Through this Constitutional petition the petitioner has called in question the order dated 24-10- 2000 passed by the Magistrate Section 30, Muzaffargarh whereby he, upon a report made by the local police in that regard, discharged respondents Nos.3 and 4 of their bonds in case F.I.R. No,95 registered at Police Station Roheelanwali, District Muzaffargarh on 20-5-2000 for offences under sections 148/302/149, P.P.C. In support of this petition it has been argued by the learned counsel for the petitioner that sufficient incriminatory material was available against respondents Nos.3 and 4 and, therefore, the police was not justified in recommending discharge of respondents Nos.3 and 4 and the learned Magistrate was not justified in accepting such a request of the police. It has further been argued that the criminal case in question was triable by a Court of Session and, therefore, a Magistrate was not competent to pass an order of discharge in favour of respondents Nos.3 and 4.
Reliance in this regard has been placed on the cases of Sardar Muhammad v. Zaffar Javaid Awan and others (PU 1996 Lahore 680), Mst. Nusrat Bibi and others v. Senior Civil Judge/Magistrate Section 30, Layyah (2000 YLR 2857) and Muhammad Nadir v. The Magistrate and others (Criminal Miscellaneous No,35-Q of 1999) decided by a learned Single Judge of this Court on 21-12-1999.
2. After hearing the learned counsel for the petitioner and going through the documents appended with this petition, it has been felt that the jurisdictional ground taken by the learned counsel for the petitioner is clearly misconceived. The argument of the learned counsel for the petitioner in that regard presupposes that discharge of an accused person in a criminal case is a step in the trial of such an accused and, therefore, such a step cannot be taken by any Court or authority other than the trial Court itself. In my humble estimation according to the law an accused person in a criminal case is discharged by a Magistrate only from his bond when his custody is no longer required for the purposes of investigation. Such an order of discharge is only an administrative and executive act of a Magistrate at a stage when A the matter is still under investigation and it has yet to reach a trial Court. At this stage any question as to which Court is to ultimately try the case is hardly relevant. As held in the cases of Parul Bala Sen Gupta v. The State (AIR 1957 Calcutta 379) and Muhammad Waseem v. Additional Sessions Judge, Dera Ghazi Khan and 3 others (1985 PCr.LJ 244) an order of discharge of an accused person in a criminal case does not amount to an acquittal of such an accused person or even smothering or termination of investigation of such a criminal case. An order of discharge only means that physical custody of such an accused is not required for the purposes of investigation at present and at any subsequent stage during such an investigation such an order of discharge can always be recalled by the Magistrate whenever it appears to his satisfaction that physical custody of the accused is subsequently required for proper investigation of such a case. It is also settled law that even a discharged accused person can subsequently be summoned by the trial Court to face a trial. It is observed with great respect and in utmost humility that this legal import of the concept of discharge of an accused person in a criminal case had not been properly presented before the Hon'ble Judges deciding the abovementioned cases and this is why I have respectfully disagreed with the ratio enunciated in the abovementioned judgments.
3. In the present case respondents Nos.3 and 4 were introduced into the case at a late stage and no sufficient incriminatory material was found by the police against them and, therefore, their discharge from their bonds was solicited by the local police from the learned Ilaqa Magistrate. The report submitted by the police and the impugned order of discharge passed by the learned Magistrate are based upon cogent reasons and, therefore, no occasion has been found by this Court for interference in the matter in exercise of its Constitutional jurisdiction. With the observations made above this petition is hereby dismissed in limine.##TE#