2001 P Cr (PLP)

Sardar Mahboob for Petitioner. The necessary facts giving rise to the present Constitutional petition are that Sudhir Babar respondent No. 2 is an accused person in case F.I.R. No. 288 registered at Police Station City, Shujabad on 18-6-2000 for offences under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 read with section 9-C of the Control of Narcotic Substances Act, 1997 in respect of an allegation of possession of 1-1/4 kilogram of Charas. Respondent No. 2 was arrested in this case by Rana Latif Ahmed, A.S.I. petitioner and subsequently the said F.I.R. had been lodged by the petitioner at the abovementioned police station in that regard. After registration of the F.I.R. the criminal case in question was investigated by Ghulam Muhammad, S.-I. who opined about the guilt of respondent .No. 2 and prepared a challan against him. The investigation of the said case was also verified by Muhammad Sadiq, Inspector/S.H.O. of the said police station who concurred with the opinion formed by the Investigating Officer regarding guilt of respondent No.

2. Still later the investigation of the abovementioned criminal case was transferred to Range Crime, Multan Range, Multan and Muhammad Yousaf, Inspector, Range Crime, Multan came to the conclusion that the case against respondent No. 2 was false and, thus, he prepared a discharge report In respect of respondent No.

2. The said discharge report was presented before the Judicial Magistrate, Shujabad, respondent No. 1 herein, on 7-8-2000 and respondent No. 1 agreed with the said report and discharged respondent No. 2 from his bond. That order passed by respondent No. 1 on 7-8-2000 has been assailed before this Court by the petitioner through the present Constitutional petition.

2. In support of this petition two grounds have been urged by the learned counsel for the petitioner. It has firstly been argued that respondent No. 1, who his a Magistrate, had no jurisdiction to order discharge of respondent No. 2 as the case against respondent No. 2 was-triable by a Court of Session. In support of this argument the learned counsel for the petitioner has referred to the cases of Muhammad Dildar Hussain and another v. The Civil Judge/Judicial Magistrate, Shujabad and 3 others 2000 PCr.LJ 43 and Sardar Muhammad v. Zaffar Javaid Awan and others PLJ 1996 Lah.

680. The second argument advanced by the learned counsel for the petitioner has been that the impugned order passed by respondent No. 1 on 7-8-2000 was not a speaking order and, thus, the same warranted interference by this' Court.

3. I have heard the learned counsel for the petitioner at some length and have gone through the documents appended with this petition besides perusing the abovementioned judgments referred to by the learned counsel for the petitioner.

4. I feel that reliance placed by the learned counsel for the petitioner on the abovementioned two judgments rendered by this Court is misplaced. The ratio of the abovesaid judgments appears to be that whenever a case is triable by a Court of Session the matter of discharge of an accused person in such cases cannot be dealt with by a Magistrate. With greatest respect to the learned Judge deciding the abovementioned cases it has been felt by this Court that the Honourable Judges were not properly assisted in the abovementioned cases inasmuch as the true import of "discharge" of an accused person in a criminal case had not been brought to the notice of the Honourable Judges in the said cases. It is settled law that discharge of an accused person in a criminal case does not amount to acquittal of such an A accused person and the same also does not mean that the prosecution against him has been smothered or has come to an end. Discharge of an accused person in a criminal case only pertains to custody of an accused person and his discharge is only from his bond meaning thereby that custody of such an accused person is no longer required in such a case for the purposes of investigation and such an accused person does not require bail. This aspect of the matter has been duly considered in the cases of Parul Bala Sen Gupta v. The State AIR 1957 Cal. 379 and Muhammad Waseem v. Additional Sessions Judge and 3 others 1985 PCr.LJ

244. A discharge of an accused person is only an administrative/executive act and, thus, the question as to which Court is to ultimately try such an accused person is hardly relevant to such a matter. It goes without saying that even a discharged accused can still be summoned to face a trial by the learned trial Court if sufficient material becomes available against such an accused person providing justification to proceed against him. Thus, I have failed to find any merit in the first submission of the learned counsel for the petitioner.

5. As regards the second argument advanced by the learned counsel suffice it to observe that the impugned order passed by respondent No. 1 is indeed a speaking order and sufficient reasons have been advanced therein for discharging respondent No. 2 of his bond. The reasons advanced by respondent No. 2 in the said order are not averse to the settled principles governing the law relating to discharge of an accused person in a criminal case. It is also important to mention here that after a thorough investigation of the case the final opinion of the Investigating Agency was that the case against the said respondent was bogus and false and, thus, physical custody of respondent No. 2 was no longer required by the police in connection with investigation of the said case. If the police did not require custody of the accused person then it would have been ludicrous for the Magistrate concerned to thrust or foist his custody on the police in those circumstances.

6. I am also not sure about bona fide of the petitioner in filing of this petition before this Court. Rana Latif Ahmed, A.S.I. petitioner is a police official who had arrested respondent No. 2 in this case and subsequently the case against respondent No. 2 was found by the police itself to be bogus and false. If at all somebody had to approach this Court against the discharge order passed by the Magistrate concerned then it should have been the State 8 which should have moved this Court against the said order and not the arresting police official through a learned counsel engaged privately.

7. For what has been discussed above this petition is hereby dismissed in limine. H. B. T./L-10/L Petition dismissed.