' Briefly stated the facts are that on 5-6-1998 complainant/petitioner went to the Mosque situated in Rawalpindi Club to offer Jumma Prayer and parked his Suzuki Car No,RIU-8752 in the parking area of the mosque. After offering Jumma Prayer he came out and found his car missing. He lodged F.I.R. No,246 dated 5-6-1998 under section 381-A, P.P.C. At Police Station R.A. Bazar, Rawalpindi without naming any person. Subsequently petitioner pondered and was made to believe that respondent No,2 had stolen his car and he thus submitted an application on 11.6-1998 before the S.H.O. Police Station R.A. Bazar, Rawalpindi giving the facts and circumstances leaving to his belief that respondent No,2 was responsible for the commission of this offence, The Investigating Officer after having gone through the previous history felt satisfied that a credible information had been provided to him, that respondent No,2 was responsible for the commission of this offence, hence he arrested respondent No,2 on 14-6-1998. He (Investigation Officer) interrogated the accused/respondent No,2 and produced him before respondent No,1 on 15-6-1998 for physical remand. The respondent No,1 not only refused the physical remand of the accused/respondent No,2 but also discharged him vide order dated 15-6-1998.
2. Through the instant writ petition the impugned order has been challenged being illegal unjustified and untenable.
3. Arguments have been heard and record perused.
4. It is contended by the learned counsel for the complainant/petitioner that impugned order has been passed under section 167, Cr.P.C. Which did not authorise the learned Magistrate/respondent No,1 to discharge the accused/respondent No,2 and the only option left with him was either to grant physical remand or to send the accused/respondent No,2 to judicial lock-up. He further contends that impugned order was not passed under section 63, Cr.P.C.And as such respondent No,1 could not discharge the accused/respondent No,2 vide order dated 15-6-1998.
' Conversely the contention of the learned counsel for the respondent No,2 is that impugned order dated 15-6-1998 has been passed under section 63, Cr.P.C. Read with section 167, Cr.P.C., that section 63, Cr.P.C. Gives ample power to a Magistrate to discharge an accused. In support of his contention he has relied upon Muhammad All and another v. Station House Officer and 6 others (1994 PCr,LJ 1806 (Lahore).
6. Admittedly, accused/respondent No,2 was arrested on 14-6.1998 and was produced before the learned Magistrate on 15-6-1998 for his physical remand and required under section 167, Cr,P,C, A perusal of said section clearly shows that it does not empower the Magistrate to discharge an accused. It only empowers a Magistrate either to grant physical remand or to refuse the same, and while authorising detention in the custody of police he has to record his reason for so doing. It is thus clear that order of discharge could not be passed while acting under the provisions of section 167, Cr.P.C. Learned counsel for respondent No,2 in the alternative has tried to bring his case within the ambit of section 63, Cr.P.C. I am afraid the provisions of section 63 Cr.P.C. Are not attracted, as it merely prohibits the discharge of a person who has been arrested by a police officer, except on his own bond" or on bail, or under special order of a Magistrate. Thus, it is clear that impugned order cannot be said to have been passed under section 63, Cr.P.C. The power of release/discharge has been given even to a police officer as is evident from the provisions of section 169, Cr.P.C. However, the said provisions can only be pressed into service if upon an investigation under this chapter it appears to the officer lncharge of the police station that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate. Even this situation had not cropped up in the instant case as the learned Magistrate had stiffled the investigation in its very inception by refusing the remand and, consequently, discharging the accused/respondent No,2. The authority relied upon by the learned counsel for respondent No,2 also does not come to his rescue, as in the said authority the order of discharge had been passed by a Magistrate when Physical remand for 10 days had been granted and no incriminating evidence had been collected against the accused named therein.
7. The upshot of above discussion is that learned Magistrate/respondent No,1 was not competent to pass order of discharge of accused/respondent No,2 while exercising the powers under section 167, Cr.P.C. Accordingly, writ is accepted and the said order is hereby set aside being illegal, unjustified and untenable.