Petitioner Abdul Haq vide this criminal miscellaneous petition under section 561-A, Cr.P.C. Seeks quashment of order, dated 25-11-1995 passed by Magistrate 1st Class, Chichawatni, District Sahiwal.
2. Abdul Haq, petitioner got registered case F.I.R. No. 254 under section 395/337(i)(ii)/148/149, P.P.C.
At Police Station Ghazi Abad stating therein that on 12-11-1995 at about 8/9 p.m. He along with Muhammad Yasin was returning to his village after selling cotton crop and when reached near Chauri Pullan, Muhammad lqbal and others armed with fire-arms encircled them and caused them injuries and snatched Rs.4,000 and a wrist-watch from them.
The motive was stated to be the pendency of criminal litigation between them on the basis of F.I.R.
No.223/95 under section 452/337, P.P.C. The final investigation was conducted by incharge C.I.A.
Staff, Chichawatni who found the case false and the outcome of previous litigation. The Incharge, C.I.A., Chichawatni prepared the discharge report duly forwarded by D.S.P. On 25-11-1995 and presented the same before the Ilaqa Magistrate who passed the impugned order on the same day.
Being aggrieved the petitioner has challenged the impugned order on the ground that the impugned order has been passed in a mechanical manner and that the learned Magistrate had not gone through the police file that the prosecution witnesses have supported the case of the prosecution in their statements recorded under section 161, Cr.P.C.; that the material on record was not perused by the Magistrate; that the learned Magistrate was duty bound to apply his independent mind and that the Investigating Officer was not the S.H.O. Hence could not submit the report of discharge.
3. I have heard the learned counsel -and have gone through the impugned order.
4. Strictly speaking the order of discharge is not a judicial order but is an executive order. The petitioner has the remedy of filing a complaint. The impugned order cannot be termed as a mechanical order because the learned Magistrate in the impugned order has observed that the accused have been involved on account of previous litigation. This sentence would show that the facts of the case were considered by the Magistrate while passing the impugned order. He was not expected to write a detailed judgment. He was only duty bound to apply his conscious mind to the facts of the case and in my considered view he has performed his duty in accordance with law.
Objection of the learned counsel that incharge, C.I.A. Was not the S.H.O. And hence not competent to submit a discharge report before the trial Magistrate is without force. Report under section 63, Cr.P.C. Is to be prepared by a police officer and not a necessarily by the S.H.O. Section 63, Cr.P.C.
Provides that no person who has been arrested by the Police Officer shall be discharged except on his own bond or on bail or under the special order of a Magistrate. The Incharge, C.I.A. Staff was no doubt a Police Officer and after conclusion of the investigation a Police Officer is competent to get a discharge order passed from Magistrate under section 63, Cr.P.C. This report was also forwarded by D.S.P. Hence the objection raised by the-learned counsel is ill-founded which is repelled.
For what has been stated above, this petition has no merits and is accordingly dismissed.