Case Law (Ss. 63 & 173---Discharge of accused by the Magistrate-. 4(l)---Investigation--Scope---Investigation is the other name of collection of evidence in respect of the crime in question)

P L D 2001 Lahore 271

(a) Criminal Procedure Code (V of 1898)---

----Ss. 63 & 173---Discharge of accused by the Magistrate---Meaning and scope---Understanding, notion and impression that discharge of an accused person in a criminal case meant that further investigation qua him or his prosecution for the reported crime had come to an end, he had finally been absolved of the allegations with his discharge virtually having the effect of an acquittal and because of such a consequence of an order of discharge, such a discharge could be ordered only by the Court competent to try the offence in question and not by a Magistrate if he otherwise lacked jurisdiction to try the relevant offence, were misplaced and misconceived.

(b) Penal Code (XLV of 1860)---

----S. 377---Offence of Zina (Enforcement of Hudood) Ordinance, (VII of 1979), S.12---Anti-Terrorism Act (XXVII of 1997), Ss. 12 & 17---Criminal Procedure Code (V of 1898), Ss. 63, 167 & 344---Remand or discharge of the accused---Jurisdiction---Offence under S.12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was admittedly not included in the Schedule appended with the Anti-Terrorism Act, 1997 whereas an offence under S.377, P.P.C. was a scheduled offence only "if the victim was below the age of twelve years and committed after the commencement of Anti-Terrorism Act, 1997"---Occurrence though had allegedly taken place after the commencement of the Anti-Terrorism Act, 1997 yet the age of the victim in the case being below twelve years at the relevant time was an asserted fact which was far from being established so far---Effect---Held, in the absence of any conclusive proof to the effect that the victim was definitely "below the age of twelve years" at the time of the alleged occurrence the Magistrate was not expected to readily abdicate his normal jurisdiction under the Criminal Procedure Code, 1898 regarding remand or discharge and to advise the parties to approach in that respect a Special Court the jurisdiction of which vis-a-vis the present case was still dependant upon a fact which was far from being admitted or established---As long as jurisdictional facts, prima facie, ousting the jurisdiction of Magistrate in respect of remand or discharge of an accused person were not established on the record, Magistrate was quite competent and justified in not abdicating his normal and general jurisdiction in that regard under Cr.P.C. in favour of a Special Court constituted under a special statute---Subsequent availability of some proof having a bearing on the matter could not be utilised for holding that the Magistrate had assumed the jurisdiction incorrectly at that stage---Principles.

According to the provisions of section 12 of the Anti-Terrorism Act, 1997 a Special Court constituted under the said Act could try only a scheduled offence and by virtue of the provisions of section 17 of the said Act when trying a scheduled offence a Special Court may also try any offence other than a scheduled offence with which an accused person may under the P.P.C. be charged at the same trial. Admittedly an offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was not included in the Schedule appended with the Anti-Terrorism Act, 1997 whereas an offence under section 377, P.P.C. was a scheduled offence only "if the victim is below the age of twelve years and committed after the commencement of this Act". Although no doubt the occurrence in the present case had allegedly taken place after commencement of the Anti-Terrorism Act, 1997 yet the age of the victim in this case being below twelve years at the relevant time was an asserted fact which is far from being established so far.

Thus, in the absence of any conclusive, proof to the effect that the victim was definitely "below the age of twelve years" at the time of the alleged occurrence the Magistrate was 'not expected to readily abdicate his normal jurisdiction under the Code of Criminal. Procedure regarding remand or discharge and to advise the parties to approach in that respect a Special Court the jurisdiction of which vis-a-vis the present case was still dependent upon a fact which was far from being admitted or established. Therefore, as long as jurisdictional facts, prima facie, ousting the jurisdiction of a Magistrate in respect of remand or discharge of an accused person were not established on the record a Magistrate was quite competent and justified in not abdicating his normal and general jurisdiction in that regard under the Code of Criminal Procedure in favour of a Special Court constituted under a special statute.

The correctness of the order of the Magistrate was; therefore, to be adjudged on the basis of the facts available by that time and subsequent availability of some proof having a bearing on the matter could not be utilised for holding that the Magistrate had decided the matter incorrectly at that stage. Such subsequent proof, if prima facie reliable, could steer the matter on correct lines prospectively but the same could not be used retrospectively for undoing things already done and for retracing steps already taken in the past correctly according to the facts available by that time.

(c) Criminal Procedure Code (V of 1898)---

----S. 63---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Penal Code (XLV of 1860), S.377--Discharge of accused by the Magistrate---Validity---Accused, who was discharged, was not the principal accused in the case and the only allegation levelled against him in the F.I.R. was that of abetment of his co-accused---Complainant had remained unable to condradict the fact recorded in the order by the Magistrate that no material or evidence at all was available on the Police File qua abetment allegedly provided by the accused to his co-accused-- Magistrate had also noticed some manifest irregularities committed by the investigating officer which had apparently rendered the implication and involvement of the accused in the case to be quite suspicious ---Effect-- Discharge of accused by the Magistrate at such a stage was quite justifiably called for and the said order of Magistrate was not open to any legitimate exception on the merits of the matter.

(d) Criminal Procedure Code (V of 1898)---

----S. 4(l)---Investigation--Scope---Investigation is the other name of collection of evidence in respect of the crime in question---Police may or may not arrest an accused person during such an investigation as it may suit proper investigation.

(e) Criminal Procedure Code (V of 1898)---

----S. 63---Discharge of accused by the Magistrate ---Concept---Concept of discharge of an arrested person was restricted only to the question of his release from custody and nothing more.

(f) Criminal Procedure Code (V of 1898)--

----S. 169---Release of accused when evidence was deficient---Interpretation and scope of S.169, Cr.P.C.

Provision of section 169, Cr.P.C. not only confirms the fact that the bond got executed from an accused person by such a police officer is relevant only to his custody and release for the time being but at the same time it also visualises a possibility that even an accused person released on the basis of such a bond and against whom there is no sufficient evidence available with the investigating officer for the time being, may still be tried by a Court if a subsequent report by the police before the Magistrate recommends so on the basis of subsequently gathered evidence and such a recommendation is favourably treated by the Magistrate.

(g) Criminal Procedure Code (V of 1898)---

---S. 170(1)---Discharge of accused by the Magistrate---Taking of security from the accused person and his release is possible even in a case where there is sufficient evidence available against him on the basis of investigation-- Release of an accused person during the investigation on the basis of a bond or a security is only confined to the matter of his custody during such investigation and the same has no bearing on the question whether he would or would not be ultimately tried for the offence involved.

(h) Criminal Procedure Code (V of 1898)---

----Ss. 173(3) & 63---Discharge of accused by the Magistrate---Interpretation and scope of S.173, Cr.P.C.

The provisions of the proviso to clause (b) of subsection (1) of section 173 of the ,Cr.P.C. clearly envisage holding of a trial by a Magistrate or by a Court of competent jurisdiction to which he sends the case for trial on the basis of the police report submitted by the officer-in-charge of the police station and for the purpose of holding a trial no, distinction has been contemplated between an accused person who is in custody and an accused person who has been released on bond or security. . Subsection (3) of section 173 of the Code also leaves no room for ambiguity that the matter of discharge or otherwise of such a bond vis-a-vis an accused person only relates to his custody and the same has nothing to do with his trial. The question whether such a discharged accused person or even an accused person in custody is to face a trial or not depends upon satisfaction of the trial Court regarding sufficiency or otherwise of the material available against him on the record and the same is in no way conditional upon his custody or otherwise or even upon his having been discharged of his bond or not.

(i) Criminal Procedure Code (V of 1898)---

----Ss. 63, 173, 170 & 169---Discharge of accused by the Magistrate---Scope of Ss.63, 173, 170 & 169, Cr.P.C.

The word 'discharge' appearing in section 63 and subsection (3) of section 173 of the Cr.P.C. has been used in the context of releasing an accused person from custody. Under section 63, Cr.P.C. an arrested accused person can be discharged by a police officer upon execution of a personal bon4 by such an accused person or he can be discharged on bail, or under the special order of a Magistrate if such an accused person undertakes to appear before the said police officer, a Magistrate or a trial Court if and when required to do so. Under subsection (3) of section 173 a Magistrate seized of a police report under clause (a) of subsection (1) of section 173 may discharge an accused person of his bond when he has already been released on the basis of executing a bond. Thus, an accused person who has not so far been released on the basis of a bond cannot be discharged by a Magistrate of his bond under subsection (3) of section 173 of the Code. The power to discharge an accused person on the basis of a bond during an investigation rests with the police officer, the Court granting bail or the Magistrate under section 63; an accused person may also be released on the basis of a bond by the officer-in-charge of the police station or the investigating officer under section 169 or upon taking of security in a case of a bailable offence by the officer-in-charge of the police station under subsection (1) of section 170; the power to discharge him of such bond rests only with the Magistrate seized of a police report under section 173; and the said powers of the police officer and the Magistrate have absolutely nothing to do with the question as to which Court would ultimately have the jurisdiction to try the offence in question.

(j) Criminal Procedure Code (V of 1898)---

----S. 63---Discharge of accused by the Magistrate---Discharge order passed by Magistrate under S.63, Cr.P.C. cannot in any way be interpreted to be cancellation of a case or stopping the investigation---Proceedings before the police fall in its exclusive domain and the Magistrate has no power to interfere with the same.

(k) Criminal Procedure Code (V of 1898)---

----Ss.63 & 173(3)---Discharge of accused under S.63 & S.173(3), Cr.P.C.- Distinction.

There is a difference between discharge of an accused person by an investigating officer on a bond or on bail or under the special order of a Magistrate under section 63 of the Code and discharge of an accused person of his bond by a Magistrate under subsection (3) of section 173 of the Code. In the former case the accused person is released on the condition of executing a bond whereas in the latter case he is released of his bond making his release unconditional and unfettered for the time being.

Waqarul Haq alias Mithoo and another v. The State PLD 1988 Lah. 336 ref.

(l) Criminal Procedure Code (V of 1898)---

----Ss. 63 & 173(3)---Discharge of accused by the Magistrate---Despite an order of discharge of an accused person further investigation can be held by the police regarding the offence in question without obtaining any permission from the Magistrate in that regard---Discharged accused person can always be associated by the police with the investigation of the given criminal case at any subsequent stage during the investigation without seeking any permission from the Magistrate discharging the 'said accused person of his bond as long as that accused person is not to be taken into custody during such subsequent investigation ---[Mst. Iqbal Begum v. The State 1991 PCr.LJ 1755; Jameel Ahmad and 3 others v. The Superintendent, Range Crime Branch, Rawalpindi Division, Rawalpindi 1999 PCr.LJ 310 and Mir Dad Khan and Zahir Shah and 3 others 2000 PCr.LJ 580 dissented from].

Muhammad Akram v. The State and another 1986 MLD 2439; Rehmat Ali Shad v. Fiaz Lodhi, S.P. and 3 others 1994 PCr.LJ 2206; Saee Muhammad and 7 others v. Superintendent of Police, Mandi Bahauddin and 3 others 1995 PCr.LJ 1666; Mulazim Hussain v. S.H.O., Police Station, Shorkot, District Jhang and 2 others 1995 PCr.LJ 440; Muhammad Tufail v. Assistant Commissioner, 'Wazirabad, District Gujranwala and 12 others 1995 MLD 1744; Habib-ur-Rehman and others v. The State 1999 MLD 860; Muhammad Rarnzan v. The State and 3 others 1999 MLD 1268; Naseer Khan v. The State 1985 PCr.LJ 2530 ref.

Abdul Waheed v. The State PLD 1986 Lah. 81 mentioned:

Asghar Ali v. The State 1983 PCr.LJ 2187 clarified.

Muhammad Din v. S.H.O. and others 1987 MLD 2657 distinguished.

Mst. Iqbal Begum v. The State 1991 PCr.LJ 1755; Jameel Ahmad and 3 others v. The Superintendent Range Crime Branch, Rawalpindi Division, Rawalpindi 1999 PCr.LJ 310 and Mir Dad Khan and Zahir Shah and 3 others 2000 PCr. LJ 580 dissented from.

(m) Criminal Procedure Code (V of 1898)---

----Ss. 63 & 173(3)---Discharge of accused by the Magistrate---Cancellation of case against accused---Distinction---Cancellation of a case is surely a species different from discharge of an accused person---Cancellation terminates further investigation by the police whereas the discharge does not.

Abdul Waheed v. The State PLD 1986 Lah. 81 and Asghar Ali v. The State 1983 PCr. LJ 2187 analysed.

