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Petitioner: Muhammad Ramzan VS Respondent: State, etc.
Court Name: Lahore High Court Judge(s): Muhammad Shan Gul Title: Muhammad Ramzan vs State, etc. Case No.: W.P. No. 253 of 2022 Date of Judgment:2022-01-26 Reported As: PLJ 2023 Lahore 345 Result: Petition allowed
JUDGMENT
JUDGMENT Through this judgment the titled, constitutional petition is sought to be decided. 2. Facts in brief are that a crime report Bearing No. 301/2021 was lodged at P.S. Sadar, Taunsa Sharif, D.G. Khan by the petitioner, Muhammad Ramzan (complainant) under Section 302/34, PPC dated 15.11.2021 in respect of the murder of his real brother. He implicated, in his capacity as complainant- cum-eye-witness, four persons including Saddam Hussain, Respondent No. 5, in the present petition, as accused. The deceased sustained four firearm injuries and one out of which hit him on his left thigh and which was attributed to Respondent No. 5, Saddam Hussain. A brother of Respondent No 5, Ghulam Yasin, another accused to whom a firearm injury was also attributed was arrested and during investigation he led to the recovery of a pistol. 3. Respondent No. 5 i.e. Saddam Hussain, was arrested on 12.12.2021 and the Investigation Branch of police obtained a four days physical remand. After the expiration of remand, the Investigation Officer filed an application seeking extension in remand of Saddam Hussain. This application is indeed 'friendly' in nature and equally irreconcilable as well. It is stated in the application that while Respondent No. 5 was found present at the spot he was found to be unarmed and that nothing remained to be recovered from Respondent No. 5, Saddam Hussain but that he may be sent in judicial remand. 4. A learned Magistrate, 1st class, Taunsa Sharif, vide order dated 17.12.2021 declined the request for judicial remand and rather discharged Respondent No. 5, Saddam Hussain from FIR No. 301/2021. The present petition lays a challenge to this order and prays for a certiorari. 5. Learned counsel for the petitioner submits that the petitioner is aggrieved of order dated 17.12.2021 whereby Respondent No. 5 Saddam Hussain, a nominated accused with a specific role in
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FIR No. 301/2021 under Section 302, PPC Police Station, Saddar Taunsa Sharif, District D.G Khan has been discharged by a Magistrate without there being before him any request for such discharge. Counsel submits that the petitioner's real brother was killed by respondents including Respondent No. 5 and an FIR was registered but that instead of properly investigating the matter, the police, apparently in collusion with the respondents filed a tailored request for seeking further remand of Respondent No. 5 and upon which request instead of allowing remand or denying remand and sending Respondent No. 5 in judicial custody, Respondent No. 5 was discharged from the case. 6. Learned counsel submits that even if the police request was to be relied upon blindly, even then the proper course for the learned Magistrate was to have sent Respondent No. 5 to the judicial lockup and not discharge him altogether. Adds that prosecution witnesses still support the case of the petitioner, that Respondent No. 5 has been saddled with a specific role, that medical evidence corroborates the ocular account and that the application filed by the police seeking remand itself reeks of collusion between the police and Respondent No. 5 since on the one hand the application notes that there is nothing to be recovered from Respondent No. 5 and in the same breath prays for remand of four days in respect of Respondent No. 5. Learned counsel for the petitioner adds that the order under challenge is preposterous and that the right of the complainant especially recognized and acknowledged in Qisas related offences has been compromised. 7. On the other hand, learned Assistant Advocate General as also the DPG have opposed this petition by relying on the plea that such power as has been exercised by the Magistrate is inherent in Section 167, Cr.P.C. and is not dependent upon any application being made. They have drawn the attention of this Court to Volume 3, Chapter 11-B High Court Rules and Orders as also to the case of "Nazeer Ahmad vs. The State etc" (PLD 1987 Lahore 236) for the said purpose. They maintain that discharge does not mean acquittal and it only means that an accused person is placed in column No. 2 of the report under Section 173, Cr.P.C. who can well be summoned to face trial. They add that such a person can be reinvestigated for his role and can even be arrested after seeking permission from the Magistrate concerned. They round of by submitting that the petitioner's approach to this Court is nothing more than a case of 'much ado about nothing'. 8. Mr. James Joseph, Advocate was asked to assist the Court as a friend of the Court. He argued that the order of discharge is based on extraneous considerations because in the presence of overwhelming evidence being available against Respondent No. 5, Saddam Hussain, the Magistrate ought not to have discharged him. He submitted that in view of the law laid down by this Court in "Iftikhar Ahmed v. The State and others" (PLD 2020 Lahore 931) at paragraph No. 6 the order under challenge could not be sustained. 9. Learned counsel for the complainant, on the other hand, has defended the impugned order passed by the Magistrate ordering discharge. He has adopted arguments of the learned Law Officers and submits that there is nothing novel about the order under challenge and that since there are remote chances of Saddam Hussain's conviction, the order under challenge should not be interfered with. 10. Heard. Record perused. POWER OF DISCHARGE: 11. The Criminal Procedure Code, 1908 empowers Magistrates to discharge an accused at two stages after an FIR is lodged; First, through Section 63 of Cr.P.C. during the course of an investigation and then by means of Section 173(3), after investigation by the Police results in a final report to be submitted in terms of Section 173(1). "63. Discharge of person apprehended: No person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate.
