Role of Prosecutors - Punjab Judicial Academy

Role of Prosecutors By

Qaiser Javed Mian Director Research/Faculty Member,

Punjab Judicial Academy, Lahore

A police report under section 173 of the

Code including a report of

cancellation of the first information

report or a request for discharge of a

suspect or an accused shall be

submitted to a Court through the

Prosecutor appointed under this Act.

1. Abdul Hafeez Junejo Versus The State

2010 YLR 470

Before Sajjad Ali Shah, J

“Application of accused challenging legality of order of change of section of Penal Code ---Applicant/accused originally was charged under Ss.316/337-K/34 P.P.C., but on the direction of District Public Prosecutor S.316, P.P.C was deleted and S.302 P.P.C, was incorporated---Counsel for applicant contended that such change of section of P.P.C was made on the direction of District Public Prosecutor who had no authority to direct such change and that neither material produced was considered nor there was any application of mind through a speaking order---Validity---Conduct of prosecution on behalf of government was the responsibility of the Prosecutors and every report under S.173,, Cr.P.C. including the report for cancellation of F.I.R. or discharge of a suspect or an accused had to be filed in the court after same was scrutinized by the Public Prosecutor---Prosecutors had the powers to return such report to officer incharge of a Police Station or the Investigating Officer, if he found it defective for the removal of identified defect---As result of such scrutiny as an expert his opinion could be placed before the court for its convenience and consideration, without any binding force---Prosecutor having expertise in the field was in a better position to opine that on the basis of the investigated fact accused could be tried under a specific provision and in the present case, the fact that the accused persons being officers/officials of Public, could not be ignored---In view of such clear mandate provided to the Prosecutor, the opinion of District Public Prosecutor appeared to be in consonance with such mandate and the acceptance thereof by the Investigating Officer followed by changes of section of Penal Code could not be questioned---Court was ultimately to decide the provisions with which accused was charged.”

2. Tanveer Hussain Qureshi and 8 others

Versus

District Public Prosecutor, Sialkot and 2 others.

2009 P Cr.L J 1043.

Before M.A. Zafar, J

District Public Prosecutor while scrutinizing the cancellation report submitted by the Investigating Officer in the case, did not agree with the same and directed the S.H.O. to prepare challan under S.173, Cr.P.C. against the accused for their trial in the Court in accordance with law---Validity---Sections 9 and 10 of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, did not authorize the Public Prosecutor to direct for submission of report/challan under S.173, Cr.P.C. against the accused for their trial or to recommend Departmental inquiry or registration of criminal case against the Food Inspector--Public Prosecutor had no authority to assume and abdicate the function, authority and jurisdiction of Trial Court and he had traveled beyond his jurisdiction and committed a grave illegality by issuing the aforesaid directions to S.H.O.---Function of Public Prosecutor was only to pin point the defects in investigation as well as in the report and to direct the Investigating Agency to remove the same---Trial Court, however while passing orders even on the cancellation report could issue necessary direction to the Investigating Officer after examining and perusing the available material to submit challan against the accused---Public Prosecutor had no jurisdiction to direct the S.H.O. for doing the same---Impugned direction was set aside and the constitutional petition was accepted accordingly.”

3. Rasoolan Bibi Versus Additional Session Judge and others

PLD 2009 Lahore 135

Before Khurshid Anwar Bhinder, J

Petitioner had called in question order passed by Ex-Officio Justice of peace, dismissing the petition under Ss.22-A & 22-B, Cr. P.C. filed against order passed by the District Public Prosecutor concerned deleting S.324,P.P.C. in the case F.I.R. registered under Ss.324/354/337-A(i)/337-F(i)/337-L(ii)/34, P.P.C.---Validity---Under provisions of S.9(7) of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, District Prosecutor had the powers to scrutinize the available evidence and applicability of offences against all or any of accused as per facts and circumstances of the case---Deletion or insertion of any offence fell within the exclusive domain of the District Prosecutor---Question whether the District Prosecutor had rightly deleted S.324, P.P.C., would be seen by the Trial Court at the time of framing the charge, but petitioner could not assail such an order either under provisions of Ss. 22-A & 22-B, Cr.P.C. or in constitutional jurisdiction of the High Court as it would amount to interfering with the process of investigation which was not the mandate of law---Ex-Officio Justice of Peace had rightly dismissed the application of the petitioner, in circumstances.

4. Lal Khan and another

Versus

Station House Officer, Police Station Kotwali Jhang and 6 Others

2010 P Cr. L J 182 [Lahore]

Before Kazim Ali Malik, J

Under S.9 of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, the prosecutor was required to scrutinize the report under S.173, Cr. P.C. in order to decide as to whether or not same was fit for submission before the court of competent jurisdiction---Public Prosecutor, mechanically submitted the challan in court without application of legal mind---Under S. 190(1)(b), Cr. P.C., the court would take cognizance of the offence and not of the offender---In the present case Trial Court took cognizance of the challaned accused in utter disregard of said mandatory provisions of law---Investigating Agency, the prosecution and the Trial Court, in circumstances had completely failed to discharge the obligations cast on them by the law.

Waqar Ilias and another v. The State PLD 1993 Quetta 49 ref

5. Allah Yar Versus Hussain Ali and another

PLD 2009 Lahore 87

Before Muhammad Akram Qureshi, J

S.449 Cr.P.C--- Withdrawal from prosecution---Rule of caution---Guide lines---Court, in view of the discretionary power vested in the Public Prosecutor to withdraw from prosecution of a case under S.494, Cr.P.C. acts in a supervisory capacity to see that such power is not used arbitrarily and contrary to public interest causing interference with the ordinary course of justice---Court must satisfy itself about the reasons advanced by the public prosecutor ….

Any executive opinion of the District Prosecutor counselling the case should not have prevailed upon the said judicial order of the Trial Court---Trial Court should not have permitted the withdrawal of the case by a mechanical order---Impugned order being not in accordance with the dictums of Superior Courts, was illegal,…

6. Tariq Habib Versus The State

2009 YLR 1364 [Karachi]

Before Mrs. Qaiser Iqbal, J

Similarly on the receipt of a report for sanction Deputy District Public Prosecutor, despite endorsing his opinion, directly issued a direction to the Investigating Officer for submitting challan in the Court---Magistrate, without applying his judicial mind passed a stereotyped order without adhering to the provisions of law and examination of record, acting arbitrarily violating the principles of natural justice-Magistrate thus had failed to exercise its discretion in a lawful manner by deciding the matter in a slipshod manner without giving cogent reasons and considering the material on record---For disposal of the investigating report, Magistrate was required under the law to act reasonably, fairly, justly and assigning reasons justifying his order---Impugned order having been passed by the Magistrate on the basis of report of the District Public Prosecutor without application of his own independent mind, was not warranted under the law and the same was quashed accordingly.

7. Bahar Ali and 2 others Versus The State and another

PLD 2008 Peshawar 28

Before Syed Yahya Zahid Gillani, J

S.8(2) of the North-West Frontier Province Prosecution Service (Constitution, Functions and Powers) Act, 2005 makes a S.H.O. bound to send copy of each F.I.R. of his police station to District Public Prosecutor and it bestows an extraordinary responsibility on District Public Prosecutor to inspect F.I.Rs. and wherever necessary to Suo Motu issue necessary guideline to investigating officer and that would be in the shape of “Direction”, to the Head of Investigation. He can also inspect, scrutinize and supervise the whole Investigation process of the cases. While reporting to Government under section 8(6) of the Act, the District Public Prosecutor can highlight lapses of the investigating officer in acute cases of negligence for appropriate departmental level punitive action to promote sense of responsibility and accountability in the investigating officers

8. Muhammad Ashraf alias Bhuller Versus The State

2008 YLR 1462 [Lahore]

Before Muhammad Ahsan Bhoon,J

Investigating Officer on the basis of statements of many persons appearing in defence had found the accused innocent and had placed him in Column No. 2 of the challan, but on the direction of District Public Prosecutor had placed his name in Column No. 3 of the challan, which fell outside the purview of the duties of the District Public Prosecutor and no legal sanctity was attached to his opinion qua the guilt of accused---

PLD 1954 Sindh 256 and 1983 SCMR 370 ref.