(n) Criminal Procedure Code (V of 1898)---

----Ss. 63 & 173(3)---Discharge of accused by the Magistrate---If after the accused having been discharged by a Magistrate the Police needs to arrest an accused person during any subsequent stage of the investigation then a formal permission from the Magistrate is necessary for the purpose.

Muhammad Ali v. Station House Officer and 6 others 1994 PCr.LJ 1806; Muhammad Waseem v. Additional Sessions Judge, Dera Ghazi Khan and 3 others 1985 PCr.LJ 224 and Mazhar Iqbal v. The State 1989 PCr.LJ 2241 ref.

(o) Criminal Procedure Code (V of 1898)---

----Ss. 63 & 173(3)---Discharge of accused by the Magistrate, be it of any kind, cannot be equated with acquittal of the accused person so discharged as there is a world of difference between a discharge and an acquittal and there is no question of mixing one with the other under any circumstance-- Similarly complainant cannot be proceeded against for malicious prosecution simply because the accused person complained against had been discharged on the basis of investigation for the reason of a marked difference between acquittal and discharge.

Sardara arid others v. Muhammad Niwaz and another PLD 1949 Lah. 537; The State v. Karam Ali 1968 PCr.LJ 1707; Taj Din and 3 others v. The State and another 1977 PCr.LJ 933; The State v. Sheikh Manzar Masud PLD 1984 SC (AJ&K) 127; State through Advocate-General, N.-W.F.P., Peshawar v. Aqil Khan and others 1989 PCrLJ 1655 and Sub. (Retd.) Fazale Rahim v. Rab Nawaz 1999 SCMR 700 ref.

(p) Criminal Procedure Code (V of 1898)---

----Ss. 63 & 173(3)---Discharge of accused by the Magistrate ---Effect-- Discharge of accused person does not amount to smothering of the investigation, cancellation of the case, termination of prosecution or acquittal---Investigation, if in progress, can continue unaffected by order of discharge.

Parul Bala Sen Gupta v. The State AIR 1937 Cal. 379; Muhammad Waseem v. Additional Sessions Judge, Dera Ghazi Khan and 3 others 1985 PCr.LJ 224; Mazhar Iqbal v. The State 1989 PCr.LJ 2241; Rehmat Ali Shad v. Fiaz Lodhi, S.P. and 3 others 1994 PCr.LJ 2206; Muhammad Tufail v. Assistant Commissioner, Wazirabad, District Gujranwala and 12 others 1995 MLD 1744; Mulazim Hussain v. S.H.O., Police Station Shorkot, District Jhang and 2 others 1995 PCr.LJ 440; Saeed Muhammad and 7 others v. Superintendent of Police, Mandi Bahauddin and 3 others 1995 PCr.LJ 1666; Talib Hussain and another v: Muhammad Aslam and another 1997 PCr.LJ 56; Jameel Ahmad and 3 others v The Superintendent, Ranee Crime Branch, Rawalpindi Division, Rawalpindi 1999 PCr.LJ 310; Habib ur Rehman and others v. The State 1999 MLD 860; Abdul Ghaffar and 3 others v Additional Sessions Judge, Gujranwala and another 1999 MLD 1822 and Din Muhammad Shakir alias D.M. Shakir v. D.S.P., Ichhra, Lahore PLD 1977 Lah. 180 ref.

(q) Criminal Procedure Code (V of 1898)---

----Ss. 63 & 173(3)---Discharge of accused by the Magistrate ---Effect-- Discharge of accused does not amount to termination of investigation F.I.R. of the case remains intact and re-investigation of it or further investigation may very much be conducive to the detection of crime even though an accused under S.173, Cr.P.C. is not proceeded against or discharged for want of material evidence against him.

Muhammad Ashfaq and another v. Jameel Akhtar Shehzad, Civil Judge/Magistrate Section 30, Dunya Pur, District Lodhran and others 2000 MLD 1122 ref.

(r) Criminal Procedure Code (V of 1898)---

----Ss. 63 & 173(3)---Discharge of accused by the Magistrate ---Effect-- Whether an accused person had been discharged or released or not and whether the police had opined about his guilt or not in its report under S.173, Cr.P.C. were factors which were irrelevant to the issue whether cognizance of the offence was to be taken or not or whether such an accused was to face a trial or not---Such decisions were to be made by the Magistrate taking cognizance of the offence and the Trial Court on the basis of the material collected during the investigation and the attending circumstances of the case and not on the basis of any order of discharge or on the basis of any opinion formed by the police---Once the Magistrate has taken cognizance of the offence exclusively triable by the Court of Session, he has to send the case to that Court and it is not open for him to send the case only qua those of the accused who are placed in column No.3 of the Challan.

Haji Abdul Rehman v. Sultan and another 1971 PCr.LJ 1164; Muhammad Ibrahim and others v. Qudrat Ullah Ruddy and others PLD 1986 Lah. 256; Hafeez Ahmad v. Malik M. Anwar and others-1987 PCr.LJ 450; Raja Khushbukhtur Rehman and another v. The State 1985 SCMR 1314; Waqarul Haq alias Mithoo and another v. The State PLD 1988 Lah. 336; Waqarul Haq alias Nithoo and another v. The State 1988 SCMR 1428; Syed Waqar Hussain Shah v. The State PLD 1988 Lah. 666; Ijaz Javed and 4 others v. The State 2000 PCr.LJ 595; Federation of Pakistan through Secretary Finance, Islamabad and another v. Malik Mumtaz Hussain and 4 others 1997 SCMR 299; Falak Sher v. The State PLD 196,' SC 425; Sardar Ali and others v. The State PSLA No.6b of 1966; Allah Ditta v. The State and another 1991 PCr.LJ 663; Riasat Ali v. The State and another PLD 1993 Lah. 105, Waqar Ilias and another v. The State through the Federal Investigating Agency, Commercial Banking Cell, Quetta PLD 1993 Quetta 49; Mahmood Ali, v. The State 1994 PCr.LJ 842; Khadim Hussain and another v. The State and others 1996 MLD 903; Talib Hussain and another v. Muhammad Aslam and another 1997 PCr.LJ 56; Hameed Ullah Khan v. The State and another 1997 MLD 1745; Muhammad Ishaque and others v. The State 1999 MLD 1039; Nasrullali v. The State 1998 PCr.LJ 2086; Muhammad Yaqub v. The State PLD 1998 Lah. 523; Mastan Shah v. Additional Sessions Judge/Special Judge, Bannu and two others 1999 PCr.LJ 469 and Abdul Ghaffar and 3 others v. Additional Sessions Judge, Gujranwala and another 1999 MLD 1822 ref.

(s) Criminal Procedure Code (V of 1898)---

----Ss. 63 & 173(3)---Discharge of accused by the Magistrate---Effect---Trial Court, before summoning a discharged accused person, or even an accused person whose name had been placed in column No.2 of the challan, to face a trial, need not record some evidence if the material already becoming available during the investigation was found by the Trial Court to be sufficient to warrant such summoning.

(t) Criminal Procedure Code (V of 1898)---

----Ss. 63, 173(3) & 439---Discharge of accused by the Magistrate---Nature of the order---Revision---Competence---Order regarding discharge of accused person by the Magistrate was essentially an administrative and not a judicial order---Such order was not amenable to revisional jurisdiction.

Khan Sahib Khan Muhammad Saadat Ali Khan v. The Administrator Corporation of City of Lahore PLD 1949 Lah. 451; Haji Abdul Rehman v. Sultan and another 1971 PCr.LJ 1164; Altaf Hussain v. Muhammad Fazil and another 1979 PCr.LJ Note 66 at p.44; Muhammad Waseem v. Additional Sessions Judge, Dera Ghazi Khan and 3 others 1985 PCr.LJ 224; Bahadur and another v. The State and another PLD 1985 SC 62; Muhammad Ashraf and 8 others v. The State and another 1997 SCMR 304; Muhammad Akram v. The State and another 1986 MLD 2439; Waqarul Haq alias Mithoo and another v. The State PLD 1988 Lah: 336, Mazhar Iqbal v. The State 1989 PCr.LJ 2241, Muhammad Shamim v. Ali Gohar and 3 others 1990 PCr.LJ 1932, Khadim Hussain and another v. The State and others 1996 MLD 903, Muhammad Aslam and 6 others v. The State 1996 PCr.LJ 827; Talib Hussain and another v. Muhammad Aslam and another 1997 PCr.LJ 56; Ch. Waheed uz Zaman v. Jamil and 8 others 1997 PCr.LJ 1167; Ijaz Javed and 4 others v. The State 2000 PCr. LJ 595 and Muhammad Ashfaq and another v. Jameel Akhtar Shehzad, Civil Judge/Magistrate Section 30, Dunyapur, District Lodhran and others 2000 MLD 1122 ref.

(u) Criminal Procedure Code (V of 1898)---

----Ss.63, 173(3), 439 & 561-A---Constitution of Pakistan (1973), Art. 199---Discharge of accused by the Magistrate---Order of discharge of accused by the Magistrate was essentially a discretionary order---Interference by higher forum in such discretionary order of the Magistrate---Scope and principles-- Insistence by complainant while seeking setting aside of an order of discharge stems from a misconception that due to the order of discharge the accused person in question stands absolved of the allegations against him or the investigation or prosecution qua him have been smothered or terminated---Such notions are based upon misunderstanding of the correct legal position regarding discharge which ought to stand dispelled---High Court observed that it was expected that henceforth propensity of complainants to rush to a higher forum with challenges against the order of discharge would dissipate---Recognized grounds for interference in the order of discharge by the Magistrate and legal remedies for complainant mentioned.

An order of a Magistrate regarding discharge of an accused person in a criminal case is essentially a discretionary order which may not ordinarily be interfered with by a higher forum as a matter of course unless strong and compelling reasons exist for such interference.

In view of such a legal, status of an order of discharge, extraordinary reasons have to be available for a higher forum to interfere with such an exercise of jurisdiction and discretion by a Magistrate and for insistence upon taking an accused person into custody where the police or the Magistrate do not deem such custody to be necessary or warranted for the time being in the circumstances of a given case. Generally such an insistence by a complainant while seeking setting aside of an order of discharge stems from a misconception that due to the order of discharge the accused person in question stands absolved of the allegations against him or the investigation or prosecution qua him have been smothered or terminated. Such notions are based upon misunderstanding of the correct legal position regarding discharge. Such misconceptions now ought to stand dispelled and it is, therefore, expected that henceforth propensity of complainants to rush to a higher forum with challenges against the orders of discharge would dissipate. In order to complete the picture it may be mentioned here that, as already noticed above, a revision, petition is not competent against an order of discharge and such an order may be challenged before a High Court through a petition under Article 199 of the Constitution praying for issuance of a writ of certiorari. In an appropriate and unusual case even a petition under section 561-A of the Cr.P.C. may be maintainable before a High Court against an order of discharge. Some of the recognised grounds for interference with an order of discharge are passage of such an order by a Magistrate mechanically without application of his own independent mind to the facts of the case, blindfolded acceptance of a recommendation of the police in that regard, perversity of reasoning and adoption of a procedure which offends against the letter or spirit of the law relating to discharge.

Where the Magistrate had recorded sound reasons for passing the impugned order of discharge and he had also not violated any procedure in that regard no justifiable reason existed for interference by High Court with his exercise of jurisdiction and discretion in the matter.

Bahadur and another v. The State and another PLD 1985 SC 62; Muhammad Sharif and 8 others v. The State and another 1997 SCMR 304 and Hussain Ahmad v. Mst. Irshad Bibi and others 1997 SCMR 1503 ref.

(v) Criminal Procedure Code (V of 1898)---

----Ss. 63 & 173(3)---Discharge of accused by the Magistrate---When not possible---Discharge of an accused person by a Magistrate is not legally possible after taking of cognizance of the case by a Trial Court---Principles.

Discharge of an accused person by a Magistrate is not- legally possible after taking of the case by a trial Court.

After taking of cognizance by the trial Court only three results are possible in a criminal case: firstly, conviction of the accused person either upon admission of guilt by him or on the basis of the evidence led by the prosecution; secondly, acquittal of the accused person either under sections 249-A/265-K of the Code or on the basis of failure of the prosecution to prove its case on merits beyond reasonable doubt; and thirdly, withdrawal from prosecution by a Public Prosecutor under section 494 of the Code. In this view of the legal position any attempt by the police or the prosecution to get an accused person discharged or to get an F.I.R. cancelled from a Magistrate at that stage may not only be illegal but the same may also be perceived as an attempt to subvert the normal legal process for motives which may be otherwise than bona fide.

