P L D 1980 Lahore 28 (PLP)

By this petition under section 439, Cr. P. C., petitioner Bashir Ahmad complainant in the case questions the legality of the order dated 16-7-1978 by which Magistrate 1st Class, Jaranwala, discharged respondents Nos. 3 to 6 (hereinafter referred to as respondents) accused of an offence under section 302/34, P. P. C.

2. Facts as are relevant to the disposal of this petition, briefly stated are, that respondents were named as culprits, responsible for the murder of one Abdus Sattar in the F.

1. R. lodged at the instance of the petitioner who claims to be the witness of the occurrence. During investigation, the respondents came out with a different version which was accepted. In the final report under section 173, Cr. P. C. (hereinafter referred to as Code) dated 16-7-1978, therefore, a different set of persons, including the petitioner was challaned and recommendations recorded for the discharge of the respondents. Concurring with the police report, a Duty Magistrate, Jaranwala, passed the impugned order which reads thus : MULZIMAN HAZZIR HAIN POLICE KI ISTADAA YEH HAI KAY IN KO DISCHARGE KIA JAI. BA HUKKAM-E-HAZA DISCHARGE KIYA JATA HAI. FAZIL ILAQA MAGISTRATE SAHAB KI KHIDMAT MAI HUKAM-E-HAZA ARSAAL HOOAY. 16-7-78 M.

1. C. (D)."

3. It is argued that the offence of murder punishable under section 332, P. P. C. being triable exclusively by a Court of Session, a Magistrate is not empowered to discharge a person accused of this offence. In such cases, under section 190(3) of the Code, Magistrate acts merely as a post office to send, without recording any evidence, the accused to the Court of Session for trial. A Court of Session, under section 265(k) can acquit an accused at any stage of the case if it considers that there is no probability of the accused being convicted of any offence. Concept of discharging an accused, albeit on police report, before the matter is taken up by a competent trial Court is no more known to the law after the amendments, in the relevant field, introduced in the Code by the Law Reforms Ordinance, 1972. 1 have considered the contention raised.

4. Some fundamental amendments, particularly in the procedure for the trial of criminal cases, have been enacted in the Code by the Law' Reforms Ordinance, 1972. Chapter XXI dealing with the `trial of the Warrant Cases by Magistrates' has been omitted. Chapter XX, with necessary, amendments, provides the procedure for the trial of the `cases by Magistrates'. A Magistrate is no more empowered, as he was under the omitted section 253 of the Code, to discharge a person accused of an offence triable by a Magistrate. Under section 249(A), he can, however, acquit an accused at any stage of the trial. Similarly, Chapter XV111. regarding `Inquiry into Cases triable by the Curt of Session or High Court' has been omitted. Under section 109, falling in Chapter XVIII, a Magistrate could discharge a person accused of an offence triable by Court of Session but such a power is not provided under the present arrangement. As already noticed, under section 190(3) of the Code, he is obliged to send, without recording any evidence, an accused to the Court of Session for trial. Chapter XXIII, providing procedure for `Trial of Cases' by the High Court and the Courts of Sessions has, also, been omitted and instead Chapter XXII-A has been enacted. Even the Court of Session under Chapter XXII-A has no power to discharge an accused and it can only acquit an accused under section 265(k). There is thus no difficulty for forming the view that under the present system, no Court is empowered to discharge, the term being understood in the technical sense, a person accused of an offence triable by a Court of Session or even by a Magistrate.

5. The aspect, however, if the order can be sustained under any other provision of the Code needs further consideration. It may be remembered that, as is apparent from the facts already noticed, the respondents were found innocent in police investigation and the police, therefore, did not intend to submit a challan against them. The order in its true import is tantamount to the cancellation of the case against them.