It is always the Court which is to charge the accused under the relevant provisions of law keeping in view the evidence available on record regarding the crime alleged and not the District Public Prosecutor.

No Court can order Investigating Officer to submit challan while placing the name of accused in column Nos.2, 3 or 4, rather Court can only direct the Investigating Officer to submit final report after completing investigation.

1983 SCMR 370 ref.

9. Fayyaz Ahmed and another Versus The State and others

2008 P Cr. L J 805 [Lahore]

Before Fazal-e-Miran Chauhan and Hasnat Ahmad Khan, JJ

Report under S. 173 Cr. P.C was forwarded to the Public Prosecutor Anti-terrorism Court who, after holding that facts of the case did not attract the provisions of S.7 of Anti-Terrorism Act, 1997, directed Station House Officer to submit the challan to the District Prosecutor after deleting the offence under S. 7 of the Act---Said order was challenged by the complainant in constitutional petition---Validity---Section 9 of Anti-Terrorism Act, 1997 did not authorize the Public Prosecutor to delete the offence under S.7 of the Anti-Terrorism Act, 1997---Public Prosecutor Anti-Terrorism Court had no authority to assume and abdicate the function, authority and jurisdiction of the Trial court to decide the question of jurisdiction or applicability of the relevant section…

Mirza Shaukat Baig and others v. Shahid Jamil and others PLD 2005 SC

530 and Muhabbat Ali another v. The State 2007 SCMR 142 ref.

10. Muhammad Ramzan Versus Station House Officer

2011 PLD 175 LAHORE HIGH COURT, LAHORE

• Even after the completion of the investigation

and submission of a report under S.173 Cr.P.C.

petitioner, would have another remedy before

the Trial Court for redressal of his grievance ---

Fate of a criminal case depended upon the

contents of F.I.R. and the prosecution

evidence, and not on provisions of offence,

under which the F.I.R. was registered by the

Police; as the courts were not bound by the

ipse dixit of Police.

11. Javed Iqbal Versus S.H.O

2011 P Cr. L J 447 LAHORE HIGH COURT, LAHORE

• Conduct and manner of investigation was

not normally to be scrutinized by the

High Court in its constitutional

jurisdiction which would amount to

interference in the Police investigation---

Constitutional petition was dismissed.

12. Syed Faraz Shah Versus State

2011 MLD 535 LAHORE HIGH COURT, LAHORE

• Registration of criminal case---Taking

cognizance by the court---Registration of a

criminal case was entirely a different

phenomenon from the one, pertaining to the

taking of cognizance by a court of law on the

report under S.173, Cr.P.C---Complaint within the

meaning of S.195 Cr.P.C., could be made a part of

the prosecution record, even after the registration

of F.I.R.; as no compelling restriction was available

in that regard.

13. Sabir Ali Arian Versus State

2011 P Cr. L J 732 KARACHI HIGH COURT, SINDH

S.173---Magistrate disagreeing with the police report recommending/suggesting/seeking disposal of F.I.R. in class, directed police to submit the charge sheet against the accused persons---Applicant/accused contended that the Magistrate could not order the challan to be submitted---Validity---Magistrate dealing with the report under S.173, Cr.P.C. though acted in administrative capacity, yet he had to pass a speaking order---Court below had observed the cases of both the complainant and the accused were supported by their witnesses---Veracity of witnesses could be determined by the Trial Court only after recording evidence---Magistrate had given reasonable and plausible explanation for disagreeing with the police report and rightly ordered the challan to be filed in prescribed proforma in the court competent to try the offence---Where Magistrate arrived at a conclusion contrary to the police report which sought disposal or cancellation of F.I.R. as ‘B’ or ‘C’ class, he had to make an order for submission of challan in prescribed form---Accused’s application was dismissed in circumstances.

14. Fida Hussain

Versus

Government of Singh through Home Secretary

2011 MLD 766. KARACHI HIGH COURT, SINDH

• Proceedings under S.173, Cr.P.C. are of

administrative nature and can be

challenged before High Court by invoking

inherent jurisdiction of High Court under

S.561-A, Cr.P.C.

15. Syed Wahid Bux Shah alias Chacho Shah

Versus

State

2011 MLD 64 KARACHI HIGH COURT, SINDH

• Second F.I.R. in respect of the same offence---Judicial Magistrate refused to accept the Investigating Officer’s recommendation for cancellation of the second F.I.R.-Validity -- Second F.I.R. seemed to be fabricated as reported by the Investigating Officer in the wake of submission of challan in respect of the first F.I.R.---Magistrate passed impugned order in haste after discussing evidence which was not permissible under S.173, Cr.P.C. Second F.I.R after the first one could not be considered as true---Impugned order was set aside and proceedings qua second F.I.R. were quashed .

16. Noor Muhammad Khan

Versus

State

2010 YLR 2249 PESHAWAR HIGH COURT-NWFP

• Contention of petitioner/complainant was that submission of report under S.173 by Police Official other than S.H.O., was bad in the eyes of law and could not be acted upon by the Magistrate and that allegations contained in F.I.R. could only be resolved after recording evidence---Validity---Under provisions of S.173 , Cr.P.C. report of inquiry was to be submitted by the Incharge of Police Station through Public Prosecutor---Under Police Order, 2002, function of the Police Department had been reorganized and under said reorganized system, S.H.O was replaced by other Police Officer belonging to the Investigating Department---In the present case report under S.173, Cr.P.C. having been submitted by Sub-Inspector, Incharge Investigation, same was in accordance with the Police Order, 2002, which could not be objected.

17. Asad Zaman Versus Muhammad Sareer

2010 PLD 54 PESHAWAR HIGH COURT-NWFP

• Investigating Officer had the sole prerogative to put the name of an Accused person in column No. 2 or in column No.3, subject of course as a result of his investigation which could not be undone by any judicial forum; or for that matter by superior officer of his department or by the Public Prosecutor; or Inspector Legal etc. neither under Cr.P.C., North-West Frontier Province Prosecution Service Act, 2005 nor under Police Order, 2002. However, it could be done under reinvestigation.

18. Mian Muhammad Asif Versus S.S.P. Operation, Lahore

2010 YLR 944

Lahore-High-Court-Lahore

• Report under S.173, Cr.P.C was not signed by the S.H.O concerned, which was a violation of the mandatory provisions of the Police Rules---Investigating Officer prima facie, being in league with the accused had declared him innocent in a clandestine manner---S.S.P. (Investigation) in such, circumstances had entrusted the investigation to S.P. Headquarters, on the application moved by the complainant for transfer of the same---Challan already submitted by the S.H.O against law and without collecting any evidence could not be made a basis for stopping re-investigation in the case, which was necessary in the given circumstances---Magistrate was restrained from passing any order on the application of the accused presented under S. 249-A, Cr. P.C. for acquittal, till the matter was reinvestigated and fresh final report under S. 173, Cr. P.C was submitted in the Court---Final verdict had to be passed by the Court after evaluating the evidence adduced before it during the trial---Constitutional petition was dismissed accordingly.

19. Jahangir Versus State

2010 PCrLJ 769


• Police report under S. 173, Cr.P.C., showed that police during investigation, found accused persons to be innocent and their names were placed in column No.2---Report of the Police though was not binding upon the court, but it was a relevant circumstance to be taken into consideration while determining such like question.

20. Muhammad Farooq Qureshi

Versus

Judicial Magistrate Section 30

2010 P Cr L J 261


• S.173---Report of Police Officer---Scope---Challan was not the substitution of report under S.173, Cr.P.C challan could only be submitted when Investigating Agency would come to the conclusion that accused was found guilty and recommended to be tried under the relevant offence, whereas if accused was not recommended to be tried in the case, then the report under S.173,Cr.P.C was to be submitted without any challan---No power vested with any court including High Court to override the legal command and to direct S. H.O., either not to submit investigation report (challan) or to submit the report in a particular manner i.e. against only such persons as the court desired or only with respect to such offences as the court wished.

