This petition under section 561-A, Cr.P.C. Has been filed by the ,petitioner for the quashment of order dated 29-8-1998 passed by the learned Additional Sessions Judge, Lodhran in exercise of his revisional jurisdiction.
2. Briefly stated the facts of the case are that a case F.I.R. No. 478 of 1998 dated 14-8-1998, under section 354, P.P.C. On the complaint of Mst. Nasreen Bibi wife of Muhammad Maqsood Ahmad was registered at Police Station Dunyapur, wherein the complainant has alleged that she Was returning from the Haveli of Muhammad Aslam, her cousin, with pitcher full of water. When she reached near the house of Farzand A.I and Nazir Ahmad the accused emerged in the street and grapped her in arms and then caught her by her nipples. Her pitcher fell down and broke. During the struggle her shirt was torn in front. On hue and cry, P.Ws. And other people gathered and attracted the spot.
They over-powered Nazir Ahmad accused, who sustained injuries at the hands of the villagers. Mst.
Nasreen complainant reported the matter to the police on the same day. A case under section 354, P.P.C. Was registered and the accused was produced before Ilaqa Magistrate for judicial remand.
The Magistrate vide order dated 19-8-1998 observed that as shirt of Nasreen was torn, therefore, offence under section 354-A, P.P.C. Was made out. Feeling aggrieved, the present petitioner preferred a revision petition against the order of the Magistrate and the learned Additional Sessions Judge. Lodhran vide order dated 29-8-1998 set aside the order of the Magistrate and declared the order of the Magistrate illegal altering the offence from sections 354 to 354-A, P.P.C.
3. Learned counsel for the petitioner contended that the order passed by the Magistrate was not a judicial order, therefore, no revision was competent against the said order, hence, the Additional Sessions Judge has extended the authority. He further contended that during investigation of the case, learned Additional Sessions Judge was not competent to alter the offence. He further submitted that the challan of the case has not been sent to the trial Court and if it is sent the trial Court was competent to alter or add a further offence.
4. On the other hand, learned counsel for the respondent vehemently opposed the arguments of the learned counsel for the petitioner and supported the impugned judgment.
5. I have heard both sides and perused the record.
6. Admittedly, the police has investigated the case and applied to the Magistrate for judicial remand of the accused/petitioner for 14 days. The Magistrate after hearing the prosecution and the accused/petitioner came to the conclusion that the offence under section 354-A, P.P.C. Was made out against the petitioner which is non-bailable offence and, therefore, he remanded the accused petitioner to the judicial lock-up.
7. The order passed by the Magistrate was not a judicial order. It was an executive order and the revision is not maintainable against the executive order of the Magistrate. In this respect, a reference can be made to the case of Waheeduz Zaman v. Jamil (1997 PCr.LJ 1167) where a Judge of the Lahore High Court observed that the order passed by the Magistrate on the report under section 173, Cr.P.C. Submitted by the police cannot be treated as a judicial order. The learned Additional Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his jurisdiction' for' the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court and may, when calling for such record, direct that the execution of any sentence be suspended and. If the accused is in confinement, that he be released on bail on his own bond pending the examination of the record.
From the reading of the above said law, it transpired that the power of revision under section 435, Cr.P.C. Is available only when a proceeding is pending before any inferior Criminal Court.
9. In the instant case, there was no proceedings pending before the Criminal Court, the police has applied to the Magistrate and prayed for the remand of the accused/petitioner only and the Magistrate has passed the order on the application of the remand, so it cannot be termed as a proceeding of a Court or a final order. If at all the order of the Magistrate was not passed in accordance with law then, the remedy of writ jurisdiction was available to call in question the order of the Magistrate and not revisional jurisdiction.
10. In view of the above discussion, I have no hesitation in observing that the revision against the order dated 19-8-1998 passed by the Magistrate was not maintainable and the learned Additional Sessions Judge has exceeded his jurisdiction. Resultantly, this Criminal Miscellaneous Petition is accepted and the order of the learned Additional Sessions Judge dated 29-8-1998 is hereby quashed.