Hafeezullah Bajkani vs The State and 2 others
This criminal revision application challenged an order passed by a Judicial Magistrate, who, upon receiving a police report under Section 173 of the Code of Criminal Procedure 1898, took cognizance against the applicant despite the police having placed him in column No. 2 as innocent, and subsequently issued non-bailable warrants (NBWs) against him. The core legal question was whether the applicant could challenge the Magistrate's order after the case had been transferred to the Court of Session and the impugned order had already been executed, resulting in the applicant's arrest and remand to judicial custody. The Court held that since the impugned order had been acted upon and the case was now pending before the Court of Session, which had also taken cognizance, the impugned order had attained finality and was no longer in the field. Consequently, the application was dismissed as infructuous, with the Court noting that the applicant must pursue available legal remedies before the trial court.
- Can a criminal revision application be maintained against an order that has already been acted upon and executed?
- Does a Magistrate have the authority to issue process against an accused placed in column No. 2 of a police report?
- Is an application challenging a Magistrate's order rendered infructuous once the case is transferred to and cognizance is taken by the Court of Session?
- Section 173, Code of Criminal Procedure 1898
- Section 302, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 190(1), Code of Criminal Procedure 1898
ORDER
MUHAMMAD SALEEM JESSAR, J. Through this application, applicant has called in question the order dated 25.08.2023, passed by Civil Judge and Judicial Magistrate-1, Kandhkot, whereby while taking cognizance on the report under section 173. Cr.P.C. submitted by the police, the applicant, who was let-off during investigation, was joined and NBWs were ordered to be issued against him.
2. It appears from the record that applicant Hafeezullah Bajkani was nominated under FIR No.48/2023 registered with Police Station Ghouspur, for offences punishable under Sections 302, 148, 149, P.P.C. During investigation, he was found innocent, therefore, was let-of by the police and was placed under column No.2 of the challan. Such report in terms of Section 173, Cr.P.C. filed by the police before the Civil Judge and J.M-I/MTMC, Kandhkot, who did not concur his opinion with police report and by taking cognizance issued NBWs against him as well as absconding accused vide impugned order dated 25.08.2023.
3. Since the offences, with which the applicant was charged, are triable by the Court of Session, therefore, the R&Ps of the case were transmitted to the Court of Sessions for trial. The case is now said to be pending for trial before the Court of 1st Additional Sessions Judge, Kandhkot vide Session Case No.316/2023 Re-State v. Guitar and others.
4. At the very outset, learned counsel for the applicant submitted that NBWs issued by the Magistrate against the applicant may be converted into B. Ws so that the applicant may furnish required surety before the trial Court. On query of the Court, learned counsel admits that after issuance of NBWs, the applicant had filed pre-arrest bail application before the Court of Sessions, which was assigned to 1st Additional Sessions Judge, Kandhkot/trial Court vide Session Case No.316/2023 Re-State v. Gulzar and others, where while declining his bail plea, the applicant was taken into custody and remanded to jail.
5. Mr. Ali Anwar Kandhro, learned Addl. P.G., appearing for the State, opposed the application, on the ground that impugned order having been acted upon is no more in the field, therefore, the proposal so advanced is not much of consequence and the application in hand is not maintainable. He, therefore prays for its dismissal.
6. Admittedly, the applicant is nominated in the FIR with specific role of causaty injuries to the deceased; besides, the offence with which the applicant has been charged is exclusively triable by the Court of Sessions and carries capital punishment, therefore, the Magistrate after taking cognizance has submitted the case papers to the Court of Session as required by Section 190(1)
Cr.P.C. which is the ultimate Court of trial, where it has been instituted vide Sessions Case No.316/2023 re-The State v. Gulzar and others. After assigning number to it, the case has been assigned to learned First Additional Sessions Judge/(MCTC), Kandhkot (trial Court). The trial Court has also taken cognizance of the offence. Since the impugned order has been acted upon and has attained finality, hence it is not in existence or in the field.
7. In view of above legal position, instant application is not maintainable and has become infructuous. Consequently, it is hereby dismissed along with pending application(s), if any.
8. Reverting back to prayer of the applicant, after taking cognizance by the trial Court, alternate remedy is made available for the applicant which could be availed before trial Court, if so advised.
Let copy of order be communicated to the Judicial Magistrate as well as to the trial Court, for compliance.