' MUHAMMAD AKHTAR SHABBIR, J.---This Intra Court Appeal arises out of the order, dated 20-10- 2004 passed by the learned Single Judge in Chambers of this Court.
2. The facts giving rise to the present appeal are to the effect that on 26-2-2004 on spy information, a raiding party had been formed and raid was conducted on the restaurant of the petitioner being run in the name of "Abshar Hotel" Company Bagh, Murree, and the appellant allegedly led to the recovery of Charas weighing 1300 grams from his restaurant. After investigation of the case, he was found guilty of the offence. The appellant had applied for reinvestigation of the case.
' Resultantly, D.S.P. (Investigations), Murree, found the petitioner innocent and recommended his discharge, directed the S.H.O. Concerned to proceed against Mushtaq alias Bhindari, an employee of the petitioner in the restaurant as, according to his opinion, the Charas recovered was owned by him. The report under section 173, Cr.P.C. Was sent to the learned Judicial Magistrate Section 30, Murree, who declined to agree with the same. In the meanwhile, the appellant applied for his post- arrest bail before the learned Additional Sessions Judge, Rawalpindi, who directed that the matter should be reinvestigated by the S.P. City, Rawalpindi, but the order of the learned Additional Sessions Judge had been set aside by this Court on 26-4-2004 passed in Writ Petition No,850 of 2004. The appellant challenged the order of the Magistrate, who declined to concur with the report filed under section 173, Cr.P.C. Submitted by the Police, which was disposed of on 9-6-2004 with the direction to the said Magistrate to dispose of it in accordance with law within a period of three weeks. In compliance to the said order, dated 9-6-2004, learned Magistrate vide his order, dated 27-7-2004 disagreed with the police report which has requested for discharge of the petitioner. The said order was again assailed by the petitioner in Writ Petition No,2274 of 2004 which was dismissed by the learned Single Judge of this Court with the observation that the learned Magistrate has not committed any illegality amenable to Constitutional jurisdiction of this Court.
3. Sardar Muhammad Latif Khan Khosa, learned counsel for the appellant contends that the exercise undertaken by the learned Magistrate regarding summoning the complainant and the witnesses of recovery was not warranted under law as he could agree or disagree by assigning his own sufficient reasons.
4. On the other hand, learned Law Officer vehemently opposed the arguments of the learned counsel for the appellant contending that the Magistrate has passed the order after summoning both the parties and on the basis of the evidence produced by them.
5. I have heard the learned counsel for the appellant as well as learned Law Officer and perused the record with their assistance. The controversy revolved in this case is whether the order passed by the learned Magistrate disagreeing with the Police report submitted before him under section 173, Cr.P.C. Was a legal order or not.
6. On the report under section 173, Cr.P.C. Sent by the Police to the Magistrate, the order passed by the Magistrate was an administrative order and not a judicial one. Reference in this context can be made to the case of Mirdad Khan v. Zahir Shah (2000 PCr.LI 1739). The accused can be discharged if apprehended under section 63, Cr.P.C. Which reads as under:-- "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."
7. The Magistrate enjoys ordinary powers under section 36, Cr.P.C. Conferred upon him and specified in the Third Schedule and such powers are called their ordinary powers. There are some additional powers conferrable on a Magistrate on the recommendation of the High Court. Section 37, Cr.P.C. Says that on the recommendation of the High Court, the Provincial Government may, in additional to the ordinary powers, invest any Magistrate with any powers specified in the Fourth Schedule. In conferring the powers under the Code, Provincial Government may by order empower persons specially by name or in virtue of their office or classes of officials generally by their official title and every such order shall take effect from the date on which it is communicated to the person so empowered.
8. Section 169 of the Cr.P.C. Deals with the release of the accused when evidence deficient. The provisions of section 169, Cr.P.C. Are reproduced as under: -- "If upon an investigation under this Chapter, it appears to the officerin.-charge of the police station, or to the police officer making the investigation that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in 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."
9. Section 173, Cr.P.C. Deals with the report of the Police Officer, which envisages (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 a 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) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given: ' 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) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may pending the orders of the Magistrate, direct the officer-incharge of the police station to make further investigation.
(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 thinks fit.
(4)
(5)
10. The order on such report passed by the learned Magistrate would be an administrative order when he concurs with or refuses to agree with the police report submitted to him under section 173, Cr.P.C. And such order would not be a judicial order as laid down in the case of Bahadur and another v. The State and another (PLD 1985 -Supreme Court (62) wherein has been observed that Magistrate, even while concurring in cancellation of a case is required to judicially examine the report submitted under section 173, Cr.P.C. And this has led to the impression that he must while doing so be acting and functioning as a Court this obviously is a mistaken impression, the word "discharge" had been used in section 63(3) and section 173(3) of Cr.P.C., but the word "discharge" used in both the sections has been used in different senses in the two contexts and in section 63, Cr.P.C. It has been used in the sense of releasing the person arrested. But in section 173, Cr.P.C. The police recommends for discharge of the accused arrested by them. In this context, reference can be made to a case of Waqarul Haq alias Mithoo and another v. The State (PLD 1988 Lahore 336).
The Magistrate has to pass speaking order on the police report, whether he agrees or disagrees with the same after examining the police diaries and applying his judicial mind to the record produced before him.
11. In the present case, the Police has submitted its report under section 173, Cr.P.C. Before the Magistrate, which was disposed of vide order, dated 7-4-2004 and the appellant filed writ petition in this Court and the learned Judge of this Court vide order, dated 9-6-2004 held that the petitioner may, if so advised, filed fresh application before the Court who will decide it after hearing the petitioner and by making of his own inquiry. Thereafter, the subsequent report under section 173, Cr.P.C. Was placed before the learned Magistrate declaring the petitioner as innocent. The Magistrate while passing the impugned order had summoned the complainant as well as the recovery witnesses, who deposed against the petitioner that the Charas measuring 1300 grams was recovered from the possession of the accused/appellant but Khan Muhammad D.S.P. While appearing in defence deposed that the accused was found innocent. The Magistrate made a detailed inquiry while passing the impugned order, which was challenged by the appellant through Writ Petition No, 2274 of 2004. In our view, the Magistrate was not empowered under the Code of Criminal Procedure to make a detailed inquiry, which would tantamount the trial of the case. The police after investigation found the accused innocent and sought the discharge of the accused from the bonds and the Magistrate disagreed with the discharge report submitted by the Police.
The Ilaqa Magistrate while disagreeing with the police report and recording the evidence had travelled beyond his jurisdiction, which would mean that he assumed the role of the trial Court. The investigation of a criminal case and its resultant arrival by the police regarding innocence or otherwise is the prerogative of the police over which no other authority had any control. All the Magistrate should have insisted upon that the Investigating Officer should submit its report under section 173, Cr.P.C. Incorporating the final opinion of the Police based upon the evidence collected by it during the investigation. It is the trial Court who can disagree with the opinion of the police and record the evidence on the submission of the Challan by the police. But in the instant case, the Challan has not been sent to the Magistrates rather simple report under section 173, Cr.P.C. Was sent to him praying therein for discharge of the accused. If the accused was not recommended to be tried in a criminal case only then report under section 173, Cr.P.C. Was to be submitted without any challan accompanying therewith. In this context, reference can be made to the case of Ahmad Nawaz v. The State (2001 M LD 1330). The learned Single Judge while passing the impugned order has not adverted to this legal aspect of the case.
12. For the foregoing reasons. We find force in the arguments of the learned counsel for the appellant and resultantly this I.C.A. Is accepted while agreeing with the Police report and the order, dated 20-10-2004 passed by the learned Single Judge is set aside.