NAZAR MUHAMMAD And Another vs THE STATE And 3 Other

The petitioners have moved instant application under section 561-A; Cr.P.C. For quashment of order passed by Judicial Magistrate-II Abbottabad on 23-11-1999 in consequence of which F.I.R. No. 113., dated 25-11-1999 was registered at Police Station Donga Gali under Articles 9/14 of Offences Against Property (Enforcement of Hadood) Ordinance, 1979. -2. Briefly stated the facts leading to the filing of this petition are, that Muhamamd Nazir respondent No.4 herein employed at Peshawar, made a complaint on 16-10-1999 to the Judicial Magistrate-11, Abbottabad with the request for registration of a case against the petitioners. The petitioners were accused of having in the year 1998 committed theft from the house of respondent No.4 in village Began, of gold ornaments weighing 3-1/2 tolas and three pairs of silken garments.

The Magistrate recorded statement of the complainant under section 200, Cr.P.C. On 16-10-1999 and sent the complaint to Tehsildar Abbottabad for inquiry. The Tehsildar conducted an inquiry and sent back the case with the observation that a prima facie case has been made out.

Resultantly vide order dated23-11-1999 the application was sent to S.H.O., Police Station Donga Gali with the direction to register a case against the accused in accordance with law under intimation to the Court. This order has caused annoyance to the petitioners who have moved this Court seeking quashment of the order under reference.

3. T have heard Mr. Abdullah Khan Tanoli, Advocate for the petitioners and Mr. Sabir Hussain Tanoli, Advocate for the State. It is submitted on behalf of the petitioners with- justification that the order for registration of case by the Judicial Magistrate, Abbottabad is not warranted by law and is liable to be set aside because once a cognizance is taken under section 200, Cr.P.C. The Magistrate was required to adopt the procedure of complaint mentioned in Chapter XVI of the Cr.P.C. The Magistrate having taken cognizance of the matter was bound to proceed in accordance with the provisions of sections 202 to 204, Cr.P.C. And could not refer the matter to the police under section 156(3), Cr.P.C. It needs no reiteration that if Magistrate takes cognizance of a private complaint under section 200, Cr.P.C. By recording the statement of the complainant he himself is required thereafter to proceed in accordance with the provisions of the aforesaid chapter of the Cr.P.C. The petitioners have taken objection against this procedure and it has been rightly urged on their behalf that the learned Magistrate could not have sent a copy of the complaint for registration of a case to the police, after he had himself taken cognizance of the case and had recorded the statement of the complainant. The only course left open to him under law was to proceed with the trial of the complaint himself. If an authority is needed on the point reference can be made to "Ghulam Rasul--appellant v. The State respondent" 1979 SCM R 203 and "Aziz-ur-Rehman and others v. The State and others" PLD 1960 Dacca 631. Learned counsel for the State is unable to meet this legal objection.

4. Consequently, the petition succeeds and order of the learned Judicial Magistrate/Civil Judge-II, Abbottabad on the basis of which F.I.R. No.' 113 dated 25-11-1999 was registered at Police Station Donga Gali, is hereby quashed.