MUHAMMAD HUSSAIN vs The ILAQA MAGISTRATE 1ST CLASS, LAHORE and 4

' Through this Constitutional petition, the petitioner has assailed the order, dated 13-12-1993, passed by the learned Ilaqa Magistrate, whereby she discharged respondent No,4 and also directed the S.P. (Sadar), Lahore, to register a case against the petitioner and respondent No,3, Haji Ghazanfar Ali, S.I. Police Station Gulshan Ravi, Lahore.

2. The brief facts relevant for the decision of this writ petition are that a case under section 380, P.P.C. Was registered at the instance of the petitioner against respondent No,4, at Police Station Gulshan Ravi, Lahore, vide F.I.R. No,462/93, dated 10-12-1993. After the arrest of accused-respondent No,4, he was produced by respondent No,3 before the learned Magistrate for physical remand, who after going through the Ziminis and recording the statements of three persons passed the impugned order, purportedly under section 63, Cr.P.C. Read with section 167, Cr.P.C.

3. The learned counsel for respondent No,4 has taken up a preliminary objection that this Constitutional petition is not maintainable as the impugned order is amenable to the revisional jurisdiction of the Sessions Court under section 439-A, Cr.P.C.

' Conversely, the learned counsel for the petitioner vehemently contended that the impugned order is an administrative order passed by the learned Magistrate and is totally alien to the concept of the Code of Criminal Procedure; hence is nullity in the eye of law, being coram non judice, without availing any other remedy, if available, it can be challenged in this Constitutional petition and has placed reliance on Bahadur and another v. The State PLD 1985 SC 62, Muhammad Waseem v, Additional Sessions Judge 1985 P Cr. L J 244, Arif Ali Khan v. The State 1993 SCMR 187, Mazhar Iqbal v. The State 1989 P Cr. L J 2241 and Muhammad Ali v. S.H.O. 1994 P Cr. L J 1806, and relied upon the following observations of their Lordships in Bahadur's case:-- "Under the Criminal Procedure Code a Magistrate is entrusted with diverse duties and in discharging the same does not always function as a Court, conduct of judicial proceedings or is amenable to the revisional jurisdiction. Some of his powers and duties under the Code are administrative, executive or ministerial and he discharges these duties not as a Court but as a persona designata. Mere name or designation of a Magistrate -is not decisive of the question, because Judges often administer and administrators often Judge".

' Even the learned counsel for respondent No,4 relied upon Muhammad Ali v. S.H.O. And submitted that when the police applied for the physical remand of an accused person under section 167, Cr.P.C. If the learned Magistrate refuses or rejects the prayer of the police and discharges the accused under section 63, Cr.P.C. He performs the judicial function as he decides the lis between the accused and the State and this order cannot be termed as an administrative or executive order.

4. The learned counsel for the petitioner then argued the case on merits and submitted that the police applied to the learned Magistrate for physical remand and there were two courses open to the learned Magistrate; one was that the learned Magistrate should have acceded to the request of the police and granted physical remand for unearthing the allegation of theft leveled against respondent No,4 or if the learned Magistrate disagrees with the police then after giving some reason, the learned Magistrate would either discharge the accused under section 63, Cr.P.C. Or remand the accused to judicial custody, but the learned Magistrate has no jurisdiction under law to record the statements of three persons, referred to above, which function can only be performed by the learned Magistrate when she has taken cognizance of a case under section 190, Cr.P.C. As the learned Magistrate has transgressed her jurisdiction, thus the impugned order being coram non judice is open to the Constitutional jurisdiction of this Court.

' The learned Law Officer has supported this contention of the learned counsel for the petitioner.

5. The learned counsel for respondent No,4 submitted that the learned Magistrate after going through the police Ziminis formed an opinion that it is a case in which the initial arrest of respondent No,4 is tainted with malice due to the injuries found on his person when produced before the learned Magistrate; hence there was no justification to grant physical remand to the same police. As the conduct of the Investigating Officer was open to serious objection, the learned Magistrate recorded the statements of three persons for the purpose of initiating inquiry against the relevant Police Officer, thus she has not transgress her jurisdiction vested in her under the Code of Criminal Procedure.

6. After considering the preliminary objection, I do not think at this belated stage, it would be advisible to return the Constitutional petition on this preliminary objection that this Court has no jurisdiction, as there is diversity of views between the superior Courts what order is administrative and what order is judicial one. Placing reliance on Muhammad Ali's case I think that this controversy can be resolved by this Court as I have heard the arguments at full length. The contention of the learned counsel for the petitioner that the impugned order is nullity in the eye of law is devoid of force, because when the police produced respondent No,4 before the learned Magistrate for the purpose of procuring his physical remand under section 167, Cr.P.C., it was incumbent on the learned Magistrate- to look into the police diary to find out whether it is a fit case in which physical remand be given or not. After going through the Ziminis and keeping in view the past conduct of the complainant A and the Police Officer, the learned Magistrate rightly came to the conclusion that it is not a fit case in which physical remand be given to the police. After this, two courses were open to the learned Magistrate, either the learned Magistrate sends the accused respondent to the judicial lock-up or to discharge him under section 63, Cr.P.C., which order, of course, would not prevent the complainant to agitate that matter either on fresh evidence or file a proper complaint before the learned Magistrate. No doubt, the learned Magistrate recorded the evidence of some persons, as mentioned above, but that was for ascertaining whether any excesses were committed by the Investigating Officer and when satisfied the learned Magistrate directed the S.P. (Saddar) that he should take appropriate action against the complainant and the Police Officer as serious allegations were leveled against them, by the respectables of the locality where the occurrence took place. There is no embargo on the powers of the learned Magistrate to refer the matter for further inquiry even under section 156, Cr.P.C. In the circumstances, the impugned order cannot be termed as without lawful authority or nullity in the eye of law.

Resultantly, this petition being devoid of force is dismissed.

' As complicated questions of law and facts are involved in this case, so I leave the parties to bear their own costs.