P L D 2026 High Court (AJ&K) 1 (PLP)

FOREWORD: CHAUDHARY KHALID RASHEED, J.

The captioned petition has been addressed under section 561-A, Cr.P.C., whereby order passed by learned Tehsil Court of Criminal Jurisdiction Paniola dated 25.06.2024 through which the request made by investigating officer for physical remand of the accused-respondent has been refused and the Court below discharged accused under section 63, Cr.P.C. has been assailed. STANCE OF PETITIONER. The learned counsel for the petitioner reiterated the grounds already taken in the petition by stated that the Court below has fallen in error while discharging the accused under section, 63 Cr.P.C. merely on the ground that earlier two FIRs were registered against the accused/respondent and he was acquitted of the charges thus the impugned judgment is not sustainable. ENDORSEMENT OF RESPONDENTS. The learned AAG supported the stance taken by the petitioner, hence submitted that whenever the accused repeats the offence further FIR can be registered against him. I have heard the learned counsel for the parties, gone through the record of the case with utmost care and caution. COURT OBSERVATIONS AND RELEVANT LAW: It is observed that under section 63 of Cr.P.C. the Magistrate who is competent to try the offences may discharge an accused person on his own bond, or on bail, or under the special order if the Magistrate is of the view that the detention of the accused will not serve any purpose, however the discharge of accused by the Magistrate under section 63, Cr.P.C. does not tantamount to smothering of the investigation, cancellation of the case, termination of prosecution or acquittal rather if the investigation is in progress can be continued unaffected by order of discharge. Reliance may be placed on PLD 2001 Lahore

271. It is also relevant to mention that despite an order of discharge of an accused person further investigation can be held by the police regarding the offence without obtaining any permission from the Magistrate and the discharged accused person can always be associated by the police with the investigation of the given criminal case at any subsequent stage. While exercising powers under section 63 Cr.P.C., the Magistrate is supposed to go through the material collected during investigation, observe its admissibility in evidence and then to pass an order in accordance with law. Reliance may be placed on 2012 PCr.LJ 1335. It is also worth-mentioning that when an accused is presented before the Magistrate for physical remand under section 167 Cr.P.C. the Magistrate after considering the record may allow the same for the period he deems fit but not more than fifteen days and can also refuse the same and in such a situation the accused shall be sent to judicial lockup if not discharged and set up free by the Magistrate. While discharging an accused the Magistrate has to record reasons that the custody of petitioner is not necessary for investigation purposes. In the instant case, a perusal of the impugned order reveals that the court below has discharged the accused person under section 63, Cr.P.C. on the ground that earlier two FIRs were registered against him in the same offences and ultimately the accused was acquitted of the charges, thus the third FIR in the same offences is a blatant mala fide on the part of complainant and the concerned police. While passing impugned order the Court below has not pondered this ticklish scenario that investigation was under process and only after investigation it can be opined that whether the alleged offences have been committed or the accused has been involved in the case with mala fide intention. It reflects from the record that first FIR was registered against the accused/respondent on 21.07.2019, second on 01.02.2022 and the third one has been registered on 22.06.2024. Whenever an accused person repeats the offence, he is liable to face the tune of law after registration of FIR, hence an accused person cannot be discharged under section 63, Cr.P.C. merely on the ground that some FIRs were registered against him qua he was acquitted rather as observed earlier an accused can be discharged if his physical detention is not required for investigation because discharge under section 63, Cr.P.C. does not come within the ambit of acquittal or cancellation of the case but it is a responsibility of prosecution to prove the allegation against the accused. As per report of Naib Tehsildar Rawalakot, criminal trespass was found in the land of complainant comprising survey No.224 which was in the possession of complainant. The Court below further held that civil cases are also subjudice between the parties. The pendency of civil cases between the parties ipso facto cannot become a basis for discharge of an accused sine investigation as law is well settled that civil as well as criminal cases can be tried side by side, hence the impugned order is not liable to be sustained. As per contents of FIR the accused after cutting tree, stole the wood, which is liable to be recovered, hence, physical remand of accused respondent was necessary. DISPOSAL: The sum and substance of the above discussion is, the instant petition is hereby accepted while setting aside the impugned order the accused respondent is handed over to police for four days and further directed to investigate the matter and if found to be connected wity the alleged offence or otherwise shall submit its report to the concerned Court under section 173, Cr.P.C. as per law. MQ/22/HC (AJ&K) Petition allowed.