FORM No.

HCJD/C-121

ORDER SHEET
IN THE LAHORE HIGH COURT
RAWALPINDI BENCH.

JUDICIAL DEPARTMENT
Writ Petition No.2531 of 2018.

Ahmad Khan
Vs
Additional Sessions Judge, Talagang and four others

S.No.of order/ Date of Order with signature of Judge, and that of Parties of
Proceeding order/ counsel, where necessary.
Proceeding
19.02.2019 Mr. Saad Bin Safdar, Advocate for the
petitioner.
Mr. Zaheer Ahmad Malik, Advocate for
respondents.
Mr. Qaisar Abbas Shah, Assistant Advocate
General.
Mr. Ansar Nawaz Mirza, Advocate as
amicus curiae.

The facts relevant for the decision of instant writ

petition are that Mehr Bhari/respondent No.3 got lodged an
FIR No.67/2018 dated 01.09.2018 against Ahmad Khan
(petitioner) and others, for offences under sections 337-
F(i), 337-F(ii), 337-L(ii), 34 PPC at police station Lawa,
Tehsil Talagang, alleging that she as well as her daughter
Sharifan Khatoon were inflicted injuries by the accused
persons with their respective weapons. Sharifan Khatoon
and Mehr Bhari were medically examined on 22.7.2018
through MLC No.318/2018 and MLC No.319/2018,
respectively. The petitioner was of the view that injuries
were self inflicted, as such, he filed an application before the
learned Judicial Magistrate Section 30-Talagang, for
constitution of Medical Board for re-examination of both the
injured, the said application was dismissed vide order dated
12.09.2018, where-after, a criminal revision filed by the
petitioner also met the same fate vide order dated
Writ Petition No.2531 of 2018.

17.09.2018 passed by learned Additional Sessions Judge,

Talagang, by observing that the order of learned Judicial
Magistrate dismissing application for constitution of
medical board, is administrative order and thus not
revisable under section 435 Cr.P.C. In support of his
observations the learned Additional Sessions Judge placed
reliance on “Mehmood Ali versus Khadim Hussain alias
Bagh Ali and 3 others” (2010 YLR 2772) and “Muhammad
Shafi versus Munir Ahmad and another” (2010 P.Crl.L.J.
1799)

2. The above two orders have been assailed through the

instant writ petition and the learned counsel for the
petitioner while arguing the case referred the case
“Muhammad Iqbal versus Additional Session Judge,
Khanewal and another” (2004 MLD 1401) and contended
that in this cited judgment, it has been held that criminal
revision filed against an order of Magistrate refusing to
constitute a Medical Board, is revisable. Since on the same
question of law divergent views of this court were available,
therefore, pursuant to the order dated 25.10.2018 the
learned Single Bench referred the matter to the Hon’ble
Chief Justice, as a result whereof, the same was ordered to
be listed before the Division Bench, hence, this order.

3. We have heard the arguments of learned counsel for

the private parties, the learned law officer as well as the
learned amicus curiae and also examined the case law cited
from respective sides. The gist of cases, wherein, under
specific facts and circumstances the orders passed by the
Magistrate have been held to be judicial orders, is given
below:-

i- “Muhammad Iqbal versus Additional Session

Judge, Khanewal and another” (2004 MLD
1401).

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Writ Petition No.2531 of 2018.

This is a case wherein, application for constitution of

Medical Board to re-examine the injured moved after
26 days of the medical examination, was dismissed on
the ground that after such long time medical board
could not be constituted for re-examination; a revision
filed against said order was allowed by Additional
Sessions Judge. The revisional order was assailed
before this court on the ground that order passed by
Ilaqa Magistrate being an executive order, no revision
could be filed, but this argument was rejected and writ
petition was dismissed.

