MUHAMMAD RAFIQUE and anothers vs SENIOR SPECIAL JUDGE, ANTI-
This criminal petition challenged an order passed by the Senior Special Judge, Anti-Corruption, who, upon receiving a discharge report under Section 173 of the Code of Criminal Procedure 1898, directed the police to conduct a re-investigation into the matter. The core legal question was whether a trial court, while exercising magisterial powers upon receipt of a police report, possesses the legal authority to order a re-investigation of the case. The High Court held that while a trial court has the authority to agree or disagree with a police report recommending the discharge of an accused based on the material collected, it lacks the legal power to mandate a re-investigation. The court affirmed that re-investigation is the exclusive prerogative of the investigating agency, which may seek permission for such action if new facts emerge. Consequently, the High Court set aside the trial court's order, directing it to instead apply its judicial mind to the existing record and the police report to either accept or reject the discharge recommendation based on the current evidence.
- Can a trial court order a re-investigation upon receiving a discharge report under Section 173 of the Code of Criminal Procedure 1898?
- Does a Special Judge exercising magisterial powers have the authority to disagree with a police report recommending the discharge of an accused?
- Is the power to initiate re-investigation an exclusive prerogative of the investigating agency?
- Section 561-A, Code of Criminal Procedure 1898
- Section 173, Code of Criminal Procedure 1898
- Section 409, Pakistan Penal Code 1860
- Section 5(2), Prevention of Corruption Act 1947
ORDER
' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Through the instant petition filed in terms of section 561-A, Cr.P.C. Muhammad Rafique and Ali Akbar Nasir/petitioners have assailed the vires of impugned order dated 11-10-2010, passed by learned Senior Special Judge, Anti-Corruption Punjab, Lahore; whereby on presentation of report under section 173, Cr.P.C. In case F.I.R. No,17, dated 4-8-2008, offence under section 409, P.P.C., read with section 5(2) of Prevention of Corruption Act, 1947, registered at Police Station ACE, Pakpattan Shard; wherein while exonerating the petitioners discharge report was prepared by the Investigating Officer, the learned trial Court had directed for conducting re-investigation and submission of fresh report under section 173, Cr.P.C.
2. Learned counsel for the petitioners contends that the impugned order has been passed in a stereotype manner without adverting to the facts of the case and law on the subject. Learned counsel vehemently contends that no doubt the learned Special Judge while exercising magisterial powers can agree/disagree with the report prepared under section 173, Cr.P.C.; particularly when discharge report is prepared, however, in no way he can order for re- investigation as it is only the prerogative of the Investigating Agency, hence the impugned order is liable to be set aside. Learned counsel for the petitioners, in the circumstances, prays for setting aside the impugned order.
3. I have anxiously considered the arguments advanced by learned counsel for the petitioners and gone through the record available on file.
4. There is no cavil to this proposition that Presiding Officer holding courts constituted under the Special Act(s) are simultaneously empowered to conduct trial, as well as, exercise magisterial powers, however, it is cordial principle of law that once report under section, 173, Cr.P.C. Is prepared with regard to discharge of accused, the court has the authority to examine the same in light of material collected by the police and the facts floating/oozing from the record and if the court is satisfied that the findings of the Investigating Officer are not based upon sound reasoning; it can disagree with the same; thereby directing for initiation of trial, however, there is no provision in the Criminal Procedure Code, which may empower the court to direct for re-investigation at stage of considering the report under section 173, Cr.P.C. And nevertheless there is no bar on re- investigation of any case, however, it is the exclusive prerogative of the Investigating Officer to look into the same and if new facts come on record, to seek permission of the court for re-investigation.
Hence, after examining the impugned order passed by learned trial Court from all aspects, this Court has arrived at the conclusion that the same is against the norms of criminal justice and not sustainable in the eyes of law. Resultantly, the instant petition is allowed as a consequence whereof impugned order dated 13-10-2010, passed by learned Senior Special Judge, Anti- Corruption Punjab, Lahore, is set aside with direction to the learned court below to take into consideration the facts and circumstances floating on the record coupled with the material collected by the Investigating Officer during the course of investigation and give definite findings while agreeing/disagreeing with the discharge report. The learned trial Court is expected to proceed in the matter strictly in accordance with law without being prejudiced from the findings made hereinabove.
5. The instant petition succeeds in the above terms.