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Criminal Petition for revision No. 169 of 1950, decided on 13th December 1950, from the order dated 3rd August 1950 of K S. Gul Muhammad Khan District Magistrate, Bannu.

--------S. 245‑Evidence taken under S. 244‑blagzstratepassed order of discharge‑He could only Pass order of acquittal‑Order of discharge should be taken as order of acquittal under S. 245.

If the Magistrate upon taking the evidence referred to in section 244 Criminal Procedure Code finds that the accused has not committed any offence he should record an order of acquittal. There is no provision for discharging the accused in summons‑cases.

The Magistrate obviously was not competent to follow the procedure of a warrant‑case in trying the case in ‑question, but whatever procedure he followed he was, not competent to discharge the accused. His order of discharge, therefore, should be taken as an order of acquittal under section 245 Criminal Procedure Code. The District Magistrate consequently was not competent to set it aside.

Muhammad Safdar Khan, for Petitioners.

Muhammad Ali Advocate‑General, for Crown.

Mir Hassan Shah of Kotka Mullagan in Banuu District, put in a complaint under section 71 of the Punjab Minor Canals Act 1905, against Mahmood and 'three others of village Kafshi Khel Babu Jan, alleging that the accused persons had illegally diverted the water of Vial Fatma Khel Kalan towards their fields, and had thus interfered with the supply of the water to his lands.

The case was heard by Mr. Shafiullah, Khan, Magistrate 2nd Class Bannu, who examined the prosecution witnesses and then recorded the statements of the accused, and finally passed an order of discharge purporting to be under section 253 Criminal Procedure Code.

On revision by Mir Hassan Shah, the learned District Magistrate Bannu, set aside the order of discharge, and remanded the case to the Court of Mr. Abdur Rauf Qureshi Special Magistrate Bannu, for further inquiry.

The accused have come up on revision against this order, and it is urged on their, behalf that the order of the learned trial Magistrate although on the fact of it an order of discharge was in fact an order of acquittal, and the learned District Magistrate, therefore, had no jurisdiction to set it aside and remand the case for further inquiry.

Under section 4 (1) (v) and (w) summons‑case is a case which relates to an offence and is not a warrant‑case. The warrant‑case is a case which relates to an offence punishable with death, transportation or imprisonment for a term exceeding six months. The maximum punishment provided by section 71 of the Punjab Minor Canals Act III of 1905, is fine not exceeding fifty rupees or imprisonment not exceeding one month, which means that the cases under this section are summons‑cases. Under section 241 Criminal Procedure Code the Magistrates in the trial of the summons‑cases have got to observe the procedure laid down in section 242 of the same Code, which is to the effect that when the accused appears or is brought before the Magis trate, the particulars of the offence of which he is accused should be stated to him, and he should then be asked if he has any cause to show why he should not be convicted. In summons‑cases it is not necessary to frame a formal charge. If the accused admits that he has committed the offence of which he is accused he should be convicted of such offence, but if the accused denies having committed the offence then the procedure laid down in section 244 Criminal Procedure Code must be followed. If the Magistrate upon taking the evidence referred to in section 244 Criminal Procedure Code finds that the accused has not committed any offence he should record an order of acquittal. There is no provision for discharging the accused in summons‑cases.

In the case before me, it appears that the learned trial Magistrate followed the procedure of a warrant case‑inasmuch as he first recorded the prosecution evidence, then the state ments of the accused, and finally passed an order of discharge under section 253 Criminal Procedure Code. The Magistrate obviously was not competent to follow the procedure of a warrant‑case in trying the case in question, but whatever procedure he followed he was not competent to discharge the accused. His order of discharge, therefore, should be taken as an order of acquittal under section 245 Criminal Procedure Code. The District Magistrate consequently was not competent to set it aside. The Provincial Government alone was entitled to file an appeal against this order, and the High Court on such appeal was the only authority to set this order aside, if it considered necessary to do so.

I, therefore, find that the order of the learned District Magistrate under revision was without jurisdiction, and setting it aside, I maintain the order of the trial Court, which I hereby hold amounts to an order of acquittal. Order accordingly.

K. M. A. Order accordingly.

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