1. The facts leading to present application are that after order of this Court in C.P. No,33 of 2001 the F.I.R. Of Akhtar Ali Khan the applicant was' registered at Darakhashan Police Station on 16-7-2001. In the F.I.R. Complainant Akhtar Ali Khan had alleged the A.S.P. Muhammad Aslam Khan, ASP Muhammad Farooq Awan, ASP Saleh Muhammad Khan, Inspector Sajjad Ahmed, Inspector Muhammad Anwar Khan, Inspector Ghazanfar Kasmi, Inspector Zahid Hussain, and four others namely Manzar Abbas, Muhammad Javed, Muhammad Yousaf and Muhammad Saleem entered into his house on 16-1-2001 at 4-00 a.m. Breaking open the doors and lock. They man handled the family members including the ladies and forcibly removed three lacs cash, 5 precious watches, many diamond sets, 300 golden bangles, 10 golden Karas, total property worth about 1.5 corer rupees and 7 licensed arms. He also alleged that accused had taken him with them and locked up in police station. The Investigating Officer, in the result of investigation, came to the conclusion that case lodged by Akthar Ali Khan was totally false and was lodged for avenging the raid by police on his house. Such report submitted by the Investigating Officer before the Judicial Magistrate was sent by him to the learned Sessions Judge South Karachi for the reason that the offence allegedly committed was exclusively triable by the Sessions Court. The learned Sessions Judge South Karachi agreed with the report vide order dated 4-1-2003 which has been assailed through present application under section 561-A. It has been contended by Mr.Moula Bux Khoso, the learned advocate for the applicant that under the law the report under section 173 has to be submitted to the first class Magistrate having power to take cognizance and he is required to pass order under section 173(3), Cr.P.C. Even if the offence allegedly committed is triable by the session's Court. He further contended that by passing order on the report of police under section 173 the learned Sessions Judge South Karachi acted without lawful authority and without jurisdiction therefore the order can be set aside by this Court in exercise of inherent jurisdiction under section 561-A. Mr.Habib-ur-Rasheed learned State Counsel conceded to the arguments of Mr.Moula Bux Khoso.
2. Undisputedly the report, under section 173, Cr.P.C. Submitted by the Investigating Officer before the Judicial Magistrate was that the case lodged by Akhtar Ali Khan was found false/unsustainable, therefore, same was to be disposed of under clause 'A' . After receiving the report the Magistrate was seized of the matter and could competently assume the jurisdiction and pass proper order. It was the exclusive authority of the Judicial Magistrate to pass order under section 173(3). Section 173 does not provide for sending the report under section 173 to the Sessions Judge. Although Provision of section 190 provides for sending the case to Sessions Court where the offences are exclusively triable by that Court but the report under section 173 that the case is found false and unsustainable does not come within its purview. The provision in subsection (3) of section 190 which reads as under:-- "(3) A Magistrate taking cognizance under subsection (1) of an offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to the Court of Sessions for trial." The provision requires the sending of the case to the Court of Session for trial alone and that too after the Magistrate takes cognizance under subsection (1) of an offence triable exclusively by Court of Session. The order of the Judicial Magistrate Xth indicates that the report was sent to the learned Sessions Judge keeping in view the pronouncement in Soofia Abdul Qadir v. The State and others 2000 PCr.LJ 520. Perusal of the judgment shows that in fact the Magistrate failed to conceive the judgment in its true perspective. The judgment made it clear that the Investigating Officer has to submit the report under section 173, Cr.P.C. To the Magistrate competent to the cognizance of the offence and try the case or to send it for trial to Superior Court. It was further held that after separation of judiciary on promulgation of the Legal Reforms Ordinance (XI of 1996) a Sub-Divisional Magistrate being an Executive Magistrate was not vested with the jurisdiction to take cognizance of the offence triable by the Court of Sessions and send the case for trial therefore, order passed by him on the report submitted under section 173, Cr.P.C. In respect of the offence triable by the Court of Sessions was without jurisdiction. Thus there was no room for confusion about the competency of Judicial Magistrate concerned for taking cognizance of the offence and passing order on the report under section 173, Cr.P.C.
3. Provision of section 173, Cr.P.C. Do not indicate any role of the Sessions Judge on the report under that section. Therefore, by passing the impugned order the learned Sessions Judge acted without jurisdiction and the order passed by him was coram non judice. It is true that the order passed by the learned Sessions Judge on 4-1-2002 on the report under section 173, Cr.P.C. Is not judicial one still it is amenable to the inherent jurisdiction of the High Court under section 561-A, Cr.P.C. For being without jurisdiction. The order of the Judicial Magistrate dated 23-10-2002 for sending the report to the learned Sessions Judge Karachi (South) was also without lawful authority and that too can be quashed in exercise of powers under section 561-A, Cr.P.C. Instead of allowing it to remain intact and advise the learned Sessions Judge to deal with it in exercise of revisional jurisdiction.
4. Consequently, both the orders are quashed. Obviously, the Judicial Magistrate has to pass order on the report under section 173, Cr.P.C. With this order the application is accepted.