1995 P Cr (PLP)

Shaukat Ali Mehr for Respondent No.4. Through this Constitutional petition, Saee Muhammad and seven others, accused in case F.I.R. No.229, dated 16-6-1994, under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII, of 1979), Police Station Sadar Mandi Bahauddin, have questioned the legality of re-opening of the investigation after their discharge by the Ilaqa Magistrate.

2. The facts leading to this dispute, briefly, are that Ghulam Rasul son of Nazar 'Muhammad reported to the police that his sister Mst. Fatima Bibi went to the Market for making purchases of the household goods on 14-4-1994 but did not return home. He vainly tried to locate her and ultimately suspected Saee Muhammad and other petitioners to have abducted her. Case was accordingly registered and investigation started by the local police. After the investigation the Investigating Officer came to the conclusion that no proof against the accused could be brought on the record, he, therefore, secured their discharge from the Ilaqa Magistrate. The complainant was then obliged to file a private complaint before the Ilaqa Magistrate. During the pendency of the complaint he moved the police to reinvestigate the case and the police have now initiated reinvestigation, which according to the comments rendered by the Superintendent Police, Mandi Bahauddin, is being carried out by a D.S.P. purely on merits.

3. It is submitted by the learned counsel for the petitioners that once they stood discharged the police was not competent to re-investigate the case.

4. The petition has, however, been stoutly opposed by learned counsel for the respondents contending, inter alia, that the discharge of the accused by the Magistrate does not preclude the police from reinvestigating the case.

5. Arguments have been heard and record perused. In this case what appears to have been happened is that the Police Officer failed to find out sufficient evidence warranting the prosecution of the petitioners, as such, he got them discharged with the order of the Ilaqa Magistrate. However, the complainant who was sure of his case was obliged to file a private complaint. It appears that he approached the police once again and the police reinitiated the investigation. The record shows that the case was not cancelled by the competent Magistrate and petitioners were merely discharged which indicates that the Police Officer investigating the case could not find out sufficient proof of their culpability. This might be due to his inability to collect the evidence or may be otherwise but this does not indicate that the case was no longer alive. By discharge of the accused in such an event, the F.I.R. remains extant and shall only be deemed to be extinct when the case stands cancelled. It is, therefore, obvious that police is competent to reinvestigate the case and the writ in these circumstances is not competent. It may, however, be made clear that this power with the police is not uncontrolled and unbridled. They should proceed in the matter in good faith in the best interest of justice and not actuated by malice. A direction shall, therefore, issue to the S.P. Mandi Bahauddin to ensure that the investigation of the case on proper and fair lines is completed within a period of one month at the most and the petitioners who have already suffered pangs of the long proceedings are not unnecessarily dragged. Disposed of accordingly. N.H.Q./S-423/L ??????????? Petition dismissed.