Muhammad Aiam and another v. Additional Secretary to Government of N.-W.F.P., Home and Tribal Affairs, Development and 4 others PLD 1987 SC 103; Nasira Surriya v. Muhammad Aslam and 7 others 1990 SCMR 12; Haji Muhammad Javed v. The State and 2 others 1991 PCr.LJ 62; Abid Shah v. The State PLD.1992 Lah. 412; Ajmal Ali Shah v. The State 1992 PCr.LJ 708; Murid Hussain v. The State 1993 MLD 2402; Ansar Hussain v. Allah Ditta and 2 others 1993 PCr.LJ 1593 and Mst. Kausar Bibi v. The Deputy Inspector-General of Police, Crimes Branch, Punjab, Lahore and 2 others 1996 PCr.LJ 124 ref.

(w) Criminal Procedure Code (V of 1898)---

----Ss. 63 & 173(3)---Discharge of accused by the Magistrate---Order regarding discharge or otherwise of an accused person under S.63 or 173(3), Cr.P.C. was -within the competence of a Magistrate competent to take cognizance of the offence in question and it had no relevance to the question as to which Court was to ultimately try the said offence unless, of course, a special statute had provided otherwise specifically.

(x) Criminal Procedure Code (V of 1898)---

----Ss. 173(3) & 190---Discharge of accused by the Magistrate---Magistrate's power to discharge an accused person of his bond under 'S.173(3), Cr.P.C. even in cases triable exclusively by a Court of Session remained unaffected by the amendments introduced by the Law Reforms Ordinance, 1972-- Power to discharge the accused in cases triable by Special Court or Sessions Court exclusively remained vested with the Magistrate and not with the Trial Court; i.e. the Court of Session or Special Court ---[Sardar Muhammad v. Zaffar Javaid Awan and others PLJ 1996 Lah. 680 and Muhammad Dildar Hussain and another v. The Civil Judge, Judicial Magistrate, Shujabad and 3 others 2000 PCr.LJ 43 dissented from].

The Magistrate's power to discharge an accused person of his bond under subsection (3) of section 173 of the Code even in cases triable exclusively by a Court of Session remains unaffected by the amendments introduced by the Law Reforms Ordinance, 1972 and also that in such cases the power of discharge remains vested with the Magistrate and not with the trial Court, i.e. the Court of Session.

The power of a Magistrate to order discharge of an accused person in cases triable exclusively by a Special Court was recognized.

A bare reading of the provisions of sections 190 and 173 of the Code demonstrates that even in cases triable by a Court of Session a report under section 173 of the Code is to be submitted by the police before q Magistrate, the cognizance of the offence is taken by the Magistrate and after taking of cognizance of the offence the case is then sent by the Magistrate to the Court of Session for trial. Taking of cognizance of an offence is, thus, different from holding of a trial and in a given case these two functions may be performed by two different foca. The power of discharge is conferred upon the Magistrate competent to take cognizance of the offence and it has no relevance to the fact as to which Court is to ultimately try the offence in question.

Bashir Ahmad v. Allaqa Magistrate, Jaranwala and 4 others PLD 1980 Lah. 28; Mehar Khan v. Yaqub Khan and another 1981 SCMR 267; Habib v. The State 1983 SCMR 370; Mehdi Hussain Shah v. Malik Khizar Hayat Khan and another 1983 PCr.LJ 1601; Bashir Ahmad v. Allaqa Magistrate, Jaranwala and 4 others PLD 1980 Lah. 28; Syed Hamid Muqeem Bokhary v. The State PLD 1985 Lah. 71; Mahfooz Ahmad v. Additional Sessions Judge and another PLD 2000 Lah. 136; Hafeezur Rehman v. The State PLD 1993 Pesh. 252 and Mastan Shah v. Additional Sessions Judge/Special Judge, Bannu and 2 others 1999 PCr.LJ 469; Awal Khan v. The Superintendent of Police, Attock and 13 others .1989 PCr.LJ 909 and Mushtaq Rai v. Magistrate 1st Class and others 1994 PCr.LJ 497 and Habib v. The State 1983 SCMR 370 ref.

Sardar Muhammad v. Zaffar Javaid Awan and others PLJ 1996 Lah. 680 and Muhammad Dildar Hussain and another v. The Civil Judge, Judicial Magistrate, Shujabad and 3 others 2000 PCr.LJ 43 dissented from.

(y) Criminal Procedure Code (V of 1898)---

----Ss. 63 & 103---Discahrge of accused by the Magistrate ---Competence-- Executive Magistrate, having no jurisdiction to take cognizance of a particular offence, was not competent to discharge an accused person involved in such an offence likewise a Judicial Magistrate having no jurisdiction to take cognizance of a particular offence was not empowered to discharge an accused person involved in such an offence---Order of discharge by an incompetent Magistrate was therefore, an order passed without lawful authority and the same was of no legal effect.

Under the present dispensation under the Cr.P.C. there are two kinds of Magistrates, i.e. Judicial Magistrates and Executive Magistrates and both have their respective jurisdictions vis-a-vis competence to take cognizance of specified offences. The power of a Magistrate to discharge an accused person under the Code is relatable to his competence to take cognizance of an offence. Thus, an Executive Magistrate having no jurisdiction to take cognizance of a particular offence is not competent to discharge an accused person involved in such an offence and, likewise, a Judicial Magistrate having not been conferred jurisdiction to take cognizance of a particular offence is not empowered to discharge an accused person involved in such an offence. An order of discharge passed by an incompetent Magistrate is, therefore, an order passed without lawful authority and the same is of no legal effect.

Sufi Abdul Qadir v. The State and others 2000 PCr.LJ 520 and Ghalam Shabbir v. State 2000 PCr.LJ 1411 ref.

(z) Criminal Procedure Code (V of 1898)---

----Ss. 63 & 173(3)---Discharge of accused by the Magistrate under Ss.63 & 173(3), Cr.P.C.---Comprehensive survey and analysis of the law on the subject vis-a-vis the true legal effect and scope of "discharge" of an accused person in a criminal case undertaken---High Court directed the Registrar of the Court to send copies of the judgment to all the Sessions Judges in the Province of Punjab who shall ensure that Presiding Officers of all the Criminal Courts within their respective jurisdictions receive a copy of the judgment for information and guidance--Inspector-General of Police of the Province was also directed accordingly with further direction to report compliance to the Registrar of the Court.

Following is the survey and analysis of the law on the subject vis-a vis the true legal effect and scope of discharge of an accused person in a criminal case:--

(i) The concept of discharge is relatable only to custody of an accused person in a criminal case and it has no relevance to anything else during an investigation or a trial.

(ii) The Investigating Officer of a criminal, case may discharge an accused person under section 63 of the Code of Criminal Procedure and release him from custody during the investigation on executing a personal bond regarding his appearance before the Investigating Officer or a Magistrate whenever required to do so during the investigation. Likewise under the same provision of law an accused person may be discharged from custody during the investigation either on bail or under the special order of a Magistrate.

(iii) Upon receipt of the police report under subsection (3) of section 173 of the Code of Criminal Procedure a Magistrate may discharge an accused person of his bond if such an accused person has already been released upon executing a bond.

(iv) There is a difference between discharge of an accused person by an Investigating Officer on a bond or on bail or under the special order of a Magistrate under section 63 of the Code of Criminal Procedure and discharge of such an accused person of his bond by a Magistrate under subsection (3) of section 173 of the Code of Criminal Procedure as in the former case the accused person is released on the condition of executing a bond whereas in the latter case he is released of his bond making his release unconditional and unfettered for the time being.

(v) Discharge of an accused person does not amount to smothering of the investigation qua him, cancellation of the case against him, termination of his prosecution or his acquittal.

(vi) A discharged accused person can always be associated by the police with the investigation of the given criminal case at any subsequent stage during the investigation without obtaining any permission from the Magistrate discharging the said accused person as long as that accused person is not to be taken into custody during such subsequent investigation.

(vii) If after his having been discharged by a Magistrate the police needs to arrest an accused person during any subsequent stage of the investigation then a formal permission from the Magistrate is necessary for the purpose.

(viii) Discharge of an accused person has nothing to do with the prospects of such an accused person ultimately facing a trial or not as his discharge is not from the case but only on or of his bond.

(ix) Whether an accused person had been discharged or not and whether the police had opined about his guilt or not in its report under section 173 of the Code of Criminal Procedure are factors which are irrelevant to the issues whether cognizance of the offence is to be taken or not and whether such an accused person is to be summoned or not to face a trial because such decisions are to be made by the Magistrate taking cognizance of the offence and the trial Court on the basis of the material collected during the investigation and the attending circumstances of the case and not on the basis of any opinion formed by the police on the basis of such material.

(x) Discharge of an accused person by a Magistrate is not possible after taking of cognizance of the case by the trial Court.

(xi) An order regarding discharge or otherwise of an accused person lies within the competence of a Magistrate having jurisdiction to take cognizance of the offence and it has no relevance to the question as to which Court is to ultimately try the offence in question unless a special statute provides otherwise specifically.

(xii) An order regarding discharge of an accused person is an administrative and not a judicial order.

(xiii) An order regarding discharge is essentially a discretionary order which may not ordinarily be interfered with by a higher forum unless strong and compelling reasons exist for such interference.

Because of the importance of the legal issues involved in the case and in order to remove some confusion prevailing among the subordinate judiciary and the police regarding such issues High Court found it desirable that this judgment should be circulated, among all the relevant quarters. The Additional Registrar of the High Court was, therefore, directed to send copies of the judgment to all the Sessions Judges in the Province of the Punjab who shall then ensure that the Presiding Officers of all the Criminal Courts within their respective jurisdictions receive a copy of this judgment for their information and guidance. The Additional Registrar was also directed to send a copy of the judgment to the Inspector-General of Police, Punjab who shall then cause copies of this judgment to be sent to all the Deputy Inspector-Generals of Police, the Senior Superintendents of Police and the Superintendents of Police who shall ensure that every Station House Officer of every Police Station in the Province of the Punjab receives a copy of the judgment for his instruction and compliance. The Inspector-General of Police, Punjab shall submit a report before the Additional Registrar of High Court regarding compliance of this direction.

Ch. Faqir Muhammad for Petitioner.

Muhammad Qasim Khan, Asstt. A.-G. for Respondents Nos. 1, 2 and 4.

Sardar Muhammad Sarfaraz Dogar for Respondent No.3.

Muhammad Riaz Aura for the State.

Date of hearing: 10th April, 2001.

ASHIQ HUSSAIN VS SESSIONS JUDGE, LODHRAN AND 3 OTHERS
P L D 2001 Lahore 271
Before Asif Saeed Khan Khosa, J
ASHIQ HUSSAIN ---Petitioner
versus
SESSIONS JUDGE, LODHRAN and 3 others---Respondents
Criminal Miscellaneous No.25-Q of 2001, decided on 10/04/2001.

JUDGMENT

Sometimes either through misunderstanding of law or through lack of proper application of mind by those concerned a simple concept of law or practice assumes a meaning which is neither contemplated by the relevant law itself nor the same fits into the normal scheme of things. One such example is the law relating to 'discharge' of an accused person in a criminal case. It is unfortunate that of late a lot of confusion has been created about the true meaning and scope of discharge of an accused person in a criminal case. Lately an understanding is gaining ground that discharge of an accused person in a criminal case means that further investigation qua him or his prosecution for the reported crime has come to an end, he has finally been absolved of the allegations with his discharge virtually having the effect of an acquittal and, because of such a consequence of an order of discharge, such a discharge can be ordered only by the Court competent to try the offence in question and not by a Magistrate if he otherwise lacks jurisdiction to try the relevant offence. All these views have in fact been expressed before me in the present case by the learned counsel for the petitioner. Unfortunately all such notions and impressions about discharge are misplaced and misconceived. Therefore, through the present judgment I propose to restate the legal position in this regard.

