1. ' S. ALI ASLAM JAFRI, J.---An order dated 31-1-2004 passed by XVIIth Civil Judge and Judicial Magistrate, Karachi-East, purportedly under section 63, Cr.P.C. Discharging accused/respondents Nos.1 and 2 Syed Asif Ali and Muhammad Nayeem who were booked for offences under sections 66-B, 66-C, 70-A and 74 of Pakistan Copyright Ordinance by Landhi Police Karachi on 29-1-2004 vide F.I.R. No 11 of 2004 has been called in question through this Constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. For ready reference the impugned order (though not happily worded) is reproduced hereinafter:-- "Heard the defence counsel Investigating Officer and learned. P.I. For State. After perusal of record it appears that D/counsel produced the licence to establish maintaining and operate-cable Television Pakistan year 2000, which is valid for five years. I also found that accused Syed Asif has already charged in Crime No.180 of 2003 of same section in same complaint in above F.I.R. Which is pending before the Court. The F.I.R. No.180 of 2003 lodged by complainant against Sky Cables and accused Muhammad Naeem admittedly partner of said company. However in the presence of licence I have firm view that prima facie no case is made out against accused persons. I hereby discharge the both accused under section 63, Cr.P.C."
2. ' As per F.I.R. The allegation against the above named respondents Nos.1 and 2 appears to be that without obtaining the digital decoder from the authorized dealer of Star Group Limited, they were transmitting HBO and Star Channels in violation of the relevant sections of Pakistan Copyright Ordinance, as referred to above. They were arrested by the Landhi Police on 29-1-2004 and electronic articles being used for the infringement of copyrights as mentioned in the F.I.R. Were allegedly recovered by the police from their possession. The said respondents on the next day of their arrest viz. January 30; 2004 were produced before the trial Magistrate/respondent No.3 with a request for their remand in judicial custody under section 167, Cr.P.C. As their remand in police custody was no more required because the investigation was virtually complete and challan was to be submitted after usual formalities. Such report was submitted before the learned trial Court/Magistrate who after hearing the defence counsel, the Investigating Officer and the Prosecuting Inspector declined to grant remand and discharged the two accused under section 63, Cr.P.C. Passing the impugned order mainly on the ground that in view of the presence of licence no prima facie case was made out against them. The petitioner in order to assail the said order has filed this petition and prayed for the following reliefs:--
(A) To traverse and set aside the order dated January 30, 2004 passed by the learned trial Magistrate (respondent No.3) in F.I.R. No.11 of 2004 registered at Landhi Police Station, under sections 56, 66, 66(B)(C)(E), 70(A) and 74 of Pakistan Copyright Ordinance, and declare that the impugned order is illegal, unlawful, ab initio, null and void.
(B) To direct respondent No.3 to take cognizance of the above crime under the said F.I.R. And prosecute the respondents Nos.1 and 2 in accordance with the law.
(C) To restrain the respondent No.3 from handing over the seized electronic articles as mentioned in the para.5 of this petition.
(D) Any other relief(s) deem fit by this ' Honourable Court in the interest of justice.
3. 'Mr. Abdul Haleem Siddiqui, learned counsel for the petitioner, while referring to the impugned order has argued that the order is bad in law and does not appeal to reason or logic that if a person after being released on bail in a particular crime commits another offence of same nature for which he has already been charged,. Shall not be tried for his illegal acts in a subsequent offence. Learned counsel has further argued that copyrights of Messrs Star Group Limited and Satellite Television Asian Region Limited have been violated by the accused hence they have committed a cognizable offence and are liable to be prosecuted for the same. On a query from the Court as to how this Constitution petition is maintainable particularly when an alternate remedy either under sections 435/439, Cr.P.C., 561-A, Cr.P.C. Or by way of a direct complaint are available to the complainant, learned counsel has argued that no other alternate, speedy and efficacious remedy is available to the petitioner except to invoke the Constitutional jurisdiction of this Court. In support of his contentions that the impugned order, is not amenable to the revisional jurisdiction of the Sessions Judge, or this Court or subject to security by this Court under its inherent powers under section 561- A, Cr.P.C., Mr. Siddiqui has referred to the case of Bahadur and another v. The State PLD 1985 SC 62 wherein it has' been held that a Magistrate concurring with police report submitted under section 173, Cr.P.C. Discharging accused and cancelling criminal case does not function as a Criminal Court hence the order is not amenable to revisional jurisdiction of High Court under sections 435/439, Cr.P.C. Learned counsel has further referred to the case of Mansha and 7 others v. Illaqa Magistrate Police Station Bahlak, District Faisalabad and 4 others PLD 1997 SC 339 where dealing with an order of discharge of accused by Illaqa Magistrate on the basis of police report, High Court in exercise of its Constitutional jurisdiction had declared such order was without lawful authority and of no legal effect and had remitted the case to the Magistrate to pass appropriate order and Supreme Court had refused to grant leave under the circumstances of the case while holding as under:- "Besides, what the High Court has done is, to remit the case to the Magistrate for passing appropriate order in the circumstances of the case where investigation was not allowed to be carried on independently. No exception can be taken to the impugned judgment."
4. ' We find ourselves in respectful agreement with the view expressed by the Honourable Supreme Court. However, the facts and circumstances of the case in hand appear to be distinguishable. In this case the police had not recommended for cancellation of the case against the two respondents but it had simply prayed for Jail custody remand so that the challan could be submitted after observing usual formalities, but the learned Magistrate declined to grant remand and, as such, deprived the police from submitting the challan. The language of impugned order clearly shows that it was passed probably keeping in view the principles regarding, protection against double jeopardy as guaranteed under Article 13 of the Constitution of Pakistan and section 403 of Cr.P.C., which, in fact, do not stand attracted under the circumstances of the case as no such protection is available under the law to an accused for an offence of identical nature committed and repeated by him from time to time, though in certain cases as defined in section 234, Cr.P.C. An accused may be charged and tried for such offences at one trial.
(1) The power to hear and determine a controversy.
(2) The power to make a binding decision (sometimes subject to appeal) which may affect the person or property or other rights of the parties involved in the dispute."
5. In our humble opinion the impugned order which was passed after hearing the learned counsel for respondents Nos.2 and 3, the Investigating Officer and the Prosecuting Inspector touching the merits of the case and after considering the legal aspect of the matter, cannot be deemed to be an administrative order such as passed by a Magistrate under section 173, Cr.P.C. Agreeing . Or disagreeing with the report of the police for disposal of a case as a result of investigation. A judicial order has been defined in Blacks Law Dictionary as one which involves exercise of judicial discretion and effects final result of litigation". We are further of the view that an order of Magistrate granting or refusing to grant remand of an accused either to police custody or judicial custody is a judicial order as under section 167(4), Cr.P.C. It is subject to scrutiny by a Sessions Judge. We feel fortified in reaching this conclusion that the impugned order is a judicial order from the observations of Robson (Justice and Administrative Law, p.15) as referred by their Lordships in the case of Bahadur (supra) and meets the requirements of the test led therein and reproduced hereinafter:-- "The primary characteristics of 'pure' judicial functions by whomsoever exercised, are: Even otherwise as held in Bahadur's case (supra) an alternate remedy by way of a direct complaint is available to the petitioner, hence he cannot insist that this Court should exercise its Constitutional jurisdiction though not justified under the circumstances of the case. Therefore, we are not inclined to exercise our Constitutional jurisdiction and had dismissed this petition in limine alongwith the listed application by a short order passed on 26-2-2004 and the aforesaid are the reasons for the same.