Law: Code of Criminal Procedure, 1898

Section: 302, 109, 34

Law: Pakistan Penal Code (PPC),1860

Section: 63, 167, 173, 435 & 439-A, 561-A

Law: Qanun-e-Shahadat Order, 1984

Section: 46

 Summary The Islamabad High Court examined whether an order passed by a Judicial Magistrate under Section 63 Cr.P.C., releasing accused persons during investigation, is an administrative or judicial order. The Magistrate had released two murder accused despite their specific nomination in the dying declaration/FIR and recoveries made during investigation, holding that there was no incriminating evidence against them. The Sessions Judge set aside that order in revision. The High Court held that although an order under Section 63 Cr.P.C. is administrative and therefore not revisable under Sections 435/439-A Cr.P.C., the Magistrate's order itself was patently illegal, perverse, and contrary to the available evidence. Exercising its inherent jurisdiction under Section 561-A Cr.P.C., the Court set aside both the revisional order of the Sessions Judge and the Magistrate's release order, directing the Magistrate to reconsider the police request for physical remand strictly according to law. Tagline Illegal discharge of murder accused under Section 63 Cr.P.C. can be corrected by the High Court under Section 561-A Cr.P.C. to secure the ends of justice, although such discharge order is administrative and not revisable. ORDER; Arbab Muhammad Tahir, J.- The petitioner, through the instant petition, has assailed order, dated 30.10.2023, passed in exercise of revisional jurisdiction by the learned Sessions Judge (East), Islamabad whereby order, dated 04.10.2023, passed by the learned Judicial Magistrate in FIR No.367/2023, dated 30.06.2023, registered under sections 302, 109, 34 of Pakistan Penal Code, 1860 at Police Station Shahzad Town, Islamabad (hereinafter the “FIR”) was set-aside. The learned Judicial Magistrate, through the order under challenge before the learned Sessions Judge, had released the accused persons exercising powers under section 63 of the Code of Criminal Procedure, 1898. The concluding paragraph of order dated 04.10.2023 is reproduced below.- “It is suffice to say that the purpose of investigation i.e. Rule 25.2 of Police Rules, 1934 i.e. is “to discover the actual facts of the case.” However it…