21. Muhammad Farooq Qureshi

Versus

Judicial Magistrate Section 30

2010 P Cr L J 261


• Police prepared a cancellation report and placed it before the Magistrate who disagreed with said report and ordered to complete challan under S. 173, Cr.P.C. and to produce before the court---Validity---Investigation of a criminal case and the resultant arrival by the Police at a conclusion regarding the guilt or innocence of accused lay within the domain and prerogative of the Police over which no other authority had any control---Magistrate while disagreeing with the discharge report had travelled beyond the jurisdiction in directing the Police to submit the challan against accused---

Magistrate was not supposed to direct arrest of accused or submission of the challan or recording of evidence---Matter should be left to the Investigating Agency, to submit report under S,173, Cr.P.C.---It would be open for the Investigating Officer to record his own opinion regarding the guilt or innocence of accused in his report under S.173, Cr.P.C. and if the final opinion of the Investigating Officer was that accused was guilty, then he would be at liberty to submit the challan accordingly---Impugned order to the extent of directing the Police to submit the challan was without jurisdiction and lawful authority and same was set aside---proceedings initiated on the basis of said order were declared to be without legal effect---S.H.O concerned was directed to file report under S.173, Cr.P.C. without being influenced by the impugned order.

22. Lal Khan Versus

Station House Officer, Police Station Kotwali Jhang

2010 P Cr L J 182 Lahore-High-Court-Lahore

• In case the Investigator would fail to collect sufficient evidence in support of the charge/allegation, he was required to prepare negative final report under S.173 read with S. 169, Cr.P.C., and to lay it before the Area Magistrate and it was prerogative of the Area Magistrate to agree or disagree with the Police investigation---Under S. 190(1)(b), Cr.P.C. the Trial Court would take cognizance of the offence and not of the offender---If the Trial Magistrate would find that sufficient evidence was available against accused, he was competent to take cognizance of the offence on submission of negative/cancellation report---Contrary to that if the evidence in support of the charge was sufficient, the Investigator would submit final report under S.173 read with S.170 Cr.P.C. before the court---

• After submission of challan in the court, the prosecutor was required to prosecute cause of the State by producing material falling within the definition of “legal evidence”--- Function of the Trial Court was to form an opinion after perusing the Police report, all the documents and statements filed by the prosecution as to whether or not sufficient grounds were available to proceed with the trial of the challaned accused in order to determine the question of his guilt or innocence---Section 265-D, Cr.P.C. governing the subject had laid down that if sufficient ground was available to proceed with the trial, the court would frame a charge against accused; on the other hand, if some material would not exist to connect the challaned accused with the alleged crime; and the Trial Court considered that probability of accused being convicted of any offence or the charge was groundless, accused would be acquitted at any stage of the case under S.265-K or 249-A, Cr.P.C.

23. Ch. Khalid Mushtaq Versus Special Judge (Admn.)

2010 PLD 114

LAHORE HIGH COURT, LAHORE

• Direction of Court to police to submit challan under a specified section---Jurisdiction---Scope---Anti-Terrorism Court had directed the Investigating Officer to submit challan under S.365-A, PPC in the court---Validity---Special Court constituted under Anti-Terrorism Act, 1997, had traveled beyond its jurisdiction while directing the Investigating Officer to submit challan in the court under S.365-A PPC, which was the sole job of the Investigating Agency to submit a report under S.173, Cr.P.C. before the Court of competent jurisdiction---Even S.19 of the Anti-Terrorism Act, 1997, did not empower to the Trial Court to issue such type of direction to the police---Impugned order was not sustainable in law and the same was consequently set-aside---Constitutional petition was accepted accordingly.

• Submission of final report of investigation by police in Court---Court not vested with the power to direct police to submit challan under a specified provision of law---Mandate of law---Section 173, Cr.P.C. is the only provision in the Code of Criminal Procedure enabling the concerned S.H.O. to submit a report of the result of every investigation in the prescribed manner in the Court---No Court including the High Court has the power to override the said legal command and to direct the S.H.O. either not to submit the said report i.e., the challan or to submit the same in a particular manner either against only such persons as the Court desires or only under such offences as the Court wishes.

24. Imran Versus Liaquat Ali

2010 YLE 3288

KARACHI HIGH COURT SINDH

• Filing of final report by Investigation Officer for cancelling case under “C” class---Disagreement of Magistrate with such report due to availability of sufficient evidence on record to connect accused with offence, thus, directed Investigating Officer to submit report accordingly---Validity---After filing of such report, Magistrate had option either to agree or disagree with the same, but in case of disagreement, he could order further investigation of case by police, and in case when no investigation required to be conducted, then he could take cognizance of offence in terms of S.190, Cr.P.C. Magistrate had no power or authority to direct Police Investigating Officer to file another report under S.173, Cr.P.C., from the one disagreed by him---High Court set aside impugned order and directed Magistrate to pass appropriate orders on such report in accordance with law.

25. Mst. Eram Versus Muhammad Adnan Chaudhry

2010 YLR 1580

KARACHI HIGH COURT SINDH

• Report of police officer to be examined judicially

by Magistrate---Magistrate while exercising his

powers under S.173, Cr.P.C. does not act in a

mechanical manner---Order of Magistrate must

show his application of mind, his opinion must

be supported by reasons and his conclusion

must be laced with evidence showing application

of judicial mind---Despite all this, order passed

by Magistrate is not a judicial order, but is an

administrative order, however, it must be a

judicious order.

26. Meenhan Khan versus S.P. Investigation Hyderabad

2010 YLR 40

Karachi-High-Court-Sindh

• Case was recommended to be disposed of in class ‘B’ on that basis, however Superintendent of Police (Investigation) had not concurred with the said report and ordered for disposal of case under class ‘A’---Acting on such order, a report under S.173, Cr.P.C was submitted before the Magistrate who without having recourse to the material available with Police passed the impugned order---Sections 457 & 380, P.P.C. and S. 14 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, were non-compoundable---Magistrate had to apply his judicial mind while passing such order, which was conspicuously lacking, and it was not ipsi dixit of the police to decide the fate of a criminal case---Impugned order being not speaking one, no justification of such an order was found from the text of impugned order---Impugned order was set aside and case was remanded to the court of Judicial Magistrate, with the direction to pass proper, legal and speaking order afresh after affording an opportunity of being heard to the applicant, his witnesses and State Counsel.

27. Rasool Bux Shaikh Versus State

2010 P Cr L J 733


• Magistrate while scrutinizing the report under S.173,Cr.P.C. and passing order thereon, would not act as a court of law and his order was only an administrative order; however, it must be a speaking order giving valid reasons for his conclusion---Fact that order of Magistrate was an administrative order, would not mean that Magistrate could act arbitrarily; it could not be a judicial order, but it must be judicious one---Magistrate had power to disagree with the conclusion recorded in the Police report---If the Magistrate disagreed with the police report, he had the option of ordering further inquiry---Any other option available to the Magistrate was to take cognizance under S.190, Cr.P.C.---Magistrate could not order cancellation of F.I.R which was in respect of offence triable by a Court of Session.

28. Haji Muhammad Zakria Versus State

2010 P Cr L J 691


• Said Magistrate on such complaint would

proceed with the complaint filed under S.

200, Cr.P.C and after examining the

evidence would pass appropriate order by

conducting Judicial proceedings without

being influenced by his earlier order

passed under S.173, Cr.P.C., which was

an administrative order judicially made.

29. Doulat Ali Versus State

2010 P Cr L J 1311

Gilgit-Baltistan Chief Court

• Investigation in the case was conducted by a person who posed himself to be Investigating Officer, whereas he was not duly authorized by the Chairman NAB to conduct the investigation in the case under S. 18(c) of National Accountability Ordinance, 1999---Interference of Federal Investigation Agency in the case was also in violation of S. 18(d) of the Ordinance---

• Such violation were not merely technical, but the entire investigation, inquiry, appraisal of the evidence and calling of persons for information in the case and the report submitted under S. 173, Cr.P.C. by a self-assumed Investigating Officer, were nullity and without any legal sanction---

30. Dr. Muhammad Aslam Khakhi

Versus

State

2010 PLD 1 Federal-Shariat-Court

• “Where a court decides to pass a sentence of imprisonment of an accused for an offence, the period, if any, during which such accused was detained in custody, for such offence, whether before or after submission of report under section 173 of the Code of Criminal Procedure or initiation of a trial in a case instituted upon a complaint, shall be deducted from the quantum of sentence of imprisonment awarded by the trial court or it may be adjusted against imposition of fine if the court so directs”

31. Rehan Versus State

2009 SCMR 181 Supreme-Court

• Strict adherence of the Investigating Agency to the provisions of S.173 (1), Cr.P.C. stressed---If final report cannot possibly be submitted before or after completion of investigation period prescribed under S. 167, Cr.P.C., the Investigating Agency should strictly adhere to the provisions of S.173 (1), Cr.P.C. and must submit interim challan through Public Prosecutor for trial and should not keep in custody the accused arrested in the case without any legal justification for indefinite period.

