(Sections 247 and 403, Cr.P.C.)
Discharge in summons cases after evidence, amounts to acquittal. PLD 1951 Pesh. 4 Mahmud v. Mir Hassan Shah.
Previous trial not by competent Court, even after acquittal fresh trial is not barred. The Court was without jurisdiction as there was no sanction before the trial commenced. (DB) PLD 1964 Lah. 1. State v. Mohd. Shafi etc.
When conviction or acquittal by an incompetent Court, retrial is legal. (PC) PLD 1949 PC 108 Noorbhoy v. King.
Sanction to prosecute wanting. The Court is not of competent jurisdiction. -Retrial legal. PLD 1951 Lah. 430 Ihsan Elahi v. Crown. PLD 1957 Lah. 477.
Want of jurisdiction. Dismissal of a complaint on the ground that the Magistrate had no jurisdiction as the requisite sanction for prosecution had not been obtained, does not amount to an acquittal even if the dismissal was after the charge had been framed. (FC) AIR 1939 FC 43 = (1940) I L R 21 Lah. 400 - (PC) PLD 1949 PC 108 Yousaf Ali.
Want of sanction. Accused acquitted solely for want of proper sanction for prosecution. Such order of acquittal does not operate as an order of acquittal but of discharge. Held, the accused could again be tried for the same offence. Provision of section 403, Cr.P.C. not applicable. (DB) 1968 P.Cr.L.J. 1707 State v. Karam Ali. (DB) PLD 1964 Lah. 1 State v. Muhammad Shafi. 1972 Cr.LJ 424. Contra.
Trial Court after putting accusation to the accused and examining one PW holding that it had no jurisdiction to try the case and acquitted the accused. Held, such order is an order of acquittal within the meaning of section 403 (1), Cr.P.C. and the accused cannot be re-tried. (DB) 1968 P Cr.LJ 1328 State v. Bashir Ahmed.
Discharge on account of absence of complainant and not on merits of the case. Fresh inquiry or fresh complaint is not barred. (DB) 1970 P.Cr.L.J. 1101 (Dacca) Mst. Rosmatun Nissa v. Murtaza Ali, 1970 P.Cr.L.J. 645.
Accused discharged on police report under section 173, Cr.P.C. Trial upon complaint legal. PLD 1949 Lah. 537 Sardara v. Muhammad Nawaz. Accused discharged being declared innocent by the police, can be summoned by the Trial Court to face trial. PLJ 1995 SCMR 894, Muhammad Sharif.
Discharge on police report under section 173 (3), Cr.P.C. is merely in the nature of an administrative order and not a judicial one. (DB) PLD 1965 Lah. 734 Atta Muhammad v. I.G. Police etc.
Ilaqa Magistrate discharged the accused on police report u/S. 173 Cr.P.C. Complainant filed revision petition against the order of the Magistrate to the Sessions Court. Addl. Sessions Judge accepted the revision petition and directed the Magistrate to place the accused in column No. 2 of the report u/S. 173 Cr.P.C. Held, the Magistrate while discharging the accused u/S. 173 Cr.P.C. was not an inferior Criminal Court within the meaning of section. 435 Cr.P.C. and as such the magistrate's order was not revisable. Order by Sessions Judge set aside and that of the magistrate restored, holding that the discharge order was an administrative order and not a judicial order, PLJ 1996 Cr.C. (Lah) 1908, Muhammad Aslam etc. PLD 1985 SC 62, Bahadar etc. relied upon.
Order under section 63, Cr.P.C. is not revisable by the Sessions Court, being an administrative order NLR 1985 Cr. 376. Muhammad Wasim v. Additional Sessions Judge. Contra. PLD 1968 Lah. 537 Amir Ali v. State, held to be judicial act. All administrative acts, derive their authority from law and must be in accordance with the constitution. Hence any act done by the executive authority would be deemed to have been done under the law. (DB) PLD 1967 Dacca 607 Haji Ghulam Sabir v. Pan Allotment Committee. Acquittal not on merits, retrial not illegal. (The Sessions Judge acquitted accused for defect in sanction for prosecution). PLD 1956 Lah. 87 Salah-ud-Din v. Crown.
