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Criminal Miscellaneous No. 49‑Q of 1985, heard on 6th November, 1985.

‑ S. 561‑A‑QuashAnf of proceedings ‑Accused person, held, could not invoke provisions of S. 561‑A, Cr.P.C in a case under inves tigation.

---S. 249‑A‑Qulashing of proceedings‑Provisions of S. 249‑A, held, would apply only to a case pending in Court‑Magistrate interrupting investigation and setting accused at liberty, held, acted without jurisdiction‑Order 'set aside, in circumstances.

The Magistrate may or may not agree with the charge report in a case made by the police under section 173, Cr. P. C. is altogether a different matter because the charge report is presented at a stage when the investigation is complete and the Magistrate is required to take cognizance of the offences but in a case which is still under investigation the Magistrate has no authority to interrupt and to direct the offender to be set at liberty. As such both sections 249 and 249‑A, Cr. P. C. will have no application to a case which is under investigation.

Abdus Salam for Petitioners.

Haider Ali Shah for the State. .

Date of hearing: 6th November, 1985.

Abdul Majeed, Mst. Inayat Bibi and Sheikh Mehboob Hussain, petitioners have come up for quashment of the case registered against them under section 14 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, pending in the Court of a local Magistrate Sheikhupura.

2. Facts of the case are that on 8‑4‑1984, a case under the Hudood Ordinance was registered against the accused and they were arrested on the following day. On 10‑4‑1984, the Police produced the accused with remand papers before Mr. Waheedud Din Ahmad Magistrate and asked for the physical remand of the accused to effect the recovery from them. Refusing custody of the accused, the Magistrate ordered that since it was a civil nature dispute, the accused are, 'therefore, set at liberty. Aggrieved with the order, State went up in revision before the Sessions Judge. On 12‑11‑1984, Mr. Azhar Hafeez. Additional Sessions Judge dismissed the revision without examining the legal question involved in the case that is a Magistrate had no authority to interrupt the investigation of a case. The provisions of section 249‑A, Cr P. C. do not apply to a case which is under investigation. It will be relevant to mention at this stage that even an accused person cannot invoice that provisions of section 561‑A, Cr. P. C. in a case which is under investigation. The Criminal Procedure Code does not contemplate such an interruption in the investigation. The provision of 'section 249‑A, Cr. P. C. obviously apply to a case pending in Court. Since in the instant case, the Magistrate interrupted the investigation and set the accused at liberty, he thus acted without jurisdiction. The Magistrate may or may not agree with the charge report to a case made by the police under section 173, Cr. P C. is altogether a different matter because the charge report is presented at a stage‑ when the investigation is complete and the Magistrate is required to take cognizance of the offences but in a case which is still under investigation the Magistrate bas no authority to interrupt and to direct the offender to be set at liberty. As such both sections 249 and 249‑A, Cr. P. C. will have no application to a case which is under investigation. The order of the Magistrate dated 10‑4‑1984 setting the petitioner at liberty and the order of the Additional Sessions Judge dated 12‑12‑1984 passed in revision are both without jurisdiction and as such are inoperative. Consequent y these orders are set aside. Under the circumstances of this case, subsequent investigation was not barred. Since the subsequent investigation is complete and the case bas bees Bert up for trial, the trial Court may at the proper stage consider the matter under section 249‑A, Cr. P. C. This petition is disposed of accordingly.

S.G.D. Order accordingly

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