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173. Report of police officer: (1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer incharge of the police-station shall [through the Public Prosecutor]-- (3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit." CAN THE ACCUSED BE DISCHARGED UNDER SECTION 63 WHEN APPLICATION FOR REMAND IS FILED UNDER SECTION 167: 12. In "Muzaffar Ahmad v. The State and 2 others" (2021 P.Cr.L.J. 1393), this Court observed that conflicting authorities exist regarding whether at the time when an accused is presented before a Magistrate for the grant of physical remand under Section 167, the Magistrate can exercise power under Section 63 and discharge an accused and then followed the view endorsing discharge at such time if the evidence collected by the police is grossly deficient. Police, in the case before this Court has, however, requested for the accused to be sent to judicial lock up. 13. This Court endorsed the discharge order since the offence forming FIR was primarily civil in nature and the Hon'ble Court opined that the prime duty and obligation of the Magistrate is to safeguard the liberty of citizens and to protect them from frivolous criminal prosecution where it appears that it is an attempt to entangle citizens in such prosecution despite the dispute being civil in nature. "17. It is the sacred duty of the Magistrate to protect the rights of the people. In Zahira Habibulla H. Sheikh and another v. State of Gujarat and others (AIR 2004 SC 3114) the Supreme Court of India. held that "the concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata ... It will be not correct to say that it is only the accused who must be fairly dealt with. That would be turning Nelson's eyes to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society." Therefore, the Magistrate must apply his mind to the facts and circumstances of the case while discharging an accused and should be honest, fair and just to the accused as well as the prosecution. For this purpose, he must, inter-alia, take the following things into consideration: (a) the nature of allegations against the accused; (b) the evidence collected/likely to be collected; and (c) the defence plea of the accused and the evidence, if any, he has produced in support thereof The Magistrate should thoroughly examine the police diaries and record reasons for his opinion. 18. The validity of an order of discharge does not depend on the period that the accused had been in the custody of the police and the time they had to investigate the case but is determined on the basis of the factors mentioned in the preceding paragraph. I must, however, add that the Magistrate should not act in haste and see that his order of discharge does not nip the prosecution case." 14. In "Nazir Ahmad v. The State" (PLD 1987 Lahore 236), it has been held as follows:- "If the Magistrate finds that no case at all is made out against the accused, he is justified in not granting the remand and discharging the accused from the case. The power of discharging an accused from a case is, therefore. inherent in Section 167. If the Investigating Officer finds that the said accused is innocent or that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the said accused to a Magistrate for trial, there is nothing to prevent him from applying under Section 167 of the Code, read with Section 63 thereof, for his discharge from the case. Section 63 clearly states that no person who has been arrested by a
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police officer can be discharged except on his own personal bond, or on bail, or under the special order of a Magistrate. Since the power of discharging an accused from a case during investigation is inherent in Section 167 of the Code, an order under the said section can- be passed on the report of a police officer praying for his discharge. Such an order would be the "special order of a Magistrate' as contemplated in Section 63." 15. In "Rehmat Ali v. Nazir Hussain" (1997 MLD 1135) it has been held as follows:- "The Magistrate before whom an arrested person is produced, may _proceed under Section 63 read with Section 167, Cr.P.C. to make a special order to release or discharge such person if the police has not been able to show sufficient cause for remanding the accused to police custody. These Sections also imply that the investigation is to be completed within 24 hours and if it is not possible then the Magistrate may grant remand of an person subject to a term not exceeding 15 days in the whole. It is thus obvious that under the law a Magistrate is competent to either remand an accused to the police custody subject to a term not exceeding 15 days or he may make a special order to discharge such person." 16. The current view seems to be that a Magistrate can even discharge an accused at the stage when such accused is produced for the grant of physical remand. WHEN SHOULD A DISCHARGE ORDER BE PASSED: 17. The judgments of the Hon'ble Superior Courts show that an order of discharge of an accused (i) must be a reasoned order based upon evaluation of evidence by judicial application of mind and (ii) should not have the effect of choking investigation at a nascent stage and in the circumstances should not kill the case of prosecution prior to giving the complainant an opportunity to prove the case against accused. 