ABID HUSSAIN Versus IKRAM-UL-HAQ CHAUDHRY

ORDER

1. The learned counsel has filed this writ petition whereby he has challenged a discharge order passed by the learned Judicial Magistrate, Daska, District Sialkot on 17-4-2005.

2. Briefly, F.I.R. No.143 of 2005 dated 12-4-2005 was registered at instance of the petitioner at Police Station Sambrial, District Sialkot against respondents No.2 and two unknown persons under section 380, P.P.C. Respondent No.2 was arrested on 13-4-2005. The respondent No.2 was produced before the learned Magistrate on 14-4-2005, physical remand was granted of three days. On 17-4-2005, again respondent No.2 was produced before the duty learned Magistrate, respondent No.1 as on the said date it was Sunday and respondent No.1 was acting as a Duty Magistrate. The police requested for physical remand, the respondent No.1, learned Judicial Magistrate refused to grant remand and also discharged the respondent No.2 from the above said F.I.R. The same order has been impugned before this Court under the Constitutional jurisdiction.

3. According to the learned counsel for the petitioner the impugned order is against the provisions of section 167, Cr.P.C. and it is also without jurisdiction.

4. On the other hand, the learned Additional Advocate-General, Punjab submits that the Magistrate was fully competent to pass the impugned order, therefore, this writ petition be dismissed.

5. I have heard the learned counsel for the petitioner and learned Additional Advocate-General, Punjab and examined the relevant provisions of law.

6. The relevant provision of section 167, Cr.P.C. are given in subsection (2) which are reproduced as under:

7. "The Magistrate to whom an accused person is forwarded under this section may whether he has or has not jurisdiction to try the cases from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit for a term not exceeding 15 days in the whole. If he has no jurisdiction to try the case or (send) it for trial, and consider further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

8. Provided that no Magistrate of the third class, and no Magistrate of the second class not specially empowered in this behalf by the Provincial Government shall authorize detention in the custody of the police."

9. Lines starting from "if he has no jurisdiction" to try the case or send it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to the Magistrate having such jurisdiction, clearly show that if a Magistrate has no jurisdiction to try an accused person produced before him for remand, he may authorize the detention but if he considers detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. In the instant case, the impugned order was passed by a Duty Magistrate on Sunday. He did not have jurisdiction to try respondent No.2, therefore, if he thought further detention was unnecessary, he could have forwarded respondent No.2 to a Magistrate having jurisdiction to try respondent No.2. Therefore, in my opinion the impugned order has been passed by respondent No.1 without a jurisdiction and the same is void ab initio. Furthermore, provisions of section 167, Cr.P.C. do not contemplate a discharge, it is provided only under section 169, Cr.P.C. For further guidance, Imran Sattar v. Judicial Magistrate 2001 PCr. Review 498 may be referred.

10. Therefore, the result of the above discussion is that the learned Magistrate, respondent No.1 was not competent to pass order of discharge of accused/respondent No.2 while exercising the powers under section 167, Cr.P.C. Accordingly, this writ petition is accepted and the impugned order is hereby set aside being illegal, unjustified and untenable.

11. H.B.T./A-454/L Petition accepted.

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