1995 PLP 1744 (MLD)

3. Learned counsel for the petitioner vehemently contended that respondent No.1 did not apply his judicial mind to the facts and circumstances of the case as the respondents Nos.4 to 11 and 13 were specifically mentioned and specific role has been attributed to them; respondent No.1 accepted the request of the Investigating Officer without applying his mind thereby discharged the respondents from the charges against them. Further contended that the report under section 173, Cr.P.C. of discharge prepared by respondent No.3 on the directive of respondent No.2 is not based on any lawful reasons as there is sufficient material on record to implicate the respondents in the commission of crime as mentioned in the F.I.R.

4. I have heard the arguments advanced by the learned counsel for the petitioner at length and have gone through the law relied upon by him.

5. Learned counsel relied upon Ghulam Hussain and others v. Syed Anwar Hussain 1991 MLD 523, Bahadar and another v. The State and another PLD 1985 SC 68 and Writ Petition No.4475 of 1993.

6. The question primarily which arises for consideration in this writ petition is whether the Constitutional jurisdiction of this Court can be invoked if the Magistrate discharges an accused person on a police report. In case Bahadar and another v. The State and another PLD 1985 SC 62 relied upon by the petitioner is of no help to him as firstly the question before the Supreme Court was whether the report submitted under section 173, Cr.P.C. discharging accused and cancelling a criminal case is amenable to a revisional jurisdiction of High Court under sections 435 to 439, Cr.P.C. or not. It was held in supra case:'‑‑‑ "Though a Magistrate in cancelling a registered criminal case is required to act judicially in that he has to act fairly, justly and honestly, a duty common to the exercise of all State power, there is no lis before him, there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order. The party is left free to institute a complaint on the same facts, and the same Magistrate does not even after passing such an order render himself functus officio. On the contrary he is quite competent to entertain and deal with such a complaint on material presented to him. These peculiarities establish beyond any doubt that in so concurring with a report submitted under section 173, Cr.P.C. he does not function as a criminal Court. For that reason his order is not amenable to revisional jurisdiction under sections 435 to 439, Cr.P.C. This appeal is, therefore, allowed, and the impugned order of the High Court is set aside, as .one without jurisdiction:" In case Ghularn Hussain and others v. Syed Anwar Hussain 1991 MLD 523 supra relied upon by the learned counsel, admittedly the Magistrate was unable to explain as to why he discharged the accused and had frankly conceded that he did not see the entire police file while passing the impugned order. On the basis of above facts keeping in view the Hon'ble Supreme Court's dictum laid down in Bahadar's case supra, the impugned order passed by the Magistrate was held not a judicial, fair and just order as undoubtedly was passed arbitrarily and capriciously, hence was set aside under Article 199 of the Constitution of Islamic Republic of Pakistan with the direction to pass a fresh order in the light of dictum laid down in supra case of Bahadar.

7. In the instant case, the order passed by the learned Magistrate is a speaking and judicial one who observed that the respondents remained on physical remand for 13 days and nothing incriminating has been recovered from them; further after perusing the record and hearing arguments of the parties he was of the view that though the respondents were nominated in the F.I.R. but there is nothing on record to show the involvement of the respondents in the offence. _ The Magistrate as is evident from the order itself applied his judicial mind in the facts and circumstances of the case and has given reasons for discharging the respondents on the report under section 173, Cr.P.C. and passed the order. Similarly, the facts mentioned in the Writ Petition No.4475 of 1993 are distinguishable from the casein hand and has no help to the petitioner. In the . case Habib v. State 1983 SCMR 370, their Lordships of Supreme Court of Pakistan observed that a, Magistrate is competent to discharge the accused on a police report even in that cases where the offence is exclusively triable by the Sessions Court.

8. Learned counsel for the petitioner could not satisfy me that the petitioner has got no other adequate remedy as mentioned in Article 199 of the Constitution of Islamic Republic of Pakistan which reads as under:‑‑‑ "

199. Jurisdiction of High Court.‑‑‑(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,‑‑‑ (a) .......................................................................................................................... (b) ......................................................................................................................."

9. As the Constitutional jurisdiction of this Court cannot be invoked if the petitioner has got another adequate and efficacious remedy available to him in the form of private complaint as held in case Awal Khan v. The Superintendent of Police, Attock and 13 others 1989 PCr.LJ 909, the discharge order cannot be equated with the order of acquittal, hence the petitioner can file a complaint before the Court of competent jurisdiction. Further the Magistrate has observed in its order that the respondents may be apprehended in the case if anything comes against them; the petitioner can also move the police hierarchy for re‑investigation of the case as there is nothing in Criminal Procedure Code to prevent the Investigating Officer from submitting the subsequent report in supersession of his earlier one on his own motion or on the direction of higher authorities as held in case Aftab Ahmad v. Hassan Arshad and 10 others PLD 1987 SC 13.

10. For the foregoing reasons, I am of the view that no case is made for interference by this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The order passed by the learned Magistrate cannot be termed as without lawful authority. Though the police report is‑not binding on the Court, but the Magistrate can consider the same in the light of facts and circumstances. The petitioner has an adequate and efficacious remedy by way of moving private complaint as observed in Bahadar's case supra; the party is left free to institute a complaint on the same basis and the same Magistrate does not even after passing such an order render himself as functus officio. Hence, this petition being not maintainable stands dismissed in limine. However, the petitioner, if so advised, may file private complaint or approach IC before police hierarchy in accordance with law. AA./M‑2489/L Petition dismissed.