2013 P Cr (PLP)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Through the instant petition filed in terms of section 561-A, Cr.P.C. Muhammad Rafique and Ali Akbar Nasir/petitioners have assailed the vires of impugned order dated 11-10-2010, passed by learned Senior Special Judge, Anti-Corruption Punjab, Lahore; whereby on presentation of report under section 173, Cr.P.C. in case F.I.R. No.17, dated 4-8-2008, offence under section 409, P.P.C., read with section 5(2) of Prevention of Corruption Act, 1947, registered at Police Station ACE, Pakpattan Sharif; wherein while exonerating the petitioners discharge report was prepared by the Investigating Officer, the learned trial Court had directed for conducting re-investigation and submission of fresh report under section 173, Cr.P.C.

2. Learned counsel for the petitioners contends that the impugned order has been passed in a stereotype manner without adverting to the facts of the case and law on the subject. Learned counsel vehemently contends that no doubt the learned Special Judge while exercising magisterial powers can agree/disagree with the report prepared under section 173, Cr.P.C.; particularly when discharge report is prepared, however, in no way he can order for re-investigation as it is only the prerogative of the Investigating Agency, hence the impugned order is liable to be set aside. Learned counsel for the petitioners, in the circumstances, prays for setting aside the impugned order.

3. I have anxiously considered the arguments advanced by learned counsel for the petitioners and gone through the record available on file.

4. There is no cavil to this proposition that Presiding Officer holding courts constituted under the Special Act(s) are simultaneously empowered to conduct trial, as well as, exercise magisterial powers, however, it is cordial principle of law that once report under section, 173, Cr.P.C. is prepared with regard to discharge of accused, the court has the authority to examine the same in light of material collected by the police and the facts floating/oozing from the record and if the court is satisfied that the findings of the Investigating Officer are not based upon sound reasoning; it can disagree with the same; thereby directing for initiation of trial, however, there is no provision in the Criminal Procedure Code, which may empower the court to direct for re-investigation at stage of considering the report under section 173, Cr.P.C. and nevertheless there is no bar on re -investigation of any case, however, it is the exclusive prerogative of the Investigating Officer to look into the same and if new facts come on record, to seek permission of the court for re-investigation. Hence, after examining the impugned order passed by learned trial Court from all aspects, this Court has arrived at the conclusion that the same is against the norms of criminal justice and not sustainable in the eyes of law. Resultantly, the instant petition is allowed as a consequence whereof impugned order dated 13-10-2010, passed by learned Senior Special Judge, Anti-Corruption Punjab, Lahore, is set aside with direction to the learned court below to take into consideration the facts and circumstances floating on the record coupled with the material collected by the Investigating Officer during the course of investigation and give definite findings while agreeing/disagreeing with the discharge report. The learned trial Court is expected to proceed in the matter strictly in accordance with law without being prejudiced from the findings made hereinabove.

5. The instant petition succeeds in the above terms. MWA/M-85/L Petition allowed.