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Writ Petition No.981 of 1986, decided on 5th October, 1986.
---S. 169--Penal Code (XLV of 1860), S. 302/34--Case registered against petitioner and co-accused under S. 302/34, P. P. C.--Investigating Officer finding petitioner innocent, moved Magistrate for his discharge- Magistrate directing Police to act under S. 169, Cr.P.C.--Petitioner already released on bail--Challan subsequently submitted against petitioner--Police, held, could not proceed under S. 169, Cr.P.C. in circumstances--Order of Magistrate was illegal and without lawful authority, petitioner, however, could be tried on subsequent final report even if he was discharged by Magistrate.
Mian Muhammad Abbas for Petitioner.
Tassaddaq Hussain Jillani, A.A.-G for the State.
Date of hearing: 5th October, 1986.
Through this Constitutional Petition Hafeez Ahmad petitioner wants this Court to declare orders dated 15-7-1986 and 31-7-1986 passed by Magistrate Ist Class, Mailsi, respondent No.1 and Sessions Judge, Vehari, respondent No.2, to be without lawful authority and of no legal effect.
2. The facts leading to this petition briefly are that on 16-3-1986 a case under section 302/34, P.P.C. for the murder of Muhammad Aslam was registered at P.S. Mitroo against Hafeez Ahmad petitioner and Muhammad Mansha co-accused vide F.I.R. No.40 of 1986. The prosecution case was that the petitioner and Muhammad Mansha in furtherance of their common intention caused the death of Muhammad Aslam in Chak No.88/W.B. As for the petitioner it was alleged that he was armed with a revolver and fired at Muhammad Aslam hitting in his abdomen resulting in his death. The local police found the petitioner, innocent and submitted report for the discharge of the petitioner before Magistrate 1st Class, Mailsi, respondent No. 1, who on 15-7-1986 instead of discharging or refusing to discharge the petitioner, returned the file to the police with the remarks:
"The S.H.O./I.O. has got powers under section 169, Cr.P.C. to proceed in the matter and as such, he is directed to act accordingly."
Feeling aggrieved of this order, the petitioner filed revision before the learned Sessions Judge, who vide impugned order dated 31-7-1986 dismissed the same as having become infructuous on the ground that by that time, the petitioner having been challaned by the police, the case had been sent up to his Court for trial, hence this petition.
3. Learned counsel for the petitioner mainly contended that the order dated 15-7-1986 whereby the file was returned to the police for proceeding under section 169, Cr.P.C., was illegal inasmuch as, the petitioner having already been released on bail, section 169, Cr.P.C. was not applicable. The learned Assistant Advocate-General has opposed this petition.
4. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the petitioner. I find that since the accused was not in custody, therefore, the police could not proceed under section 169, Cr.P.C., so, the Magistrate should have passed his independent order on the discharge report submitted by the police. The order passed by the Magistrate on 15-7-1986, therefore, appears to be illegal and without lawful authority. Since the accused person can be tried on a subsequent/ final report, even after he is discharged by the Magistrate and in the instant case, the petitioner was not only subsequently/ finally challaned but the case was also sent up by the Magistrate to the Court of Sessions, therefore, this order is without prejudice to the trial of the petitioner by the Court of Session. The petition is disposed of accordingly.
S.A. Order accordingly.
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