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 10th April, 2001.

(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-avis 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.

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 eyewitnesses 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 reinvestigate 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 basis of 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/L Order
accordingly.