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Criminal Revision No. 380 of 1969, decided on 1st July 1969.
--- S. 439-Magistrate's order cancelling case on police report-Not a judicial order-Such order not .subject to revisional jurisdiction of High Court.
Wazir v. State P L D 1962 Lah. 405 rel.
Dharam Dev v. Emperor A I R 1938 Lah. 469; Sardara and others v. Mohd. Nawaz and others P L D 1949 Lah. 537 and Amir Ali .v. The State P L D 1968 Lah. 537 ref.
M. Aslam Chatta for Appellant.
Talib Hyder Rizvi and Khawaja Saeed-ut-Hassan for Nemat Khan for the State.
This is a petition for revision under section 439. Cr. P. C. against the orders dated 26th March 1969, of Mr. Akhtar Joseph, Magistrate Lahore, by which he agreeing with the report of the Police made under section 173, Cr. P. C. ordered the cancellation of the case reg1stered against the respondents under section 342, 347, 364 and 365/34, P. P. C. The grounds urged in this revision petition are that there was good ground for proceeding with the case and that the Magistrate's order cancelling the F. I. R. was not justified.'
2. It has been objected for the respondents that the impugned order dated 26-3-69 cancelling the case was not a judicial order and was not subject to the revisional jurisdiction, of this Court. Reliance is placed upon the Full Bench authority of this Court reported as Wazir v. The State (P L D 1962 Lah. 405) wherein it was held as follows:-
"Where a Magistrate has cancelled a case there is no occasion for the Sessions Judge to hold that the accused has been dis charged or that consequently he has power to order the retrial. The accused can be discharged only if some evidence has been recorded.
Such a case does not fall within the revisional jurisdiction of the Sessions Judge and any order for further inquiry would be set aside by the High Court." Mention is also made of the earlier authorities reported as Dharam Dev v. Emperor (A I R 1938 Lah. 469) and Sardara and Others v. Muhammad Nawaz and others (P L D 1949 Lah. 537). In the admitting order mention is made of Amir Ali v. The State (P L D 1968 Lah. 537), in which case the Full Bench autho rity of this Court mentioned above was not brought to the notice of the learned Judge.
3. In view of the Full Bench authority, mentioned above, this petition for revision is not competent and is hereby dismissed.
Revision petition dismissed.
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