1. Through this petition, learned counsel seeks quashment of proceedings initiated at the instance of the complainant, by the learned Sessions Judge, Muzaffargarh, in pursuance of an application for cancellation of bail granted to the petitioners by the learned Magistrate Section 30, Alipur vide his order dated 4-4-1997.
2. 2.Learned counsel submits that the police failed to submit challan of case F.I.R. No,22/97 registered at Police Station Shehr Sultan, under sections 302/148 and 149 P.P.C. against the petitioners within 15 days who were arrested on 16-2-1997 and 19-2-1997 in terms of the provisions of sections 167 and 173(1), Cr.P.C. and as such the learned Magistrate was legally justified to release the accused on bail instead of sending them to judicial lock up. It is further contended that the aforesaid order of the learned Magistrate was on administrative side, therefore, the learned Sessions Judge has no jurisdiction to entertain the petition of the complainant for cancellation of bail granted to the petitioners and the proceedings before the learned Sessions Judge are liable to be quashed.
3. 3.I have gone through the order of the learned Magistrate which is placed as Annexure 'C' with this petition. It was a murder case which is exclusively triable by the Sessions Court and the Magistrate was not competent to release the accused on bail under the pretext that challan was not submitted within 17 days. The learned Magistrate has referred to some judgments of the Superior Courts in his order but none of the aforesaid judgments laid down as a rule that if challan is not submitted within 15 days or the provisions of section 167 or 173, Cr.P.C. are contravened the Ilaqa Magistrate can enlaige the accused on bail even in an offence which was exclusively triable by the Sessions Court. The conduct of the Magistrate in granting bail to all the accused in a murder case just after 17 days creates suspicion about bona fide exercise of judicial powers by him. Section 167 Cr.P.C. does not empower him to grant bail to the accused of the offence exclusively triable by the Sessions Court.
4. 4.Subsection (2) of section 167 of the Cr.P.C., lays down that:- "The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the cases, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has no jurisdiction to try the case or send it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction".
5. In this connection reference may be made to Ghulam Muhammad v. State (AIR 1959 Madhya Pradesh 147), wherein it was observed as under:- "Under section 167(2) Cr.P.C. if the Magistrate to whom the accused person is forwarded, has no jurisdiction to try the case or committed for trial and considers further detention of the person arrested unnecessary then he can only order the accused to be forwarded to a Magistrate having jurisdiction to try the case. He has no power under section 167 to admit the arrested person to bail.
6. If a Magistrate has no jurisdiction to try the case, he has no power under section 497 to grant bail, to the person arrested. That section is limited to the jurisdiction of the Courts of trial in the matter of granting or refusing bail."
7. The trial Court in view of the aforesaid judgment had absolutely no jurisdiction to grant bail to the accused on the ground of detention beyond period of 15 days. The order of the Magistrate on the face of it is illegal. Similarly in Ghulam Sarwar v. State (1984 PCr.LJ. 2588 Lahore) the scope of section 167(2) Cr.P.C. was discussed in detail. In another judgment on the same issue reported as Muhammad Siddiq v. Province of Sindh through Home Secretary Karachi (P.L.D. 1992 Karachi 358), it was observed at page 370 as under:- "The Magistrate under the provisions of law can authorise the detention of an accused person in such custody as he may think fit for a period not exceeding 15 days on the whole and in cases where a Magistrate considers further detention unnecessary, he has to order that the accused be forwarded to a Magistrate having jurisdiction to try the case instead of granting further remand."
8. The same point was also considered in detail by another Division Bench of the Karachi High Court in Asma Khatoon v. Shabbir Hussain Shah (P.L.D. 1996 Karachi 517), that the order of the Magistrate is wholly without jurisdiction if the detention of the accused was found by him illegal for want of non-submission of complete or incomplete challan. At the most he could send the accused to judicial custody and report the matter to the trial Court i,e, the Sessions Judge. The Magistrate himself not being trial Court had no jurisdiction to release them on bail although knowingly they had not submitted any application that he had no jurisdiction to release them on bail. He exercised suo motu powers of granting bail to them in a case not triable by him.
9. 5.This petition for quashment of the proceedings initiated on application for cancellation of bail moved by the complainant on the ground that the same is an abuse of process of law, is wholly misconceived. In fact, the prosecution has been seriously prejudiced by this order of the learned Magistrate who has released the accused while wrongly interpretting the law. The complainant has rightly moved an application for cancellation of their bail which shall be decided by the learned Sessions Judge on merits. There is no valid ground for interference by this Court in the proceedings pending before the learned Sessions Judge. This petition is without any merits and is hereby dismissed in limine.
10. 6.A notice shall be issued to Mr. Zulfiqar Khan Nasir, Magistrate Section 30, Alipur, District Muzaffargarh, to appear in this Court on 20-1-1998 and to show cause as to why his judicial powers should not be withdrawn.