' These writ petitions bearing Nos.12574 of 1994 and Writ Petition No,13442 of 1994 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 F.I.R. No,227, dated 18-6-1993 under section 302/34, P.P.C. 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 that the said F.I.R. 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 in spite of four 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:
3. Learned counsel for the petitioners vehemently contended that after the cancellation of case by a Magistrate on the basis of report under section 173, Cr.P.C. Wherein the petitioners were declared innocent, the reinvestigation of case by respondent out authority. The learned counsel relied upon the case Mst. Iqbal Begum v. State 1991 P Cr. L J 1755 and Abdul Waheed v. State PLD 1986 Lah. 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 re-investigate 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 arguments 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 four 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 Investigating 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, Cr.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 it 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 F.I.R. Ceases to exist but where the accused is discharged, the F.I.R. Remains in tact 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 v. The State 1986 MLD 2439 that order of discharge by Magistrate on application of police being an administrative order, police could re-investigate matter and submit fresh challan without having recourse to get first order set aside. As the case was filed being untraceable, the F.I.R. Remains in field and the matter live. The petitioner indeed joined investigation but as already observed the petitioner were neither taken into custody nor were produced before the Magistrate and were not released on their bonds; as 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 v. Hassan Irshad and 10 others PLD 1987 SC 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 cn his own initiative or on the direction of the superior Police Officer. Same view has been followed in case Ijaz Ahmad v. Home Secretary, Government of Punjab 1992 P Cr. L J 1662 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 save 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.