2. The necessary facts giving rise to the present petition filed under section 561-A, Cr.P.C. are that Ashiq Hussain petitioner's son of Muhammad Munib, aged about 11/12 years, was allegedly subjected to carnal intercourse against the order of nature by Muhammad Zubair accused after Isha prayer time on 17-9-2000 in the Chaubara of Muhammad Rafique, respondent No.3 herein, situated in village Dunyapur within the area of Police Station City, Dunyapur, District Lodhran. Muhammad Rafique respondent had allegedly abetted his co-accused Muhammad Zubair in that regard. At about 11-00 p.m. during the same night F.I.R. No.184 was lodged by Ashiq Hussain petitioner in respect of the said incident at Police Station City, Dunyapur for offences under section 377, P.P.C. and section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

3. During the investigation of that case Muhammad Rafique respondent and his co-accused Muhammad Zubair were arrested by the local police on 21-9-2000 and on the next day, i.e. on 22-9-2000 both of them were produced before the Ilaqa Magistrate, i.e. Civil Judge 1st Class/Judicial Magistrate Section 30, Dunyapur, respondent No.2 herein, with an application by the local police seeking their judicial remand for a period of fourteen days. On 22-9-2000 the respondent Magistrate accepted the application of the local police in respect of Muhammad Zubair accused and granted his judicial remand till 6-10-2000 whereas the application was turned down qua Muhammad Rafique respondent who was discharged.

4. While discharging Muhammad Rafique respondent the respondent Magistrate had recorded in his order that the allegation against. Muhammad Rafique respondent was only in, respect of abetment of his co-accused Muhammad Zubair and the only witness of the said alleged abetment was none other than the victim himself namely Muhammad Munib. It was noticed by the respondent Magistrate that till the passage of the said order of discharge the police file did not contain any statement of Muhammad Munib under section 161, Cr.P.C. and that a few sentences referring to some such non-existent statement made by Muhammad Munib appeared to have been inserted in the police file by way of interpolation. According to the respondent Magistrate Ashiq Hussain complainant and the other two eye witnesses mentioned in the F.I.R. were admittedly not witnesses of the alleged abetment provided by Muhammad Rafique respondent to his co accused Muhammad Zubair and in the absence of any statement of Muhammad Munib on the police file the case against Muhammad Rafique respondent was one of no evidence till that stage. It is also recorded in the said order passed by the respondent Magistrate that the police file showed that as many as thirty-five persons had appeared before the Investigating Officer stating about innocence of Muhammad Rafique respondent and that Ashiq Hussain complainant had refused to accept an offer of settlement of the matter of involvement of Muhammad Rafique respondent on the basis of an oath on the Holy Qur'an. The respondent Magistrate had, thus, concluded that till that stage the case against Muhammad Rafique respondent was that of no evidence at all and, according to the respondent Magistrate, it would be extremely unjust and oppressive to send a decent citizen to jail on the basis of an allegation which was not supported by any evidence whatsoever.

5. Ashiq' Hussain petitioner-complainant preferred a revision petition before the Court of Session, Lodhran against the said order of discharge passed by the respondent Magistrate on 22-9-2000. The only ground urged by Ashiq Hussain petitioner before the Court of Session was that the respondent Magistrate lacked jurisdiction to pass `the impugned order of discharge as the victim of this case was a child below the age of twelve years and an offence under section 377, P.P.C. committed against a child of that age was one of 'child molestation' which was triable exclusively by a Special Court constituted under the Anti-Terrorism Act, 1997 and, therefore, an order of discharge of an accused person. involved in such a case could have been passed only by a Special Court and not by a Magistrate. That revision petition was, however, dismissed by the learned Sessions Judge; Lodhran vide judgment dated 11-12-2000 holding that the material available with the respondent Magistrate was not sufficient to conclude that the victim of this case namely Muhammad Munib was a child below the age of twelve years and, therefore, the case in question did not attract the jurisdiction of a Special Court constituted under the Anti-Terrorism Act, 1997 ousting the jurisdiction of the respondent Magistrate to pass an order of discharge. Hence, the present petition filed by Ashiq Hussain petitioner before this' Court under section 561-A, Cr.P.C. seeking quashing of the impugned order of discharge of Muhammad Rafique respondent passed by the respondent Magistrate on 22-9-2000 and setting aside of the judgment dated 11-12-2000 passed by the learned Sessions Judge, Lodhran. It has also been prayed by Ashiq Hussain petitioner in this petition that upon quashing of the impugned order passed by the respondent Magistrate and setting aside of the impugned judgment passed by the learned Sessions Judge, Muhammad Rafique respondent may be ordered to be taken into custody and be proceeded against in accordance with law.

6. In support of this petition it has been argued by the learned counsel for the petitioner that in the circumstances of this case the respondent Magistrate was not justified in letting Muhammad Rafique respondent off the hook and in absolving him of the allegation against him as the complainant party or the prosecution could still prove his guilt through producing evidence in that regard before the Investigating Agency or the trial `Court. It has also been contended by the learned counsel for the petitioner that the case in hand was one of 'child molestation' within the purview of section 6 of the Anti-Terrorism Act, 1997 and an offence involving a 'terrorist act' of this nature was triable exclusively by a Special Court constituted under the Anti -Terrorism Act, 1997 as an offence under section 377, P.P.C. is a scheduled offence "if the victim is below the age of twelve years and committed after the commencement of this Act". It has been maintained by the learned counsel for the petitioner that the victim in the present case was less than twelve years of age at the time of commission of the offence under section 377, P.P.C. According to the learned counsel for the petitioner if the present case was triable exclusively by such a Special Court then the respondent Magistrate had no jurisdiction to discharge Muhammad Rafique respondent. In this regard reliance has been placed by the learned counsel for the petitioner upon the cases of Sardar Muhammad v. Zaffar Javaid Awan, etc. PLJ 1996 Lahore 680 and Muhammad Dildar Hussain and another v. The Civil Judge/Judicial Magistrate, Shujabad and 3 others 2000 PCr.LJ 43.

7. As against that the learned Assistant Advocate-General and the learned counsel for Muhammad Rafique respondent have maintained that there was no reliable evidence available against Muhammad Rafique respondent and, thus, the respondent Magistrate was amply justified in passing the impugned order of discharge of Muhammad Rafique respondent at that stage. They have further maintained that in the circumstances of this case the respondent Magistrate had, .the requisite jurisdiction to pass the impugned order of discharge irrespective of the fact as to which Court is to ultimately try this case.

8. After hearing the learned counsel for the parties and going through the record of this case with their assistance it has been observed that the offences involved in this case are those under section 377, P.P.C. and section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. According to the provisions of section 12 of the Anti-Terrorism Act, 1997 a Special Court constituted under the said Act can try only a scheduled offence and by virtue of the provisions of section 17 of the said Act when trying a scheduled offence a Special Court may also try any offence other than a scheduled offence with which an accused person may under the Code of Criminal Procedure be charged at the same trial: Admittedly an offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is not included in the Schedule appended with the Anti- Terrorism Act, 1997 whereas an, offence under section 377, P.P.C. is a scheduled offence only "if the victim is below the age of twelve years and committed after the commencement of this Act". Although no doubt the occurrence in this case had allegedly taken place after commencement of the Anti-Terrorism Act, 1997 yet the age of the victim in this case being below twelve years at the relevant time is an asserted fact which is far from being established so far. In his judgment dated 11-12-2000 the learned Sessions Judge, Lodhran had dilated upon this aspect of the matter in the following words:

"Ashiq Hussain, the complainant, is the father of victim who stated in the F.I.R. that his son, namely, Muhammad Muneeb is aged about 11 / 12 years old. The Medico-legal report also indicates that the victim was 12 years old. The complainant has himself mentioned the age of the victim about 12 years. Therefore, the case is not triable by Special Judge Anti-Terrorism Act. In these circumstance, there is no ground to interfere in the impugned order. Hence, this revision petition is dismissed."

During his final arguments before this Court the learned counsel for the petitioner has produced before this Court a photocopy of an extract from the Register of Births maintained by the Municipal Committee, Dunyapur showing the victim's date of birth as 30-9-1988 and, thus, an effort has been made to establish before this Court that the victim was 11 years 11 months and 17 days old at the time of the occurrence. The said copy had statedly been issued on 27-9-2000. However, admittedly no such proof about the exact age of the victim was available before the respondent Magistrate at the time of passage of the impugned order by him on 22-9-2000. All that the respondent Magistrate had before him at that time was the material available on the police file approximately describing the age of the victim to be "11/12 years". Thus, in the absence of any conclusive proof to the effect that the victim was definitely "below the age of twelve years" at the time of the alleged occurrence the respondent Magistrate was not expected to readily abdicate his normal jurisdiction under the Code of Criminal Procedure regarding remand or discharge and to advise the parties to approach in that respect a Special Court the jurisdiction of which vis-a-vis the present case was still dependent upon a fact which was far from being admitted or established. Therefore, keeping in view this and other similar cases of this peculiar nature I am minded to hold that as long as jurisdictional facts prima facie ousting the jurisdiction of a Magistrate in respect of remand or discharge of an accused person are not established on the record a Magistrate is quite competent and justified in not abdicating his normal and general jurisdiction in that regard under the Code of Criminal Procedure in favour of a Special Court constituted under a special statute. When confronted with this situation the learned counsel for the petitioner has advanced an alternate argument maintaining that a case involving an offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is triable by a Court of Session and even in such cases a Magistrate has no jurisdiction to discharge an accused person. This alternate, argument of the learned counsel for the petitioner shall be adverted to in the later part of this judgment.

9. This aspect of the matter can also be looked at from another angle. The learned Sessions Judge had and this Court has been asked to adjudge the correctness of the impugned order passed by the respondent Magistrate on 22-9-2000. The correctness of that order is, therefore, to be adjudged on the basis of the facts available by that time and subsequent availability of some proof having a bearing on the matter cannot be utilised for holding that the respondent Magistrate had decided the matter incorrectly at that stage. Such subsequent proof, if prima facie reliable, can steer the matter on correct lines prospectively but the same cannot be used retrospectively for undoing things already done and for retracing steps already taken in the past correctly according to the facts available by that time.

10. There may be yet another perspective from which this issue can be examined. By virtue of the provisions of section 167 of the Code of Criminal Procedure Muhammad Rafique respondent could have been kept in custody by the police only for a period of twenty-four hours and not beyond that period unless an order of remand was obtained for his further custody either with the police or in judicial lock-up. Even clause (2). of Article 10 of the Constitution of the Islamic Republic of Pakistan, 1973 guarantees it as a Fundamental Right that "Every person who is arrested and detained in custody shall be produced before a Magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the nearest Magistrate, and no such person shall be detained in custody beyond the said period without the authority of a Magistrate". Muhammad Rafique respondent was arrested on 21-9-2000 and by 22-9-2000 he was legally as well as constitutionally entitled to be released if no order of his remand was passed by a competent authority: Thus, if the present petition is allowed and the impugned order of discharge of Muhammad Rafique respondent passed by the respondent Magistrate on 22-9-2000 is set aside on any ground still the fact remains that no order of his remand was ever passed by any authority on 22-9-2000 or on any date subsequent thereto and, thus, after expiry of twenty-four hours of his arrest he was entitled to become a free man, and he so remains till today. Therefore, even if the impugned order of discharge passed by the respondent Magistrate is set aside by this Court upon acceptance of the present petition still Muhammad Rafique respondent does not automatically go back to custody of any sort. I am sure Ashiq Hussain petitioner or his learned counsel would not be pleased with such a result!

11. As regard the merits of the impugned order of discharge passed by the respondent Magistrate suffice it to observe that Muhammad Rafique respondent is not the principal accused in this case and the only allegation levelled against him in the F.I.R. was that of abetment of his co-accused namely Muhammad Zubair. The learned counsel for the petitioner has remained unable to contradict the fact recorded in the impugned order of discharge that by the time the said order was passed by the respondent Magistrate on 22-9-2000 no' material or evidence at all was available on the police file qua abetment allegedly provided by Muhammad Rafique respondent to his co-accused Muhammad Zubair. The respondent Magistrate had also noticed some manifest irregularities committed by the Investigating Officer which had apparently rendered the implication and involvement of, Muhammad Rafique respondent in the present case to be quite suspicious. Thus, I have felt satisfied that the discharge of Muhammad Rafique respondent by the respondent Magistrate at that stage was quite justifiably called for and the impugned order dated 22-9-2000 is, therefore, not open to, any legitimate exception on the merits of the matter.

12. The notions entertained by Ashiq Hussain petitioner and his learned counsel that the legal effect of the impugned order of discharge is that Muhammad Rafique respondent has been let off the hook and absolved of the allegation levelled against him and that he is now immune from further investigation by the police or trial by the trial Court are notions which have of late been advanced and urged before this Court with some frequency in different cases and, therefore, the same need serious attention. After hearing detailed arguments advanced by the learned counsel for the parties in these regards I have found it to be imperative that in order to arrive at correct conclusions vis-a-vis the true legal effect and scope of 'discharge' of an accused person in a criminal case a comprehensive survey and analysis of the law on the subject is necessary and, thus, such an exercise is undertaken in the following paragraphs.