ii- “Mansab Ali versus Asghar Ali Faheem Bhatti

and 3 others” (PLD 2007 Lahore 176)
In this case application for exhumation of grave was
dismissed by the Judicial Magistrate, where-against a
revision was filed, which was allowed by remanding
the case. In post remand proceedings, the said
application was accepted by the Judicial Magistrate,
which order was again challenged in criminal revision
and the same was dismissed by learned Additional
Sessions Judge, where-after, a writ petition filed
before this court, was also dismissed. This matter was
about exhumation of graveyard and proceedings were
carried out under section 176 Cr.P.C., thus the facts of
the said case are clearly distinguishable from the facts
of the instant case.
iii- “Muhammad Anwar versus Dr. Ghulam
Murtaza” (PLJ 1997 Lahore 1568).
This is a case wherein, the matter was directly
brought to the High Court through writ petition and in
the light of relevant notifications it was held that
District Medical Board can only examine such cases
on judicial orders of District Magistrate, but no
parameters or differences between the judicial or
executive orders were discussed.

iv- “Muhammad Rizwan versus The State and

others” (2017 MLD 1828)

In this case, application for medical examination of the

injured had been turned down by the Magistrate and
the criminal revision filed against said order was
dismissed by Additional Sessions Judge on the ground
of maintainability, however, both the above orders
were set-aside by this court, but the question whether
the order of Magistrate is judicial or an executive
order and whether criminal revision is maintainable
or not, was not discussed in this case and only the

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Writ Petition No.2531 of 2018.

question of limitation for moving an application for re-

examination of injured, was discussed.
Following are that cases wherein, the orders passed by the
courts have been declared to be executive orders:-

i- “Mehmood Ali versus Khadim Hussain alias Bagh

Ali and 3 others” (2010 YLR 2772)
In the cited case, application for re-examination of the
injured was dismissed by Judicial Magistrate and
criminal revision filed before Additional Sessions
Judge had been turned down, where-after, writ
petition was filed before this court on the ground that
order passed by the Ilaqa Magistrate is executive
order and could not be assailed through revision
petition. The writ petition was dismissed but no
reasons for it being a judicial order were discussed and
the writ petition was decided on the ground that
learned counsel for the petitioner could not establish
that the order of Magistrate is executive order. It
appears that the said writ petition was dismissed in
limine, as neither the state was represented nor any
counsel for other respondents has been marked
present.

ii- “Muhammad Shafi versus Munir Ahmed and

another” (2010 P.Cr.L.J. 1799)
This is a case wherein the Magistrate had allowed the
injury sustained by the complainant to be verified by
the Medical Board. The said order was however, set-
aside by Sessions Court while allowing a criminal
revision. Ultimately this court while accepting
Criminal Miscellaneous application, set-aside the
order of the Sessions Court by holding that the order
of Magistrate being an administrative order could not
be challenged through a revision petition.

iii- “Nasreen Bibi versus Nazeer Ahmad and

another” (PLJ 2001 Cr.C (Lahore) 355).

In this case, when police applied for remand of an

accused, the Magistrate converted offence from 354
PPC to 354-A PPC, which order was challenged in
criminal revision which was allowed by Additional
Sessions Judge and the order of the Magistrate was
set-aside. This court however, while allowing Criminal
Miscellaneous application quashed the order of
Additional Sessions Judge, by holding that revision
against the said order of the Magistrate was not
maintainable and that power of revision could be

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Writ Petition No.2531 of 2018.

exercised only when a proceeding is pending before

any inferior criminal court
4. After going through the above case law, there remains
no doubt that under the Criminal Procedure Code a
Magistrate is entrusted with diverse duties and in
discharging the same, does not always function as a court,
conducts judicial proceedings or is amenable to the
revisional jurisdiction. Some of his powers and duties under
the Code are administrative, executive or ministerial and
he discharges these duties not as a court but as a persona
designata. Mere name or designation of a Magistrate is not
decisive of the question because at some times the
Magistrates perform their duties by applying their judicial
minds but these proceedings are administrative in nature
and some time their orders are judicial orders and the
guiding principles have been settled by the superior courts
in this respect.