32. Rehan Versus State

2009 SCMR 181

Supreme-Court

• Trial should normally commence, if

possible, on the basis of interim report

under S.173, Cr.P.C. which must be

submitted as per mandatory requirement

of proviso to subsection (1) of S. 173,

Cr.P.C.---If the commencement of the trial

is to be postponed, then the Court must

record reasons in writing.

33. Muhammad Aslam (Amir Aslam)

Versus

District Police Officer, Rawalpindi

2009 SCMR 141

Supreme-Court

• Accused was in jail for the last over eight months---Not a single witness had so far been examined.

• Formalities of SS. 173 and 344, Cr.P.C. had not been complied with and challan against the accused had not been submitted within the stipulated period, resulting in grave miscarriage of justice---Material on file did not make out any offence against the accused.

• Charge having been framed by Trial Court was no bar in the way of quashment of proceedings.

• F.I.Rs. were quashed.

34. Shah Nawaz Versus State

2009 YLR 2300


• S. 497(2)---Penal Code (XLV of 1860), SS. 302/201/148/149---Bail, grant of---Further inquiry--- Accused persons though were nominated in the F.I.R., but no direct evidence was available on record regarding murder of the deceased---Though murder of a human being had been committed, but there was no reason, especially in the absence of any direct evidence to connect accused persons with the alleged crime---None amongst accused persons had been attributed specific role---During the investigation two accused persons were found innocent and placed in column No. 2 in the report submitted under S. 173, Cr. P.C., while another one was placed in column No.3---Such facts had made case against accused persons one of further inquiry entitling accused for grant of bail.

35. Irshad Muhammad Versus State

2009 P Cr L J 1458


• SS. 156,173 , 170 & 169-Police Order (22 of 2002), Art.18(6)---Police Rules, 1934---Investigation---Scope--- Term “investigation” has not been defined by Pakistan Penal Code, ‘1860’ and Criminal Procedure Code, 1898---Combined examination of the Criminal ‘Procedure Code, 1898, Police Order, 2002 and Police Rules, 1934, however, makes it manifest that investigation consists of spot inspection, collection of evidence, ascertainment of facts in the, light of collected evidence and attending circumstances of the case and apprehension of accused provided the collected evidence is sufficient to connect him with the charge---In case the investigator comes to the conclusion that the evidence is sufficient, he is required to prepare final report under S.173 read with S. 170, Cr.P.C., and if he is of the opinion that the evidence is deficient, then cancellation report is drawn up, in terms of S. 173 read with S. 169, Cr. P.C.

36. Hafiz Muhammad Iqbal

• Versus

• State

• 2009 P Cr L J 934

• Lahore High Court, Lahore

• Section 4(h), Cr.P.C. specifically excluded

the report of Police Officer from the domain

of word “complaint”---Report submitted

under S.173, Cr.P.C. could not be considered

to be a complaint as provided by S.4(h),

Cr.P.C.---Section 195, Cr.P.C., placed a

specific embargo upon the Trial Court to take

cognizance on the report of Police Officer.

37. Nazima Shahzadi

• Versus

• S.H.O. Police Station Pindi Ghee District Attock

• 2009 P Cr L J 751

• Lahore High Court, Lahore

• Will and consent of the alleged abductee had, in fact, determined the fate of the charge of abduction, but the Investigator and District Public Prosecutor had attached importance to the Will of her father in utter disregard of the provisions of S.365-13, P.P.C. as well as of Ss.375 & 376, P.P.C. on the charge of rape ---No offence whatsoever was made out against the accused persons---Accused had faced the agony of investigation for the offence not committed by them.

38. Mansabdar Versus State

2009 MLD 641


• Only one firearm injury suffered by deceased had not been specifically attributed to any one of said six accused person---Complainant and prosecution witnesses made a vague and general allegation that six accused person, including accused resorted to firing in the darkness of night as a result of which the deceased suffered one fire shot, which proved fatal; in other words six accused persons including accused had been lodged judicial lock-up for having caused one injury to the deceased---Trial Court did not take into consideration the mode and manner of the incident set up in the F.I.R.---Accused was extremely old man---Senior Medical Officer, Jail Hospital found accused patient of “Parkinsonism” and his whole body was shivering uncontrollably and as a result the iron handcuff injured his wrist joint---Section 497, first proviso Cr.P.C. had clearly laid down that any sick or infirm person, accused of an offence punishable with death or imprisonment for 10 years, could be released on bail.

39. Hazaro Versus State

2009 YLR 2464

Karachi High Court, Sindh

• In the present case while examining the report under S.173, Cr.P.C., the Magistrate came to the conclusion that the case did not warrant its disposal in ‘C-class’---Investigating Officer had simply non-suited the complainant on the ground that the witnesses of the complainant were interested witnesses, but Investigating Officer was not competent to express such opinion in support of disposal of case in ‘C-class’; it was the prerogative of the court to determine as to whether the witnesses were interested witness or not---Magistrate was bound to take appropriate legal action against the Investigating Officer for his default in non-compliance of the direction

40. Zufran Khan Versus State

2009 YLR 1874

Karachi High Court, Sindh.

• Pre-requisite for taking cognizance in the matter, in circumstances, was missing as the proceedings proposed to be dropped against the applicant were not based upon sufficient evidence---Sanction to prosecute the applicant having not been obtained from the competent Authority under S.6(5) of Pakistan Criminal Law Amendment Act, 1958 by the prosecution, there were no basis for the Trial Court to proceed with the prosecution against the applicant---Impugned order was set-aside and allowing application under S.561-A, Cr.P.C. proceedings were quashed and applicant was acquitted from the charges leveled against him.

41. Sarfaraz Hussain Versus State

2009 YLR 1614


• In criminal administration of justice, the quality of the evidence was to be considered by he court irrespective of the quantity of the evidence and even, in case, if one witness whose evidence was sufficiently confidence inspiring and free from all hypothesis, could be treated as sufficient and convincing to convict accused.

42. Muhammad Hassan Versus State

• 2009 YLR 1479

• Karachi High Court, Sindh.

• Investigating Officer had recommended the disposal of the case in ‘B-class’---Judicial Magistrate however, rejected the recommendation and directed the Investigating Officer to file challan within one month---Validity---Where report of Investigating Officer was in positive, a proper challan on the proforma within the meaning of clause (b) of subsection (1) of S.173, Cr.P.C. was to be filed---However, in cases where the opinion of the Investigating Officer was in negative, the Investigating Officer normally would file the report giving details of investigation and the reason for reaching the conclusion---Report of Investigating officer seeking disposal of the case under ‘B-class’ reflected that it had not been filed in the Proforma prescribed within the meaning of S.173, Cr.P.C.---Magistrate, in circumstances, was well within his right to direct Investigating Officer to file challan---No case for interference having been made out, application was dismissed.

43. Muhammad Zaffar Saleem Versus State

2009 YLR 489


• As many as four police officers had investigated the case and all of them found the same a false case---Magistrate held that material available on record required further probe only by the Trial Court---Magistrate did not concur with the report in “B” class and same stood disapproved and Investigating Officer was directed to submit the final report challan and also to produce accused in person---Offences alleged in the F.I.R., were trial by the Sessions Court and Magistrate could not have directed submission of challan---Magistrate could only forward the matter to the Sessions Judge who could have taken the cognizance of the alleged offence---Regardless of the fact whether the Magistrate had applied her judicial mind to the facts stated in the report of the police, since the Magistrate was not vested with the jurisdiction to take cognizance of the offence, the Magistrate had acted without jurisdiction---Orders passed by the Magistrate being coram non judice, were quashed, accordingly.

44. Matahir Shah Versus State

2009 MLD 156


• S.173--- Submission of challan---Investigating Officer under law had to submit a report/summary under S.173, Cr.P.C. within a particular time to the concerned Magistrate, who had to scrutinize the matter on the basis of material submitted before him by the Investigating Officer and to pass an appropriate order and not to act as a Post Office.

