PLJ 2010 Cr.C.
(
[
Present: Kh. Imtiaz Ahmad, J.
IFTIKHAR
AHMAD--Petitioner
versus
ADDL. SESSIONS
JUDGE,
Crl. Rev. No. 140 of 2009, decided on 6.5.2010.
Criminal
Procedure Code, 1898 (V of 1898)--
----Ss. 435
& 439--Criminal revision--Difference between the cancellation of the F.I.R.
and the discharge of the accused--If the order of cancellation is made by the
Magistrate on the police report then after passing of such order by the
Magistrate, the police cancelled the F.I.R. and thereafter there remains no FIR
pending on the file of police--Once such situation arises, then no further
investigation can be conducted in such case without recalling the order of cancelling the FIR by the Magistrate himself or getting it
set-aside from high Court--However, in the case of the discharged of the
accused, the F.I.R. remains intact--Police can submit challan
and even the trial Court is competent to summon the accused, who had been
discharged, to face the trial--In the present case, that police had not applied
for the cancellation of the case/F.I.R. but only applied for the discharge of
the accused on the ground that there was no evidence against him so far and
trial Court had also agreed with said report and discharged the accused--This
showed that F.I.R. remained intact--If the accused is discharged, then for
re-investigation whether the permission of Magistrate is necessary--Held: If
the accused is discharged then he can be associated during investigation
without the permission of magistrate and to this extent the impugned order was
not maintainable and set aside--Further held: It is made clear that if after
the conclusion of the investigating, the police seeks to arrest the accused on
the basis of said investigation, then the permission of the Magistrate is
required--Revision accepted. [Pp. 927
& 928] A, B & C
Syed Ali Shah Bukhari, Advocate for Petitioner.
Malik Waheed Anjum,
Advocate for Respondent No.2.
Sheikh Istajabat Ali, DDPP for Respondents.
Date of hearing:
29.4.2010.
Order
This criminal
revision under Sections 435/439 Cr.P.C is directed against
the order dated 04.07.2009 passed by the learned Addl. Sessions Judge, Rawalpindi, whereby he had directed the police that since
the accused had previously been discharged, so the local police/Investigation
Agency is directed to firstly get permission to re-investigate the matter from
the Illaqa Magistrate/trial Court and also to get
permission by placing the entire record before the concerned Magistrate, if the
petitioner is required to be arrested and also to get set-aside the discharge
order.
2. The relevant facts forming back ground of
this Criminal Revision are that the present petitioner got the case registered
against Respondent No. 2 namely Asif M. Farrukh vide F.I.R. No. 487 dated 09.08.2008 under Section
406 P.P.C. at Police Station R.A. Bazar, Rawalpindi. The Respondent No. 2 herein was the accused,
who moved the pre-arrest bail before the learned Addl. Sessions Judge, which
was dismissed on merits vide order dated 02.09.2008 and on the same day. the accused was arrested. Thereafter, on 03.09.2008, the
police applied for the discharge of the accused, before the Illaqa
Magistrate on the ground that during the investigation, he was found innocent
and no evidence was available against him and so it was prayed that the accused
be discharged. The Illaqa Magistrate, after going
through the record passed the final order, which is reproduced for
convenience:--
"In all
these circumstances there is nothing on record to connect the accused with the
commission of offence criminal breach of Trust as defined in the P.P.C.,
punishable u/S. 406 P.P.C. Therefore, I hereby agree
with this discharge report. In these circumstances, I hereby proceed to
discharge the accused above named from this case. However, if lateron anything comes up during investigation incriminating
the present accused in this case he may be dealt with in accordance with
law."
This order was
passed by the learned Illaqa Magistrate on
03.09.2008. The said order was challenged before this Court through Writ
Petition No. 1285 of 2008. This Court vide order dated
08.10.2008 disposed of the said writ petition with the following observation:--
"I am
informed that already on the application of the petitioner Additional Inspector
General of Police has referred inquiry of this case to DSP (Cantt),
who is investigating the matter.
2. In view of the above, this petition is not
competent. Let the petitioner appear before the concerned DSP and produce his
evidence in support of his version who will act strictly in accordance with
law. Disposed of."