13. Upon registration of a criminal case with the police the latter, being the principal. Investigating Agency, embarks upon an investigation of the reported crime. According to section 4(1) of the Code of Criminal Procedure, 1898 (hereinafter referred to in this judgment as the Code) an 'investigation' is the other name of collection of evidence in respect of the crime in question. During such an investigation the police may or may not arrest an accused person as it may suit proper investigation. According to section 63 of the Code:

"No person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate."

This provision clearly demonstrates that the concept of discharge of an arrested person is restricted only to the question of his release from custody and nothing more. This understanding is further fortified by the provisions of section 169 of the Code according to which:

"If, upon an investigation under this Chapter, it appears to the 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 accused to a Magistrate, such officer shall, if such person is it 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 a police report and to try, the accused or send him for trial. "

This provision of the Code not only confirms the fact that the bond got executed from an accused person by such a police officer is relevant only to his custody and release for the time being but at the same time it also visualises a possibility that even an accused person released on the basis of such a bond and against whom there is no sufficient evidence available with the Investigating Officer for the time being may still be tried by a Court if a subsequent report by the police before the Magistrate recommends so on the basis of subsequently gathered evidence and such a recommendation is favourably treated by the Magistrate. The provisions of subsection (1) of section 170 of the Code further clarify the position by providing that:

"If, upon an investigation under this Chapter, it appears to the officer-in-charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or send him for trial or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed."

Such taking of security from the accused person and his release is, thus, possible even in a case where there is sufficient evidence available against him on the basis of investigation. This again shows that release of an accused person during the investigation on the basis of a bond or security is only confined to the matter of his custody during such investigation and the same has no bearing on the question whether he would or would not be ultimately tried for the offence involved. Section 173 of the Code is critically relevant to the discussion in hand and, therefore, the relevant provisions thereof are reproduced here for facility of reference.

"Report of police officer.---(1) Every investigation under this Chapter shall be completed without unnecessary delay and as soon as it is completed, the officer-in-charge of the police station shall through the public prosecutor---

(a) forward to a Magistrate empowered to take cognizance of the offence on a police report, in the form prescribed by the Provincial Government setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and

(b)----------------------

Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under section 154, the officer-in-charge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence.

(2)----------------------------

(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he may think fit.

(4) ----------------------------

(5) ----------------------------

The provisions of the proviso to clause (b) of subsection (1) of section 173 of the Code clearly envisage holding of a trial by a Magistrate or by a Court of competent jurisdiction to which he sends the case for trial on the basis of the police report submitted by the officer-in-charge of the police station and for the purpose of holding a trial no distinction has been contemplated between an accused person who is in custody and an accused pers9A who has been released on bond or security. Subsection (3) of section 173 of the Code reproduced above also leaves no room for ambiguity that the matter of discharge or otherwise of such a bond vis-a-vis an accused person only relates to his custody and the same has nothing to do with his trial. The question whether such a discharged accused person or even an accused person in custody is to face a trial or not depends upon satisfaction of the trial Court regarding sufficiency or otherwise of the material available against him on the record and the same is in no way conditional upon his custody or otherwise or even upon his having been discharged of his bond or not.

14. The resume of the statutory provisions referred to above is that the word 'discharge' appearing in section 63 and subsection (35 of section 173 of the Code has been used in the context of releasing an accused person from custody. Under section 63 an arrested accused person can be discharged by a police officer upon execution of a personal bond by such an accused person or he can be discharged on bail, or under the special order of a Magistrate if such an accused person undertakes to appear before the said police officer, a Magistrate or a trial Court if and when required to do so. Under subsection (3) of section 173 a Magistrate seized of a police report under clause (a) of subsection (1) of section 173 may discharge an accused person of his bond when he has already been released on the basis of executing a bond. Thus, an accused person who has not so far been released on the basis of a bond cannot be discharged by a Magistrate of his bond under subsection (3) of section 173 of the Code. It is further evident from the above resume of the relevant provisions of the Code that the power to discharge an accused person on the basis of a bond during an investigation rests with the police officer, the Court granting bail or the Magistrate under section 63; an accused person may also be released on the basis of a bond by the officer-in-charge of the police station or the Investigating Officer under section 169 or upon taking of security in a case of a bailable offence by the officer-in-charge of the police station under subsection (1) of section 170; the power to discharge him of such bond rests only with the Magistrate seized of a police report under section 173; and the said powers of the police officer and the Magistrate have absolutely nothing to do with the question as to which Court would ultimately have the jurisdiction to try the offence in question.

15. I now turn to the understanding of the concept of discharge developed through various judgments rendered by different Courts in the Indo-Pakistan Sub-Continent. In the case of Parul Bala Sen Gupta v., The State AIR 1937 Calcutta 379 an elaborate discussion about the true import of the concept of discharge of an accused person during an investigation was summed up as follows:

"(5)--- -- --- -- --- Section 63 merely provides that no person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate. That section appears in Chapter V of the Code of Criminal Procedure which contains merely general provisions as respect arrest, escape and retaking. As far as I can see section 63 merely empowers a Magistrate in a special case to make an order discharging the accused at a time when investigation is in progress. In special circumstances, a police officer may think it right to fortify himself with an order of the Magistrate, and in such case the Magistrate may direct the person to be discharged on bond or on bail when the investigation is in progress.--- --- -- ---- --- ---

(12) There is yet another aspect of the matter to which reference must also be made. The learned Magistrate seems to be OI the view that as a result of his order, dated the 23rd November, 1956, the proceedings in investigation before the police have been smothered. ,He further advises the officers concerned in the investigation to consult their superior officers as to the desirability of instituting proceedings under section 211 of the Indian Penal Code against the petitioner. Obviously this presupposes that as a result of the Magistrate's order the investigation has come to an end. It also presupposes that the Magistrate has power to stifle proceedings in investigation by the Police. I am afraid the Magistrate does not possess any such power. The proceedings before the police in investigation are proceedings over which the police alone have full control and neither the Magistrate nor even this Court has power to interfere with such proceedings.-- -- --- --- --

(13) The learned Magistrate seems to be of the view that this order of discharge on the ground of absence of evidence was sufficient to terminate the proceedings before the police: He is quite clearly mistaken. --- --- --- --- --- --- As far as I can see the effect of the Magistrate's order, dated the 23rd November, 1956; is merely that the accused has been discharged; but that cannot have the effect of interfering with the investigation if such investigation is still in progress. That investigation will come to its natural end only under section 173 of the Code of Criminal Procedure, either by a final report or by a charge-sheet."

An identical interpretation of the real meaning of discharge under section 63 of the Code was handed down by this Court in the case of Muhammad Waseem v. Additional Sessions Judge, Dera Ghazi Khan and three others 1985 PCr.LJ 224 in the following terms:

"2. After going through the order of the Magistrate dated 18-8-1983 and of the Additional Sessions Judge dated 26-10-1983 it is clear that both the Courts were of the view that by discharging the accused under section 63 the criminal proceedings have come to an end. This is obviously a misconception of law. The import of an order under section 63 of the Cr.P.C. is none other than the release of the accused person from custody. It cannot in any way be interpreted to be the cancellation of a case or stopping the investigation. It is well established that the proceedings before the police investigation are over which the police alone has control and a Magistrate has no power to interfere with such proceedings. Therefore, clearly the order of discharge under section 63 cannot be interpreted to be an order of closing the investigation. This order is-therefore, only an administrative order and is not susceptible to interference in revision. The revisional orders of the learned Additional Sessions Judge are, therefore, without lawful authority.

3.Section 63 makes a provision for a Magistrate to direct release of the accused person even without a formal bail order when he comes to the conclusion that the police was not justified in arresting the accused or, when the Magistrate finds that there is no, justification for remanding- the accused to custody. A Magistrate can thus; effectively grant relief to a person who may have been arrested or detained without sufficient cause, but by doing sole cannot smother the investigation, which can go on in accordance with law until the police submit its final report. Of course the police cannot re-arrest the accused without the order of the Magistrate. "

The words "under the special order of a Magistrate" appearing in section 63 of the Code also came under discussion in the case of Nazir Ahmad v. The State and 2 others PLD 1987 Lah. 236 and it was observed by this Court that:

"If the Magistrate finds that no case at all is made out against the accused, he is justified in net granting the remand and discharging the accused from the case. The power of discharging an accused from a case is, therefore, inherent in section 167. If the Investigating Officer finds that the said accused is innocent or that there is not sufficient evidence or reasonable ground for suspicion to justify the forwarding of the said accused to a Magistrate for trial, there is nothing to prevent him from applying under section 167 of the Code read with section 63 thereof, for his discharge from the case. Section 63 clearly states that no person who has been arrested by a police officer can be discharged except on his own personal bond, or on bail, or under the special order of a Magistrate. Since the power of discharging an accused from a case during investigation is inherent in section 167 of the Code, an order under the said section can be passed on the report of a police officer praying for his discharge. Such an order would be the 'special order of a Magistrate', as contemplated in section 63. "

It was held in the case of Rehmat Ali v. Nazir Hussain 1997 MLD 1135 that a Magistrate before whom an arrested person is produced may proceed under section 63 read with section 167 of the Code to make a special order to release or discharge him if the police has not been able to show sufficient cause for remanding him to custody. In the case of Talib Hussain and another v. Muhammad Aslam and another 1997 PCr.LJ 56 the scope of the provisions of section 63 of the Code was, also discussed and it was held that a discharge under section 63 of the Code was relatable only to the matter of custody of an accused person during investigation.

16. Adverting now to the discharge -under subsection (3) of section 173 of the Code it may straightaway be observed that there is a difference between discharge of an accused person by an Investigating Officer on a bond or on bail or under the special order of a Magistrate under section 63 of the Code and, discharge of an accused person of his bond by a Magistrate under subsection (3) of section 173 of the Code. In the former case the accused person is released on the condition of executing a bond whereas in' the latter case he is released of his bond making his release unconditional and unfettered for the time being. This distinction was noticed by this Court in the case of Waqarul Haq alias Mithoo and another v. The State PLD 1988 Lahore 336 in the following words:

"9. It will be noticed that the word 'discharge' occurs in section 63 as also in section 173, subsection (3), in section 63 in relation to an arrested person acid in section 173, subsection (3) in relation to a bail bond. It is obvious, therefore, that it has been used in different senses in the two contexts and that in section 63 it has been used in the sense of releasing the person arrested."

17. It is by now judicially r6cognised that despite an order of discharge of an accused person further investigation can be held by the police regarding the offence in question without obtaining any permission from the Magistrate in that regard and a discharged accused person can always be associated by the police with the investigation of the given criminal case at any subsequent stage during the investigation without seeking any permission from the Magistrate discharging the said accused person of his bond as long as that accused person is not to be taken into custody during such subsequent investigation. It was held by this Court in the case of Muhammad Akram v. The State and Muhammad Sharif 1986 MLD 2439 that:

"5. --- --- --- --- -- --- In the case in hand the police had not asked for cancellation of case and, as such, no permission was required for taking up fresh investigation.

The cases reported as PLD 1973 Lahore (sic), 1972 PCr.LJ 328 and 1972 SCMR 335 fully support the contention raised by learned Additional Advocate-General and counsel for respondent. No.2 that the police can take up another investigation and can file another report under section 173, Cr.P.C. as well. In fact, the case reported as 1972 SCMR 335 was an appeal against the judgment reported as 1972 PCr.LJ 328.

The case reported as 1971 PCr.LJ 1164 supports the contention of the learned Additional Advocate-General and counsel for respondent No.2 that even after release of the accused by the Magistrate on an application submitted by the police, the Magistrate is competent to summon the accused to stand trial.

The judgment reported as PLD 1965 Lahore 734 lends full support to the contention of the learned counsel for the respondents that the police can submit a fresh challan in spite of the order of discharge.

6. The consensus of the authorities regarding the matter in hand is that the order of discharge is an administrative order, the police can re investigate the matter and submit a fresh challan, even without having recourse to getting the first order set aside."

The same view was also expressed in the cases of Rehmat Ali Shad v. Fiaz Lodhi, S.P., and 3 others 1994 PCr.LJ 2206, Saee Muhammad and 7 others v. Superintendent of Police, Mandi Bahauddin and 3 others 1995 PCr.LJ 1666, Mulazim Hussain v. S.H.O., Police Station Shorkot, District Jhang and 2 others 1995 PCr.LJ 440, Muhammad Tufail .v. Assistant Commissioner, Wazirabad, District Gujranwala and 12 others 1995 MLD 1744, Habib ur Rehman and others v. The State 1999 MLD 860 and Muhammad Ramzan v. The State and 3 others 1999 MLD 1268.

