' The facts forming the background of the instant Constitution petition are that a case under section 302, P.P.C. Was registered at Police Station Pind Dadan Khan, District Jhelum vide F.I.R. No,78, dated 10-5-1997 regarding the murder of Zafar Iqbal son of Muhammad Akbar, resident of City Chakwal. The complainant did not nominate any person in the F.I.R. About the alleged murder of the deceased Zafar Iqbal. He rather averred in his complaint that the deceased was a patient of unconsciousness and was suffering from the disease of epilepsy and that his dead body was found on the bank of the pond. The allegations as made by the complainant suggested as if the deceased died of the aforesaid disease. However, after sometime the complainant suspected that the murder of the deceased Zafar Iqbal was committed by the petitioners along with one Fida Rasool resident of Mianwali. For, the deceased was in the employment of the petitioners and said Fida Rasool. The accusation thus, made by the complainant against the petitioners led to the arrest of the petitioners and 14 days remand was given to the police by the Court. In spite of detailed investigation, however, the petitioners were found innocent by the police. Consequent upon this finding arrived at by the police during the course of investigation a cancellation report was prepared by the police for seeking cancellation of the F.I.R. No order, however, was passed on the said cancellation report. However, subsequently the police moved an application before the Raga Magistrate for seeking discharge of the petitioners on the ground that they were found not to have been involved in the murder of the deceased Zafar Iqbal. The learned Judicial Magistrate on the report submitted to him passed order on 30-6-1998 discharging the accused/petitioners from the case registered vide F.I.R. Aforementioned. Later on, the investigation of the case was entrusted to S.P. Range Crime, Rawalpindi, who started summoning the petitioners off and on to his office at Rawalpindi without any further/new material having been placed before him by the complainant and without getting the order of discharge passed in favor of the petitioners set aside. It is against this investigation launched by and at the instance of S.P. Range Crime, Rawalpindi, that the instant petition is directed.
2. Ch. Mahmood Akhtar Khan, learned counsel for the petitioners appearing in support of the instant petition has contended that the case registered vide F.I.R. Aforementioned was thoroughly investigated by the police of Pind Dadan Khan and the petitioners found innocent. Having been so found, they were got discharged by the police from the Judicial Magistrate vide his order, dated 30-6-1998. Learned counsel submitted that the police without having come in possession of any further material/evidence regarding the involvement of the petitioners in the murder of the deceased Zafar Iqbal and without having the order of discharge set aside/recalled from the Court of Judicial Magistrate, could not associate the petitioners with the investigation over again and that the respondent/S.P. Range Crime was guilty of illegally harassing the petitioners by summoning them again and again to his office at Rawalpindi. Learned counsel sought a direction from this Court to be issued to the respondent not to harass the petitioners and investigate the case without getting the permission from the Ilaqa Magistrate. In support of the contentions, thus, raised by the learned counsel for the petitioners, reliance was placed by him on Mst. Iqbal Begum v.
The State 1991 PCr.LJ 1755, in which it was held that the police having got the accused discharged from the case could not start re-investigating the same matter against the accused without seeking permission from the Ilaqa Magistrate afresh.
3. Feeling persuaded by the submissions made by the learned counsel for the petitioners at the Bar, a notice was issued to Malik Muhammad Kabir, learned A.A.-G., Punjab to enter appearance and to assist the Court in attending to the questions as raised by the learned counsel for the petitioners. Accordingly Malik Muhammad Kabir, learned A.A.-G. Entered appearance before the Court and controverted the aforesaid submissions of the learned counsel for the petitioners. He maintained that the order of discharge passed by the Judicial Magistrate was an administrative order and not a judicial order and that the police was fully competent to reinvestigate the case against the petitioners without getting the order of discharge set aside/recalled from the Judicial Magistrate. The precise argument of the learned Law Officer was that a distinction has to be drawn between the cancellation of the case and the discharge of the accused. He maintained that in case of cancellation of a case, the F.I.R. Registered against the accused ceases to exist whereas in the case of discharge of the accused the F.I.R. Continues to hold the field against the accused. The only consequence of the order of discharge is that the accused for the time being is let off and the charge as levelled against him vide F.I.R. Is dropped. However, the learned Law Officer submitted with some vehemence that the order of discharge does in no circumstance debar the police from reinvestigating the matter over again after the order of discharge. In support of the contention, thus, raised by him the learned Law Officer placed reliance on Rehmat Ali Shah v. Fiaz Lodhi S.P. And 3 others 1994 PCr.LJ 2206, wherein it was held that in the event of cancellation of the case, the F.I.R.
