' Liaqat Ali has invoked the extraordinary jurisdiction of this Court by filing this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 against the respondents seeking the declaration from this Court. That the orders of the learned Magistrate/respondent No,1 dated 25-1- 1992 refusing the remand of respondent No,2 and instead discharged her as also the revisional order of the Additional Sessions Judge, dated 19-2-1992 and the further order of the A.D.C.
(G)/respondent No,4 dated 1-9-1992 rejecting the prayer for issuance of non-bailable warrants of the arrest of respondent No,2 to be without lawful authority and in consequence it was prayed that respondents Nos.1 and 4 be directed to issue warrants for the arrest of respondent No,2 and facilitate the statutory authorities for investigating the double murder case to its logical conclusion by relegating them with the physical custody of respondent No,2. The prayer for the stay of the trial had also been made.
' This writ petition was admitted to hearing vide this Court's order dated 4-10-1992 and the proceedings before the learned Additional Sessions Judge, Sahiwal had been stayed.
2. The brief facts giving rise to this petition are; that Mst. Bhawan--respondent No,2 lodged F.I.R.
No,3W at 3 a.m. On 26-8-1989 at Police Station, Burjwala alleging therein that during the preceding night the petitioner and his four brothers variously armed murderously assaulted her husband, Sher Nawab and his sister Mst. Farrukh Iqbal; besides Mst. Khalida Parveen in the compound of their house situated in Chak No,67/5-L pistrict Sahiwal. While Sher Nawab succumbed to the injuries at 1 p.m. On 27-8-1989. Mst. Farrukh Iqbal died at 7 p.m. On 30-8-1989.
' The motive for the occurrence stated in the F.I.R. Refers to litigation between Noor Elahi maternal cousin of Sher Nawab and the petitioner as also his brothers, who are also maternal cousins of the said deceased. It was stated that Sher Nawab deceased was supporting Noor Elahi and as such the petitioner and his brothers were annoyed with him.
3. Consequent to the registration of the case and different investigations Muhammad Amir Niazi, D.S.P., Arifwala found the complainant's version doubtful but the complainant got the investigation transferred to one Farrukh Nisar Lashari, Inspector, Range Crimes, who gave some favourable reports but the same was again transferred and entrusted to Masood Akhtar, A.S.P. Subsequently this investigation was entrusted to Shahid Yar Khan, A.S.P., Qila Gujar Singh and then to Ch. Sultan, D.S.P., Crimes Range, Lahore. It was again transferred to Mirza Muhammad Rafique, A.S.P. Crimes, who under the orders of the Inspector-General of Police, Punjab, conducted thorough investigation and found the story of the F.I.R. To be wholly false and the accused nominated therein to be innocent. He was of the view that it was actually respondent No,2 who had committed the murder of her husband. He recommended that the accused in the F.I.R. Be discharged and Mst. Bhawan lodger of the F.I.R. Be arrested. On the basis of this report, S.H.O. Burjwala submitted the discharge report dated 30-4-1991 before the Ilaqa Magistrate/respondent No,1, who declined the prayer for the discharge of the petitioner and his co-accused, vide his order, dated 30-4-1991. The revision preferred by the petitioner was also dismissed by the learned Additional Sessions Judge, Sahiwal vide his order, dated 21-5-1991 and the Writ Petition No,2743 of 1991 was also filed which was dismissed vide order, dated 14-12-1991.
4. Mst. Bhawan, respondent No,2 was arrested on 24-1-1992 by the S.H.O. Police Station, Burjwala and she was produced for physical remand on the ensuing day, but the learned Magistrate after considering the justifiability of her remand to police custody passed the order for the discharge and she was released forthwith. The petitioner challenged the order dated 25-1-1992 before the Court of Sessions but the learned Additional Sessions Judge, Sahiwal vide order dated 19-2-1992 dismissed the revision. A.D.C.(G), Sahiwal was also moved for the issuance of non-bailable warrants of arrest against respondent No,2 but that was also dismissed on 21-9-1992.