45. Matahir Shah Versus State

2009 MLD 156


• Prima facie it appeared that entire material collected by the Investigating Officer, was considered by the Magistrate and then passed the order on merits and discussed all merits and demands of the case---Validity---Powers of High Court under S.561-A, Cr.P.C. were to be used not in each and every case, but rarely in appropriate cases and there must be a material on the basis of which orders passed by the courts below be set aside---When two courts below came to the conclusion that no fruitful result would be achieved, if matter proceeded, no interference was required---Magistrate was not to fill the lacuna left by the Investigating Officer and to act as Investigating Officer of the case or to be a party, but he had only to scrutinize the matter on available material and it would depend upon him to agree or disagree with police report---Counsel for applicant had failed to show any illegality which amounted to an abuse of the process of law---Orders passed by the two courts below were proper, legal and in accordance with law and no illegality or material irregularity was committed by the courts below.

46. Muhammad Haroon Versus State

• 2009 PLD 120

• Karachi High Court, Sindh.

• Final reports were classified into ‘A’: true cases, ‘B’: maliciously false cases, ‘C’: neither true nor maliciously false cases and non-cognizable cases---After re-investigation of the case, a report that no cognizable offence was made out against the accused was filed before Magistrate, who had already taken cognizance of the case on the basis of previous investigation---Trial court did not agree for disposal of the case---Validity---Court was not bound by arbitrary opinion of Investigating Officer and had to apply its independent mind to the facts and circumstances of the case.

47. Muhammad Rafique Versus State

2008 P Cr L J 351

Shariat-Court-Azad-Kashmir

• S. 497---Penal Code (XLV of 1860), SS. 302/324/147/149---Bail, refusal of---Accused had allegedly killed two persons, father and son, by firing---Post-mortem reports, of the deceased had supported the causing of fire-arm injuries---Contention that during investigation only two accused were found guilty of firing on the deceased persons had no force, because according to the report under S. 173, Cr.P.C., another accused had, raised “Lalkara” telling others not to let the deceased go alive and still another accused was present at the place of occurrence armed with a gun---Presence of other accused persons at the spot armed with lethal weapons also was not denied and was established by eyewitnesses---Accused, prima facie, had waylaid, chased and killed the deceased and being members of unlawful assembly were not entitled to concession of bail---Bail was declined to accused in circumstances.

48. Haleem Versus ------------

2008 PLD 1 Peshawar-High-Court-NWFP

• Trial Court taking cognizance’ after the challan was

put in the court under S. 173, Cr.P.C., could take

cognizance of any offence disclosed by the

material available on the record of the

investigation, even though police had not applied

the relevant penal provisions---Charge could also

be framed in respect of an offence disclosed by the

record---If any section of the relevant law was

omitted from the charge, the court had the powers

to rectify its mistake---

Messrs Shamim Bibi

Versus

Additional Sessions Judge, Lahore

2008 YLR 2017

Lahore High Court, Lahore.

• Ex-Officio Justice of Peace could not make any observation with regard to the nature of offence or direct addition or deletion of a penal provision as same exclusively fell within the domain of Investigating Officer before the challan was submitted; and thereafter the Trial Court which was fully competent to add any offence, if made out from the F.I.R. tendered in terms of S. 173, Cr.P.C. and other material available on the record at the time of framing of the charge---Parties also had the right to address arguments at the time of framing of charge in support of their contentions.

50. Muhammad Yousaf Versus State 2008 P Cr L J 1762


• Accused was not named in F.I.R., but his name had surfaced in the case for the first time through a supplementary statement made by the complainant after six days of the alleged occurrence-Complainant had implicated accused exclusively on the basis of an extra-judicial confession allegedly made jointly by two accused before the complainant---Said joint extra-judicial confession was devoid of any evidentiary value---Complainant, in the F.I.R., had specifically nominated three culprits, in supplementary statement made by him, he exonerated said nominated culprits and instead introduced five others including accused as the culprits---

• No stolen article had been recovered from the possession of accused during investigation in the case---Although a pistol had been recovered from the custody of accused, during the investigation, but prima facie, nothing was available on the record of investigation to connect said pistol with the alleged offence---Investigation of the case had already been completed and the report under S. 173, Cr.P.C. had been submitted by the police and it had expressly been recorded in the report that accused had never entered the house where alleged occurrence had taken place and throughout the said occurrence; accused kept on standing out in the street---Case against accused, calling for further inquiry into his guilt within the purview of subsection (2) of S. 497, Cr.P.C., he was admitted to bail, in circumstances.

51. Fayyaz Ahmed Versus State

2008 P Cr L J 805


• Section 9 of Anti-terrorism Act, 1997

did not authorize the Public Prosecutor

to delete the offence under S. 7 of the

Anti-terrorism Act, 1997.

• Public prosecutor, Anti-terrorism Court

while passing the impugned direction, had

traveled beyond his jurisdiction and

authority and had committed a grave

illegality.

52. Manzoor Akbar Turk

Versus

Raja Ashiq Hussain

2008 MLD 728


• S. 190(1)(b)---Cognizance of offences by

Magistrate---Magistrate under S.190(1)

clause (b), Cr. P.C. takes cognizance of

an offence upon report made by police

officer under S.173, Cr.P.C., which may

be positive or negative.

53. Muhammad Asghar Versus State

2008 MLD 717


• S. 489-F---Pre-arrest bail, confirmation of---No dispute existed regarding issuance of cheques to the complainant by accused---Real controversy in the case requiring determination was as to whether cheques were issued by accused dishonestly to defraud the complainant or with bona fide intention---Matter between the parties was purely of civil nature, which was already subjudice before the competent forum---Certificate of Bank Manager had established that cheques in question had not been dishonored due to lack of sufficient amount in the account of accused, but encashment had been refused under his own instructions---Accused, while issuing the cheques was not having any dishonest intention to deceive or defraud the complainant which was the main ingredient of offence under S. 489-F P.P.C---Investigation of the case had been completed and report under S. 173, Cr.P.C. submitted to the concerned court---No useful purpose would be served by committing accused to the police custody---Ad interim pre-arrest bail already granted to accused, was confirmed, in circumstances.

54. Tariq Sajjad alias Tahir alias Tahli

Versus

State

2008 MLD 332


• S. 498---Penal Code (XLV of 1860), SS. 337-A(i)(ii) & 337-F(v)/34---Pre-arrest bal, confirmation of---Only one injury fell under S. 337-A(ii), P.P.C., which was attributed to co-accused and other injuries in the case fell under SS.337-A(i) & 337-F(i), P.P.C., which were bailable---Even otherwise, accused had joined the investigation and report under S. 173, Cr.P.C. had been submitted before the Trial Court and no useful purpose would be served by sending accused to jail---Ad interim pre-arrest bail already granted to accused was confirmed, in circumstances.

55. Muhammad Azam

Versus

Judge, Anti-Terrorism Court, Faisalabad

2008 PLD 63


• Jurisdiction given to the Special Court by virtue of S. 1.9(3) of the Anti-Terrorism Act, 1997, does not mean that it has the authority quo fishing out, the cases from different police stations and directing the agency to submit challan after incorporating scheduled offences as the facts of the case disclose the commission of said offences---Special Judges even cannot pass such type of orders on reading the news items in the newspapers, as suo motu authority or jurisdiction is not available to them.

• If during investigation of the case police had formed the opinion that only S.365, P.P.C. was made out, then the procedure to be adopted by the police was to submit the challan before the Court of ordinary jurisdiction---Said Court after perusing the record and taking cognizance of the matter, if formed the opinion that the data available on the record was sufficient to attract the provisions of the scheduled offence, then that Court was competent to refer the matter to the Special Court Anti-Terrorism through the District Attorney or Public Prosecutor---Manner in which the Special Court through the impugned order had directed the Investigating Officer to submit challan after inserting S. 365-A. P.P.C. was not correct.

56. Muhammad Ashraf Versus State

2008 PLD 578


• Trial court was competent to frame the

charge even on the basis of the interim

report; but since at that point of time the

opinion of the Medical Officer had not yet

been added by the police in its report, then

upon filing of Report court can charge the

relevant sections.

