ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Cr. Misc. Application No.S-407 of 2024
DATE ORDER WITH SIGNATURE OF JUDGE
Applicant: Ishtiaque Ahmed Mahessar through Mr. Sajid Hussain Mahessar, Advocate.
The State: Through Mr. Aitbar Ali Bullo, Deputy Prosecutor General, Sindh.
Date of Hearing: 12-02-2025
Date of Order: 20-02-2025
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Khalid Hussain Shahani, J:- The applicant, Ishtiaq Ahmed Mahessar, has invoked the inherent jurisdiction of this Court under Section 561-A of the Criminal Procedure Code, seeking judicial review of the order dated 09.10.2024, issued by the learned Judicial Magistrate/Consumer Protection Court, Larkana. The impugned order pertains to a report submitted under Section 173 Cr.P.C in Crime No.148 of 2024, registered under Sections 506/2, 337H(ii), 147, 148, and 149 of the Pakistan Penal Code at Police Station Waleed. The learned Magistrate declined to take cognizance against the accused, Saeed and three others, and ordered the disposal of the case under the ‘C’ Class category.
2. Succinctly stated, the facts of the case as recorded in the complaint lodged by the applicant on 23.08.2024 indicate that the accused, Saeed and three others, purportedly issued threats of grave repercussions and engaged in aerial firing as an act of retaliation against a prior criminal case, registered as Crime No.130 of 2024 under Sections 366-A and 457 of the Pakistan Penal Code.
3. Pursuant to the standard procedure of investigation, a report was submitted against the accused, Saeed and two others, whereas the co-accused, Javed, was placed in column No.2 of the report/challan under Section 173 Cr.P.C. However, the learned Magistrate, upon review, determined that the instant case had been initiated as a retaliatory action in response to a prior case filed by the complainant, which was similarly disposed of under the 'C' Class category. The prior case was concluded based on the statement of the alleged abductee, Mst. Nisha alias Summan (daughter of the complainant), who deposed that she had willingly entered into a marriage of her own volition with Altaf Hussain.
4. Given that the applicant has impugned the order of the learned Magistrate disposing of the case under 'C' Class, a pointed inquiry was directed to the learned counsel for the applicant regarding the maintainability of such a challenge within the original jurisdiction of this Court. The learned counsel contended that, notwithstanding the submission of a report under Section 173 Cr.P.C by the investigating officer against the nominated accused, the Magistrate erroneously refrained from taking cognizance and unjustifiably disposed of the case under ‘C’ Class. The learned counsel asserted that this order was unlawful and unwarranted. However, he was unable to furnish a cogent response to the specific queries raised by the Court.
5. The primary legal question before this Court is whether a complainant possesses the legal standing to challenge a Magistrate’s order classifying a report under Section 173 Cr.P.C as ‘C’ Class by invoking the original jurisdiction of the High Court. The fundamental issue to be determined is whether such an order qualifies as a judicial determination—thereby subjecting it to revision or inherent jurisdiction under Section 561-A Cr.P.C—or if it constitutes an administrative act, which would require a constitutional petition under Article 199 of the Constitution as the appropriate legal remedy. The Hon’ble Supreme Court of Pakistan, in FIA through Director General and others v. Syed Hamid Ali Shah and others (PLD 2023 SC 265), categorically ruled that the High Court does not have the authority under Section 561-A Cr.P.C to quash an FIR or intervene in investigative proceedings, as this jurisdiction is confined to judicial proceedings before a subordinate court. However, Article 199(1)(a)(ii) of the Constitution empowers the Court to exercise judicial review over actions taken by law enforcement and administrative bodies when such actions exceed their lawful authority.