During the
investigation by the DSP Cantt, the accused was
summoned to join the investigation and it appears that his warrant of arrest
was also issued from the Illaqa Magistrate compelling
Respondent No. 2 to once again apply for his pre-arrest bail. His pre-arrest
bail was dismissed vide order dated 04.03.2009 which was dismissed on the
ground that already his pre-arrest bail had been rejected by the said Court on
merits vide order dated 02.09.2008. However, to the extent of re-investigation
and arrest of the accused in the same order, the learned Court observed that
the only question which requires determination was that when the police had
already got discharged from the Illaqa Magistrate and
while replying the said question, the Court observed that the police cannot
re-investigate without permission of the Court when he had already got
discharged by the police itself and so directed the police to firstly get the
permission by placing the entire record before concerned Magistrate, if the
petitioner is required to be arrested to also get set aside the discharge
order. In-fact this order of the learned Addl. Sessions Judge has been impugned
in the present criminal revision.
3. The learned counsel for the petitioner
submits that for the re-investigation, if the accused is previously discharged,
no permission is required from the Magistrate. However, he concedes that if as
a result of re-investigation sufficient material comes on record for the arrest
of the accused then, the permission must be obtained from the Magistrate to
arrest the said person, who had been previously discharged. In this way, the
only determining factor in the present criminal revision is that whether if the
accused is discharged then re-investigation can be made without obtaining the
permission from the Magistrate. The learned counsel for the petitioner, in this
behalf had placed reliance upon the case law reported in the cases of Rehmat Ali Shad Vs. Fiaz Lodhi, S.P. and 3 others (1994 PCr.LJ
2206), Javaid Iqbal Vs.
Additional Inspector General of Police, Lahore and 4 others (PLD 2008 Lahore
488) and Ashiq Hussain Vs.
Sessions Judge, Lodhran and 3 others (PLD 2001 Lahore
271).
4. On the other hand, the learned counsel for
Respondent No. 2 i.e. accused had vehemently contended that even if the
discharged accused is to be in re-investigated, the permission must be obtained
from the Magistrate. In this behalf, he had referred the case laws already
relied upon by the learned Addl. Sessions Judge in the impugned order i.e. 1999
PCr.L.J 310 (
5. Arguments heard; record perused.
6. First of all it is appropriate to mention
that as to what is difference between the discharge of the accused and the
cancellation of the case. There is a lot of case law available on the record
and the reference can also be made to the case law reported in PLD 2005 Karachi
375 referred by the learned counsel for the respondent that there is a
difference between the cancellation of the F.I.R and of the discharge of the
accused. If the order of cancellation is made by the Magistrate on the police
report then after passing of such order by the Magistrate, the police cancelled
the F.I.R and thereafter then there remains no F.I.R pending on the file of
police. Once such situation arises, then no further investigation can be
conducted in such case without recalling the order of canceling the F.I.R by
the Magistrate himself or getting it set-aside from this Court. However, in the
case of the discharged of the accused, the F.I.R remains intact. The police can
submit the challan and even the trial Court is
competent to summon the accused, who had been discharged, to face the trial. In
the present case, as has been mentioned above that the police had not applied
for the cancellation of the case/F.I.R but only applied for the discharge of
the accused on the ground that there was no evidence against him so far and the
learned trial Court had also agreed with the said report and discharged the
accused. This shows that F.I.R remained intact.
7. Now the next question, which requires consideration is that if the accused is discharged, then for
re-investigation whether the permission of the Magistrate is necessary. In this
behalf, the learned counsel for Respondent No.2 had placed reliance on the case
of Zafur Haq (PLD 2005
"Ss. 63
& 173(3)--Discharge of accused by the Magistrate--Despite an order of
discharge of an accused person further investigation can be held by the police
regarding the offence in question without obtaining any permission from the
Magistrate in that regard--Discharged accused person can always be associated
by the police with the investigation of the given criminal case at any
subsequent stage during the investigation without seeking any permission from
the Magistrate discharging the said accused persons of his bond as long as that
accused person is not to be taken into custody during such subsequent
investigation."
It was further
observed in the said case as under:--
"Discharge
of accused by the Magistrate--If after the accused having been discharged by a
Magistrate the Police needs to arrest an accused person during any subsequent
stage of the investigation then a formal permission from the Magistrate is
necessary for the purpose."
The other case
laws cited by the learned counsel for the petitioner i.e
P.L.D 2008
Resultantly,
this Criminal Revision succeeds and order accordingly
in the above mentioned terms.
(A.S.) Revision
accepted.