57. Muhammad Ashraf Versus State

2008 PLD 578


• Charge once framed, would not

become rigid or irrevocable; it could

be altered or changed under S. 227,

Cr.P.C., if it was so warranted by the

circumstances.

58. Javaid Iqbal

Versus

Additional Inspector General of Police, Lahore

2008 PLD 488


• There is no bar against re-investigation of case after submission of report under S.173, Cr.P.C., yet the fact remains that ultimately case has to be decided on the basis of evidence recorded before Trial Court---Purpose of investigation, as defined under S. 4(1), Cr.P.C. is collection of evidence by police officer or by any other person who is authorized by Magistrate in this behalf---As such definition of investigation does not talk of opinion of police officer who is only authorized to collect evidence, therefore, opinion of police officer is neither relevant nor admissible in evidence---Frequent transfers of investigations deprecated.

59. Syed Hassan Raza Versus Deedar Hussain Shah

2008 PLD 305


• SS.489-F, 504 & 506(2)---Criminal Procedure Code (V of 1898), S.173---Magistrate while disagreeing with the summary report submitted by the Investigating Officer with the recommendation for disposal of the case under “B” Class, had directed the Investigating Officer to submit the charge sheet under S.173 Cr.P.C. before the Court having jurisdiction---Validity---Accused admittedly had issued the cheque for the amount of Rs.197,000/- in the name of the complainant, which was subsequently dishonoured---Accused had himself instructed the Manager of the Bank concerned to stop payment of the said cheque through a letter, as the payment had already been made to the complainant in cash---Accused took a contradictory stand subsequently when he wrote a letter to complainant acknowledging that the amount of Rs.197,000/- was still outstanding and he requested the complainant to get the payment of the said cheque from the Bank---

• Bank informed the accused by means of a letter that the payment of the said cheque to complainant was still stopped as per instruction of the accused and the complainant once again was put at disadvantage---Said contradictory stand taken by the accused while dealing with the complainant had, prima facie, made out a case under S.489-F, P.P.C.---Magistrate under S.173, Cr.P.C. while taking cognizance of the case was competent to apply his judicious mind to the summary report and then to pass the order---Impugned order revealed that it appeared from the police papers that the investigating team had disposed of the case under ‘B’ (false) class on account of statements of the defence witnesses---Record, however, showed that the accused had given the cheque, which was bounced for want of arrangement, as was also clear from the Bank record---Accused had not denied his signatures on the cheque issued to the complainant and such prima facie evidence could not be brushed aside---Impugned order did not suffer form any illegality---Petition was dismissed accordingly.

60. Ramshi Versus State

2008 YLR 1078


• S. 173 Cr.P.C. was not binding on the court and it was for the court to decide, whether sufficient material was available before it to join or not some accused to the case, whose name had been placed in column No. 2 of the challan---Before summoning an accused, whose name appeared in column No. 2 to face the trial, it was not requirement of law that, the Trial Court should first record evidence, but the court could directly summon him to stand trial---If consequent to the police report an accused had been discharged under S. 63 Cr.P.C., even in that case it would not mean that he could not be summoned by the court to stand the trial.

61. Ghulam Sarwar Versus State

2008 YLR 704

Karachi-High –Court-Sindh

• S. 190---Powers of Magistrates of First Class---

All Magistrates of the First Class, were

empowered to take cognizance of any offence---

Under S.190(2) Cr.P.C., a Magistrate doing so

of an offence triable exclusively by a Court of

Session, would, without recording any evidence,

send the case to such court for trial---Term

“taking cognizance” had been judicially

interpreted in its broad and literal sense to mean

“taking notice of an offence”;

62. Bader Maqbool Versus State

2008 MLD 1676


• SS.173 & 190---Penal Code (XLV of 1860), S. 324---Purpose of examination of report under S.173 Cr.P.C.---For the purpose of examination of report under S.173, Cr.P.C., office of Judicial Magistrate, would be considered in two different categories, one as judicial officer and other as administrative officer---While functioning on administrative side, he would discharge his duties as persona designata and not as a court, and while discharging his duties as a persona designata, though he was required to examine the material placed before him, but was not bound to explain each and every aspect of case and give its reason for acceptance and rejection---Offence under S. 324, P.P.C. was exclusively triable by the court of Session---After receiving the report under S. 173, Cr.P.C., Magistrate was therefore required to forward the same to the Court of Session as provided under S. 190, Cr.P.C. without recording evidence.

63. Naveed Hussain Versus Rashid Iqbal

2007 P Cr L J 1710

Shariat Court, Azad Kashmir

• Notwithstanding the recommendations of the Investigating Officer regarding cancellation of case, it could decline to cancel the case and to proceed as provided under S. 190, Cr.P.C. and summon accused to face trial---Magistrate or the court had not to agree with the police report blindly and pass the order of discharge of accused in a whimsical and arbitrary manner---Order on such report was an administrative one---When a Magistrate would concur or refuse to agree with such police report his order though administrative in nature, but would have to be passed in a judicial fashion.

64. Imran Versus State

2007 P CR L J 721

Shariat-Court Azad-Kashmir

• Case of co-accused was almost different from case of convicted accused as no specific role had been ascribed to two of the co-accused and infliction of ‘Chhuri’ blow ascribed to third co-accused on deceased was also doubtful---Detailed scrutiny of evidence on record along with prosecution version put forward in F.I.R. and charge-sheet under S. 173, Cr.P.C., had made case of prosecution suspicious and doubtful to the extent of said co-accused---Medical examination report and post-mortem report did not corroborate allegations leveled against co-accused---Prosecution version being inconsistent and self-contradictory to the extent of co-accused, could not be relied upon---Benefit of slightest doubt arising in the case would go in favour of co-accused.

• Prosecution had also failed to prove existence of any common intention or pre-arranged plan.

• Trial Court had fallen in grave error to pass an order of conviction and sentence against co-accused by applying S.34, P.P.C.---Co-accused were entitled to be acquitted of the charge.

65. Muhammad Nasir Cheema Versus Mazhar Javaid

2007 PLD 31

Supreme-Court

• Accused sought quashing of F.I.R. from High Court under its constitutional jurisdiction---High Court disposed of the petition with a direction to Station House Officer, to file final report only against one accused and under only one offence---Validity---Only provision relating to the subject which was available in Criminal Procedure Code. 1898 was S. 173. which commanded expeditious conclusion of investigations and further ordained that on conclusion of every investigation, the concerned Station House Officer would submit a report of the result thereof in the prescribed manner to Magistrate competent to take cognizance under S.190, Cr.P.C---No power vested with any Court, including High Court to override the legal command and to direct Station House Officer either not to submit investigation report (challan) or to submit the report in a particular manner.

66. Malik Zahid Versus State

2007 YLR 1905

Peshwar-High-Court-NWFP

• Investigation was not to be conducted

before registration of the case---Officer

in charge of the police station was bound

to either register or cause to be registered

the F.I.R. as and when written or oral

information was received by him regarding

commission of cognizable offence.

67. Abdul Wahid Versus State

2007 PLD 65


• Words of S. 169, Cr.P.C. “release him

on his executing a bond with or

without sureties” could not be

expounded as having authorized or

empowered Investigating Officer to

discharge accused.

69. Shahid Hussain Versus State

2007 YLR 1179


S. 497---Penal Code (XLV of 1860), SS. 302/324/337-A (i), (ii), (vi)/ L(1), (2)/148/149---Bail, grant of---Son of complainant, according to F.I.R., had been injured by co-accused and in the mid of incident accused had raised “Lalkara” upon which co-accused gave injuries to the injured prosecution witness---Accused had not caused any injury either to the deceased or to the injured witness---Whether the accused had shared common intention with co-accused was a question of further inquiry---Incident had taken place at the spur of the moment--- Submission of report under S. 173, Cr.P.C. was not a bar to the grant of bail to the accused at any stage of the case.

70. Muhammad Azeem Versus State

2007 YLR 1036


• Petitioner allegedly had confessed his guilt before the police during his custody, but evidentiary value of such a confession was next to nothing---Pistol allegedly recovered in the case had not been secured from physical possession of accused and nothing was on record to connect recovered pistol with alleged offences---Investigation of the case had already been finalized and a perusal of report submitted under S.173, Cr.P.C. had shown that during the investigation allegation against accused regarding firing at deceased had not been established---Accused had already been declared to be a ‘child’ within the purview of Juvenile Justice System Ordinance, 2000 and a challan against him had been ordered to be submitted before a Juvenile Court.