5. After careful study of case law on the subject,

especially the case “BAHADUR AND ANOTHER versus THE
STATE AND ANOTHER” (PLD 1985 Supreme Court 62) and
the definitions provided in Black’s Law Dictionary VIth Edn,
we can further summarize the situation in the manner that
while drawing bifurcation between the two orders, whether
the same are judicial or administrative in nature, the court
must keep in mind the following conditions:-
Traits of Judicial Order.
i) There must be power to hear and determine a
controversy;
ii) There must be power to make a binding
decision (sometime subject to appeal) which
may affect the person or property or other
rights of the parties involved in the dispute;

iii) It must involve the doctrine of res-judicata

which has been held not to apply to the
exercise of administrative powers;

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Writ Petition No.2531 of 2018.

iv) It must touch the doctrine of functus officio

which has been held not to apply to prevent
the exercise of administrative powers;

v) It must be binding and conclusive in so far as

it cannot be impeached in collateral
proceedings and it cannot in general be
rescinded by the tribunal itself.

Traits of Administrative Order.

i) Administrative functions consist of those

activities which are directed towards the
regulation and supervision of public affairs
and the initiation and maintenance of the
public services;

ii) An administrative order is potentially open to

attach for any material error of law or fact in
either direct or collateral proceedings;

iii) It cannot constitute res-judicata;

iv) It may always be rescinded by the body

making it.

Now, when we gauge the impugned order dismissing the

application for re-examination of an injured, on the
touchstone of above criterion, there remains no ambiguity
that it definitely falls in the second category i.e.
administrative order, for the reason that while passing such
an order by the court, definitely no lis was pending before
the learned Judicial Magistrate, he was not functioning as
criminal court, it was not obligatory for the said Magistrate
to hear the parties before making such an order, there was
no conclusive decision given and, no finality or
irrevocability was attached to it. As such, the order passed
by the Ilaqa Magistrate was clearly missing the necessary
characteristics of being a judicial order, as a consequence
whereof; against the same order the revisional jurisdiction
was not available to the learned Additional Sessions Judge.

6. So far as the case “Muhammad Aslam, etc versus The

State” (Writ Petition No.3780 of 2010) authored by one of

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Writ Petition No.2531 of 2018.

us, is concerned, I have gone through the entire judgment

and observe that the same was based on a judgment
reported as “Ghulam Sarwar and another versus The State”
(1984 P Cr. L J 2588), wherein, with reference to physical
remand order, certain guidelines were setforth, including
that the Magistrate shall forward a copy of his order passed
under section 167, Cr.P.C. to the Sessions Judge concerned
and the Sessions Judge could examine the same under
section 439-A Cr.P.C. From perusal of this judgment, it
appears that as liberty of the citizen is an important
consideration under the law, during investigation
delivering custody of the accused to the police, the
Magistrates have to be more conscious and it was directed
in the judgment that copy of physical remand order be sent
to the Sessions Judge and under section 439-A Cr.P.C. read
with section 435 Cr.P.C. when record of any proceedings is
available before the Sessions Judge, he could examine its
legality and propriety, etc. Therefore, the case referred by
the learned counsel for the petitioner has arisen out of
specific facts and circumstances, thus, has no binding
impact on the facts of the case in hand.

7. For what has been discussed above, we are convinced

that an order of Judicial Magistrate allowing or dismissing
an application for medical re-examination of the injured
being an executive order, is not amenable to revisional
jurisdiction. Thus, the order dated 17.09.2018 passed by
the learned Additional Sessions Judge, Talagang dismissing
the criminal revision filed against the order of the Judicial
Magistrate dated 12.09.2018 dismissing application for
constitution of medical board, is held to be based on perfect
application of law. The instant writ petition is dismissed.

8. Apart from above legal position, it is observed that the

alleged occurrence took place on 01.09.2018, both the

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 Writ Petition No.2531 of 2018.

injured persons were medically examined on 22.07.2018

and now almost seven months have passed, the injuries
sustained by the victims are covered under sections 337-
F(i), 337F(ii) and 337-L(ii) PPC, after such long with all
probability the wounds must have healed up, therefore, it
would be a futile effort to get them medically re-examined at
this belated stage. However, during the trial the doctor who
had medically examined these victims must be appearing
before the learned trial court, where the accused party
would have ample opportunity to cross-examine him on the
above aspects.

(Muhammad Tariq Abbasi) (Muhammad Qasim Khan)

Judge. Judge.

Announced in open court today on _____________

(Muhammad Tariq Abbasi) (Muhammad Qasim Khan)

Judge. Judge.

Approved for reporting.

Judge.
Javed*

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