6. Chapter XIV deals with the subject of `information' to the police and its powers to investigate. Police machinery relating to the commission of cognizable offences, is set in motion on a report under section 254 of the Code. Powers of the Investigating Officer and the procedure to be followed during investigation have been indicated in various sections occurring in this Chapter. Under section 169, if, upon an investigation under this Chapter, it appears to the Officer in Charge of the Police Station or to the Police Officer in charge of the Police Station or to the Police Officer making the investigation that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the ac-used to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond with or without sureties, as such officer may direct, to appear if and when so required before a Magistrate empowered to take cognizance of the offence on police report and to try the accused or send him for trial- underlining* is by me. This section has, also, been amended; word `commit' has been replaced by the word `send'. 'The section, therefore, applies to both the types of offence i.e triable by a Magistrate and a Court of Session. Final report at the close of the investigation is submitted under section 173 of the Code. Under clause (a) of this section, he Investigating Officer, is to indicate i4ter alia if the accused being forwarded is in custody or hers been released on his bond, if so, whether with or without sureties--the underlined* portion (uuderlining* being by me) has, obviously, reference to section

169. Under subsection (3) of this section, whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such an order for the discharge of such bond or otherwise as he thinks fit. The concept to discharge an accused of an offence, in this sense is, still alive. The argument that subsection (3) can be invoked only in cases where the accused is released by a police officer under section 169 cannot be accepted. Accepting this will amount to placing a very narrow interpretation on this provision of the Code. If a police officer, when satisfied that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate can release him under section 169 of the Code, on his executing bond. with or without sureties to appear before a Magistrate empowered to take cognizance, why a Magistrate cannot discharge and release such a person under section 173(3) if produced before him in custody.1 Order 'of discharge of a person accused of an offence triable by a Court of Session, therefore, will be a valid order. Such an order is of an administrative nature. A complainant aggrieved of this order is not 1-.ft without remedy; he can institute a complaint under section 200 of the Code. For the view I have taken, I am supported by a Judgment of this Court reported as Sardar and others v. Muhammad Niwaz, and another (P L D 1949 Lab. 537). Kayani, J. (as his Lordship then was) on the facts somewhat similar to the facts of the case in hand; proceeded to observe "In the second place, the order of the Magistrate "discharging" the accused was apparently one under section 173 of the Code of Criminal Procedure. Under that section the Investigating Officer forwards to the Magistrate empowered to take cognizance of an offence a report in a prescribed form and in such report if he has found that there is not sufficient evidence against the accused and has, therefore, released the accused on their executing a bond under section 169 of the Code to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, he recommends to the Magistrate that no further action be taken. If he uses the word "discharge" or `acquit', he will not have used the word correctly, nor will the Magistrate, whatever expression he uses to signify his intention that he does not propose to take any further action, be understood to discharge or acquit the accused person or persons. The order which the Magistrate passes under section 173 is essentially an administrative order and not a judicial order, and it does not amount either to a discharge or an acquittal of the accused. See in this connection Brahm Dev v. Emperor A I R 1938 Lab. 469, which is based on A I R 1933 Pat. 242." A similar view was taken by a Full Bench of this Court in the case of Wazir v. The State (P L D 1962 Lab. 405). While considering, if the provisions of section 169 are to be construed strictly, it was observed : "We were told by learned counsel for the respondent that the cancellation could not be under subsection (3) of section 173, and that apart from that subsection there was no other provision which enabled a Magistrate to cancel a case. Subsection (3), he argued, was applicable to a case where the accused had been released on his bond under section 169, which provides that if it appears to the Police Officer that there is not sufficient evidence to justify the forwarding of the case to a Magistrate, such officer shall release the accused on a bond requiring him to appear before a Magistrate empowered to take cognizance of the offence and to try the accused or to commit him for trial. If this argument is accepted, then, in the event of an omission by the police officer to release on bond the Magistrate will not be empowered to discharge the accused or to cancel the case even if the Police Officer had reported that there was no sufficient evidence against the accused. We think that such power is inherent in section 173 read with section 190 of the Code of Criminal Procedure, though the language of subsection (3) does not directly apply to the case." Amir All v. The State and others ( P L D 1966 Lab. 537), was cited presenting an opposite view but, I find, even in this case power of the Magistrate to strike off a case under section 173(3) is not questioned.

7. For the foregoing reasons, I am inclined to hold that the recent amendments introduced in the Code of Criminal Procedure by the Law C Reforms Ordinance, 1972, have not affected the powers of the Magistrate to cancel a case under section 173(3) of the Code. This petition, therefore, ha no merit and is dismissed. accordingly. Petition dismissed: