' Through this single judgment I propose to dispose of the following:--
(1) Writ Petition No. 3113 of 2001; and
(2) Writ Petition No.9933 of 2001; ' filed by Mukhtar Ahmad and Ansar Abbas respectively for quashment of similar order dated 8-2- 2001 passed by the learned Judicial Magistrate, Muzaffargarh whereby he disagreed with the discharge report submitted by the police and directed for submission of challan in the Court for trial within two weeks.
2. Briefly the facts are that Barkat Ali respondent No.2 got lodged F.I.R. No.76 dated 17-6-2000 under sections 10/16 Offence of Zina (Enforcement of Hudood) Ordinance No.VII of 1979 at Police Station, Rangpur District, Muzaffargarh that on 13-9-1999 at about 2-00 p.m. Both the petitioners along with co-accused had enticed away his wife, namely, Mst. Nasim Bibi for Zina. After the investigation the police found the case as false and submitted discharge report against the petitioners, but through the impugned order dated 8-2-2001 the learned Magistrate disagreed with the same on the ground that the accused, nominated in the F.I.R., namely, Mukhtar Ahmad and Mst. Bibi wife of the complainant/respondent No.2 were prima facie connected with the alleged offence and directed the S.H.O. , Police Station, Rangpur for submission of challan after completion for trial in the Court of learned Sessions Judge within two weeks. Hence both these writ petitions.
3. The learned counsel for the petitioners contend that nobody had abducted Mst. Nasim Bibi wife of respondent No.2, but the case was got lodged by respondent No.2 with mala fide intention as his wife had refused to reunite with him and perform her marital obligations and also filed a suit for dissolution of marriage against him which was decreed on 20-7-2001. According to the learned counsel the police after thorough investigation had come to the conclusion that the case was false and recommended for discharge of the accused, which was verified by the senior police officers as well, but the learned Magistrate disagreed with the same without any valid reasons and he could not direct for submission of the challan in the Court. Relies upon 2002 YLR 4018 to contend that the impugned order is illegal and may be set aside as after definite opinion of the police regarding innocence of the accused, proceeding with the trial would be sheer wastage of time and abuse of process of law.
4. I have heard the learned counsel for the petitioners and perused the contents of the writ petitions along with the documents attached therewith. There is no cavil to the preposition that the order passed by the learned Magistrate regarding agreeing or disagreeing with the discharge report submitted by the police, as was held in Bahadur's case PLD 1985 SC 62 is an executive order.
It is also not denied that even if the discharge report was agreed upon, the police was competent to reinvestigate the case and act in accordance with the result thereof. Moreover the learned trial Court can summon the discharged accused on taking cognizance of the case if sufficient material is found to be available on the record to connect them with the commission of the crime. It is settled principle of law that the opinion of the police having no evidentiary value is not binding on the Courts, which are only competent to decide into guilt or otherwise of the accused finally.
5. The crux of the provisions of sections 169, 170 and 173, Cr.P.C. Is that whatever course the Investigating Officer adopts i.e. Whether he acts under section 169 or under section 170, Cr.P.C. It is incumbent upon him to submit a final report under section 173, Cr.P.C. With regard to the result of his investigation to a competent Magistrate and the said Magistrate shall, thereupon, take such action as he may consider proper under subsection (3) of section 173, Cr.P.C. Or under section 190, Cr.P.C. As the case may be. It is admitted position that the discharge report prepared by the police could only become final if was agreed upon by the learned Magistrate. The learned counsel for the petitioners have failed to point out as to what course was left with the police-except to submit final report under section 173, Cr.P.C. In the Court when the learned Magistrate did not agree with their discharge report. Thus I do not find any illegality committed by the learned Judicial Magistrate while directing the S.H.O. To submit report under section 173, Cr.P.C. In the Court of competent jurisdiction for trial. The case-law cited by the learned counsel for the petitioners is not applicable to the facts and circumstances of the present case as only offences under sections 452 and 354, P.P.C. Were involved therein and the matter had also been earlier decided by this Court which attained finality. It has also been held therein that "... Different facts may lead to a different decision and it is not proper to apply a principle on the facts of one case to the facts of another case merely because relentless logic may so require, AIR 1950 Bom. 360 (FB)." I have intentionally not commented upon the merits of the case lest it may prejudice the case or either party in the appropriate proceedings as after submission of the challan the petitioners still have an alternate remedy by moving application under section 265-K, Cr.P.C. Before the learned trial Court for their acquittal, which being in possession of the whole record and evidence collected by the police during the investigation will be in a better position to appreciate the contentions of learned counsel for the petitioners into guilt or otherwise of the petitioner and pass proper order.
4. For the foregoing reasons, both the writ petitions having no merits are dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.