Witnesses not deliberately avoiding to appear in Court, held, acquittal u/S. 265-K, Cr.P.C. not justified, Retrial ordered. NLR 1988 Cr. 544. Nazir Muhammad v. Gawa etc. Acquittal not on facts. An acquittal means an acquittal on facts which creates a bar for further trial under section 403, Cr.P.C. The refusal to take cognizance is not bar for a further trial and does not operate as an acquittal of a charge. (In this case the Additional Sessions Judge acquitted the accused of an offence under section 182, PPC because in the absence of a complaint under section 182 he was not prepared to take cognizance) (SC) PLD 1962 SC 397 Rana Muhammad Afzal Khan.
Discharge order passed on merits and which is not plainly or substantially an order passed in default, although it does not in law constitute a legal bar will practically have the same effect as an order of acquittal. In the presence of an order of acquittal fresh proceedings in respect of the same offence will be entirely without jurisdiction while in the case of an order of discharge passed on the merits fresh proceedings will be improper and will not be permitted. The effect of order of discharge is that the Court cannot revive the proceedings without the order of the revisional Court (SC) PLD 1962 SC 242 Abu Hussain v. Suwala Agarwala.
Dismissal on merits. When a complaint is dismissed on merits no second complaint can be entertained on the same facts. (FB) 10 PR 1911 = AIR 1930 Lah. 879 = AIR 1932 Notes 62. Sessions Courts has jurisdiction to try a person discharged by a Magistrate. Discharge order is only an administrative act and not a judicial order; even though the accused's name is placed in column No. 2 or 3 of challan, the Court can summon the accused for trial. PLJ 1996 Cr.C. (Lah) 198, Khadam Hussain etc.
Magistrate to send up the case triable by Sessions Court. He cannot discharge the accused on police report. PLJ 1996 Lah 680. Sardar Muhammad v. Zaffar Javed Awan etc. Also see Sec. 193 Cr.P.C. as well and NLR 1985 Cr. 1 Raja Khush Bakhat-ur-Rehman etc.
Discharge by High Court, fresh proceedings before Magistrate competent. Discharge is no bar to fresh proceedings. An order of discharge does not operate as any bar to fresh proceedings taken before a competent magistrate upon complaint or upon a police report or under section 190 (c), Cr.P.C. A magistrate has jurisdiction and is bound to adjudicate on any criminal information properly laid before him against the accused who had been discharged by the High Court in the exercise of its original criminal jurisdiction without the order of discharge being set aside. (DB) ILR 40 Cal. 71 = 13 Cr.LJ 488 = 15 Ind. Cas. 488.
Discharge Order by Magistrate not revisable u/S. 435/439 Cr.P.C. because the Magistrate does not function as a criminal Court. Order u/S. 561-A Cr.P.C. passed by the High Court against the Order of the Magistrate discharging the accused set aside. 1997 SCMR 304, Mohammad Shrif etc. Discharge. Proceedings dropped as not maintainable; law changed, fresh proceedings competent. AIR 1925 Pat. 330 = 83 Ind. Cas. 730. Accused acquitted under section 307, PPC. Second trial under Explosive Substance Act legal and competent. PLD 1966 Lah. 778 Atta Ullah Khan. Neither acquitted nor convicted. Where the accused had not been acquitted or convicted this section was not applicable and the proceedings could not be quashed. When the order of the Magistrate discharging the accused was apparently made under section 173, the order was essentially an administrative order and it does not amount to discharge or acquittal of the accused. 51 Cr.LJ 434 (Lah.) Sardara v. Muhammad Nawaz. Case withdrawn by Crown (State) under section 494, Cr.P.C. Fresh complaint by the injured person is not barred. AIR 1934 Lah. 169 Nasir etc. v. Ch. Abdul Karim.
Autrefois Acquit. (Section 403, Cr.PC). Two accused acquitted and two convicted. Neither complainant nor State moving appeal against acquittal. High Court on appeal by convicted accused ordered retrial. Order of retrial does not reopen the case of the acquitted accused. (SC) 1970 SCMR 189 Muhammad Ali. Departmental action is not covered by section 403, Cr.P.C. as departmental penalty is not conviction for an offence. 1978 P.Cr.L.J 262 Abdul Ghafoor.