petitioners in column No,2 of the challan, hence this petition.
2. Learned counsel for the petitioners contends that the order of the Magistrate discharging accused on police report under section 173, Cr.P.C. Is not revisable. According to him, the order of the learned Additional Sessions Judge is against the principle of Audi alteram partem.
3. Conversely, learned counsel for respondent No,1 argued that the learned Additional Sessions Judge in revision can interfere in such like orders being judicial orders. He further contended that the petitioners have complete IcnowIedge of the execution of the revision petition and intentionally did not appear and the order passed by the learned Additional Sessions Judge is legal one and the principle of audi alteram partem is applicable. Learned counsel for the respondents in support of his submissions, relied on the cases PLD 1968 Lah. 537 and 1994 PCr.LJ 497.
5. I have heard the arguments advanced by the learned counsel for the parties and have perused the record with their able assistance. The controversy whether the order of the Magistrate discharging an accused on police report under section 173, Cr.P.C. Is a judicial order and hence revisable or is an administrative order and not revisable has been set at rest by the Honorable Supreme Court of Pakistan in the case of Bahadar and others v. State and another PLD 1985 SC 62.
It was held in the precedent that a Magistrate concurring with police report submitted under section 173, Cr.P.C. Discharging accused and cancelling a criminal case does not function as a criminal Court and order of cancellation of criminal case for that reason is not amenable to provisional jurisdiction. The case relied upon by the learned counsel for the respondent i,e, PLD 1968 Lah. 537 was also taken note of by the Honorable Supreme Court of Pakistan. The same controversy came under consideration before the L. Hore High Court in the case of Waqar-ul-Haq alias Mithoo and others v. The State PLD 1988 Lah. 336 wherein the learned Judge (as his Lordship then was) held that the order of Magistrate under section 173, Cr.P.C. For cancellation of F.I.R. Is an administrative order and the Magistrate making such an order is not inferior Criminal Court within the meaning of section 435, Cr.P.C., as such, the order passed by him are not revisable. The controversy involved in this petition and set at rest by the Honorable Supreme Court and the Lahore High Court also came under consideration before the Peshawar High Court in the case of Muhammad Shamim v. Ali Gohar and 3 others 1990 PCr.LJ 1932. The learned Judge while relying on Supreme Court's decision in Bahadar's case observed as under:-- "In other words, a Magistrate, while discharging an accused on a report of police under section 173, Cr.P.C. Is not acting as a Court and his order is not revisable under section 439, Cr.P.C. Understood in this sense, if that order is not impeached, it does not stand as a bar to the remedy of filing a private complaint on the same facts with some additional allegations."
6. In view of the authoritative judgments of the Honorable Supreme Court and the High Courts, there is no course left open for me but to accept this A petition. Accordingly, this petition is accepted. The order passed by the learned Additional Sessions Judge is set aside and that of Magistrate is restored.