18. However, a different note was struck in this regard by this Court in the case of Abdul Waheed v. The State PLD 1986 Lahore 81 by holding that:

"8.--- --- --- --- Where an accused is got discharged by the police from the Magistrate, the police strictly have no authority to re-investigate the case, without applying to the Magistrate for the recall of his order. See Asghar Ali v. The State 1983 PCr.LJ 2187."

Unfortunately in that judgment the case of Asghar Ali v. The State 1983 PCr.LJ 2187 was not minutely examined. A closer scrutiny of the judgment in Asghar Ali's case would have revealed that although the Magistrate in that case had discharged the accused person yet the said order of discharge was construed by this Court to be one of cancellation of the case. Cancellation of a case is surely a species different from discharge of an accused person as the former terminates further investigation by the police whereas the latter does not. Thus, the principle applicable to cancellation of a case followed in Asghar Ali's case was unfortunately followed in and applied to the case of Abdul Waheed without appreciating that the case of Abdul Waheed was one of discharge and not of cancellation of case. It may also be interesting to refer here to the case of Muhammad Din v. S.H.O. etc. 1987 MLD 2657 decided by this Court wherein an accused person had been summoned by the Station House Officer of a police station for joining the investigation of a criminal case after the said accused person had already been discharged by a Magistrate. The operative part of the said judgment reads as follows:

"2. Learned counsel for the petitioner states that after discharge of an accused on a police report the police is not competent to re-open the case without obtaining orders of the Magistrate which admittedly has not been done in the present case. The S.H.O. concedes this legal proposition and stated that 9amar Abbas shall not be summoned without obtaining orders of the competent Court.

3. In this 'view of the matter, the petitioner has no grievance: The S.H.O. shall inform the other Investigating Agencies about the statement made by him on this legal proposition. Accordingly, the petition stands disposed of."

With respect to the learned Judge deciding, nay disposing of, the said petition I would not, like to treat the said judgment as a precedent as the same proceeds only on a concession made by a Station House Officer of a police station which concession also ran contrary to the established law. Incidentally the same learned Judge who had decided this case had seemingly favourably referred to a different view in that regard in the earlier case of Naseer Khan v. The State 1985 PCr.LJ 2530. I may also refer here to the cases of Mst. Iqbal Begum v. The State 1991 PCr.LJ 1755, Jameel Ahmad and 3 others v. The Superintendent, Range Crime Branch, Rawalpindi Division, Rawalpindi 1999 PCr.LJ 310 and Mir Dad Khan and Zahir Shah and 3 others 2000 PCr.LJ 580 in this context wherein the view that after discharge of the accused persons the police cannot re-investigate the case without prior permission of the Magistrate discharging the accused persons or without seeking recalling of the order of discharge was followed. A close scrutiny of the abovementioned three judgments, however, reveals that the last two Judgments appear to be heavily influenced by the first of those judgments, which had also been expressly referred to therein, whereas the first of those judgments was rendered without any reference to the relevant statutory provisions or the plethora of case-law on the subject already holding the field, some of which has been referred to' by me in paragraph No.17 above. It is, thus, observed with respect that the abovementioned three judgments cannot be accepted as authoritative pronouncements on the subject. Besides, those judgments also run contrary to the general, and by now almost universally accepted, approach and interpretation in this context.

19. Proceeding further with the discussion about discharge it may be observed that if after his having been discharged by a Magistrate the police needs to arrest an accused person during any subsequent stage of the investigation then a formal permission from the Magistrate is necessary for the purpose. A reference in this regard may be made to the case of Muhammad Ali v. Station House Officer and 6 others 1994 PCr.LJ 1806. Likewise it was observed in the case of Muhammad Waseem v. Additional Sessions Judge, Dera Ghazi Khan and 3 others 1985 PCr.LJ 224 that the police cannot re-arrest a discharged accused person without an order of the Magistrate. Similarly it was held in. the case of Mazhar Iqbal v. The State 1989 PCr.LJ 2241 that if after further investigation of the case the police collects sufficient material incriminating a discharged accused person then it can submit a challan against him and request for issuance of a warrant of his arrest.

20. It is by now settled law that discharge, be it of any kind, cannot be equated with acquittal of the accused person so discharged. In the case of Sardara and others v Muhammad Nawaza and another PLD 1949 Lahore 537 it was held by this Court that a discharge of an accused person under subsection (3) of section 173 of the Code cannot be regarded as his acquittal. It was laid down by this Court in the case of The State v. Karam Ali 1968 PCr.LJ 1707 that acquittal of an accused person for want of proper sanction for prosecution operates as discharge which cannot amount to acquittal. Taj Din and 3 others v. The State and another 1977 PCr.LJ 933 is an authority for the proposition that an order of discharge is not a judgment nor it can amount to an acquittal. It was. held in the case of The State v. Sheikh Manzar Masud PLD 1984 SC (AJ&K) 127 that dismissal of a complaint on technical grounds such as lack of jurisdiction or want of proper sanction is akin to an order of discharge which cannot be equated with acquittal. In the case of State through Advocate-General, N.-W.F.P., Peshawar v. Aqil Khan etc. 1989 PCr.LJ 1655 an order permitting withdrawal from prosecution under section 494 of the Code without framing a formal charge was held to be not competent and the said order was treated as an order of discharge and not one of acquittal. The case of Subedar (Retd.) Fazale Rahim v. Rab Nawaz 1999 SCMR 700 is an authority for the proposition that a complainant cannot be proceeded against for malicious prosecution simply because the accused person complained against had been discharged on the basis of investigation as a discharge could not be equated with an acquittal. All these precedents show, and show very clearly, that there is a world of difference between a discharge and an acquittal and that there is no question of mixing one with the other under any circumstance.

21. As already observed above discharge of an accused person does not amount to smothering of the investigation, cancellation of the case, termination of prosecution or acquittal. An investigation, it in progress, can continue unaffected by such an order of discharge. I have already referred to the cases of Parul Bala Sen Gupta v. The State AIR 1937 Calcutta 379, Muhammad Waseem v. Additional Sessions Judge, Dera Ghazi Khan and 3 others 1985 PCr.LJ 224 and Mazhar Iqbal v. The State 1989 PCr.LJ 2241 in this context. A reference may also be made in this regard to the cases of Rehmat Ali Shad v. Fiaz Lodhi, S.P. and 3 others 1994 PCr.LJ 2206, Muhammad Tufail v. Assistant Commissioner, Wazirabad, District Gujranwala and 12 others 1995 MLD 1744, Mulazim Hussain v. S.H.O., Police Station Shorkot, District Jhang and 2 others 1995 PCr.LJ 440, Saee Muhammad and 7 others v. Superintendent of Police, Mandi Bahauddin and 3 others 1995 PCr.LJ 1666, Talib Hussain and another v. Muhammad Aslam and another 1997 PCr.LJ 56, Jameel Ahmad and 3 others v. The Superintendent, Range Crime Branch, Rawalpindi Division, Rawalpindi (1999 PCr.LJ 310, Habib-ur-Rehman and others v. The State 1999 MLD 860 and Abdul Ghaffar and three others v. Additional Sessions Judge, Gujranwala and another 1999 MLD 1822. I may also refer here to the case of Din Muhammad Shakir alias D.M. Shakir v. D.S.P., Ichhra, Lahore PLD 1977 Lahore 180 wherein it had been held that:

"It has to be noted that where within the ambit of section 173, Cr.P.C. an accused is not proceeded against or discharged for want of material or evidence against him, the F.I.R. of the case remains intact and re-investigation of it or further investigation may very much be conducive to the detection of the crime."

The reasoning contained in that case demonstrates that in a case of cancellation of the case further investigation may not be possible without getting the order of cancellation recalled but that may not be necessary in a case of discharge as a discharge does not amount to termination of investigation. In the recent case of Muhammad Ashfaq and another v. Jameel Akhtar Shehzad, Civil Judge/Magistrate Section 30, Dunya Pur, District Lodhran and others 2000 MLD 1122 I had an occasion to hold that:

"3. --- --- --- it may be observed that an order of discharge is merely an administrative/executive order regarding custody of an accused person. It, by no stretch of imagination, can be construed to be an order regarding cancellation of a criminal case or termination of prosecution. It is settled law that an order of discharge only means that physical custody of an accused person is not required for the time being and upon discovery of fresh evidence of availability of fresh material the local police can always re-investigate the matter --

22. Turning now to another important aspect regarding discharge it may be stated here without any fear of contradiction that whether an accused person had been discharged or released or not and whether the police had opined about his guilt or not in its report under section 173 of the Code are factors which are irrelevant to the issue whether cognizance of the offence is to be taken or not or whether such an accused person is to face a trial or not T because such decisions are to be made by the Magistrate taking cognizance of the offence and the trial Court oil the basis of the material collected during the investigation and the attending circumstances bf the case and not on the basis of any order of discharge or on the basis of any opinion formed by the police. In the case of Haji Abdul Rehman v. Sultan and another 1971 PCr.LJ 1164 it had been held that:

"The report of the Police could be said to be an interim report which resulted in the discharge of the bond. The final report was submitted later and the applicant was shown as one of accused persons in column No.4 - who had been sent up for trial. The applicant was shown released under section 169, Cr.P.C. while the other accused was shown on bail. Thus, the action taken by the Magistrate by passing the impugned order amounted to taking of cognizances on police report finally submitted under section 173, CI.P.C. --- ---

The order passed under section 173(3), Cr.P.C. is not a judicial order but an administrative order and it could be ignored by the learned Magistrate while taking cognizance."

It was held by this Court in the case of Muhammad Ibrahim and others v. Qudrat Ullah Ruddy and others PLD 1986 Lahore 256 that:

"7.--- --- -- --- --- -- --- Basically it is in the hands of the police to secure the discharge of an accused from a case, through the order of a Magistrate, and thus, relieve him from the burden of joining any further investigation or facing any inquiry or trial, or to place his name in Column No.2 of the challan and leave him to the Sessions, where his case will- ultimately be transferred, to decide whether to discharge him, or to summon him, for the opinion of the police is not binding on the Court and the Court can summon an accused whose name is placed in Column No.2, if the material on the record justifies such an order. -- -- --- --- --- --- ---

10. In the face of the amendments made in 1972, the question that arises is whether a Court of Session can summon an accused, who has been earlier discharged, if during the course of trial, it finds material against him showing his involvement in any of the offences imputed to him and, if so, on what material or evidence. The answer is obviously in the affirmative. The proceedings under Chapter XVI, are no higher than those under Chapter XXII-A. If in proceedings under Chapter XXII-A, the Court of Session considers, on the basisof evidence recorded, that there are sufficient grounds for proceedings against a person who is discharged, it should have the right to summon him."

This Court had also held in the case of Hafeez Ahmad v. Malik M. Anwar and others 1987 PCr.LJ 450 that an accused person can be tried on the basis of a subsequent/final report even after his initial discharge by the Magistrate. The case of Raja Khushbukhtur Rehman and another v. The State 1985 SCMR 1314 was a milestone in this context as the Supreme Court of Pakistan had clarified the issue in the following unambiguous terms:

"6. --- --- --- --- --- ---- The arguments addressed by learned counsel in fact showed that he laboured under the impression that cognizance is to be taken of an offender, but that is not the law. Under section 190(3), Cr.P.C. the Magistrate takes cognizance of an offence and not of an. offender. He takes cognizance of the case as a whole and not qua only some of the accused found by the police to be implicated in the case. Cognizance can be taken even if the offenders be unknown. On taking cognizance of the offence the Court acquires jurisdiction over all the persons involved and not only over persons against whom the challan is submitted. --- --- -- - Once the Magistrate has taken cognizance of the offence exclusively triable by the Court of Session, he has to send the case to that Court and it is not open for him to send the case only qua those of the accused who are placed in Column No.3 of the challan. --- --- --- ---

7. As regards the power of the trial Court to summon the petitioners, who had been placed in column No.2 learned counsel does not deny that the trial Court is possessed of such power."

