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Criminal Miscellaneous. No.215/Q of 1985, decided on 20th August, 1986.

‑‑‑S.561‑A‑‑Penal Code (XLV of 1860), S.435‑‑Quashing of proceedings‑‑Notice issued by Magistrate‑‑Accused discharged earlier by Magistrate on application of police‑‑Police re‑investigating case, submitted challan against accused‑‑Magistrate issuing notice‑‑Order of discharge by Magistrate on application of police being an administrative order, police could re‑investigate matter and submit fresh challan without having recourse to getting first order set aside‑‑Petition dismissed in circumstances.

Asghar Ali v. State 1983 P Cr. L J 2187; Din Muhammad Shakir v. D. S. P., Ichhra, Lahore P L D 1977 Lah. 180; State v. Mir Nabi Bakhsh Khan Khoso and others 1986 P Cr. L J 1130; Sarwar Ali Shah v. State P L D 1986 Jour. 31; Alam Din v. State P L D 1973 Lah. 304; Muhammad Akbar v. State and others 1972 P Cr. L J 328; Muhammad Akbar v. State and others 1972 S C M R 335; Atta Muhammad v. Inspector‑General of Police, West Pakistan and others P L D 1965 (W.P) Lah. 734; Abdur Rehman v. Sultan and others 1971 P Cr. L J 1164 and Bahadur v. State and others P L D 1985 S C 62 ref.

Hidayat Ullah for Petitioner.

T. A. Khan Addl. A.‑G. assisted by Aziz Qureshi for Respondent.

Shah Ahmad Balooch for the Complainant.

Date of hearing: 8th July, 1986.

Muhammad Akram and Muhammad Aslam sons of Muhammad Amin, who were arrested in a case registered against them at Police Station Khurrianwala, under section 435, P.P.C., were discharged by the Magistrate on 11‑6‑1985, on an application submitted by the S.H.O., praying for their discharge.

Later, the S.H.O. submitted a challan against them, after making some investigation under the orders of S.S.P. and P.D.S.P. The Magistrate issued notice for their appearance to face trial. They have filed petition under section 561‑A, Cr.P.C. seeking quashment of the order.

2. Learned counsel for the petitioners contended that the S.H.O. had no authority to take up fresh investigation after the discharge of the accused and so the challan submitted by him as a result of the investigation conducted thereafter was contrary to the provisions of Cr.P.C. and that the learned Magistrate had no authority to take cognizance of the case and issue notices to the accused to face trial, in view of the existence of order of discharge. Reliance was placed on Asghar Ali v. State 1983 P Cr. L J 2187, Din Muhammad Shakir v. D.S.P. Ichhra, Lahore P L D 1977 Lah. 180, State v. Mir Nabi Bakhsh Khan Khoso and others 1986 P Cr. L J 1130 and Sarwar Ali Shah v. State P L D 1986 Jour. 31.

3. Learned Additional Advocate‑General and counsel for respondent No.2, i.e. complainant, contended that the police has ample powers to take up second investigation and could submit challan as a result thereof even, in the presence of order of discharge passed by the Magistrate on the application submitted by the police. In support of former contention, reliance was placed on Alam Din v. State P L D 1973 Lah. 304, Muhammad Akbar v. State and others 1972 P Cr. L J 328 and Muhammad Akbar v. State and others 1972 S C M R 335.

In support of later, contention, reference was made to Atta Muhammad v. Inspector General of Police, West Pakistan and others PLD 1965 (W.P). Lah. 734 and Abdur Rehman v. Sultan and others 1971 PCr.LJ 1164.

It was also contended by them that the discharge order was an administrative order and so there was no need to ask for its revision. In this regard reference was made to Bahadur and others v. State and others PLD 1985 S C 62.

4. The case reported as P L D 1986 Jour. 31 and 1986 P Cr. L J 1130, pertain to the orders passed under section 265‑K, Cr.P.C by the Sessions Judges. As such, they have no bearing on the case in hand.

5. The matters in issue in the judgments reported as P L D 1977 Lah. 180 and 1983 P Cr. L J 2187 were not only discharge of accused. In fact, in both the matters, the very cases had been cancelled by the Magistrate on the application submitted by the police. Obviously, there was no question of re‑investigation or submission of fresh challan.

In the case in hand, the police had not asked for cancellation of case and, as such, no permission was required for taking up fresh investigation .

The cases reported as P L D 1973 Lah. 304, 1972 P Cr. L J. 328 and 1972 S C M R 335 fully supports the contention raised by learned Additional Advocate‑General and counsel for respondent No.2 that the police can take up another investigation and can file another report under section 173, Cr.P.C. as well. In fact, the case reported as 1972 S C M R 335 was an appeal against the judgment reported as 1972 PCr.LJ 328.

The case reported as 1971 P Cr. L J 1164 supports the contention of the learned Additional Advocate‑General and counsel for respondent No.2 that even after release of the accused by the Magistrate on an application submitted by the police, the Magistrate is competent to summon the accused to stand trial.

The judgment reported as P L D 1965 Lah. 734 lends full supports to the contention of the learned counsel for the respondents that the police can submit a fresh challan in spite of the order of discharge.

6. The consensus of the authorities regarding the matter in hand is that the order of discharge is an administrative order, the police can re‑investigate the matter and submit a fresh challan, even without having recourse to getting the first order set aside.

7. In the circumstances, the petition has no force. The same is dismissed.

S. A.

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