' This petition is filed by Malik Naseer Hussain and two others for quashment of the impugned order of the learned Judicial Magistrate, Peshawar, dated 19-3-2002 whereby their application under section 249-A, Cr.P.C. From proceedings under section 182, P.P.C. Initiated on the complaint of respondents Nos.2 and 3 was dismissed and the order of the learned Additional Sessions Judge, Peshawar dated 3-4-2003 whereby their revision petition again was dismissed against the said order of the learned Judicial Magistrate.
2. Brief facts of the case are that the petitioner No,1 lodged an F.I.R. No,418, dated 23-5-2000 under section 436, P.P.C. Police Station Gul Bahar, against respondents Nos.2 and 3 on the information conveyed to him by petitioners Nos.2 and 3. During the course of hearing the bail before arrest application of respondent No,2, the petitioner No,1 filed an affidavit before the Sessions Court to the effect that the Jirga members of the locality have satisfied him about the non-involvement of the accused (respondents Nos.2 and 3); hence he would be having no objection if pre-arrest bail granted to the accused is confirmed. Accordingly, bail was confirmed. Later on both the accused were also discharged under section 169, Cr.P.C. And the case of the complainant was termed as an untraced case. After sufficient time, the accused of the said F.I.R. Moved a complaint against the petitioner No,1 and the witnesses cited in the F.I.R.' i,e, petitioners Nos.2 and 3 for registration of a case against them under section 182, P.P.C. As the petitioner No,1 had levelled a false charge against them. Proceedings against the petitioner were started in the Court of Judicial Magistrate, Peshawar, where the petitioners moved an application for their acquittal under section 249-A, Cr.P.C., but their request was turned down. The revision filed by the petitioners against the said order also met the same fate before the learned Additional Sessions Judge, Peshawar, hence this petition for quashment of the impugned orders of the learned Courts below.
3. I have heard the learned counsel for the parties and have also perused the record of the case.
4. The filing of an affidavit by the petitioner No,1 at the time of deciding BBA of one of the accused and the discharge of the accused under section 169, Cr.P.C. By the Magistrate have been made ground for proceeding against the petitioners on the complaint filed by the accused (respondents Nos.2 and 3) against the petitioners, as according to the learned Courts below, the same are indicative of the fact that a false charge was brought against the accused on account of some property dispute between the parties.
5. After hearing arguments of the learned counsel for the parties, I am, however, of the view that the impugned orders of the learned Courts below are not in accordance with proper appreciation of the facts and circumstances of the case as well as proper interpretation of section 169, Cr .P.0 .
6. On page 12 of this Court file, there is the complaint of respondents' against the petitioners submitted before the Judicial Magistrate, Peshawar. The Judicial Magistrate has made endorsement on the same to the Incharge Police Station Gul Bahar to proceed on in accordance with law and register the case if it does warrant in light of the facts. In an authority reported in PLD 2001 Lah. 84, the learned Judge has observed that prerogative for proceedings under section 182, P.P.C. Lies only with the Police Officer who has moved the machinery of law against the accused persons nominated in the F.1.R. By the complainant and no other authority can direct the concerned Police Officer to proceed against the first informant who has given the false information.
The learned Judicial Magistrate instead of directing the Police Officer authoritatively to proceed against the petitioners for nominating innocent persons in the F.I.R. Was required to have left it to the discretion of the concerned Police Officer to use his prerogative if he so desired strictly in accordance with law.
7. The discharge of an accused person under section 169, Cr.P.C. Could only be termed as an administrative act of the Magistrate and it does not amount to an acquittal of the accused. Such order can be recalled by the Magistrate subsequently and the accused could also be summoned by the trial Court to face the trial. Admittedly, the F.I.R. Against the accused is not yet cancelled which is still alive and the police is yet to submit challan before a competent Court against the persons nominated responsible for the commission of the offence. The affidavit given by the petitioner No,1 that he had charged the accused on suspicion only related to his no objection over the confirmation of BBA of the accused and in view of the existence of the F.I.R. For damage to the property of the petitioner/complainant, no case under section 182, P.P.C. Could be registered unless a competent Court comes to the conclusion that the case against the respondents was malicious, false, vexatious or frivolous. Only on the basis of discharge of the accused under section 169, Cr.P.C.
No cause of action accrues to them to prosecute the complainant under section 182, P.P.C. The whole proceedings against the petitioners are thus premature and not warranted under the law.
8. The petitioner No,1 in his report has stated that he was informed about the involvement of the accused (respondents Nos.2 and 3) by Sirajuddin and Tila Muhammad (petitioners Nos.2 and 3), who being the alleged witnesses of the occurrence have been cited so in the F.I.R. If the information conveyed by these witnesses to the complaint is treated as false, even then petitioners Nos.2 and 3, who are only witnesses in the case, cannot be held liable to prosecution under section 182, P.P.C. As their statements to police as witnesses, if any, was not an information given to the police under section 154, Cr.P.C. The proceedings against petitioners Nos.2 and 3 are also not warranted under the law on this score too.
9. For the aforesaid reasons, this petition is accepted, the impugned orders dated 19-3-2002 of the learned Judicial Magistrate and dated 3-4-2003 of the learned Additional Sessions Judge, Peshawar are hereby quashed/set aside and the complaint against the petitioners is hereby declared as not maintainable at this stage.