71. Muhammad Saleem Versus State

2007 YLR 1030


• According to F.I.R. itself accused, was empty handed at that time---Accused had not caused any injury to any person during alleged occurrence and only role attributed to him in the F.I.R. was that of catching hold of deceased and facilitating his co-accused to fire at deceased which allegation prima facie appeared to be unbelievable.

• Investigation of the case had already been finalized and report under S.173, Cr.P.C. had been submitted according to which investigating agency had found that accused was not present at the scene of the crime at relevant time and that he had arrived at the spot after the main incident was already over, he was admitted to bail.

72. Ghulam Rasool Versus State

2007 P Cr L J 1751


• S.497---Penal Code (XLV of 1860), SS.302, 324, 148 & 149---Bail, refusal of---Case of one deceased and one injured, who had received fire-arm injuries on the vital part of her body, which injuries were attributed to accused---Injured person supporting the prosecution case had made statement against accused---Contention of accused that he had been declared innocent, was totally wrong---Counsel for accused had himself produced copy of challan/report under section 173, Cr.P.C. wherein name of accused had been placed in Column No.3, while his co-accused had been placed in Column No.2 being proclaimed offenders and had been shown in red ink---No merit having been found in the petition, same was dismissed.

73. Mst. Aysha Versus State

2007 MLD 1818


• Facts and circumstances of the case and the evidence collected by the police showed that offences under SS.371-A & 371-B, P.P.C. were made out, which were cognizable and fell within the prohibitory clause of S.497 Cr.P.C---If one offence was cognizable, the police could register the case under the said offence, while including the non-cognizable offences as well---Contention of the counsel for the petitioners that at the most offence under S.496-B, P.P.C. was made out and the case could not be registered, was repelled.

73. Mst. Aysha Versus State

2007 MLD 1818


• Facts and circumstances of the case and the evidence collected by the police showed that offences under SS.371-A & 371-B, P.P.C. were made out, which were cognizable and fell within the prohibitory clause of S.497 Cr.P.C---If one offence was cognizable, the police could register the case under the said offence, while including the non-cognizable offences as well---Contention of the counsel for the petitioners that at the most offence under S.496-B, P.P.C. was made out and the case could not be registered, was repelled.

74. Muhammad Iqbal Versus State

2007 MLD 995


• Additional Sessions Judge by issuing the said direction had transgressed his jurisdiction, as it was not open to him to have directed the challan to be submitted under a particular provision of law---If the requisite penal provision was not invoked by the police or the investigation was not conducted on proper lines, Additional Sessions Judge could have asked Investigating Officer to reinvestigate the case and submit his report under S.173, Cr.P.C.

75. Muhammad Daiem Shattari Versus State

2007 YLR 2038

Karachi -High-Court-Sindh

• Judicial Officer (Magistrate) had not independently acted and had failed to exercise his discretion in a lawful manner---Observation of Judicial Officer while disposing of a case, must be self-explanatory, it must contain reasons justifying his conclusion---Disposal of case in slipshod manner, simply stating that he had gone through the entire record and found that no such incident had happened, was not sufficient; he must give cogent reason after discussing material brought before him and the circumstances which came to his knowledge during course of trial to reach such conclusion---No doubt order of cancellation of F.I.R. under S.173, Cr.P.C., was administrative order, but even then while exercising his jurisdiction under said section, concerned Judicial Officer was required to express himself giving impression that while doing so he was performing function as a court.

76. Peer Ghulam Dastagir Versus State

2007 YLR 930


• Investigating Officer during the course of

investigation disbelieved the version of

complainant and disposed of the case in B-

class, but proceedings were initiated on the

basis of the challan submitted on the direction

of Magistrate, which was the abuse of the

process of Court---Impugned order being

beyond the scope of S.173, Cr.P.C., was set

aside and further proceedings on the basis of

said challan were also quashed.

77. Zahoor Ahmed Sheikh

Versus

Chairman, National Accountability Bureau, Islamabad.

2007 PLD 243 Karachi -High-Court-Sindh

• SS.169, 170 & 173---Administration of criminal Justice---Crux of provisions of SS.169, 170 & 173, Cr.P.C. is that whatever the course Investigating Officer adopts i.e. whether he acts under S.169 or under S.170, Cr.P.C., it is incumbent upon him to submit a ‘final report’ under S.173, Cr.P.C., with regard to the result of his investigation to a competent Magistrate and the said Magistrate, shall thereafter, take action as he may consider proper under S.173, Cr.P.C. or under S.190, Cr.P.C. as the case may be ---Principles.


Versus


2007 PLD 243


• SS.18 &17---Criminal Procedure Code (V of 1898), SS.169, 170 & 173—Filing of Reference before Accountability Court by the Chairman National Accountability Bureau---Mode and procedure---Applicability of SS.169, 170 & 173, Cr.P.C.---Scope and extent---Provisions of SS.169, 170 & 173 Cr.P.C. being not inconsistent with any of the provisions of National Accountability Ordinance, 1999, are applicable to proceedings under National Accountability Ordinance, 1999 but with necessary adaptations and changes as detailed by High Court---Direction of the law is that the accused should be forwarded to custody at the time of filing of reference if the Chairman National Accountability Bureau or any officer of the Bureau duly authorized violates such direction then he is exposing himself to the provisions of S.166 P.P.C. which provide that disobedience of direction of law is an offence; furthermore cases should be disposed of expeditiously within a period of 30-days---Principles.


Versus


2007 PLD 243


• SS.17, 18 & 24---Criminal Procedure Code (V of 1898), SS.169, 170 & 173---Reference to Accountability Court by the Chairman National Accountability Bureau---Procedure---Chairman National Accountability Bureau is required to forward the accused in custody to the Accountability Court at the time of filing reference or if the accused is released under S.169, Cr.P.C. or absconded then such facts should also be mentioned in the Reference so that the Accountability Court my exercise powers provided under S.173(3), Cr.P.C.---High Court observed that the References that have already been filed in which the accused persons have not been forwarded in custody or shown released or absconded at the time of filing Reference, the Trial Court shall take appropriate steps to procure their attendance as per law.

80. Col. Shah Sadiq

Versus

Muhammad Ashiq

2006 SCMR 276

Supreme-Court

• If, Prima facie, an offence had been committed, ordinary course of trial before the Court should not be allowed to be deflected by resorting to constitutional jurisdiction of High Court---High Court had no jurisdiction to quash F.I.R by appreciation of documents produced by the parties without providing chance to cross-examine or confronting the documents in question---High Court would err in law to short circuit the normal procedure of law as provided under Criminal Procedure Code, 1898---party seeking the quashing of F.I.R had alternative remedy to raise objection at the time of framing the charge against them by the Trial Court or at the time of final disposal of the trial after recording the evidence---said party had more than one alternative remedies before the Trial Court under SS. 265-K & 249-A, Cr.P.C or to approach the concerned Magistrate for cancellation of the case under the provisions of Cr.P.C---Alternative remedies available to the party enlisted---Principles.

81. Syed Muhammad Ahmed Versus State

2006 PLD 316

Supreme-Court

• High Court had directed that the petitioners before it in the constitutional petition who were accused persons in an F.I.R., would not be treated as accused and would not be challaned in the case, only because the Investigating Officer had informed the High Court that the involvement of the said accused persons in the case could not he established and that they had not forged any document or offered any kind of inducement to the complainant to secure any pecuniary benefit---Investigation according to S. 4(1), Cr.P.C only meant collection of evidence and no more---Determination of guilt or innocence of the accused persons was an obligation cast on the Courts of law which task could never be permitted to be delegated to the police officers investigating a case---Provisions of S. 63, Cr.P.C. had prohibited discharge of an accused person except under a special order of a ‘Magistrate---Rule 24.7 of the Police Rules, 1934, had also prohibited cancellation of F.I.Rs without the orders of the Magistrate---Provisions of S.173, Cr.P.C. had provided only that after the available material had been collected by the S.H.O. during investigation, result of the same had to be reported to the Magistrate competent to take cognizance under S. 190, Cr.P.C. and thereafter the Magistrate was to decide whether the accused did or did not deserve to be tried---Impugned order passed by High Court only on the alleged opinion of the Investigation Officer, therefore, was not sustainable and the same was set aside by converting the petition for leave to appeal into appeal which was allowed---S.H.O. was directed to proceed with the matter in accordance with law.

