Precisely , the petitioner lodged FIR No. 422 of 2020 dated 11.06.2020, for offence under section 406 PPC, at Police Station Moutra, District Sialkot against the respondents No. 5 and 6, who were arrested on 13.06.2020 in the above said FIR and on the same day, the Investigating Officer produced them before the learned Judicial Magistrate Ist Class, Daska seeking their physical remand. The learned Magistrate/respondent No.2 vide impugned order dated 13.06.2020 not only turned down request of physical remand of the respondents No.5 and 6 but also discharged them by observing that offence under section 406 PPC is not attracted; hence, the instant constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 561-A of Cr.P.C.
2. Learned counsel for the petitioner has argued that the impugned order is void and without lawful authority; that evidence in the shape of statements of the petitioner and that of witnesses recorded under section 161 Cr.P.C. have not been considered while passing the impugned order; that the stamp paper executed by the respondents No. 5 & 6 germane to receipt of amount as entrustment, which was submitted during arguments, was also not taken into account; that order of discharge of accused persons at early stage of investigation without any cogent reason and justification means interference in process of investigation and it also restrained the Investigating Officer from collecting the evidence; that the Investigating Officer arrested the accused persons, investigation could not be completed within 24 hours so he produced the accused persons before the learned Magistrate for physical remand but the learned Magistrate without any proper and cogent reason as well as without affording opportunity to collect and produce evidence to the prosecution and the petitioner/complainant; that the impugned order has been passed without applying judicial mind, in a hasty manner; that bare reading of the FIR shows that offence under section 406 PPC is made out against the accused persons and essential ingredients of entrustment, dishonest misappropriation, dishonest use are attracted against the accused; that the impugned order is based on surmises and conjectures as well as the same is result of misreading and non reading of evidence and has been passed in an arbitrary manner; therefore, the same is not sustainable in the eye of law; henc e, by allowing the constitutional petition in hand, the impugned order may be set aside and physical remand of the respondents No.5 & 6 may be allowed for the purpose written in the application in this respect.
3. On the contrary , learned counsel for the respondents No.5 and 6 has supporte d the impugned order and has prayed for dismissal of the constitutional petition in hand. Learned Law Officer has informed that the cancellation report has been submitted in compliance with the impugned order .
4. Heard.
5. On lodging FIR by the petitioner , the Investigating Officer arrested the respondents No.5 & 6 on 13.06.2020 and when he could not conclude the investigation within 24 hours as fixed under section 61 of the Cr.P.C. he produced the accused with a request of eight days physical remand on the same date, obviously after recording statements of the witnesses under section 161 Cr.P.C., apparently considering that accusation is well founded, but the learned Magistrate without considering the statements of the witnesses and other material on record proceeded to pass the impugned order without mentioning the provisions under which such order was passed. During course of arguments, section 63 of the Cr .P.C. was referred, 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."
In order to properly understand the actual meaning and purpose of this provision, it is to be read with other provisions of Chapter V of the Criminal Procedure Code, 1898 and is not to be read in isolation. This Chapter relates to arrest, escape and retaking; it is in section 46 Cr.P.C. as to how the arrest is made and then continues to specify as to how in certain conditions the arrest has to be affected under sections 49 to 53 Cr.P.C. Sections 59 and 60 Cr.P.C. lay down that after a person is arrested, he has to be taken to a Magistrate or Officer in Charge of the police station. Section 61 provides that no person can be detained for more than 24 hours and by virtue of section 62 Cr.P.C. every arrest has to be reported to the concerned District Magistrate or Sub-Divisional Magistrate within whose limits the arrest has been made; then section 63 Cr.P.C., in the same run, prescribes that once a persons is arrested then he cannot be discharged unless three conditions are fulfilled as have been mentioned above under the said section. It means, once a person s is arrested by the police, he cannot be discharged by the police itself.
Perceptibly for the reason that the powers of arrest and discharge were not intend ed to be conferred on the police officials and intervention by the Magistra te was considered essential by the legislatures. As to how this power of section 63 Cr .P.C. has to be exercised, section 169 Cr .P.C. is relevant, which is reproduced for ready reference: - "169. If, upon an investigation under this Chapter , it appears to the officer incharg e 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 in custody , release him on his executing a bond, with or without sureties, as such officer may direct, to appea r, if and when so required, by a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or (send) him for trial."
