ORDER AHMAD SAEED AWAN J.- These writ petitions bearing No. 12574/94 and W.P. No. 13442/94 under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, are directed against the reinvestigation, being conducted by respondent No. 2 without permission of the Court; who had earlier discharged the petitioners from the Case FIR No. 227 dated 18.6.1993 under section 302/34 PPC registered at Police Station Shorkot, District Jhang. I propose to decide both the petitions by this single order.
2. The brief facts of the case are the said FIR was registered on the statement of Haq Nawaz respondent No. 3 against some unknown persons, however he suspected the petitioners that they might be the real accused due to previous enmity. The respondent No. 2 investigated the case. The petitioners joined the investigation but the real culprits, as alleged, could not be traced out. The respondent No. 1 prepared a report under section 173 Cr.P.C, and submitted before the Magistrate wherein indicated that inspite of for months had passed, the case was still untraceable and further investigation would be fruitless; hence the case be considered as untraceable. The report also indicated that neither any article was taken into possession nor any arrest was made. The Magistrate passed the following order on the report: ((Urdu Text))
3. Learned counsel for the petitioners vehemently contended that after the cancellation of case by1 a Magistrate on the basis of report under section 173 Cr.P.C wherein the petitioners were declared innocent, the re-investigation of case by respondent No. 2 without the prior permission of the Magistrate is illegal and without authority. The learned counsel relied upon the case Mst. Iqbal Begum Versus State (1991 P.Cr.L.J. 1755 Lahore) and Abdul Waheed Versus State (PLD 1986 Lahore 81) wherein it was held that the police officer was incompetent to launch fresh investigation of the case when a discharge order had already been passed by the Magistrate. The Investigating Officer could not reinvestigate the case until he was directed to do so by the Magistrate.
4. On the other hand learned counsel for the State as well as for respondent No. 3 have controverted the contention of the learned counsel for the petitioner by submitting that the respondent No. 2 was competent to reinvestigate the matter, even without the permission of Magistrate as according to them, the case involved the cognizable offence which could be investigated without permission of the Magistrate, even if the order of discharge has been passed by the Magistrate.
5. I have heard the argument advanced by the learned counsel for the parties and have perused the record with their able assistance.
6. Firstly, the order of Magistrate seems to have been passed summarily without applying his mind as there is no mention of the fact that either he had gone through the record produced by the police before him or what was the reason of discharging the case because the police report was not binding upon him as case was not an old one but was only registered for months prior and that too of a blind cruel murder of a poor man. Further it was not requested according to the report under section 173 Cr.P.C to discharge or cancel the case. Under Section 169/170 Cr.P.C the Investigation Officer is required to submit a final report under section 173 Cr.P.C! With regard to result of his investigation to a competent Magistrate; the report submitted by respondent No. 1 under section 173 C.P.C, in the present case cannot be considered or called a final report as envisaged under section 169/170 Cr.P.C.
7. The contention raised by the learned counsel for the petitioners that the petitioners were discharged by the Magistrate in consequence of cancellation of the case on the report is misconceived. Section 173 (3) Cr.P.C, reads as under: "Whenever k appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit".
The terms "discharge" and "cancellation" are not synonymous and cannot be amalgamated together because the both had got different connotations. Where the case is cancelled by a competent Court, the FIR ceases to exist but when the accused is discharged, the FIR remains intact and the discharge order relates to only that particular accused. None of the petitioners was got discharged from the Magistrate as none of them was either arrested or taken into custody and had been released on his bond. As already observed that the Magistrate did not apply his mind, hence the order cannot be treated as a speaking order.
The order of the Magistrate being administrative in nature, will not debar the Investigating Officer respondent No. 2 to reinvestigate the case without getting the said order set-aside or without seeking fresh permission from the Magistrate. It was held in case Muhammad Akram and another Versus The State (1986 MLD 2439) that order of discharge by Magistrate on application of police being an administrative order, police could reinvestigate matter and submit fresh challan without having recourse to get first order set-aside. As the case was filed being untraceable, the FIR remains in field and the matter live. The petitioner indeed joined investigation but as already observed the petitioners were neither taken into custody nor were produced before the Magistrate and were not released on their bonds a: such the respondent No. 2 is well within his right and jurisdiction to re-investigate the case. As laid down by their Lordships in case Aftab Ahmad Versus Hassan Irshad and 10 others (PLJ) 1987 S.C. 13) that there is nothing in Criminal Procedure Code to prevent the Investigating Officer from submitting his subsequent report in supersession of the earlier one either on his on initiative or on the direction of the superior police officer. Same view has Been followed in case Ijaz Ahmad Versus Home Secretary, Government of Punjab (1992 P.Cr.L.J. 1962 Lahore) that no bar could be imposed on powers of police to investigate the case as many times as they choose.
8. In view of the above discussion, I am of the considered view that there is no force in these writ petitions which are hereby dismissed with no order as to costs.
9. The order passed by the Magistrate is against the report submitted under section 173 Cr.P.C, wherein prayer was not made to discharge and file the case, but was indicated to be considered the case as untraceable. The case relates to blind cruel murder which prima-facie either due to incompetency of the Magistrate or otherwise efforts have been made to destroy the prosecution case and to safe the culprits of this heinous offence.
10. Notice be issued to the Magistrate as well as respondent No. 1 to appear before this Court on 20.12.1994 and explain as to why they be not dealt with under the law in giving protection to the accused.