' This writ petition has been filed against a discharge order passed by the Executive Magistrate. The matter pertains to F.I.R. No,98 of 1999, under section 364, P.P.C., lodged at Police Station Kundal, District Muzaffargarh.
2. According to the F.I.R. Muhammad Tahir, the son of the informant was visiting his friend Muhammad Abbas from another village. Later Muhammad Abbas came and informed him that while taking a bath his son got drowned in the river.
3. The discharge report submitted by the S.-I./S.H.O., Police Station Kundal says:-- {{URDU TEXT}}
4. It was presented before the Executive Magistrate, who passed the following orders:-- "Accused produced in custody. The police has submitted file for discharge of accused. I have perused the file. There is no eyewitness of the alleged occurrence. After the days physical police has come to the conclusion that the accused did not commit the offence. There is no connecting evidence against the accused. I agree with the discharge report. Therefore, Ghulam Abbas and Saifullah accused are hereby discharged."
5. According to the petitioner, the Executive Magistrate had no jurisdiction to pass the discharge order and that the police should be directed to continue the investigation.
6. The learned counsel for the petitioner and the learned A.A.-G. Have been heard in the case.
7. The precise question is whether an Executive Magistrate could have passed the aforementioned order in a case which he could not try.
8. Section 6 of the Cr.P.C. Reflects the classes of the Criminal Courts/Magistrates. Section 11 of the Cr.P.C. Reflects the powers of the Judicial Magistrate. Whereas the powers of the Executive Magistrates are reflected in section 13 of the Cr.P.C.
9. Section 28 of the Criminal Procedure Code speaks of the trial of the offences and it reads as follows:-- "28. Offences under Penal Code.--- Subject to the other provisions of this Code any offence under the Pakistan Penal Code may be tried--
(a) by the High Court, or
(h) by the Court of Sessions, or
(c) by any other Court by which such offence is shown in the eighth column of the Second Schedule to be triable.
' Provided that the offences falling under Chapters VIII, X, XIII and XIV of the Pakistan Penal Code (Act XLV of 1860), except, offences specified in section 153-A and section 281 of the said Code, shall be tried by the Executive Magistrates and the expression Magistrate' used in the said eighth column shall mean Executive Magistrate of the respective class."
10. Section 32 of the Cr.P.C. Lays down the maximum sentences which may be passed by the Judicial Magistrate.
11. Section 36 of the Cr.P.C. Reads as follows:-- "36. Ordinary powers of Magistrates.--- All Judicial and Executive Magistrate, have the powers hereinafter respectively conferred upon them and specified in the Third Schedule. Such powers are called their ordinary powers' ."
12. Chapter 4 of the Cr.P.C. Inter alia, pertains to arrest of persons by the police and otherwise.
13. According to section 60 of the Cr.P.C. a person is to be taken before a Magistrate. It reads as follows:- "60. Person arrested to be taken before Magistrate or a Officer-incharge of police station.--- A Police Officer making an arrest without warrant shall, without unnecessary-delay and subject to the provisions herein contained as to bail, take and send the person arrested before a Magistrate having jurisdiction in the case or before the Officer-in-charge of a police station."
14. When a person is arrested he cannot be detained by a police for more than 24 hours without a special order of a Magistrate under section 167 of the Cr.P.C. Section 167 of the Cr.P.C. Reads as follows:- '167 Procedure when investigation cannot be completed in twenty-four hours.--- (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the, period of twenty-four hours fixed by section 61, and there are grounds for believing that the accusation or information is well-founded, the Officer-in-Incharge of the police station (or the Police Officer making the investigation if he is not below the rank of Sub-Inspector) shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereafter prescribed relating to the case, and shall at the same time, forward the accused to such Magistrate.
' Explanation.-- For the purpose of this section, in the cases triable by the Executive Magistrate, the expression 'nearest Magistrate' means the Executive Magistrate and in all other cases the Judicial Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has no jurisdiction to try the case or (send) it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction; ' Provided that no Magistrate of the third class, and no Magistrate of the second class not specially empowered in this behalf by the Provincial Government shall 'authorise detention in the custody of the police.
