NASIRA SURRIYA Versus MUHAMMAD ASLAM

ORDER

ASLAM RIAZ HUSSAIN, J.‑‑ The facts giving to this petition are that a case under sections 307/325/506/149 and 148, P.P.C. had been lodged by the petitioner against the respondent. After due investigation the challan was submitted and the respondents were sent up for trial. The case was pending trial in the Court of Magistrate S.30 who had taken cognizance of the case and issued process to the accused all of whom are police officials, to appear before him and face the trial for the offences mentioned in the police report.

2. The police, however, initiated another investigation of the case against the respondents and, thereafter, secured an order of cancellation of the case from the Ilaqa Magistrate. The complainant filed a revision against the said order before the Sessions Judge, Gujrat, who called for a report from the Ilaqa Magistrate. The learned Magistrate frankly conceded that he had not been informed about the fact that trial of the accused‑respondent was already pending in another Court and that he would not have passed the said order of cancellation had he been aware of this state of affairs. In this view of the matter the learned Sessions Judge accepted the revision and directed the accused‑respondent to appear before Magistrate S.30 who was seized of the matter and face trial. But Muhammad Aslam one of the accused respondents filed an application under section 561‑A Cr.P. C. for 'quashment' of the order of the learned Sessions Judge, Gujrat, which was accepted by the learned High Court on the ground that order of cancellation of case, not being a judicial order, was not subject to the revisional jurisdiction of the Sessions Judge and therefore, set aside the order of the learned Sessions Judge dated 1‑4‑1985, relying on the case of Bahadur v. The State P L D 1985 S C 62.

3. Learned Counsel for the petitioner contended before us that although the legal proposition that order of cancellation of case being an administrative order was not subject to judicial review is correct, yet in the circumstances of this case the order of cancellation itself, being wholly illegal and based on misrepresentation, was void and of no legal effect, and as such the criminal proceedings against the respondents pending before the learned trial Magistrate could not be deemed to have been cancelled and the said proceedings could not be quashed.

We issued notice to the Advocate‑General, Punjab. The learned Additional Advocate‑General appeared to assist the Court and submitted that the question is indeed such which needs to be finally settled by an authoritative pronouncement by this Court.

4. As such we consider this to be a fit case for grant of leave. Leave is, therefore, granted to consider whether in the circumstances of this case the order of cancellation of the case passed by the learned Ilaqa Magistrate was not void, being wholly without jurisdiction and the High Court had not erred in quashing the criminal proceedings against the respondent pending before the trial Magistrate. To come up in the week commencing 23rd April, 1988.

M.I. /N‑63/S ?? ?????????????????????????????????????????????????????????????????????? Leave granted.