18. In "Hidayatullah and others v. The State through Advocate-General, N.W.F.P. Peshawar High Court, Peshawar" (2006 SCMR 1920), it has been held as follows:- "8. It is a settled principle of law that it is the discretion of the magistrate concerned to pass order under Section 63 of the Code of Criminal Procedure to discharge the accused persons. However, the discretion must be exercised by the concerned magistrate justly. fairly and in case discharge order was passed by magistrate mechanically without application of his independent mind to the facts of the case, blindfolded acceptance of a recommendation of the police in that regard, perversity of reasoning and adoption of a procedure which offends against the letter and spirit of the law relating to discharge, then High Court has ample jurisdiction to interfere and set aside such an order Section 561-A, Cr.P.C." 19. The case reported as "Atif Muhammad Khan v. The State through Station House Officer Police Station Lohi Bher, Islamabad and 2 others" (2020 P.Cr.L.J. 130): deals with discharge under Section 173(3) i.e. after filing of Challan:- "12. The upshot of the above case law is that a Magistrate before whom report under Section 173, Cr.P.C. is filed can either agree with the same or disagree. The disagreement has to be based on the cogent ground but should not amount to interference in the investigation of the matter. The conclusion reached by the Investigating Officer, if is discrepant on the face of record and seems to be based in violation of law or the facts and circumstances of the case can be interfered with: however. the Magistrate while doing so and disagreeing with the report has to do the same through a reasoned and speaking order. The Magistrate while scrutinizing the report filed by the Investigating Officer though does not act as a Judicial Officer but does so in administrative capacity but the order passed should have the attributes of the judicial order inasmuch as the same should be reasoned based on cogent grounds and the law." 20. In "Khadim Hussain Shah v. Judicial Magistrate and others" (2019 MLD 363) it has been held as follows:-
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"5. Undeniably, petitioner is the complainant of case FIR No. 255, dated. 02.03.2017, offence under Section 406, P.P.C., registered with Police Station, Batala Colony, Faisalabad. Bare perusal of the impugned order reflects that on 21.o4.2017, only one day physical remand was granted by the learned Illaqa Magistrate. On 22.04.2017, the Investigating Officer produced the accused seeking further physical remand of ten days, but the learned Illaga Magistrate instead of taking into consideration the material available on the record in its true perspective while declining the request of the Investigating agency in this regard proceeded to discharge the accused. It is worth mentioning here that allegation against the accused is that he has misappropriated an amount of Rs. 17,00,0001-belonging to the complainant. Keeping in view the peculiar facts and circumstances of the instant case coupled with the allegation of misappropriation of huge amount, this Court is of the firm view that the learned Illaqa Magistrate has discharged the accused in haste without affording proper opportunity to the Investigating Officer to conclude his investigation quite in accordance with law. 21. In "The State through Advocate-General N.W.F.P. v. Ubaidullah and another" (2005 MLD 1883) it has been held as follows:- "17. Sections 63 and 169, Cr.P.C. empower the Magistrate to discharge an accused before trial. Section 63, Cr.P.C, has laid an embargo on the discharge of accused under arrest. Such an accused could be discharged only on obtaining sureties bail bound or personal bond of the accused on a special order of Magistrate. The special order is made during investigation on the request/case diary of investigation. only. The Magistrate cannot sit to decide a criminal case during investigation. If Magistrates are given the Powers to discharge and release an accused person at the very initial stage, there will be no room for success in blind heinous criminal case which always investigated at different theories of probabilities based on spy information. Once an accused is apprehended and found innocent he can only be set free during investigation by obtaining discharge order from Court, Discharge of an accused is also governed by Section 169, Cr.P.C. which is at the conclusion of investigation and on submission of report under Section 173, Cr.P.C. 22. In "Shahid Roza Bhatti v. Magistrate Section 30, District Courts, Rawalpindi and 2 others" (1999 MLD 1847) it has been held as follows:- "6........... 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 very 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." 23. In "Muhammad Shafi and 3 others v. Station House Officer, Uggoki, Tehsil and District Sialkot and another" (1999 P.Cr.L.J. 1345), it has been held as follows:- "criminal investigation should not be stifled or killed during its infancy as the same will be against the principles governing administration of justice" INDIA: 24. In India Section 227 of the Code of Criminal Procedure, 1973 deals with the discharge of an accused:
