' Mst. Sajida Perveen writ petitioner was married to one Shahid Pervez and out of the said wedlock one son named as Ali aged about four years was born who is stated to be living with the petitioner.
Unfortunately the relations between the spouses became strained and Mst. Sajida Perveen started living with her parents as she is said to have been deserted by her husband. According to her the mantal condition of her husband Shahid Pervez was not proper. She filed the suit for dissolution of marriage as well as for the recovery of maintenance allowance which have been decreed. The grievance voiced through the filing of this writ petition is that on 10-9-1998 the S.H.O., Police Station Nekapura, District Sialkot along with his subordinates came to her father's house where the family members were insulted and her father and brothers were taken away by creating the panic.
According to the petitioner she approached the S.H.O., Police Station Nekapura, District Sialkot for the registration of a criminal case who has not proceeded in the matter. Her grievance is that on 15-9-1998 again the police party raided her house where they were insulted and they were directed to treat the decree for dissolution of marriage as well as for maintenance allowance as non- existent. She maintained that she was fully protected by law and the Constitution. She prayed for the registration of a criminal cast.
2. The comments were called from the Superintendent of Police, Sialkot who submitted in the comments and report that F.I.R. No,76, dated 9-3-1998 stands registered at the instance of Sardar Ahmad under section 364, Pakistan Penal Code at Police Station Nekapura, District Sialkot againsi Sultan Ahmad (father of the petitioner), Nazir Ahmad (paternal uncle of the petitioner) as well as Shehzad alias Shada and Razzaq alias Jaqa (brothers of the petitioner) about the abduction of Shahid Pervez. He added that the Court of competent jurisdiction discharged all the accused persons on 24-4-1998 but the investigation was directed to be conducted again through the Central Intelligence Agency. He expressed that on the basis of the re-investigation of the case the police wanted to join the accused and for that matter the writ petition is liable to be dismissed.
3. I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate- General and gone through the record before me. The contention of the learned counsel for the petitioner is that the defence raised by the police to the filing of this writ petition has no legal force for joining the close relatives of the petitioner in the investigation of Crime Case No,76 dated 9-3- 1998 registered at Police Station Nekapura, District Sialkot under section 364, Pakistan Penal Code regarding the abduction of Shehzad Pervez as after the cancellation of the F.I.R. The matter cannot be reopened by the police without getting the permission from the learned Area Magistrate.
Learned Assistant Advocate-General expressed that the accused were discharged but the F.I.R.
Was not cancelled and for that matter without the permission of the Area Magistrate the investigation can be directed to be conducted afresh. He, however, admitted that in case of cancellation of F.I.R. The permission of the learned Area Magistrate is necessary. At the very outset I would rely on the ruling printed as Ahmad Ali Shad v. Faiz Lodhi, Superintendent of Police and 3 others 1994 PCr.LJ 2206 (Lahore) in which it has been held that where a sole accused or all accused of a case named in the F.I.R. Are discharged and the case against them is cancelled by the Magistrate on the report of the police the same will amount to the cancellation of the F.I.R. And there would be no lis pending against the accused thus discharged, but where amongst others, some of the accused are got discharged from the Magistrate due to the non-availability of the evidence, or due to some other genuine reasons to be specifically mentioned in the discharge report in such eventuality the F.I.R. Remains intact and further investigation could be made to collect the evidence against all the accused or some of them so as to trace out the real culprits. If the case is cancelled by the Magistrate on receipt of the report by the police then re-investigation cannot be made without permission of the Magistrate. In the aforesaid ruling the reliance was placed on the observations made in Dil Muhammad Shakir alias D.M. Shakir v. Deputy Superintendent of Police, Ichhra, Lahore PLD 1977 Lahore 180; Asghar Ali v. The State 1983 PCr.LJ 2187 and Muhammad Ibrahim and others v. Qudratullah Ruddy PLD 1986 Lah.
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4. In the instant matter while submitting the replication to the comments submitted by the police the petitioner submitted the certified copy of discharge order dated 24-4-1998 passed by the learned Judicial Magistrate Section 30, Sialkot as the Area Magistrate of Police Station Nekapura, District Sialkot. It is a well-reasoned order comprising two pages and even the Inspector (Legal) agreed with the police who submitted the application for the discharge of all the accused. Since all the accused persons were discharged, on the basis of the aforesaid view of the Hon'ble Judges in the aforesaid case-law, it can safely be held that not only all the accused persons were got discharged the F.I.R. Stood cancelled. Keeping in view this aspect of the matter the re-investigation of the case could not be conducted by the police and this is the crux of the matter to make me hold that the grievance voiced by the petitioner that her family members were humiliated and insulted is not devoid of foundations. Since the police cannot investigate the case without the permission of the learned Area Magistrate, the police cannot go to the house of the petitioner and also cannot summon the discharged accused to join the investigation in terms of rule 25.2 of the Punjab Police Rules, 1934.
' At this stage I am tempted to express that it has become a common feature that even after the discharge of the accused and the cancellation of the F.I.R. The police starts the re-investigation of the case in an illegal manner, as in the instant case, without getting the permission from the Area Magistrate. Such type of illegal working is adopted due to the extraneous influence which is damaging the texture of the Police Department as well as the social set-up. The Superintendent of Police, Sialkot has sent the comments who has stuck to the point that the police can re-investigate a case in which the accused have been discharged and the case stands cancelled. Such type of working cannot be approved and should be avoided. Muss-fuss is emanating about the transgression of authority of the police by its members which is becoming a source of inconvenience to the citizens. It is high time that such a working is not followed as it would be for the betterment of the society and the department. May God bless everybody.
6. I would, however, express that I would not pass the order for the registration of a case as the efficacious remedy is available to the petitioner for filing the private complaint in terms of section 190 of the Code of Criminal Procedure.
7. I would restrain the respondents from proceeding in the matter against the petitioner and her relatives without adopting the correct legal procedure as expressed above.
8. This writ petition is disposed of in the aforesaid terms.