The law on the subject had subsequently been summed up by this Court in the case of Waqarul Haq alias Mithoo and another v. The State PLD 1988 Lahore 336 in the following words:

" 17. It seems to me, however, that the matter is concluded by the dicta in Raja Khushbukhtur Rehman's case. There, as in the present case, the petitioners were persons whose names were placed in Column No.2 of the challan. The learned Magistrate had taken cognizance of the offence and had sent the case, including the case of the petitioners, to the Court of Session; it was held that it was not open to the Magistrate to send the case only qua the accused persons whose names were placed in Column No.3 of the challan, and therefore, the learned trial Judge was fully competent to summon the petitioners as accused persons. One may conceive of a case in which a person accused has not only been found innocent and discharged by the Magistrate's order, but also whose name does not occur anywhere in the police report, either in Column No.2 or Column No.3 but that is not the case here. The petitioners' names were, despite the order of the Magistrate discharging. theca, placed in Column No.2 of the challan and their case was, therefore, clearly within the rule laid down in Raja Khushbukhtur Rehman's case. The order of discharge made in respect of them was an order under section 63, Cr.P.C. But even if it were an order under section 173, subsection (3), or is treated as an order under that provision, the fact remains that, as in the case of Raja Khushbukhtur Rehman, their names found mention in Column No.2 of the challan and the learned trial Judge, therefore, acted within his jurisdiction in summoning them to stand their trial. The making of an order under section 173(3), CE.P.C. could not affect the jurisdiction of the learned trial Court, for, such an order, to quote from Bahadur v. The State PLD 1985 SC 62 is an administrative order and when the Magistrate makes it "there is no lis before him; there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order'. To put it differently, the making of the order under section 173(3), Cr.P.C. does not involve and the order is not made in the course of any lis inter parties, it cannot, therefore, create res judicata.

18. Raja Khushbukhtur Rehman's case is, in my opinion, also authority for the view that for summoning an accused person whose name appears in Column No.2 of the challan, it is not necessary for the learned trial Judge to record some evidence."

That judgment of this Court had later on been upheld and the matter was finally clinched by the Supreme Court of Pakistan in the case of Waqarul Haq alias Nithoo and another v. The State 1988 SCMR 1428 by holding that:

"In the present case the challan against the petitioners had not been cancelled by placing them in Column No.2. It only meant that according to the police investigation they were found innocent, and therefore, they were discharged under section 63 of the Cr.P.C. However, it does not mean that they could not be summoned to stand trial by the Sessions Court."

It was also observed by this Court in the case of Syed Waqar Hussain Shah v. The State PLD 1988 Lahore 666 that "The discharge of present petitioners through an order of Magistrate does not bar their trial by a Court of competent jurisdiction nor such trial could be termed as double jeopardy." Later on in the case of Ijaz Javed and 4 others v. The State 2000 PCr.LJ 595 I had an occasion to observe that:

"4. -- --- -- -. --- -- --- This argument of the learned counsel for the petitioners overlooks the settled legal position that an order of discharge does not amount to cancellation of a criminal case. An order of discharge only menas, that physical custody of an accused person is not required for the purposes of investigation for the present. It does not mean that the prosecution stands terminated or smothered. -_- --- --- ---- --- --- ---- --- --- -- -- -- In this respect it may also be observed that an order of discharge is only an administrative order and the same cannot be utilised for blocking a judicial order of summoning of accused persons by a Court of law."

The Supreme Court of Pakistan reiterated its earlier enunciation of the law on the subject in the case of Federation of Pakistan through Secretary Finance, Islamabad and another v. Malik Mumtaz Hussain and 4 others 1997 SCMR 299 wherein a reference was also made to the cases of Falak Sher v. The State PLD 1967 SC 425 and Sardar Ali and others v. The State P.S.L.A. No.66 of 1966 in that regard. The power of a trial Court to summon a discharged accused person to face a trial was also recognised in the cases of Allah Ditta v. The State and another 1991 PCr.LJ 663, Riasat Ali v. The State and another PLD 1993 Lahore 105, Waqar Was and another v. The State through the Federation investigating Agency, Commercial Banking Cell, Quetta PLD 1993 Quetta 49, Mahmood Ali v. The State 1994 PCr.LJ 842, Khadim Hussain and another v. The State and others 1996 MLD 903, Talib Hussain and another v. Muhammad Aslam and another 1997 PCr.LJ 56, Hameed Ullah Khan v. The State and another 1997 MLD 1745, Muhammad Ishaque etc. v. The State 1999 MLD 1039, Nasrullah v. The State 1998 PCr.LJ 2086, Muhammad Yaqub v. The State PLD 1998 Lahore 523, Mastan Shah v. Additional Sessions Judge/Special Judge, Bannu and 2 others 1999 PCr.LJ 469 and Abdul Ghaffar and 3 others v. Additional Sessions Judge, Gujranwala and another 1999 MLD .1822. It may also be added here that despite some confusion in this regard at an earlier stage it has now matured into an accepted principle that before summoning a discharged accused person, or even an accused person whose name has been placed in U Column No.2 of the challan, to face a trial a trial Court need not record some evidence if the material already becoming available during the investigation is found by the trial Court to be sufficient to warrant such summoning.

23. It has already been mentioned above that an order regarding discharge of an accused person is essentially an administrative and not a judicial order. There is indeed a lot of judicial precedent for the said IV proposition. A reference in this respect may be made to the cases of Khan Sahib Khan Muhammad Saadat Ali Khan v. The Administrator Corporation of City of Lahore PLD 1949 Lahore 451, Haji Abdul Rehman v. Sultan and another 1971 PCr.LJ 1164, Altaf Hussain v. Muhammad Fazil and another 1979 PCr.LJ Note 66 at p.44 and Muhammad Waseem v. Additional Sessions Judge, Dera Ghazi Khan and 3 others 1985 PCr.LJ 224. In the famous case of Bahadur and another v. The State and another PLD 1985 SC 62 the Supreme Court of Pakistan had conclusively determined the issue in this respect in the following words:

"The High Court has taken the view, and we think rightly so, that under the Criminal Procedure Code a Magistrate is entrusted with diverse duties and in discharging the same does not always function as a Court., conduct judicial proceedings or is amenable to the revisional jurisdiction. Some of his powers and duties under the code are administrative, executive or ministerial and he discharges these duties not as a Court but as a persona designata. Mere name or designation of a Magistrate is not decisive of the question because as observed, 'Judges often administer and administrators of ten judge' ---- ---

Though a Magistrate in cancelling a registered criminal case is required to act judicially in that he has to act fairly, justly and honestly, a duty common, to the exercise of all State power, there is no lis before him, there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order. The party is left free to institute a complaint on the same facts and the same Magistrate does not even after passing such an order render himself functus officio. On the contrary he is quite competent to entertain and deal with such a complaint on material presented to him. These peculiarities establish beyond any doubt that in so concurring with a report under section 173, Cr.P.C. he does not function as a criminal Court. For that reason his order is not amenable to revisional jurisdiction under sections 435 to 439, Cr. P. C. "

Similar views were expressed by the Supreme Court of Pakistan in the later case of Muhammad Ashraf and 8 others v. The State and another 1997 SCMR 304. The law declared by the Supreme Court of Pakistan in this regard has since, been followed with consistency and a reference may be made in this regard to the cases of Muhammad Akram v. The State and Muhammad Sharif 1986 MLD 2439, Waqarul Haq alias Mithoo and another v. The State PLD 1988 Lahore 336, Mazhar Iqbal v. The State 1989 PCr. LJ 2241, Muhammad Shamim v. Ali Gohar and 3 others 1990 PCr.LJ 1932, Khadim Hussain and another v. The State and others 1996 MLD 903, Muhammad Aslam and 6 others v. The State 1996 PCr.LJ 827, Talib Hussain and another v. Muhammad Aslam and another 1997 PCr. LJ 56, Ch. Waheed uz Zaman v. Jamil and 8 others 1997 PCr.LJ 1167, Ijaz Javed and 4 others v. The State 2000 PCr.LJ 595 and Muhammad Ashfaq and another v. Jameel Akhtar Shehzad, Civil Judge/Magistrate Section 30, Dunyapur, District Lodhran and others 2000 MLD 1122. The proposition that an order of a Magistrate regarding discharge of an accused person in a criminal case is an administrative and not a judicial order and the same is not amenable to revisional jurisdiction can, therefore, be confidently accepted as a proposition firmly settled by an overwhelming weight of judicial authority.

24. It may also be stated here that an order of a Magistrate regarding discharge of an accused person in a criminal case is essentially a discretionary order which may not ordinarily be interfered with by a higher forum as a matter of course unless strong and compelling reasons exist for such interference. As already noticed above the Supreme Court of Pakistan had observed in the abovementioned case of Bahadur and another v. The State and another PLD 1985 SC 62 that "Though a Magistrate in cancelling a registered criminal case is required to act judicially in that he has to act fairly, justly and honestly, a duty common to the exercise of all State power, there is no lis before him, there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order" and that such an order is only an administrative order which does not prejudicially affect any other party's rights or remedies. Thus, in view of such a legal status of an order of discharge, extraordinary reasons have to be available for a higher forum to interfere with such an exercise of jurisdiction and discretion by a Magistrate and for insistence upon taking an accused person into custody where the police or the Magistrate do not deem such custody to be necessary or warranted for the time being in the circumstances of a given case. Generally such an insistence by a complainant while seeking setting aside of an order of discharge stems from a misconception that due to the order of discharge the accused person in question stands absolved of the allegations against him or the investigation or prosecution qua him have been smothered or terminated. As already observed above, such notions are based upon misunderstanding of the correct legal position regarding discharge. With the restatement of the law on the subject through this judgment such misconceptions now ought to stand dispelled and it is, therefore, expected that henceforth propensity of complainants to rush to a higher forum with challenges against the orders of discharge would dissipate. In order to complete the picture it may be mentioned here that, as already noticed above, a revision petition is not competent against an order of discharge and such an order may be challenged before a High Court through a petition under Article 199 of the Constitution praying for issuance of a writ of certiorari. It was held by the Supreme Court of Pakistan in the cases of Arif Ali Khan and another v. The State and 6 others 1993 SCMR 187 and Muhammad Sharif and 8 others v. The State and another 1997 SCMR 304 that in an appropriate and unusual case even a petition under 'section 561-A. of the Code may be maintainable before a High Court against an order of discharge. The case-law on the subject shows that some of the recognised grounds for interference with an order of discharge are passage of such an order by a Magistrate mechanically without application of his own independent mind to the facts of the case, blindfolded acceptance of a recommendation of the police in that regard, perversity of reasoning and adoption of a procedure which offends against the letter or spirit of the law relating to discharge. This judgment may not be burdened with reference to cases on the earlier of such categories but for the last of such categories a reference may be made to the cases of Hussain Ahmad v. Mst. Irshad Bibi and others 1997. SCMR 1503 and Gul Muhammad v. The State and others NLR 1999 Criminal 710. As far as the present case is concerned the respondent Magistrate had recorded sound reasons for passing; the impugned order of discharge and he had also not violated any procedure in that regard and, thus, no justifiable reason exists for interference by this Court with his exercise of jurisdiction and discretion in the matter.

25. Yet another aspect of the matter of discharge is that discharge of an accused person by a Magistrate is not legally possible after taking of cognizance of the case by a trial Court. In the case of Muhammad Alam and another v. Additional Secretary to Government of N.-W.F.P., Home and Tribal Affairs Department and 4 others PLD 1987 SC 103 it was held by the Supreme Court of Pakistan that discharge of an accused person or cancellation of case by a Magistrate are not legally possible after cognizance of the case has been taken by the trial Court. The said judgment was followed and the said principle was reiterated by the Supreme Court of Pakistan in the later case of Nasira Surriya v. Muhammad Aslam and 7 others 1990 SCMR 12. This Court also had an occasion to elaborate that principle in the case of Syed Waqar Hussain Shah v. The State PLD 1988 Lahore 666 wherein it was held that:

"When a Court takes cognizance of an offence on receipt of incomplete or complete challan the prosecution is left with two courses only. One to produce evidence in Court and allow the learned trial Judge to decide the case on merits according to law. Two: to seek withdrawal of the case under section 494, Cr.P.C. It is apparent that the prosecution did not follow any of the above courses and instead initiated parallel independent proceedings by filing supplementary challan and getting the two accused discharged through an executive order of the Illaqa Magistrate. The procedure as followed was not legal."

The principle propounded in the abovementioned judgments was subsequently followed in the case of Haji Muhammad Javed v. The State and 2 others 1991 PCr.LJ 62, Abid Shah v. The State PLD 1992 Lahore 412, Ajmal Ali Shah v. 1'he State 1992 PCr.LJ 708, Murid Hussain v. The State 1993 MLD 2402, Ansar Hussain v. Allah Ditta and 2 others 1993 PCr.LJ 1593 and Mst. Kausar Bibi v. The Deputy Inspector-General of Police, Crimes Branch, Punjab, Lahore and 2 others 1996 PCr.LJ 124. I may add here that after taking of cognizance by the trial Court only three results are possible in a criminal case: firstly, conviction of the accused person either upon admission of guilt by him or on the basis of the evidence led by the prosecution; secondly, acquittal of the accused person either under sections 249-A/265-K of the Code or on the basis of failure of the prosecution to prove its case on merits beyond reasonable doubt; and thirdly, withdrawal from prosecution by a Public Prosecutor under section 494 of the Code. In this view of the legal position any attempt by the police or the prosecution to get an accused person discharged or to get an F.I.R. cancelled from a Magistrate at that stage may not only be illegal but the same may also be perceived as an attempt to subvert the normal legal process for motives which may be otherwise than bona fide.

