' This writ petition has been filed by the petitioners who are accused in a case under section 307/34, P. P. C. And whose case was challaned on a police report under section 173, Cr. P. C. By a learned Magistrate.
2. The brief facts of the case are that on 13th December, 1978 a case under section 307/34, P. P. C.
Was got registered against the petitioners by Muhammad Hussain complainant. The case was investigated firstly by S. H.
0. Police Station, Kunjah and later by D. S. P. Headquarters, Gujrat. The prosecution agency thereafter, on 17th March, 1979 put up before a learned Magistrate the police report under section 173, Cr. P. C. Requesting for cancellation of case.
3. The matter came up before Mr. Muhammad Nawa2 Hasrat, Magistrate Section 30, Gujrat who after hearing the Prosecuting Inspector passed the order for the cancellation of the case on 17th March, 1979. It is further stated that after the aforesaid cancellation order, Amir Hussain Shah A. S. I.
Police Station, Kunjah entered a report in the daily Roznamcha at No, 12 on the same day to the effect that case F. I. R. No, 166/78 under section 307/34, P. P. C. Entitled State v. Ali Ahmad, etc. Was discharged by the Court of Mr. Muhammad Nawaz Hasrat, Magistrate Section 30. Further support is found for this circumstance from the fact that Ali Ahmad and Inayat had been released on bail and the complainant had moved an application for cancellation of their bail in the Court of Qazi Muhammad Latif, learned Additional Sessions Judge which application was withdrawn by the complainant on the ground that the accused had already been discharged. A copy of this order is Annexure `D'. A further circumstance relied upon is that Muhammad Sharif petitioner No, 2 had also applied for bail before arrest and he had been admitted to ad interim bail but at the time of confirmation consistent with the correct position, the learned A. P. P. Made a statement before the learned Additional Sessions Judge that the accused had been discharged and thus the application was held to have become infructuous. There was also a counter-case lodged by Ali Ahmad petitioner No, 1 against the complainant and other under sections 307/149, 148 P. P. C. Giving counter version.
4. The present proceedings have arisen as a result of the fact that the order, dated 17th March, 1979 was not available on the file. The file of the case was then put up before another learned Magistrate, namely Mr. Rafiq Awan. He summoned the present petitioners on 17th November, 1979, vide Annexure 'EP. In the meantime, the petitioners also moved the District Magistrate for holding an inquiry as regards the disappearance of the order, dated 17th March, 1979. The order of the learned Magistrate dated 11th November, 1979 was challenged by way of revision before a learned Additional Sessions Judge, Gujrat who dismissed the same on 7th June, 1980.
5. In this case, the learned Advocate-General Punjab, Sh. Riaz Ahmad assisted by the learned Additional Advocate-General, Mr. Rashid Aziz Khan appeared and Shameem Haider A. S. I. Was also present with the police record. Indeed, on perusal of the daily diary it appeared that the factum of the cancellation of the case was duly recorded in the Roznamcha. However, in the meanwhile, the petitioners have also been able to obtain a certified copy of the order, dated 17th March, 1979 which had become available. A perusal of this order shows that the accused were found to be innocent by the Investigating Officer and recommendation made for the cancellation of the case. The Magistrate accepted the recommendation and passed orders on 17th March, 1979 in the same terms.
6. In the meanwhile, there has been a further development, inasmuch as the parties have arrived at a compromise. Muhammad Afzal, the injured person is present in Court who is identified by Shameem Haider, A. S. I. Police Station, Kunjah. He frankly stated that the parties have B compromised the matter and he has forgiven the accused and has brought about peace and amity voluntarily free from all influences. He further submitted that neither he nor the prosecution witnesses have any intention to support the prosecution case.
7. Next, it may be seen that the learned Magistrate had resummoned the accused on the basis of the same police report under section 173 Cr. P C. Under the assumption that there was no order in existence passed on 17th March, 1979. This assumption has been proved to be false on being established that such an order had been made. In the face of these circumstances, the learned Advocate-General, Punjab stated that the impugned order would stand vitiated on the basis of a wrong assumption and that otherwise no useful purpose would be served in view of the compromise brought about by the parties.
8. The fact of the matter is that the learned Magistrate having cancelled the police case, it did not amount to discharge entailing acquittal. It was open for the police agency to carry out further investigation and if as a result thereof sufficient evidence was forthcoming, it was for prosecution to put a fresh challan. After cancellation of the police case, it was also open for the complainant to file a private complaint which too D has not been done. There was thus no jurisdiction in the successor Magistrate to ignore or review the order of his predecessor, dated 17th March, 1979 or to initiate fresh proceedings on the same police report asking for cancellation of the case which was blessed by his predecessor. The order having been made and conveyed had taken legal effect.
9. It must be pointed out that loss, misplacement or destruction of The official records cannot prejudice the rights of the parties and the Court or the quarters concerned must reconstruct the file. In such a situation it was the duty of the learned Magistrate not to act in haste but to have inquired into the matter as the passing of the order dated 17th March, 1979 was being corroborated by the undisputed entry of the same date in the police diary made by Syed Amir Shah A. S.-I.
10. In view of what has been stated above, I would accept the writ petition and quash the impugned order of the learned Magistrate, dated 17th November, 1979 and of the learned Additional Sessions Judge, dated 7th June, 1980. In the circumstances of the case, there will be no order as to costs.