2003 P Cr (PLP)

2. The grievance of the petitioner is that the local police was siding with the accused from the very beginning and were even reluctant to arrest the accused persons. Later, however, the accused were arrested under section 54, Cr.P.C. on the basis of suspicion. Even after investigation the police prepared a discharge report without considering the evidence produced by the petitioner/complainant on the record.

3. The learned Judicial Magistrate received this report and without addressing the questions involved in the case and without a conscious application of mind, proceeded to discharge the accused in a mechanical manner through the impugned order dated 18-1-2003.

4. The learned counsel for the petitioner has contended that according to admitted facts, the dead body of the deceased Rabnawaz was found in the house of the accused persons. Although it was correct that no person was nominated in the F.I.R. in the first instance, the accused/respondents Nos.3 to 6 were implicated as facts unfolded through subsequent investigation.

5. According to the learned counsel for the petitioner once it was established that the dead body was recovered from the house of the respondents Nos.3 to 6 it was incumbent upon the accused persons to explain the circumstances and the identity of the assailant(s).

6. According to the learned counsel for the petitioner the impugned order of the learned Judicial Magistrate is not a speaking order. It is contended that Special Investigation Cell had requested the learned Magistrate for physical remand of the accused Vide order dated 13-1-2003, the accused were remanded to the physical custody of the police for one day only. Vide order dated 14-1-2003 and 20-1-2003, all the accused were discharged on the grounds that there is no evidence on the record which could connect the accused with the offence. It is contended that the said order resulted in miscarriage of justice.

7. The learned counsel for the petitioner relied upon Muhammad Siddique v. S.H.O. Saddar, Sialkot and 4 others PLD 1994 Lah. 407 to contend that the Magistrate has no jurisdiction in the matter and that the impugned orders were without lawful authority and void.

8. It is also contended that as the. impugned order is a non-speaking order, it is liable to be set aside. .

9. On the other hand, Mr. Tanvir Iqbal Khan learned A.A.-G. has stated that as the learned Magistrate is competent to take cognizance of the offence under section 190, Cr.P.C., he is fully authorised to order the discharge of the accused, if no case is established against them. According to him. a line of distinction has to be drawn between acquittal arid discharge of the accused.

10. Raja Zahoor Ahmed, Advocate, the learned counsel for the respondents Nos.3 to 6 has, stated that the impugned order of the learned Magistrate does not suffer from any illegality. Respondents Nos.3 to 6 were not nominated in the F.I.R. They remained on physical remand for a number of days and as nothing was brought out against them on the record the learned Magistrate has passed a well reasoned order. Relying upon Talib Hussain and another v. Muhammad Aslam and another 1997 P Cr. L J 56 it has been contended that if the petitioner is not satisfied with the police investigation he is free to institute a private complaint on the same facts.

11. Arguments have been heard and record perused.

12. The facts of the case are indeed such which would require a serious and indepth investigation by the police. Despite the fact that Investigating Officer in his report found the accused to be prima facie not guilty, the said report was not binding on the Court and notwithstanding the recommendation of the Investigating Officer regarding cancellation of the case and discharge of the accused, the Magistrate could well decline to discharge the accused and may proceed to take cognizance as provided in section 190, Cr.P.C. and summon the accused to face the trial. In the present case, it appears that the learned Judicial Magistrate did not address himself fully to the facts and circumstances of the case. There is no denying the fact that the order of discharge can be lawfully made by a learned Magistrate, but while doing so he is obliged to consider all the aspects of the case and to pass a meaningful and speaking order giving reasons for the discharge of the accused. No such reasons are spelt out from the impugned order of the learned Magistrate.

13. It is correct that a complainant who is not satisfied with the police investigation may file a private complaint himself, upon the same facts but before such a stage can be envisaged, it has to be vouchsafed that the police investigation and the order of the learned Magistrate are conducted and passed in accordance with law.

14. In view of the above, the writ petition succeeds and the impugned order dated 14-1-2003 and 20-1-2003 are set aside and the respondent No.1 is directed to proceed in accordance with law after giving full opportunity to the complainant party to establish its case in accordance with law. H.B.T./M-1913/L??????????????????????????????????????????????????????????????????????????????? Petition allowed.