Said Afzal Vs The State & others.

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA),

SWAT

(Judicial Department)

CnM O.P. No- 101-M/2016 Said Afzal V/S The State & others Cr.M :P. No. 102-M/2016 Said Afzat V/S The State & others

CONSOLIDATED

JUDGMENT

Date of hearing: 15.02.2018

Petitioner : - 6oid Afz.o b u Mn Abdul Oav ltm, Advocole.

Respondents: (The State & olhe6) bt Mqllk Sarwar Khan State counsel and Muhammad Ikram Khon Advocate.

MOHAMMAT) IBRAHIM KHAN. J.- Upon registration of the case FIR No. 215 dated 10.6.2016 under sections 440,379,1 48,149 PPC registered at Police Station Sheringal District Dir Upper, it pertains to the report of Said Afzal, the Petitioner herein. Under narration ofthe facts that the parties belong to Qwanj Sheringal, the complainant IS ,2- owner of the extensive properties both 6- constructed and un-built properties and some time before the accused/Respondents by leaving their cattles in the wheat crops Naw.b{S B.)Non'bl. Mr lunic. Mohamm.d bEhm(han

had damaged the said crops and also cut % walnut trees. This occurence was reported to the Court but even then later this offence was repeated and when the complaint was lodged for the second time against these accused/Respondents proceedings under section 427 PPC were initiated in which the next date of proceedings was fixed for 07.06.2016. When on 01.06.2016 at 7:00 a.m. the Respondents duly armed entered in the wheat crops and cut the same and in this way had caused a lot of loss to the complainant. As the offence under the covered sections 379,440 have been committed, therefore, the Respondents are to be prosecuted.

2.During the investigation, the police officials recommended the accused- Respondents MianZarin,, Nasib Zada, Mola g' a- Muhammad, Hizbullah and Chandar and another group Mutabar Khan, Amir Bacha, Akbar Zada, Ihsanullah, Rahmatullah and Jan Bacha for reasons to believe that they Naw.b (s.B )Hon'bl.Mr lurtic. M6hamm.d lbE hih xha n

may not be involved in the commission of the offences, therefore, the impugned separate orders dated 14.06.2016 and 22.12.2016 have been passed by the learned Judicial Magistrate Sheringal Dir Bala in respect of discharge of the

accused/Respondents under section 63 of the Code of Criminal Procedure. However, they were directed to submit bonds in the sum of Rs. 40,000/- each in two sureties in the like amount to the satisfaction of said learned Judicial Magistrate.

3.Aggrieved with the findings for the discharge of the accused/Respondents Criminal Revisions bearing Nos. 04 & 05 of 2016 were preferred before the Court of learned Sessions JudgelZila Qazi Dir Upper. In verbatim form through the judgment dated 09.12.2016 for the same reasons particularly under Para 4 of each judgment, the learned Sessions Judge concerned did not interfere with the impugned orders of the learned Judicial Nawab(S.3 )Hon bl. Mr lunic. Moh.mm.d lbrahm [h.^

Magistrate. The verbatim Para No. 4 of both the judgments is reproduced herein:- " Honorable Superior Courts have time and again held that an order under this Seclion is only an

adminislralive order and is not susceptible lo inlerference in Revision Petition by the Sessions Judge. Reliance is placed PLD 2000 Lahore 136.

In view of the above scenario, this Revision Petition is dismissed on the ground of jurisdiction,"

4, Hence, these are the separate quashment petitions bearing Cr.M Q.P. No.

101-M & 102-M of 2016 preferred by the complainant (herein the Petitioner) Said Afzal against the impugned orders of the learned Courts below inter-alia on the grounds enumerated in each of the petition.

[r'- 5. Having heard arguments of learned c-^ counsel for the parties and learned Astt:

Advocate General appearing on behalf of the State, record with their assistance gone through.

Nawab 1s 3.) Hon'b e Mr lu*.e Mohammad bhh m khan

6.Learned counsel for the complainant (the Petitioner herein) referred to 2002 SCMR 239 "Ensr. Bashir Ahmsd V/S Senior Superintendent of Police Islamubad", 2006 SCM-L 192!

Hidavatullah V/S The State" snd 2005 MLD 1883 " The Stute V/S Ubaidullah" and accordingly prayed for the acceptance of both these quashment petitions and setting aside of the impugned orders of the learned Judicial Magistrate as well as learned Sessions JudgelZlla Qazi Dir Bala.

7.Consequent to these arguments, learned counsel for the accused- Respondents states that he has no objection to take up the trial before the learned Trial Court and conclude the same for its logic end, however, the impugned orders of the learned Judicial Magistrate for the discharge f, of the accused/Respondents did not call for any interference.

8.Indeed, the complaint of the present Petitioner would require the evidence to be Nawab(s.B )tlon bre Mr lunke Moh3mnad bahm(han

adduced during the trial. The Investigation Officer of this case has furnished the 'challan' and will shortly be put in Cour1. It has to be seen that whether the orders of learned Judicial Magistrate are under appreciation of the true perspective theme as contained in section 63 of the Code of Criminal Procedure. Accordingly, while going through it reveals that:- " Discharse of n aoorehended.

No person who has been arrested by a police-of/icer shall be discharged except on his own bond, or on bail, or under lhe special order of a Magistrale."

This section enable the learned Judicial Magistrate to pass an order of discharging the accused involved in a case where there is requirement of wa rranting material evidence. The judgment as reported in PLD 2001 Lahore 271 "Ashiq I ,e { Hussuin V/S Se ssions Judse Lodhran" of the Hon'ble Lahore High Court authored by Mr. Justice Asif Saeed Khosa has covered all the aspects of section 63 in comparison Nawab(s 3 )uon ble Mr.Justice Mohammad brahim (han

to all the affiliated sections 113, 173 (3), 169, 170,439 and 561-A read with sections 190 & 103.Thereby, the exhaustive findings would be more attractive to clarifl, the powers under section 63 of the Code of Criminal Procedure of a Judicial Magistrate for discharge of an accused/Respondents in this case. Upon submission of 'challan' it's still open that a dressed trial can be held before the competent Court and in no way the complainant can be precluded from leading evidence which may implicate the accused/Respondents during the trial leading to conviction under the sections of law levied by the prosecution.

9.In another words, learned counsel for the accused/Respondents has shown his willingness that let during the dressed trial ,). before the concerned competent Court a charge may be framed against the accused/Respondents while the complainant is to lead evidence to decide the wheel of Nawab (s.8.) Non'b e Mr runice Mohammad bhh m (h3n

fortune ofthe accused/Respondents either in acquittal or conviction.

10.In such terms both these connected quashment petitions are not worth of credence, hence are disposed of accordingly. ) g'^ ll^1 Announced.

Dt: 15. .20 18 JUDGE

q?\,1I lB

Naw!blsB.)Hon'b. Mr run.. Mohtmmtd brahm(hei