' F.I.R. No,319 of 1996 was registered at the instance of Haji Umer Din at Police Station Rajana, District Toba Tek Singh Against the petitioner under section 10 of the offence of Zina (Enforcement of Hudood) Ordinance, 1979 on the allegation that the petitioner committed Zina-bil-Jabr with Mst.
Nasreen, the grand daughter of the complainant on 6-8-1996 at about 7-00 p.m. The petitioner was, however, discharged by the learned Illaqa Judicial Magistrate on 3-11-1996 on the basis of the report submitted by the Investigating Officer exonerating the petitioner on the plea of alibi.
2. However, subsequently on the application of the complainant the matter was reinvestigated by D.S.P. And accordingly on 5-2-1997 the challan was submitted to the trial Court against the petitioner who was found involved in the case during re-investigation.
3. The re-investigation by the D.S.P. And submission of challan in pursuance of the re-investigation has been challenged in this writ petition. Learned Counsel for the petitioner, inter alia, contended that the learned Magistrate having discharged the petitioner on 3-11-1996, the re-investigation could not be conducted by the D.S.P. Without first obtaining the permission from the learned Magistrate. He has referred to section 173, Cr.P.C. And submits that the order of discharge was competently made by the learned Magistrate on the basis of the report of the Investigating Officer.
He relied on "Mst. Iqbal Begum v. The State (1991 PCr.LJ 2181) in this behalf.
4. On the contrary the learned counsel for the complainant relying on "Rehmat Ali Shad v. Fiaz Lodhi, S.P. And 3 others" (1994 PCr.LJ 2206) and Saee Muhammad and 7 others v. S.P. Mandi Baha-ud-Din"
(1995 PCr.LJ 1666) contended that notwithstanding the order of discharge dated 3-11-1996 the case could be re-investigated, because the petitioner was only discharged whereas the F.I.R. Remained intact as the same was not cancelled. In Rehmat Ali Shad (supra) it was held by a learned Judge of this Court as follows:- ' "I have given my anxious consideration to the submissions made by learned counsel for the parties and have perused the material available on the file. Apparently, there seems to be some misunderstanding regarding the cancellation of the case against the accused and the discharge of an accused from the case. To resolve this confusion, the two aspects of the case are to be considered separately because there is a nice distinction between the interpretation of the two.
Cancellation of the case would mean the cancellation of the F.I.R. While in the case of discharge of the accused, the F.I.R. Remains intact. To further elaborate this proposion one can say that where a sole accused or all accused of a case named in the F.I.R. Are discharged from their bail bonds and the case against them is cancelled by the Magistrate on 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 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 case of discharge of the accused, then, of course, the investigation agency even without getting permission from the Magistrate can reinvestigate the Matter. I am fortified in my views by the observations made in Dil Muhammad Shakir alias D.M. Shakir v. D.S.P., Ichhra, Lahore PLD 1997 Lah.
180, Asghar Ali v. The State 1983 PCr.LJ 2187 and Muhammad Ibrahim and others v. Qudrat Ullah Ruddy PLD 1986 Lah.
256.
5. On re-investigation the petitioner has been found involved in the alleged offence and, accordingly, the challan has been submitted to the Court. In the present case, the re-investigation was not barred under the law and, therefore, the trial can, competently, be held where the petitioner shall have the full opportunity to prove his innocence. Since the challan has been submitted, I do not want to interfere at this stage in exercise of Constitutional jurisdiction.' However, the learned trial Court is directed to conclude the trial, if not already done, expeditiously. Disposed of