ABDUS SATTAR ASGHAR, J.---This petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 by the State has arisen in the following circumstances.
2. Abdul Khaliq SI complainant of the FIR alleged that pursuant to a spy information police conducted raid and apprehended respondents Nos.2 to 6 while gambling. Allegedly police also recovered stake money Rs,4,510 along with 'Copy Akra' from the possession of the, respondents. The next day on 13-5-2012 police produced the respondents/accused before the learned Judicial Magistrate Nankana Sahib seeking their judicial remand which was declined with the observation that prosecution story appeared doubtful and respondents/accused were discharged through the impugned order dated 13-5-2012.
3. Learned Law Officer for the petitioner argues that the impugned order is against law and facts without lawful authority and liable to set aside.
4. Arguments heard. Record perused.
5. In this case recovery of meager cash amount from five respondents/accused in the opinion of the learned Magistrate was not a sufficient cause for remanding the accused/respondents in judicial custody. It is an established principle of law that police report under section 167, Cr.P.C. Is not binding upon the Court. Section 63 of the Cr.P.C. Empowers a Magistrate to order release of the accused persons even without a formal bail order when he comes to the conclusion that the police was not justified in arresting the accused or that there is no reason for remanding the accused to custody. A Magistrate therefore has a lawful authority to grant an effective relief to a person arrested or detained by the police in the absence of sufficient cause or material. Needless to say that an order under section 63 of Cr.P.C. Passed by the Magistrate does not extinguish the process of investigation which can proceed in accordance with law until the police submits report under section 173, Cr.P.C. In the cases where an accused person is released/discharged by the Magistrate under section 63 of Cr.P.C. The police of course cannot re-arrest the accused without order of the Magistrate. The impugned order of the learned Magistrate refusing remand and discharging the accused did not amount to cancellation of case. The Investigating Officer could have proceeded with the investigation and if there was material warranting the arrest of the petitioner he could apply for permission to the learned Magistrate to re- arrest the accused and challan them in terms of section 173, Cr.P.C. The learned Magistrate therefore was well within the jurisdiction to pass the impugned order. The impugned order is not beyond the lawful authority of the Magistrate. I do not see any jurisdictional error or legal infirmity in the impugned order passed by learned Magistrate.
6. For the above reasons this constitutional petition having no merit is dismissed in limine.