Ceases to exist against the accused whereas in the case of discharge of the accused, F.I.R. Does not cease to exist and the matter remains alive. The Investigating Agency in the circumstances is quite competent to reinvestigate the matter over again without getting the order of discharge set aside from the Court which passed it. He also referred to Aftab Ahmad v. Hassan Arshad and 10 others PLD 1987 SC 13, in which it was held that the number of investigations into a crime by a Police Officer is not limited by law and when one has been completed another may be begun on further information received and this is also possible even after the submission of the challah when the Court has already taken cognizance of the case and that there was nothing in the Code of Criminal Procedure to prevent the Investigating Officer from submitting a subsequent report in supersession of his earlier one either on his own initiative or on the direction of the superior Police Officer. The learned Law Officer placed reliance on Bahadur and others v. The State and others PLD 1985 SC 62 in which it was held that the order of discharge was an administrative order and was inconsequential on the rights of the police to reinvestigate the same matter over again. The learned Law Officer referred to Muhammad Akram and others v. The State 1986 M LD 2439, wherein it was held that the order of discharge by a Magistrate on application of police being an administrative order police could reinvestigate the matter and submit fresh challan without having recourse to get the first order of discharge set aside and that the report submitted by the S.H.O. For getting the accused discharged was not a final report within the meaning of section 173, Cr.P.C.
Finally the learned Law Officer referred to an unreported judgment delivered by my learned brother Sh. Amjad Ali, J., in Writ Petition No,1608 of 1998 on 11-8-1998 wherein he was pleased to hold that where a case is cancelled by a competent Court, the F.I.R. Ceases to exist. On the other hand, when the accused is discharged, F.I.R. Remains intact and that the discharge order being an executive order in nature does not restrain the Investigating Agency to reinvestigate the matter without seeking permission of the Magistrate.
4. I have considered and evaluated the respective submissions of the learned counsel for the parties and perused the case-law referred to from both the sides. It is no doubt true that the order of discharge passed by the Court, notwithstanding, the case against the accused remains alive and the F.I.R. Forming the basis of the case against the accused is not cancelled. However, I am of the view that if the Court which passed the order of discharge has applied its conscious judicial mind to the facts of the case as placed before it by the police and has passed a well-reasoned and a speaking order, the order of discharge does clothe the accused with a right not to be roped in the case over again unless the police/Investigating Agency is able to lay its hands on some new material connecting the accused with the commission of the crime and has placed the said material before the Court which passed the order of discharge and has had the order of discharge earlier passed set aside/reviewed/cancelled. Adverting now to the facts of the instant case, if the Investigating Agency in this case has accordingly been able to discover and lay its hands on some material/evidence which connects the accused with the commission of the offence alleged against them, it should approach the Court which passed the order of discharge and placed the newly discovered material/evidence before the Court and persuade it on the strength of the material thus, placed before it to recall the order of discharge earlier passed. Without this exercise being undertaken and the newly discovered material having been placed before the learned Judicial Magistrate who earlier passed the order of discharge and without getting the order of discharge set aside/reviewed/recalled, the police cannot rope in the petitioners/accused over again.
5. The instant Constitution petition is, thus, disposed of with these observations and in the above terms.