MUHAMMAD NASIR CHEEMA vs MAZHAR JAVAID and others

ORDER

' KHALIL-UR-REHMAN RAMDAY, J.---An F.I.R. Bearing No,583 was recorded at Police Station Civil Lines, Gujranwala on 5-6-2005 for the alleged commission of offences punishable under sections 467/468/471 and 420 of the Pakistan Penal Code read with section 109 of the said Code alleging that one Mazhar Javed who was contesting election to a seat of the Provincial Assembly had filed, a "B.A. Degree" for the purpose which was a forged and a fake document. Some other accused persons had also been nominated as having abetted and aided the commission of the said offences.

2. Within about three weeks of the recording of the said F.I.R., the said Mazhar Javed accused filed a petition in the Lahore High Court under Article 199 of the Constitution praying for quashment of the said F.I.R. Which petition was disposed of in the following terms on 29-5-2006:-- "(3) Maqbool Ahmed SP Investigation, Gujranwala, has frankly conceded in the Court that in this case only Mazhar Javed petitioner had used the forged document and only he has apparently committed an offence under section 471, P.P.C., whereas, no incriminating material is available on the file against any other petitioners.

(4) In this view of the matter, in this case only Mazhar Javed petitioner will be challaned under section 471, P.P.C. Which is a bailable offence. The said petitioners will submit bail bonds to the I.O."

3. Hence this petition by the complainant.

4. We have heard the learned counsel for the parties at some length and have also perused the available record in the light of the submissions made before us wherefrom it transpires that the mandatory report under section 173 of the Cr.P.C. Had already reached the trial Court i,e, the learned Civil Judge/Magistrate Section 30 on 12-4-2006 and summonses stood issued to secure the availability of the accused persons named therein. It is alleged by the petitioner and not denied by the accused respondents that despite being so summoned, they had never entered appearance before the learned trial Court till date.

5. The impugned order was passed by the learned High Court on 29-5-2006. As has been noticed above, the report under section 173, Cr.P.C. (called challan under the Police Rules) had already been submitted in the Court which fact was in the knowledge of the High Court as would appear from the interim orders passed in the Writ Petition in question which have been appended with this petition. Being cognizant of the said situation, the impugned order of the learned High Court directing that only Mazhar Javed accused will be challaned and that also only under section 471, P.P.C. And for no other offence and that the other accused persons will not be challaned at all, is not understandable.

6. The only provision relating to the subject which is available in the Code of Criminal Procedure is section 173 which commands expeditious conclusion of the investigations and further ordains that on conclusion of every investigation, the concerned S.H.O. Shall submit a report of the result thereof in the prescribed manner to the Magistrate competent to take cognizance under section 190, Cr.P.C. No power vests with any Court including a High Court to override the said legal command and to direct the S.H.O. Either not to submit the said report (mentioned as challan in the Police Rules and also in the impugned order) or to submit the said report in a particular manner i,e, against only such persons as the Court desires or only with respect to such offences as the Court wishes. The impugned order can also not be sustained because, as has been mentioned above, the challan in question stood already submitted in Court and was thus beyond the reach of the concerned S.H.O.

7. Having thus examined all aspects of the matter, we find that the impugned order of the learned High Court, dated 29-5-2006 passed in Writ Petition No,17961/Q of 2005 was not valid in law.

8. Consequently, this petition is converted into an appeal which is allowed as a result whereof the said impugned order is set aside.

9. At this stage, the learned Additional Advocate-General informs us that some Additional I.-G.

Police had passed some order on 15-7-2006 and had changed the investigation. We are surprised at this order passed by the Addl. I.-G. Police (Investigation Branch), Punjab for more than one reasons. Firstly, because the report under section 173, Cr.P.C. Had already reached the trial Court as noticed above where the trial had already commenced and changing the investigation or ordering further investigation in the matter thereafter was an exercise unsustainable in law. Secondly, because the matter related only to a document which had been examined in depth, by the learned Election Tribunal comprising an Hon'ble Judge of the High Court and which document had then been re-examined by this Court in an appeal filed by Mazhar respondent and what further investigation was required in the matter is beyond comprehension.

10. Strange things appear to be happening in this case as have been noticed above. Therefore we direct as under:--,

(a) all the accused persons who are present in person along with their respective learned counsel shall appear before the learned trial Court tomorrow (26-7-2006) at 9-00. a.m.;

(b) the learned trial Magistrate is directed to take up the trial tomorrow and to proceed with the same expeditiously so as to conclude the same within four months after receipt of this order;

(c) the above-mentioned order of the Addl. I.-G. Police (Investigation Branch), Punjab, dated 15-7- 2006 changing the investigation and ordering further investigation is set aside.

11. The trial Magistrate shall submit progress report in the matter to the Assistant Registrar of this Court at Lahore for the information of this Bench.

12. It is clarified that by setting aside the impugned order of the learned High Court, the finding of said learned Court that only an offence under section 471, P.P.C. Was made out in the matter which was a bail able offence, is also set aside. The S.H.O./the learned trial Magistrate shall be at liberty to proceed with the matter in accordance with law.