1999 PLP 1822 (MLD)

Ss.169 & 173

Penal Code (XLV of 1860), S.302/201/109/34

Discharge order not to be treated as an order of acquittal

Order of discharge passed by the Ilaqa Magistrate cannot be treated as an order of acquittal, nor the same would bar subsequent proceedings against the discharged accused by a Court of competent jurisdiction. Taqi Ahmed Khan for Petitioners. Nemo for Respondents. Date of hearing: 10th July, 1998. In this writ petition order dated 24-4-1998 passed by the learned Additional Sessions Judge, Gujranwala has been challenged, whereby, the petitioners were summoned in a murder case registered under section 302/201/109/34, P.P.C. vide F.I.R. No.1, dated 3-1-1987 at Police Station Wahndo, District Gujranwala.

2. It is contended that the petitioners were discharged from the case vide order dated 8-4-1988 passed by the then Ilaqa Magistrate when a request to that effect was made by the police concerned. It was, therefore, alleged that summoning of the accused by the learned trial Court was without lawful authority and of on legal effect. A prayer was also made that proceedings before the learned trial Court be stayed.

3. I have heard learned counsel for the petitioners and have also gone through the judicial file of the learned trial Court. It appears that the petitioners were summoned vide order dated 26-3-1998 upon which they appeared on 24-4-1998 and submitted bail bonds and the matter was fixed for 18-5-1998 for further proceedings. However, on that date, none of the petitioners appeared in the Court although they had earlier submitted bail bonds for their appearance in the Court below. The matter was, therefore, adjourned to 11-6-1998 to procure their attendance through bailable warrants of arrest. On that date also, the petitioners did not appear in the Court, however, a clerk of the learned counsel informed that writ petition had been filed for which the matter was again adjourned to 27-6-1998. It follows that the petitioners, after appearing in the Court, did not appear later on although they had given surety bonds in the Court below for their appearance in future. The F.I.R. in this case was registered in January, 1987 and since then, the case is hanging fire for different reasons. 3-A. The question for determination in this writ petition is that whether or not the petitioners could be summoned by the learned trial Court after the discharge order was passed by the Ilaqa Magistrate on the police report. The perusal of discharge order shows that it was passed mechanically by the learned Ilaqa Magistrate without application of his mind. He had readily agreed with the police report whereby the discharge of the petitioners was prayed. He did not examine the record nor did state reasons for recording the discharge order in question. Such a mechanical order cannot bind any subsequent order passed by a Court of competent jurisdiction. It is to be noticed that a discharge order passed by the Ilaqa Magistrate cannot be treated as an order of acquittal nor it would bar subsequent proceedings against the discharged accused by a Court of competent jurisdiction. In the instant case, despite of the discharge order, all the four petitioners were placed in column No.2 of the challan alongwith absconding accused. The aforesaid report was submitted on 11-7-1987 which would show that the petitioners were sent up for trial though their names were not included in the subsequent reports under section 173, Cr.P.C. which were forwarded on 4-5-1988 and 30-3-1997. That being the situation, it was in the discretion of the learned trial Court to summon the petitioners and discretion having been exercised in accordance with law does not suffer from any patent illegality so as to call for interference in this writ petition, which being merit less is dismissed. The petitioners shall appear in the Court below, failing which coercive process may be issued to procure their attendance.

4. The original file of the trial Court to be sent back through a special messenger so as to reach there on or before 17-7-1998. The office shall;, - that the file reaches the trial Court as directed. N.H.Q./A-305/L Petition dismissed.