15. After the investigation is completed a Police Officer is supposed to submit a report which is called a report under section 173 of the Cr.P.C. And is also referred to as a challan. Section 173 of the Cr.P.C reads as follows-- 173 Report of Police Officer.-- (1) Every investigation: under this Chapter shall be completed without unnecessary delay, and as soon as it is completed, the officer-in-charge of the police station shall through the Public Prosecutor:
(a) forward to a Magistrate empowered to take cognizance of the offence on a police report, a report, in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and if so, whether with or without sureties, and
(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given; "Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under section 154, the officer-in-charge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence.
(2) Where a superior Officer of Police has been appointed under section 158, the report shall in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer-in-charge of the police station to make further investigation.
(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
(4) A copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial; Provided that the same shall be paid for unless the Magistrate, for some special reason, thinks fit to furnish it free of costs.
(5) Where the officer-in-charge .Of a police station forwards a report under subsection (1), he shall alongwith the report produce the witnesses in the case except the public servants, and the Magistrate shall bind such witnesses for appearance before him or some other Court on the date fixed for trial."
Therefore, according to the scheme of the Cr.P.C. a person arrested has to be immediately brought before a Magistrate having jurisdiction and if he needs time for such production, he is authorized to obtain orders from a Magistrate other than the one having jurisdiction and after such orders has to produce the accused before the Court of the Magistrate having jurisdiction.
16. Whenever a person is arrested and his investigation cannot be completed within a period of 24 hours as fixed by section 61, the matter is to be reported to the nearest Judicial Magistrate and the explanation makes it clear that in case of a matter triable by an Executive Magistrate the expression nearest Magistrate would mean the Executive Magistrate otherwise, a Judicial Magistrate. It is after a reference is made to a Magistrate under section 167 of the Cr.P.C. That a further detention beyond 24 hours is permissible and this is called as remand to the police.
17. After this, a report is to be submitted under section 173 of the Cr.P.C. Which is to be submitted through the office of the Public Prosecutor and is to be forwarded to a Magistrate empowered to take cognizance of the offence on a police report.
18. If, before filing a report under section 173 of the Cr.P.C., the police finds that the evidence against the arrested accused was deficient, it then places a report stating that there was insufficient evidence or a reasonable ground of suspicion was lacking in the case for justifying the forwarding of an accused. He reports (to a Magistrate empowered to take cognizance of the offence) asking for release of the accused. This is done under section 169 of the Cr.P.C. Read with Rule 24.7 of the Police Rules, Volume 3. Section 169 of the Cr.P.C. Reads as follows:--
169. Release of accused when evidence deficient--- If, upon an investigation under this Chapter, it appears to the Officer-in-charge of the police station, or to the Police Officer making the investigation that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such Officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or send him for trial."
19. However, an accused whenever before a Court may be discharged under section 63 of the Cr.P.C. Which reads as follows:-- "63. Discharge of person apprehended.--- No person who has been arrested by a Police Officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate."
' This may be done by a Magistrate before whom an accused is produced under sections 60, 61 or 167 of the Cr.P.C.
20. In the present case the accused were produced before the Executive Magistrate not because of sections 60, 61, 167 or 173 of the Cr.P.C. A police report had been filed stating that there was no evidence against them and they ought to be released.
21. The language of section 169 of the Cr.P.C. (ibid) is absolutely clear. The order of release had to be passed in this case only by a Magistrate empowered to take cognizance of that offence on the police report. Since the offence fell under section 364 of the P.P.C. In this case, therefore, the Executive Magistrate clearly had no jurisdiction. However, strangely enough he assumed jurisdiction illegally.
22. However, since an Executive Magistrate has violated the law and had taken jurisdiction in a matter which fell outside his jurisdiction and about which there were no doubts, his order which is impugned is illegal and of no legal effect and is being set aside with directions to the police to act afresh in accordance with law.
23. However, as the Executive Magistrate had violated the law, he should be warned of the legal consequences for any such act in the future. Copy of this order be immediately sent to the learned Sessions Judge, Muzaffargarh with direction that he may deliver the copy of the order to the Executive Magistrate either personally or through the District Magistrate and the Executive Magistrate should note down in the presence of the Sessions Judge or the District Magistrate the observations of this Court for observance in the future.
24. A compliance report will be sent by the learned Sessions Judge or the learned District Magistrate to the Deputy Registrar (Judi.) of this Court by the 1st of June, 2000.