1. The petitioner an accused of the case registered vide F.I.R. No.259 of 16-7-1999 under sections 302, 324, 148, 149 and 109, P.P.C. Police Station, Hanjarwal District, Lahore aggrieved by the turning down of police request tending to seek discharge of the spelt out accused including the petitioner by a learned Judicial Magistrate for the offences charged being triable by the Sessions Court vide the impugned order dated 15-5-2000 preferred the present petition contending that discharge of an accused from a case doesn't amount to acquittal in terms of sections 245, 249-A or 265-K of the Cr.P.C. For the same being not a judicial but an administrative order amenable to recall upon emergence/discovery of fresh material by the investigator on which count a Magistrate is the competent Authority in terms of section 169 read with section 173 (ibid) which function he ceases to enjoy upon taking of cognizance by the trial Court of competent jurisdiction placing reliance on Sardar and others v. Muhammad Nawaz and another PLD 1949 Lahore 537:-- "In the second place, the order of the Magistrate 'discharging' the accused was apparently one under section 173 of the Code of Criminal Procedure. Under that section the Investigating Officer forwards to the Magistrate empowered to take cognizance of an offence a report in a prescribed form and in such report if he has found that there is no sufficient evidence against the accused and has, therefore, released the accused on their executing a bond under section 169 of the Code to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report he recommends to the Magistrate that no further action be taken. If he uses the words 'discharge' or 'acquit' he will not have used the word correctly, nor will the Magistrate whatever expression he uses to signify his intention that he doesn't propose to take any further action be understood to discharge or acquit the accused person or persons. The order which the Magistrate passes under section 173 is essentially an administrative order and not a judicial order and it does not amount either to a discharge or an acquittal of the accused. See in this connection Brahm Dev v. Emperor AIR 1938 Lahore 469 which is based on AIR 1933 Patna 242. "
2. Bashir Ahmad v. Allaqa Magistrate PLD 1980 Lahore 28: "Final report .At the close of the investigation is submitted under section 173 of the Code. Under clause (a) of this section, the Investigating Officer, is to indicate inter alia if the accused being forwarded is in custody, or has been released on his bond if so whether with or without sureties-- the underlined portion (Underlining being by ,me) has, obviously, reference to section 169. Under section (3) of this secti6n whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such an order for the discharge of such bond or otherwise as he thinks fit. The concept to discharge of an accused of an offence, in this sense is, still alive. The argument that subsection (3) can be invoked only in cases where the accused is released by a police officer under section 169 cannot be accepted. Accepting this will amount to placing a very narrow interpretation on this provision of the Code. If a police officer, when satisfied that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, can release him under section 169 of the Code on his executing bond, with or without sureties to appear before a Magistrate empowered to take cognizance why a Magistrate cannot discharge and release such a person under section 173(3) if produced before him in custody. Order of discharge of a person accused of an offence triable by a Court of Session, therefore, will be a valid order. Such an order is of an administrative nature. "
3. Wazir v. The State PLD 1962 Lahore 405.
4. "We were told by learned counsel for the respondent that the cancellation could not be under subsection (3) of section 173 and that apart from that subsection there was no other provision which enabled a Magistrate to cancel a case subsection (3), he argued, was applicable to a case where the accused had been released on his bond under section 169, which provides that if it appears to the police officer that there is no sufficient evidence to justify the forwarding of the case to a Magistrate, such officer shall release the accused on a bond requiring him to appear before a Magistrate empowered to take cognizance of the offence and to try the accused or to commit him for trial. If this argument is accepted, then, in the event of an omission by the police officer to release the accused on a bond, the Magistrate will not be empowered to discharge the accused or to cancel the case even if the police officer had reported that there was no sufficient evidence against the accused. We think that such power is inherent in section 173 read with section 190 of the Code of Criminal Procedure, though the language of subsection (3) does not directly apply to the case. "
5. Federation of Pakistan v. Malik Mumtaz Hussain 1997 SCMR 299.
6. "It is well-settled law that a report submitted by the Investigating Officer under section 173, Cr.P.C., is not binding on the Court. The Court therefore, notwithstanding the recommendation of the Investigating Officer regarding cancellation of case and discharge of the accused from the case, may decline to cancel the case and proceed to take cognizance as provided in section 190, Cr.P.C.
7. And summon the accused person to face the trial.
8. Bahadur and another v. The State and another PLD 1985 Supreme Court 62.
9. "Though a magistrate in canceling a registered criminal case is required to act judicially in that he has to act fairly, justly and honestly, a duty common to the exercise of all state power, there is not lis before him, there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order. The party is left free to institute a complaint on the same facts and the same Magistrate does not even after passing such an order render himself functus officio.
10. On the contrary he is quite competent to entertain and deal with such a complaint on material presented to him. These peculiarities establish beyond any doubt that in so concurring with a report submitted under section 173, Cr.P.C. He does not function as a criminal Court. For that reason his order is not amenable to revisional jurisdiction under sections 435 to 439, Cr.P.C. This appeal is, therefore, allowed, and the impugned order of the High Court is set aside, as one without jurisdiction."
2. Factum whereof remained uncontroverted by the learned Additional Advocate-General as well as the teamed counsel appearing on behalf of the complainant.
3. Consequently, persuaded by the contentions urged granting the petition the impugned order is set aside being a nullity in the eye of law and the matter would be deemed to be pending before the learned Magistrate for its adjudication in accordance with law on the basis of the material adduced after hearing the parties.
11. H.B.T./J-20/L