REHMAT ALI SHAD Versus FAIZ LODHI, S.P.

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is directed against the re-investigation, being conducted by respondents Nos.l to 3, without permission of the Court, which had earlier discharged the petitioner from the cafe F.I.R. No.29, dated 3-2-1991 under section 380/420/471, -P.P.C. registered at the instance of respondent No.4 at Police Station City Jhelum.

2. The brief facts of the case are that on a complaint made by respondent No.4 to D.S.P. Jhelum, alleging therein, that while he was abroad (Saudi Arabia) in connection with his employment, his younger brother MuhammadIqbal had got encashed his national saving certificates, valuing Rs.4,13,000 which were kept in the room of his house, situate at Ramzanpura, Jhelum. The allegation against the petitioner was that some of the said certificates were got encashed during the period he was posted as Deputy National Savings Officer in National Saving Centre, Jhelum. After due investigation, and the barge report to that effect was submitted by the police to the Magistrate, who, vide order, dated 26-2-1991, discharged both of them from the case Subsequently, respondents Nos.l to 3 started re-investigation of the case against the petitioner, hence, this petition.

3. It was contended by the learned counsel for the petitioner that the respondents have no authority to re-investigate the matter without the permission of the Magistrate, as the petitioner had been discharged under subsection (3) of section 173, Cr.P.C. read with section 190 of the Code. Reliance was placed on Wazir v. State P L D 1962 Lah. 405, Din Muhammad Shakir alias D.M. Shakir v. D.S.P., Ichhra, Lahore P L D 1977 Lah. 180, Asghar Ali v. The State 1983 P. Cr. L J 2187, Bahadur and others v. The State and another P L D 1985 SC 62, Muhammad Ibrahim and others v. Qudrat Ullah Ruddy P L D 1986 Lah. 256 and Mst. Iqbal Begum v. The State 1991 P Cr. L J 1755.

4. On the other hand, learned Assistant Advocate-General and the learned counsel for respondent No.4 have controverted the contention of the learned counsel for the petitioner, by submitting that the respondents were competent to re-investigate the matter, even without the permission of the Magistrate, as, according to them, the case involved a cognizable offence, which could be investigated without permission of the Magistrate, even if the order of discharge had been passed by the Magistrate. It was further submitted that the terms "discharge" and "cancellation" could not be amalgamated together because the two have got different connotation. By referring to various observations of the superior Courts, it was submitted, that where the case is cancelled by the competent forum, the F.I.R. ceases to exist, but where the accused is discharged, the F.I.R. remains intact, and the discharge order relates to only that particular accused, and the case can be re-investigated without permission of the Magistrate. On these premises, it was argued that in the present case, the petitioner was discharged from the case but the F.I.R. remained intact, as the same was not cancelled, therefore, the police was competent to re-investigate the matter. Reliance was placed on Din Muhammad Shakir alias D.M. Shakir v. D.S.P., Ichhra, Lahore P L D 1977 Lah.180 and Asghar Ali v. The State 1983 P Cr. L J 2187.

5. I have given my anxious consideration to the submissions made by the learned counsel for the parties and have perused the material available on the file. Apparently, there seems to be some misunderstanding regarding the cancellation of the case against the accused and the discharge of an accused from the case. To resolve this confusion, the two aspects of the case are to be considered separately because there is a nice distinction between the interpretation of the two. Cancellation of the case would mean the cancellation of the F.I.R., while in the case of discharge of the accused, the F.I.R. remains intact. To further elaborate this proposition, one can say that where a sole accused or all accused of a case named in the F.I.R. are discharged from their bail bonds and the case against them is cancelled by the Magistrate on report of the police, the same will amount to the cancellation of the F.I.R. and there would be no lis pending against the accused thus discharged, but where amongst others, some of the accused are got discharged from the Magistrate due to the non-availability of the evidence, or due to some other genuine reasons to be specifically mentioned in the discharge report, in such eventuality, the F.I.R. remains intact and further investigation could be made to collect the evidence against all the accused or some of them so as to trace out the real culprits. If the case is cancelled by the Magistrate on receipt of the report by the police, then re-investigation cannot be made without permission of the Magistrate. In case of discharge of the accused, then, of course, the investigating agency even without getting permission from the Magistrate can re-investigate the matter. I am fortified in my views by the observations made in Dil Muhammad Shakir alias D.M. Shakir v. D.S.P., Ichhra, Lahore P L D 1977 Lah. 180, Asghar Ali v. The State 1983 P Cr. L J 2187 and Muhammad Ibrahim and others v. Qudrat Ullah Ruddy P L D 1986 Lah. 256.

In the case in hand, the in vestigating agency had submitted a discharge report to the Magistrate, without mentioning any genuine grounds for the discharge of the petitioner, and the Magistrate too without applying his mind r had accepted the same by writing down the following order:--

On bare perusal of the aforequoted order shows that it was passed in a mechanical manner without application of mind because there is no mention of the fact that either the Magistrate had gone through the record produced by the police or what were the reasons for acceptance of the discharge report. Therefore, this order cannot be treated as a speaking order. Besides, this order, being administrative in its nature as observed by this Court in Muhammad Akram and another v. The State, and another 1986 M L D 2439, will not create any hurdle in the way of the investigating agency, if a fresh investigation is taken in hand, without getting the said order set aside or without seeking the permission of the Magistrate. Hence, it would be within the competency of the investigating agency to re-investigate the case without getting permission of the Magistrate because the order of the Magistrate is not with respect to the cancellation of the F.I.R. but it relates to the discharge of the accused persons and thus, the F.I.R. has not ceased to exist, as such, the matter remained alive and the respondents were well within their right to initiate re-investigation of the case.

In view of the above discussions and keeping reliance on the above cited authorities, I see no force in this petition which is dismissed.

N.H.Q./R-150/1 Petition dismissed.