26. Finally, it may be clarified that an order regarding discharge or, otherwise of an accused person under section 63 or under subsection (3) of section 173 of the Code is within the competence of a Magistrate competent to take cognizance of the offence in question and it has no relevance to the question as to which Court is to ultimately try the said offence unless, of course, a special statute provides otherwise specifically. I feel that because of the fact that various authoritative judgments are already available in the field in this regard there should have been no confusion regarding this aspect of discharge yet, unfortunately, of late some misunderstanding has been noticed in this context which needs to be addressed. In the case of Bashir Ahmad v. Allaqa Magistrate, Jaranwala and 4 others PLD 1980 Lahore 28 the amendments made in the Code of Criminal Procedure, particularly in section 190 thereof, through the Law Reforms Ordinance, 1972 were taken notice of by this Court and it was concluded that even in cases triable exclusively by a Court of Session a Magistrate's power to discharge 'an accused person under the Code remained unaffected. Similarly in the case of Mehar Khan v. Yaqub Khan and. another 1981 SCMR 267 the Supreme Court of Pakistan had declared that even in cases triable exclusively by a Court of Session the Magistrate's powers under the Code remained intact till such time the case was formally sent by him to the Court of Session for trial. . The law declared by the Supreme Court of Pakistan in the subsequent case of Habib v. The State 1983 SCMR 370 left no doubt about the legal position' that the Magistrate's power to discharge an accused person of his bond under subsection (3) of section 173 of the Code even in cases triable exclusively by a Court of Session remains unaffected by the amendments introduced by the Law Reforms Ordinance, 1972 and also that in such cases the power of discharge remains vested with the Magistrate and not with the trial Court, i.e. the Court of Session. The case of Mehdi Hussain Shah v. Malik Khizar Hayat Khan and another 1983 PCr.LJ 1601 may also be referred to here within the argument that a Magistrate had no jurisdiction to order cancellation of a criminal case under subsection (3) of section 173 of the Code where such a case was triable exclusively by a Court of Session was repelled by this Court with reference to the abovementioned decision in the case of Bashir Ahmad v. Allaqa Magistrate, Jaranwala and 4 others PLD 1980 Lahore 28. A similar contention was also rejected by this Court in the case of Syed Hamid Muqeem Bokhary v. The State PLD 1985 Lahore 71 with reference to the decision in the abovementioned case of Mehdi Hussain Shah v. Malik Khizar Hayat Khan and another 1983 PCr.LJ 1601. In the case of Mahfooz Ahmad v. Additional Sessions Judge and another PLD 2000 Lahore 136 the power of a Magistrate to order discharge of an accused person in cases triable exclusively by a Special Court constituted under the It Suppression of Terrorist Activities (Special Courts) Act, 1975 was recognised. An oblique reference to the same principle may also be found in the case of Hafeezur Rehman v. The State PLD 1993 Peshawar 252 and Mastan Shah v. Additional Sessions Judge/Special Judge, Bannu and 2- others 1999 PCr. LJ 469.

27. The above-referred settled principle of law has, however, been departed from in the cases of Sardar Muhammad v. Zaffar Javaid Awan and others PLJ 1996 Lahore 680 and Muhammad Dildar Hussain and another v. The Civil Judge, Judicial Magistrate, Shujabad and 3 others 2000 PCr.LJ 43 decided by this Court wherein it has been held that a Magistrate has no jurisdiction to pass an order of discharge or of cancellation of case in a case which is triable exclusively by a .Court of Session. Both these judgments have been heavily relied upon by the learned counsel for the petitioner in the present case. The first of these two cases was decided by S.M. Zubair, J. and the second, by Bashir A. Mujahid, J. With respect to the learned Judges rendering the said two judgments it has been noticed by me that in both the abovementioned judgments the above referred judgments handed down by the Supreme Court of Pakistan and by this Court had not been taken notice 'of. It appears that unfortunately the learned Judges were not properly assisted in the said two cases. It has significantly been noticed 'by me that prior to deciding the abovementioned case of Sardar Muhammad v. Zaffar Javaid Awan and others PLI 1996 Lahore 680, S.M. Zubair, J. had himself held in the cases of Awal Khan v. The Superintendent of Police, Attock and 13 others 1989 PCr.LJ 909 and Mushtaq Rai v. Magistrate 1st Class and others 1994 PCr.LJ 497 that a Magistrate indeed had the necessary jurisdiction to discharge an accused person even in cases triable exclusively by a Court of Session. Iii the first of those cases the learned Judge had even referred to the law declared in that respect by the Supreme Court of Pakistan in the case of Habib v. The State 1983 SCMR 370. Unfortunately S.M. Zubair, J. was not trade aware of his Lordship's own earlier judgments in that regard when his lordship was called upon to decide the case of Sardar Muhammad v. Zaffar Javaid Awan and others PLJ 1996 Lahore 680. Likewise, as already observed above, the judgment passed by Bashir A. Mujahid., J. in the case of Muhammad Dildar Hussain and another v. The Civil Judge/Judicial Magistrate, Shujabad and 3 others 2000 PCr.LJ 43 also fails to take notice of the law already declared by the Supreme Court of Pakistan and by this Court in the earlier cases referred to above and proceeds to upset the law which already stood settled by many authoritative pronouncements. It may be observed that apparently the learned Judges were not adequately assisted in these cases regarding a clear and well-recognised distinction between taking of cognizance of an offence and holding of a trial for such an offence. A bare reading of the provisions of sections' 190 and 173 of the Code demonstrates that even in cases triable by a Court of Session a report under section 173 of the Code is to be submitted by the police before a Magistrate, the cognizance of the offence is taken by the Magistrate and after taking of cognizance of the offence, the case is then sent by the Magistrate to the Court of Session for trial. Taking of cognizance of an offence is, thus, different from holding of a trial and in a given case these two functions may be performed by two different fora. The power of discharge is conferred upon the Magistrate competent to take cognizance of the offence and it has no relevance to the fact as to which Court is to ultimately try the offence in question. Unfortunately attention of the learned Judges deciding the abovementioned two cases had not been drawn to any of the cases decided by the Supreme Court of Pakistan and by this Court referred to in paragraph No.26 above highlighting the said disjunction and authoritatively concluding that even in cases of offences triable exclusively by a Court of Session the matters of discharge of an accused person or cancellation of an F.I.R. continue to remain within the competence and jurisdiction of a Magistrate till a formal sending of the case by the Magistrate after taking of the offence to the Court of Session for trial. For these reasons I am constrained to observe with great respect that the abovementioned judgments passed by this Court in the cases of Sardar Muhammad v. Zaffar Javaid Awan and others PLJ 1996 Lahore 680 and Muhammad Dildar Hussain and another v. The Civil Judge/Judicial Magistrate, Shujabad and 3 others 2000 PCr.LJ 43 do not commend themselves to be treated as binding precedents or as true and correct manifestation of the settled legal position in that regard. With these observations the alternate argument advanced by the learned counsel for the petitioner in the present case that the respondent Magistrate had no jurisdiction to discharge Muhammad .Rafique respondent because the case was triable exclusively by a Court of Session is repelled and rejected.

28. It may be necessary to mention here that under the present dispensation under the Code there are two kinds of Magistrates, i.e. Judicial Magistrates and. Executive Magistrates and both have their respective jurisdictions vis-a-vis competence to take cognizance of specified offences. It has already been mentioned above that the power of a Magistrate to discharge an accused person under the Code is relatable to his competence to take cognizance of an offence. Thus, an Executive Magistrate having no jurisdiction to take cognizance of a particular offence is not competent to discharge an accused person involved in such an offence and, likewise, a Judicial Magistrate having not been conferred jurisdiction to take cognizance of a particular offence is not empowered to discharge an accused person involved in such an offence. An order of discharge passed by an incompetent Magistrate is, therefore, an order passed without lawful authority and the same is of no legal effect. A, reference may be made in this respect to the cases of Sufi Abdul Qadir v. The State and others 2000 PCr.LJ 520 and Ghulam Shabbir v. State 2000 PCr.LJ 1411.

29. For facility of cognition and reference the above discussion is summed up with the following resume and conclusions:

(i) The concept of discharge is relatable only to custody of an accused person in a criminal case and it has no relevance to anything else during an investigation or a trial.

(ii) The Investigating Officer of a criminal case may discharge an accused person under section 63 of the Code of Criminal Procedure and release him from custody during the investigation on executing a personal bond regarding his appearance before the Investigating Officer or a Magistrate whenever required to do so during the investigation. Likewise under the same provision of law an accused person may be discharge from custody during the investigation either on bail or under the special order of a Magistrate.

(iii) Upon receipt of the police report under subsection (3) of section 173 of the Code of Criminal Procedure a Magistrate may discharge an accused person of his bond if such an accused person has already been released upon executing a bond.

(iv) There is a difference between discharge of an accused person by an Investigating Officer on a bond or on bail or under the special order of a Magistrate under section 63 of the Code of Criminal Procedure and discharge of such an accused person of his bond by a Magistrate under subsection (3) of section 173 of the Code of Criminal Procedure as in the former case the accused person is released on the condition of executing a bond whereas in the latter case he is released of his bond making his release unconditional and unfettered for the time being.

(v) Discharge of an accused person does not amount to smothering of the investigation qua him, cancellation of the case against him, termination of his prosecution or his acquittal.

(vi) A discharged accused person can always be associated by the police with the investigation of the given criminal case at any subsequent stage during the investigation without obtaining any permission from the Magistrate discharging the said accused person as long as that accused person is not to be taken into custody during such' subsequent investigation.

(vii) If after his having been discharged by a Magistrate the police needs to arrest an accused person during any subsequent stage of the investigation then a formal permission from the Magistrate is necessary for the purpose.

(viii) Discharge of an accused person has nothing to do with the prospects of such an accused person ultimately facing a trial or not as his discharge is not from the case but only on or of his bond.

(ix) Whether an accused person had been discharged or not and whether the police had opined about his guilt or not in its report under "section 173 of the Code of Criminal Procedure are factors which are irrelevant to the issues whether cognizance of the offence is be taken or not and whether such art accused person is to be summoned or not to face a trial because such decisions are to be made by the Magistrate taking cognizance of the offence and the trial Court on the basis of the material collected during the investigation and the attending circumstances of the case and not on the basis of any opinion formed by the police on the basis of such material.

(x) Discharge of an accused person by a Magistrate is not possible after taking of cognizance of the case by the trial Court.

(xi) An order regarding discharge or otherwise of an accused person lies within the competence of a Magistrate having jurisdiction to take cognizance of the offence and it has no relevance to the question as to which Court is to ultimately try the offence in question unless a special statute provides otherwise specifically.

(xii) An order regarding discharge of art accused person is an administrative and not a judicial order.

(xiii) An order regarding discharge is essentially a discretionary order which may not ordinarily be interfered with by a higher forum unless strong and compelling reasons exist for such interference.

30. For what has been discussed above I have failed to find any merit in the present petition which is hereby dismissed.

31. Because of the importance of the legal issues involved in this case and in order to remove some confusion prevailing among the subordinate judiciary and the police regarding such issues it has been felt desirable. that this judgment should be circulated among all the relevant quarters. The Additional Registrar of the Multan Bench of this Court is, therefore, directed to send copies of this judgment to all the Sessions Judges in the Province of the Punjab who shall then ensure that the Presiding Officers of all the Criminal Courts within their respective jurisdictions receive a copy of this judgment for their information and guidance. The Additional Registrar is also directed to send a copy of this judgment to the Inspector-General of Police, Punjab who shall then cause copies of this judgment to be sent to all the Deputy Inspectors-General of Police, the Senior Superintendents of Police and the Superintendents of Police who shall ensure that every Station House Officer of every Police Station in the Province of the Punjab receives a copy of this judgment for his instruction and compliance. The Inspector General of Police, Punjab shall submit a report before the Additional Registrar of the Multan Bench of this Court regarding compliance of this direction.

M.B.A./A-202/LOrder accordingly.