5. It was contended that Mst. Bhawan, respondent No,2 having herself perpetrated the gruesome murder of Sher Nawab and his sister Mst. Farrukh Iqbal, cousin of the petitioner had got a false case registered against the petitioner and his four brothers. She tried to bribe the S.H.O. And the other police officers and the bribe giver was caught red-handed by the Supervising Magistrate and he recovered Rs,34,800. It was submitted that the detailed report of Mirza Muhammad Rafique, D.S.P., Crimes Branch as confirmed by his superiors provides startling disclosure culminating in the unfortunate murder perpetrated through a conspiracy of respondent No, 1 and executed with utmost dexterity. It was added that the learned Magistrate did not apply his judicial mind to the facts and circumstances of this case when he proceeded to deny the prayer for physical remand and he illegally discharged the respondent.
6. The learned Additional Advocate-General appearing on behalf of the State contended that the police report would not relieve the Court of its obligation to continue the proceedings until their proper termination under the relevant law. It was argued that the cancellation of case under section 173, Cr.P.C. Is not permissible after the cognizance has been taken. He also argued that a Magistrate irrespective of the opinion of an Investigating Officer can take cognizance if he finds, prima facie, case made out against the accused.
7. The learned counsel appearing on behalf of respondent No,2 supported the orders passed by the respondents as legal.
8. After having heard both the sides, I have given my earnest thoughts to the arguments advanced by both the sides and have also gone through the record very minutely.
9. I find that the S.H.O. Police Station, Burjwala after the final investigation made in the case by the Officer of the Crimes Branch submitted the discharge report dated 13-4-1991 before the Ilaqa Magistrate/respondent No,1, who declined the prayer for the discharge of the petitioner and his co- accused through his order dated 30-4-1991. Being aggrieved of the order of the learned Magistrate, the petitioner filed a revision petition before the learned Additional Sessions Judge which was dismissed on 21-5-1991 and then he filed Writ Petition No,2743 of 1991 which was dismissed in limine vide this Court's order, dated 4-12-1991. It was found by this Court that: "After hearing the learned counsel for the petitioner, I do not find any force in the contentions raised by him. The Magistrate is not bound by the police report. He has to apply his mind independently and in this case he has given reasons for disagreeing with the discharge report. He has mentioned that in the presence of the ocular testimony substantiating the incident, the discharge of the accused-petitioner would not be proper. He has further stated that an incomplete challan after investigation has already been sent up to the Court of the learned Sessions Judge as such there was no jurisdiction left with him to interfere in the matter. Learned counsel for the petitioner has failed to point out any illegality in the order warranting interference in the exercise of Constitutional jurisdiction. Resultantly, this writ petition is dismissed in limine."
' The abovesaid order being in the field intact, the challan in the case against the petitioner and others had been sent up to the learned Sessions Judge and as such there was nothing left with the Magistrate to interfere in the matter. The petitioner and his co-accused being tried for the abovesaid murder and the evidence, it is stated, is being recorded. The order of the Lahore High Court dated 14-12-1991 was never assailed in I.CA. Or in the Supreme Court of Pakistan so that attained finality.
10. In my view, the learned Magistrate was justified in passing the order dated 25-1-1992 whereby he discharged respondent No,2 as according to him he passed that order after considering the case diaries and the other material placed before him for obtaining the remand of Mst. Bhawan, respondent No,2. Similarly I do not fmd any illegality committed by respondents Nos. 1, 3 and 4 while passing the impugned orders.
11. In view of the facts and circumstances of this case enumerated above, the discussion made, and in view of the order, dated 14-12-1991 passed by this Court in this case I do not find any good ground to allow this petition so the same having no force is dismissed. However, there is no bar for the petitioner or any other person concerned in the matter to file private complaint, if so advised, so that both versions be put before the trial Court to reach to a just conclusion in the case.