If section 63 Cr.P.C. is given the meaning that a Magistrate can discharge an accused of his own without any police report then this exercise of power seems to be contrary to the whole scheme described in this regard. If such was the intention of the legislature with regards to section 63 Cr.P.C., there was no need to include section 169 in the Code of Criminal Procedure, 1898.
6. The epitome of the above discussion is that if sections 63 and 169 Cr.P.C. are read and considered together , one can easily infer that a Magistrate may discharge an accused person during investigation but the same would be done on the report of the police and not in the manner as has been done by the learned Magistrate in the present case.
At this point, a question arises that if a Magistrate, in a case, considers that there is no case whatsoever against the accused person in custody then whether the accused must be kept in custody by restricting his right of liberty?
In this situation, section 497 Cr.P.C. takes care; thus, to order straight-away under section 63 Cr.P.C. is contrary to the provisions of section 497 Cr.P.C. and in the present case, when the impugned order is gone through it appears that the learned Magistrate has gone deeply into facts of the case, put-forth by the defence side and entered into domain of investigation at the initial stage, because on the first day of arrest, the accused persons were discharged, especially when they were produced by I.O. seeking physical remand under section 167 Cr.P.C. and under the said provision, the learned Magistrate was not empowered to discharge the accused persons. It was held in Muhammad Shafi and others v. S.H.O. and others (1999 P Cr. LJ 1345) that criminal investigation should not be stifled or killed during its infancy as the same will be against the principles governing administration of justice and the same ratio was observed by a Division Bench of the Peshawar High Court in a judgment reported as The State through Advocate-General N.-W .F.P. v. Ubaidullah and another (2005 MLD 1883 ), wherein it was further held:- "If Magistrates are given the powers to discharge and release an accused person at the very initial stage, there will be no room for success in blind heinous criminal case which always investigated at different theories of probabilities based on spy information. Once an accused is apprehended and found innocent, he can only be set free during investigation by obtaining discharge order from Court. Discharge of accused is also governed by section 169, Cr.P.C. which is at the conclusion of investigation and on submission of report under section 173 Cr.P.C."
Similar view was rendered in judgments reported as Shahid Raza Bhatti v. Magistrate S. 30 etc. (PLJ 1998 Lahore 1683) and Imran Sattar v . Judicial Magistrate and others (PLJ 2001 Lahore 728).
The above said view finds support from the judgment of Apex Court reported as Hidayatullah and others v. State through Advocate General NWFP , Peshawar ( PLJ 2006 SC 1437 ) wherein it was invariably held:- "8. It is a settled principle of law that it is the discretion of the magistrate concerned to pass order under Section 63 of the Code of Criminal Procedure to discharge the accused persons. However , the discretion must be exercised by the concerned magistrate justly , fairly and in case discharge order was passed by magistrate mechanically without application of his 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 and spirit of the law relating to discharge, then High Court has ample jurisdiction to interfere and set aside such an order Section 561-A Cr.P.C. See Arif Ali Khan and others v. The State & others (1993 SCMR 187) and Muhammad Sharif & others v . The State and another ( 1997 SCMR 304 )."
(underline for emphasis)
Submission of report by the police is nece ssary as has been underlined in the exce rpt of the reported judgment and such discretion to pass order under section 63 Cr.P.C. to discharge the accused has to be exercised justly and fairly, but in the present case, as has been observed above, on the first day of arrest, the accused respondents No.5 and 6 have been discharged by the learned Magistrate despite the fact that statements of complainant and witnesses recorded under section 161 Cr.P.C. were available on record. It is not the case that the learned Magistrate already granted physical remand of the accused and the police could not collect incriminating evidence against them; thus, such mechanical order cannot be allowed to hold field.
7. In view of the above discussion and while placing reliance on the judgments supra, the constitutional petition in hand is allowed, impugned order is set aside and the request of the Investigating Officer for physical remand of the accused persons i.e. respondents No.5 and 6 will be deemed to be pending before the learned Magistrate, who shall pass appropriate order keeping in view the observations made above. Office is directed to transmit copy of this order to the learned Magistrate concerned immediately .