82. Hidayatullah and others

Versus

The State through Advocate-General, N.W.F.P.

Peshawar High Court, Peshawar

2006 SCMR 1920

Supreme-Court

• SS. 419, 420,468 & 471- Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal procedure Code (V of 1898), SS. 63,195(1)(c), 435, 439 & 561-A---Constitution of Pakistan (1973), Art, 185 (3)---Inherent jurisdiction of High Court, exercise of---Discharge of accused---Exercise of discretion by Magistrate---Principles---Accused were discharged by Magistrate under S. 63 Cr.P.C. on the ground that alleged forged document was also subject-matter of civil suit pending before civil court and no complaint was filed by the court concerned---Order passed by Magistrate was maintained by Lower Appellate Court but High Court in exercise of Powers under S.561-A, Cr.P.C. set aside the discharge order---Validity---Magistrate concerned had discretion to pass order under S. 63 Cr.P.C. to discharge accused persons---

• Such discretion must be exercised by the concerned Magistrate justly and fairly; in case discharge order was passed by Magistrate mechanically without application of his independent mind to the facts of case, blindfolded acceptance of a recommendation of police in that regard, perversity of reasoning and adoption of a procedure which offended against letter and spirit of law, relating to discharge, then High Court had ample jurisdiction to interfere and set aside such order under S. 561-A, Cr.P.C.---Magistrate while concurring with a police report submitted under S.173, Cr.P.C. did not act as criminal Court subordinate to the Court of Session and High Court---Such order of Magistrate could not be set aside, revised or modified under the provisions of SS.435 and 439, Cr.P.C. but it was amenable to inherent jurisdiction of High Court under S. 561-A, Cr.P.C. provided the order amounted to abuse of process of Court---Magistrate could effectively grant release to a person who was arrested or detained without sufficient cause---High Court was vested with authority under S.561-A. Cr.P.C. to exercise such power to secure ends of justice, suppress patent mischief if non-interference with the order would perpetuate injustice, in case the Magistrate concerned had passed the order without judicial application of mind---Supreme Court did not find any infirmity or illegality in the Judgment passed by High Court---Leave to appeal was refused.

83. Israruddin Versus State

2006 MLD 143 Peshawar-High-Court-NWFP

• Challan of case, though was

completed and signed after four days

of occurrence, but was not put in

Court---Mere signing of complete

Challan Form was not observance of

provisions of S. 173, Cr.P.C. as

regarded submission of interim or

complete challan.

84. Muhammad Akbar Versus Muhammad Akhtar

2006 YLR 3123 Lahore-High-Court-Lahore

• Injury on person of injured had been declared as

falling within the purview of S. 336, P.P.C. only on

the basis of damages of one nerve and not due to

the loss of “Salahiat” of ear---Whether S. 336, P.P.C.

was made out or not, was the question of further

inquiry---Other injury attributed to respondent/

accused fell within purview of S. 337-F(iii), P.P.C.

which was punishable with three years’

imprisonment.

• Application for cancellation of bail, having no merit,

was dismissed.

85. Nazar Hussain Versus State

2006 YLR 631


• Opinion of police and medical report---

Evidentiary value---Petitioner had

contended that he was found innocent by

Investigating Agency and that per the

post-mortem examination report,

deceased/daughter of complainant met

natural death suddenly and that she was

not subjected to any violence by the

petitioner.

• That Magistrate, while passing impugned order, neither had applied mind consciously nor properly appreciated discharge report which fully supported the case of petitioner; and that no useful purpose would be served by directing police for submission of challan as despite hectic efforts Investigating Agency had failed to collect evidence connecting petitioner with commission of alleged murder of deceased---Validity---Police opinion was not binding on the Court and medical repot could also not be considered as conclusive piece of evidence without recording as well as other prosecution evidence---Since prosecution witnesses in their statements under S. 161, Cr.P.C. had involved petitioner and medical evidence was also yet to be scanned after recording statement of doctor who conducted post-mortem examination of deceased, it could not, in circumstances, be held that Magistrate, while passing impugned order, had committed any illegality or irregularity by disagreeing with the discharge report and directing Police to submit challan in terms of S. 173, Cr.P.C, even otherwise, High Court, while sitting in constitutional jurisdiction, seldom interfered in such-like cases.

86. Muhammad Younis Versus State

2006 P CR L J 994 Lahore-High-Court-Lahore

• S.489-F---Quashing of proceedings---Challan in the case was submitted against al the persons named in the F.I.R.---Two accused persons/Petitioners moved application for their discharge, but the Trial Court refused to discharge them despite the fact; that in report under S. 173, Cr.P.C., both petitioners were placed in column No.2 with the remarks that they were innocent---Complainant had specifically alleged that cheque in question was issued by person other than the petitioners---High Court, on petition under S. 561-A, Cr.P.C., had come to the conclusion that case against petitioners could not proceed on the basis of record and directed the Trial Court not to proceed against them with direction that case against petitioners would be regarded having been cancelled.

87. Abdur Rehman Versus State

2006 P CR L J 507


• Trial Court under the law was

competent to summon the accused

placed in column No.2 of the

challan to face the trial and even to

take cognizance of an offence in

case of negative report submitted

by the police showing the

accusation to be baseless.

88. Gahna Khan Versus State

2006 MLD 1492


• Whenever a matter would come to the court for taking cognizance, the Court would take cognizance of the whole of the matter and not only against accused sent for trial---If Trial Court was satisfied about the involvement of petitioner, then it was within cognizance/jurisdiction of the Trial Court to summon him as well to face trial irrespective of the fact that he was not shown as accused in the report under S. 173,Cr.P.C.

• Direction of trial court to the Agency for submission of a supplementary challan against petitioner and his co-accused, was not justifiable.

• If the Trial Court was satisfied that

sufficient material was on record to

proceed against, petitioner, trial court,

after taking cognizance of the matter upon

the report already submitted by Agency,

could summon petitioner to face trial.

• Impugned order to the extent of direction

to the Authority for submission of

supplementary report against petitioner,

was set aside, with that modification in the

impugned order, constitutional petition was

disposed of.

89. Hakim Ali, SIP Versus State

2006 PLD 302 Karachi-High-Court-Sindh

• Contention of applicants was that Magistrate could not deal with any police report under S. 173 or S. 174, Cr.P.C. either accepting or refusing same in a Sessions case.

• Further contention of applicants was that such report was to be forwarded to concerned Sessions Judge for disposal according to law.

• Submission of respondents on the other hand was that wording of S.190(2), Cr.P.C. had made it very clear that Magistrate was fully empowered to deal with police reports and thereafter either accept or reject them.

• Magistrate should send case to the Sessions court if it was a Sessions case upon acceptance of police report and again discharge accused if he did not agree with the same---Exercise to be conducted by the Magistrate under S. 190, Cr.P.C., was not a judicial one and he could not determine the guilt or innocence of accused, but only had to assess evidence on record in a summary fashion and thereafter make up his mind whether or not to discharge accused.

90. Ch. Muhammad Ashraf Versus State

2006 P CR L J 518


• Even on unjustified reports submitted by the

Investigating Officers, Magistrates are not

expected to disagree with them by a non-

speaking order without any indication about

considering the material collected during

investigation---Power conferred upon the

Magistrate although is administrative in nature

and the order passed by him is also an

administrative order, yet the same has to be just

and judicious and not an arbitrary order.

91. Dawood Khan Versus Ahsan-Ur-Rehman

2006 MLD 663 Karachi-High-Court-Sindh

• If the Investigating Officer was found not to have properly investigated the matter and to have submitted the report under the influence of accused, Magistrate could disagree with the same, but his such order of disagreement should have reflected reasons therefore.

• Impugned order passed by the Magistrate whereby he had called the parties, accused, complainant and his witnesses, amounted to taking cognizance of the mater without assigning any reason for disagreeing with the report of the Investigating officer.

Documents

Role of Prosecutors - Punjab Judicial Academy