Saturday, 6 February 2016

Powers of Magistrate to Discharge Accused

PLJ 2015 Lahore 220[Multan Bench Multan]
Present: Sikandar Zulqarnain Saleem, J.
versus
STATE and 4 others--Respondents
W.P. No. 8591 of 2009, decided on 6.5.2014.
----Art. 199--Pakistan Penal Code, (XLV of 1860), S. 392--Criminal Procedure Code, (V of 1898), S. 561--Constitutional petition--Discharge of accused--Challenge to--Revision petition was accepted--Assailed--Revision was not competent against discharge order--Discharge order was merely administrative executive order regarding custody of accused--Validity--An order of discharge only means that physical custody of such an accused is not further required for purpose of investigation at present stage--It by no stretch of imagination, can be construed to be an order regarding cancellation of criminal case or termination of prosecution--Such an order of discharge can always be recalled by magistrate whenever, subsequently physical custody is required for proper investigation--Discharged accused person can subsequently be summoned by trial Court to face a trial--Police was quite justified in seeking discharge of accused and magistrate was also amply justified in passing order, therefore, no occasion has been found by High Court for interference in said order passed by pagistrate.
                                                                      [Pp. 221 & 222] A, B & C
Mr. Ahmad Raza, Advocate for Petitioners.
Date of hearing: 6.5.2014.
Order
Brief facts of the instant petition are that on the application of Muhammad Ashraf son of Muhammad Siddique case F.I.R. No. 91 dated 07.04.2009 was registered against the petitioners at Police Station Kameer, District Sahiwal, under Section 392 P.P.C. Thereafter, investigation officer after concluding the investigation recommended the discharge of accused persons from the aforementioned F.I.R The learned Magistrate Section 30, Sahiwal acceding with the request made by the I.O. had passed well reasoned order dated 05.05.2009 while discharging the accused from the case.
2.  Muhammad Ashraf, complainant of the case, being aggrieved of the order dated 05.05.2009 filed a revision petition which was accepted on 19.06.2009 by learned Addl. Sessions Judge, Sahiwal in the following terms:--
"The petitioner/complainant, who is present in the Court has stated that he never submitted affidavit to the police regarding innocence of accused. Accused have committed his dacoity and police in connivance with the accused have found them innocent and fraudulently got them discharged from the learned Judicial Magistrate, There is no affidavit of the complainant and in the light of the contentions of the learned counsel for the petitioner/complainant it is sufficient to hold that I.O. with connivance of the accused have found them innocent on the basis of the alleged affidavit of the complainant. The learned Judicial magistrate was duty bound to ask for production of original affidavit or to summon the deponent regarding its truthness but only depending on the report of the police learned judicial Magistrate discharged the accused, who has been named by the complainant in his petition for lodging FIR. In these circumstances impugned order dated 05.5.2009 passed by the learned Judicial Magistrate P.S KameerSahiwal is set aside and the revision petition is accepted and record of challan be sent to learned Judicial Magistrate P.S. Kameer, who is directed to proceed further in their matter strictly in accordance with law."
Hence, through this Constitutional Petition under Article 199 of the Islamic Republic of Pakistan read with 561 Cr.P.C. petitioner has assailed the order passed by the learned Addl. Sessions Judge and has sought quashing of the case.
3.  Heard. Record perused.
4.  Contention made by the learned counsel for the petitioner that learned Addl. Sessions Judge had acted beyond the mandate of law as the revision petition was not competent against the discharge order passed by the learned Magistrate, carries weight as an order of discharge is merely an administrative executive order regarding custody of an accused person.
5.  No restraint whatsoever has been placed on the authority of the Investigating Officer, who is authorized to make an independent, impartial and transparent investigation which should be given due weight unless some malafide or dishonesty is alleged.
6.  An order of discharge only means that physical custody of such an accused is not further required for the purpose of investigation at  present  stage.  It, by no stretch of imagination, can be construed to

be an order regarding cancellation of criminal case or termination of prosecution.
7.  Such an order of discharge can always be recalled by the Magistrate whenever, subsequently physical custody is required for proper investigation. Even a discharge accused person can subsequently be summoned by the trial Court to face a trial.
8.  The order passed by the learned Magistrate. Sahiwal is a reasoned order and I have found no perversity of reasoning of illegality of approach therein. In view of the fact that the aggrieved persons had produced affidavits in support of the conclusion of the police and the same were not rebutted by the complainant's counsel. Therefore, it appears that the police was quite justified in seeking discharge of the accused/petitioners and learned Magistrate was also amply justified in passing the order dated 05.05.2009, therefore, no occasion has been found by this Court for interference in the said order dated 05.05.2009 passed by the learned Magistrate Section 30, Sahiwal.
9.  Before parting with this Order, in view of the observation made above, the order passed by the learned Addl. Sessions Judge, is set aside as revision petition was not competent.
(R.A.)    Petition dismissed

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