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Criminal Revision No. 90 of 1980, decided on 6th March, 1982.
---Ss. 169 & 173--Penal Code (XLV of 1860), S. 364-A--Cancellation of criminal case--Police moving for cancellation of case under S. 169, Cr.P.C. on ground of settlement of innocence of accused on oath--At time of hearing complainant however, disowning alleged offer of oath and levelling serious allegations against Police--Contention that Sessions Judge was not legally competent to reject report of Police under S. 169, Cr.P.C., held, misconceived and Sessions Judge justifiably rejected Police report, in circumstances.
---Ss. 190(1), (3) & 169--Cancellation of criminal case--Sessions Judge declining to cancel case on Police report under S. 169, Cr.P.C. and directing police to submit challan for trial--Order of Sessions Judge to submit challan, held, a mere irregularity and not an illegality Case already having been sent up to trial Court, accused, held further, could not be discharged or released under S. 169, Cr.P C., to circumstances.
Iqbal Ahmad Malik for Petitioner.
A.-A.G. for the State.
Date of hearing: 21st April, 1982.
The facts leading up to this revision in brief are that a case under section 342/363, P.P.C. was registered against Habib petitioner
on the report of Haq Nawaz wherein it has been alleged that the petitioner kidnapped Mst. Rizwana Kausar aged 7 years and confined her in a room. The cries of the victim attracted the witnesses to the spot who knocked at the door of the room. When the petitioner opened the door, the witness fend the girl packed in a gunny bag. The petitioner, however, managed his escape. It has been alleged in the F.I.R. that the petitioner had kidnapped Rizwana Kausar in order to dispose of as to put in danger of being subjected to slavery or the lust of any person. Subsequently, section 364'-t-, P.P.C. was added.
2. During the investigation the police moved an application before the learned Sessions Judge, Multan for the cancellation of the case. This application was under section 169, Cr.P.C., as stated in the order of the learned Sessions Judge. According to the police Haq Nawaz, complainant, had agreed to settle the question of the innocence or guilt of the petitioner on the oath of Muhammad Amir, the brother of the petitioner accused. It has also been stated by the police that Muhammad Amir took an oath on the Holy Quran that Habib petitioner was innocent and the police accordingly moved for the cancellation of the case. It is remarkable that Haq Nawaz contested the application. The learned Sessions Judge, however, did not agree with the report and directed the police to prepare a report under section 173, Cr.P.C. and submit the challan on the basis of the statements of the P.Ws. Hence this revision.
3. Learned counsel for the petitioner submits that the learned Sessions Judge was not legally competent to reject the report under section 169, Cr.P,C. and to direct the police to prepare and submit the challan against the petitioner.
4. On the other hand, the learned A.-A.G. has informed that the challan was presented before a Magistrate, who has sent up the same to the learned Sessions Judge for trial and the case has been fixed for 4-5-1982.
5. After hearing the learned counsel for the parties, and going through the material available before me, I find that at the time of hearing of the application Haq Nawaz complainant disowned the alleged offer of oath and levelled serious allegations against the police and, as such, the learned Sessions Judge was justified to reject the application moved by tie police. As far the direction to the police to submit the challan, I feel that the learned Sessions Judge should not have given this direction. To me the order of the learned Sessions Judge to the extent of direction to the police to submit the challan is an irregularity and not illegality. Now, the position is that the challan was presented before the Magistrate, who after taking cognizance under section 190(1) Cr.P.C. has sent up the same under section 190(3) Cr.P.C to the learned Sessions Judge for trial and as such the petitioner cannot be discharged or released under section 169, Cr.P.C.
6. For all these reasons, there is no force in the petition and the same is dismissed.
S.G.D. Petition dismissed.
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