PLJ 1998 Lahore 1683 (Rawalpindi Bench)

Present: shaikh abdur razzaq, J. SHAHID RAZA BHATTI-Petitioner

versus

MAGISTRATE S. 30 etc.--Respondents Writ Petition No. 1272 of 1998, accepted on 10-7-1998.

Criminal Procedure Code, 1898 (V of 1898)—

—-Ss. 167. 169 read with S. 63 and S. 381 PPC--Theft of Car-Registration of ' case—Arrest of accused and produced before Respondent No 1 (Magistrate Section 30) for physical remand-Remand refused and accused Respondent No. 2 discharged—Writ against—S. 167 Or,P.O. does not empower Magistrate to discharge an accused-It only empowers him either to grant physical remand or to refuse same-Provisions of 63 Cr.P.C. are not attracted for discharging an ace used--Power to release/discharge has been given even to Police Officer ii/S. 169 Cr.P.C.-Respondent No. 1 was not competent to pass orders of discharge of accused/Respondent No. 2 while exercising powers u/'S. 167 Cr.P.C.--Impugned order set aside—Petition accepted. [Pp. 1684 & i.685] A & B

Sardar Muhammad Ishaque Khan, Advocate for the Petitioner. Malik Muhammad. Nawaz, Advocate for Respondent No. 2. Date of hearing : 10-7-1998.

order

Briefly stated the facts are that on 5.6.1998 complainant/petitioner went to the Mosque situated in Rawalpindi Club to officer Jnmnia prayer and parked his suzuki car No. RIU-8752 in the parking area of the mosque. After offering Jumma prayer he came out and found his car missing. He lodged FIR No. 246 dated 5.6.1998 under Section 381-A PPC at P.S. R.A. Bazar Rawalpindi without naming any person. Subsequently petitioner pondered and was made to believe that Respondent No. 2 had stolen his car and he thus submitted an application on 11.6.1998 before the SHO P.S. R.A. Bazar Rawalpindi giving the facts and circumstances leaving to his belief that Respondent No. 2 was responsible for the commission of this offence. The I.O. after having gone through the previous history felt satisfied that a credible information had been provided to him, that Respondent No. 2 was responsible for the commission of this offence, hence lie arrested Respondent No. 2 on 14.6.1998. He (I.O) interrogated the accused/Respondent. No. 2 and produced him before Respondent No. 1 on 15.6.1998 for physical remand.

The Respondent No 1 not only refused the physical remand of the accused; Respondent No 2 but also discharged him vide order dated 15.6.1998.

2. Through the instant writ petition the impugned order has been
challenged being illegal unjustified and untenable,

3. Arguments have been heard and record perused.

4. I(; is contended by the learned counsel for the complainant/petitioner that impugned order has been passed under Section 167 Cr.P.C. which did not authorise the learned Magistrate/Respondent No. 1 to discharge the accused/Respondent No. 2 and the only option left with him was either to grant, physical remand or to send the accused/Respondent No. 2 to judicial lock up. He further contends that, impugned order was not passed under Section 63 Cr.P.C. and as such Respondent No. 1 could not discharge the accused/Respondent No. 2 vide order dated 15,6.1998.

5. Conversely the contention of the learned counsel for the Respondent No. 2 is that impugned order dated 15.6.1998 has been passed
under Section 63 Cr.P.C. read with Section 167 Cr.P.C,., that Section 63 Cr.P.C. gives ample power to a Magistrate to discharge an accused. In support of his contention he has relied upon Muhammad All and another vs. Station House Officer and 6 others (1994 P.Cr.L.J 1806 Lahore).

6. Admittedly accused/Respondent No. 2 was arrested on 14.6.1998 and was produced before the learned Magistrate on 15.6.1998 for his physical remand as required u/S. 167 Cr.P.C. A perusal of said section clearly shows that it does not empower the Magistrate to discharge an accused. It only empowers a Magistrate either to grant physical remandorr to refuse the same, and while authorising detention in the custody of police he has to record his reasons for so doing. It is thus clear that order of discharge could not. be passed while acting under the provisions of Section 167 Cr.P.C. Learned counsel for Respondent No. 2 in the alternative has tried to bring his case within the ambit of Section 63 Cr.P.C. I arn afraid the provisions of Section 63 Cr.P.C. are not attracted, as it merely prohibits the discharge of a person who has been arrested by a police officer, except on his own bond" or on bail, or under special order of a Magistrate, Thus it is clear that impugned order cannot be said to have been passed under Section 63 Cr.P.C. The power of release/discharge has been given even to a police officer as is evident from the provisions of Section 169 Cr.P.C. However the said provisions can only be pressed into service if upon an investigation under this chapter it appears to the Officer Incharge of the Police Station that there
is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate. Even this situation had not
cropped up in the instant case as the learned Magistrate had stiffled the investigation in its veiy inception by refusing the remand and consequently
discharging the accused/Respondent No. 2. The authority relied upon by the learned counsel for Respondent No. 2 also does not come to his rescue, as in the said authority the order of discharge had been passed by a Magistrate when Physical remand for 10 days had been granted and no incriminating evidence had been collected against the accused named therein.

7. The upshot of above discussion is that learned Magistrate/ Respondent No. 1 was not competent to pass order of discharge of accused/ Respondent No. 2 while exercising the powers under Section 167 CrP.C. Accordingly writ is accepted and the said order is hereby set aside being illegal, unjustified and untenable.

• MYFK) Petition accepted.