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"227. Discharge. -If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution there is not sufficient ground for proceeding accused and record his reasons for so doing." 25. In 2014(11) SCC 709 (State of Tamilnadu Represented by the Inspector of Police Vigilance and Anti-corruption vs. N. Suresh Rajan-Indian Supreme Court), it has been held as follows:- "At the stage of consideration of an application for discharge, Court has to proceed with an assumption that the materials brought on record by prosecution are true and to evaluate the said materials and documents with a view to find out whether the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the offence." 26. In AIR 2011 SC 1103 (R.S.Mishra vs. State of Orissa) it has been held as follows: "19. ............ Therefore, on the analogy of a discharge order, the Judge must give his reasons at least in a nutshell, if he is dropping or diluting any charge, particularly a serious one as in the present case. It is also necessary for the reason that the order should inform the prosecution as to what went wrong with the investigation. Besides, if the matter is carried to the higher Court, it will be able to know as to why a charge was dropped or diluted." 27. It is only when the circumstances of the case viewed with the evidence available obviously dispel the involvement of an accused in the commission of an alleged offence that a magistrate is empowered to discharge the accused and the order of a Magistrate must pass the test of a speaking, reasoned and judicial order which must show application of judicial mind upon the facts of the case, shed light on the extent of investigation conducted in the matter, evidence collected and the probability of incrimination of accused on the basis of present or prospective investigation. THE PRESENT CASE 28. From the facts of the present case it is obvious that FIR has been lodged by the brother of the deceased, who along with his son, another brother and nephew is an eye-witness of the incident. All four eye-witnesses, in their statements under Section 161 of Cr.P.C. have supported and confirmed the version of the Complainant/Petitioner. The injury attributed to Respondent No. 5 in the crime report is corroborated by the report of medical examination conducted at THQ Hospital, Taunsa on 16.11.2021. 29. It is also evident that contents of the crime report as well as those of statements of eye witnesses reveal that the deceased received four firearm injuries from the bullets fired by three of the assailants. It is unclear if the bullet casings/empties recovered from the scene of occurrence were sent for forensic analysis and if they all matched the gun recovered from another accused (Ghulam Yasin) because only in that eventuality could the Investigation Officer safely say that nothing was to be recovered from Respondent No. 5. This is not the case, at least this is not evident from the record placed before the Magistrate. 30. Police although has stated that Respondent No. 5 was unarmed but has also stated that he was present at the site of occurrence with an intention to kill the deceased (Muhammad Saleem). 31. The Impugned Order does not discuss the evidence on record i.e. statements of eye-witnesses, medical evidence, recoveries etc and merely reproduces the statement of Investigation Officer that Respondent No. 5 was present at the site unarmed without discussing the material justifying the opinion of the Investigation Officer or stating why he opted to ignore the evidence of eye- witness etc. stated above. It further states that there is no incriminating evidence available on record without even evaluating the effect of evidence mentioned above. It absolutely shuts the door of investigation against an accused despite there being many undisclosed and unascertained facets of the offence. 32. In the present matter, a Magistrate Ist Class has ceded jurisdiction to the Investigation Agency by blindly relying on its slipshod investigation conducted with respect to an accused in a murder case and spanning only four days. The Magistrate has abdicated his authority to the Investigation
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Agency and which is why his order betrays a failure to exercise jurisdiction that the law vests in him. He has by so doing allowed an extraneous consideration and an irrelevant factor to guide his discretion and which has made his approach improper and ominously susceptible to interference and being quashed through the issuance of a certiorari. 33. On the balancing scale, the Magistrate has weighed the factors erroneously in that as against the factors of the FIR being promptly lodged through which Respondent No. 5, Saddam Hussain was nominated specifically and attributed a specific role and in which case the prosecution witnesses supported. the FIR and its contents about firearm injuries attributed to Respondent No. 5, where the medical buttressed the ocular, he has allowed himself to be swayed solely and only by a questionable and unwarranted finding of the Investigation Agency about Respondent No. 5 Saddam Hussain being present at the place of occurrence yet being unarmed. For good measure, the Magistrate has tried to pre-empt the question of application of Section 34, PPC in the matter by ruling that mere presence at the place of occurrence does not attract Section 34, PPC. In this way he has caused considerable prejudice to the case of the petitioner. 34. What is even more alarming is the indubitable fact that never for once did the Magistrate call his attention to the basis, reasons or warrant for the sweeping statement of the investigation agency on which he relied without ado. At least from his order as also from the application praying for judicial remand, no such exercise or basis is evident. 35. Equally disturbing, likewise, is the absence of any discourse in the impugned order about why the Magistrate was not relying on the medical report which supports the ocular account of the accused having caused a specific firearm injury to the deceased. Also, there is no narrative in the impugned order about why a real brother would indulge in falsely implicating and wrongly nominating the actual killers of his brother especially in the absence of reasons rooted in malice, previous enmity or civil disputes. 36. Also eye-raising is the haste in which the learned Magistrate has passed the impugned order. The crime report 301/2021 was…
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