6. In another case, Syed Qamber Ali Shah v. Province of Sindh (2024 SCMR 1123), the Hon’ble Supreme Court held that an order passed during the investigation phase must be challenged through constitutional jurisdiction rather than by invoking inherent jurisdiction under Section 561-A Cr.P.C. The relevant paragraph from the judgment is as follows:
“Of course, it may be difficult to determine the exact point at which the administrative phase ends and the judicial phase begins. However, an order issued during the investigation phase must be assailed under Article 199 of the Constitution rather than under Section 561-A Cr.P.C. Consequently, the order of the High Court was set aside.”
7. In the case of Muhammad Hanif v. The State (2019 SCMR 2029), the Hon’ble Supreme Court reaffirmed that the intervention of the High Court under Section 561-A Cr.P.C is warranted only after the formal framing of charges. Until such a stage is reached, the investigative process remains within the exclusive domain of law enforcement authorities, and any orders issued during this phase must be challenged through constitutional remedies. Likewise, in Bahadur v. The State (PLD 1985 SC 52), the Supreme Court held that a Magistrate’s decision to cancel a case under Section 173 Cr.P.C does not fall within the ambit of revision under Sections 435-439 Cr.P.C. Nevertheless, the High Court retains the authority to intervene under Section 561-A Cr.P.C in instances where such an order constitutes an abuse of judicial process. This legal principle was subsequently elaborated upon in Muhammad Hanif v. The State and FIA v. Syed Hamid Ali Shah.
08. There is yet another case of Iftikhar Hussain V. Senior Special Judge and 03 others (2015 P.Cr.L.J 1103), wherein it has been held that it established proposition of law that the order passed by Magistrate regarding the cancellation of the case or not concurring with the request for cancellation of case made by the police are administrative in nature and said order can be challenged through a writ petition by invoking Constitutional Jurisdiction of this court, as is held by the august Supreme Court of Pakistan in case of Bahadur Ali and another V. The State and another (PLD 1985 SC 62), but when the Magistrate being seized with the same report while dissenting with the cancellation report summons the accused person to face the trial by the same order, then first part of his order would merge in his order regarding summoning of the accused which is passed under section 204 of the Code of Criminal Procedure, 1998, which is definitely a Judicial order, when it becomes judicial order, it can be assailed through a Criminal Revision only and Constitutional Jurisdiction of this court cannot be invoked.
09. In light of the precedent set in the case of Syed Hamid Ali Shah (Supra), the Supreme Court of Pakistan reaffirmed that an erroneous or inapplicable reference to a legal provision does not ipso facto invalidate an order. However, the instant matter is distinguishable from the Islamabad High Court’s case. Under the Sindh High Court’s procedural framework, a Single Judge exercises inherent jurisdiction under the Criminal Procedure Code, while constitutional petitions contesting such order fall exclusively within the jurisdiction of a Division Bench. Consequently, even if this Single Bench chooses to overlook the specific provision and adjudicate based on substantive merit, it lacks the requisite jurisdiction to entertain the present application, in accordance with established judicial principles upheld by the Supreme Court of Pakistan.
10. Sub-section (2) of Section 3 of the Law Reforms Ordinance, as interpreted in light of the Judgments of the Supreme Court of Pakistan, establishes that an appeal against an order of a Single Judge under Clause (1) of Article 199 of the Constitution lies before a bench comprising at least two judges of the High Court, except where the order falls within sub-paragraph (i) of paragraph (b) of the said clause. However, this statutory right of appeal is precluded if the original proceedings already provide for an appellate, revisional, or review mechanism before any court, tribunal, or competent authority. Additionally, an order issued by a Judicial Magistrate in an administrative capacity does not qualify for appellate or revisional recourse. Hence, in such instances, they only available legal remedy is constitutional petition before a Division Bench, as reaffirmed by Supreme Court precedents.
11. Given that the order rendered by the learned Magistrate, approving the final report under Section 173 Cr.P.C and categorizing it as ‘C’ Class, pertains to an administrative function, this Criminal Miscellaneous Application is dismissed in Limine due to lack of jurisdiction.
J U D G E
S.Ashfaq/-