TANVEER HUSSAIN QURESHI and 8 others vs DISTRICT PUBLIC PROSECUTRO, SIALKOT and 2 otherss

ORDER

' M.A. ZAFAR, J.--- Brief facts of the case are that on the written application of Arif Hussain alias Muhammad Javed a case under sections 365, 382, 342, 148, 149, P.P.C. Was registered with Police Station Hajipura, District Sialkot vide F.I.R. No,586 of 2008, dated 28-8-2008 regarding the occurrence having allegedly taken place on 25-6-2008.

2. According to the allegations contained in the F.I.R. Complainant was assaulted by the accused persons named in the F.I.R. The said case was registered on the direction of learned Additional Sessions Judge, Sialkot dated 20-8-2008. Police during the investigation found the case to be false and prepared a cancellation report and when the said Islam, Food Inspector was called for in the police station and how the. Employees of the Pepsi Cola knew that the complainant party was selling substandard Bottles. Moreover, the vehicle was taken forcibly to the police station and the samples were taken at the police station which is totally against the law of land and Food Inspector illegally and wrongfully misused his official duty and he deserves departmental inquiry and a criminal case may be recommended against him. The findings of the Investigating Officer appears to be biased complainant and the P. Ws. Have supported the prosecutor version. So the S.H.O. Is directed to A prepare report/challan under section 173, Cr.P.C. Against the accused persons for their trial in the Court in accordance with law.

3. The learned counsel for the petitioner submits that the learned District Public Prosecutor travelled beyond his jurisdiction and authority and committed a grave illegality by issuing direction to the S.H.O. To prepare report/challan under section 173, Cr.P.C. Against the accused persons as assumed the role of Court. In support of his submissions the learned counsel for the petitioner has placed reliance on a case titled Fayyaz Ahmed and another v. The State and other 2008 PCr.LJ 805 (Lahore) decided by a learned Division Bench.

4. On the other hand the learned A.A.-G. And learned District Public Prosecutor, Sialkot who is present in person submit that the deletion or insertion of any offence falls within the exclusive domain of the prosecutor. Reliance is also placed on an unreported judgment delivered by a learned Single Judge in case of Rasoolan Bibi v. Additional Sessions Judge and others Writ Petition No,14672 of 2008. They further submit that petitioners can agitate their grievance raised by them in this petition before the learned trial Court at the time of framing of the charge.

5. The functions of the prosecutors conducting the prosecution has been mentioned in Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 and section 9 of the said Act reads as under:--- Conduct of Prosecution.--- (1) The Prosecutor's shall be responsible for the conduct of prosecution on behalf of the Government.

(2) The Prosecutor-General or if so authorized by him, an Additional Prosecutor-General shall distribute work to the Prosecutors in the Supreme Court, the High Court, the Federal Shariat Court or a Special Court established under any law for the time being in force.

(3) A District Public Prosecutor shall distribute work to the Prosecutors with respect of the Courts of Sessions and Courts of Magistrates within a District.

(4) 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.

(5) The Prosecutor shall scrutinize the report or the request and may---

(a) return the same within three days to the officer incharge of police station or Investigation Officer, as the case may be, if he finds the same to be defective, for removal of such defects as may be identified by him; or

(b) if it is fit for submission, file, it before the Court of competent jurisdiction.

(6) On receipt- of an interim police report under section 173 of the Code, the Prosecutor shall--

(a) examine the reasons assigned for the delay in the completion of investigation and if he considers the reasons compelling request the Court for the postponement of trial and in case investigation is not completed within reasonable time, request the Court for commencement of trial; and

(b) in cases where reasons assigned for delay in the completion of investigation are not compelling, request the Court for commencement of trial on the basis of the evidence available on record.

(7) A Prosecutor may submit to the Court results of the scrutiny in writing as to the available evidence and applicability of offences against all or any of the accused as per facts and circumstances of the case."

6. After hearing the learned counsel for parties and perusing the relevant provisions of law I am of the view that section 9 of the Act did not authorize the Public Prosecutor to direct for the submission of report/challan under section 173, Cr.P.C. Against the accused persons for their trial or to recommend departmental inquiry or registration of criminal case against the Food Inspector.

Under subsection 5(a) of section 9 of the said Act, Public Prosecutor has the authority to scrutinize the report under section 173, Cr.P.C. And if finds the same to be defective, he can return the same within ,3 days to the Officer Incharge of police station or Investigating Officer for the removal of such defects identified by him and under subsection (5)(b) of the said section after finding report under section 173, Cr.P.C. Fit for submission the Public Prosecutor is duty bound to file the same before the Court of competent jurisdiction. A perusal of subsection(7) of said Act indicates that the Prosecutor has the authority to submit to the Court result of his scrutiny in writing as to .The available evidence and applicability of the offences against all or any of the accused. A further perusal of the section 10 of the said Act which -provides the powers of the Public Prosecutor also make it clear that Public Prosecutor has no authority to direct for submission of challan against accused. I am of the firm view that the Public Prosecutor had no authority to assume and abdicate function, authority and jurisdiction of the trial Court, therefore, the learned Public Prosecutor surely travelled beyond his jurisdiction and authority and committed a grave illegality by directing the S.H.O. To submit a report under section 173, Cr.P.C. Against the accused and recommending action against Food Inspector, his function is only to pin point the defects in the investigation and in the report and to direct the Investigating Agency to remove the same. He is duty bound to submit a report under section 173, Cr.P.C. Whether challanning the accused or declaring them innocent. It is for the learned trial Court while passing orders even on the cancellation report to issue necessary direction to the Investigating Officer after examining and perusing the available material to submit challan against the accused but as stated above no such jurisdiction vested with the Public Prosecutor to direct the S.H.O. For doing the same. I am also fortified in my view from the judgment passed by the learned Division Bench of this Court in Fayyaz Ahmad case.

7. For the foregoing reasons this writ petition is accepted and the impugned direction, dated 1-11- 2008 issued by the District Public Prosecutor, Sialkot to S.H.O. To prepare report/challan under section 173, Cr.P.C. Against the accused persons for their trial in the. Court in accordance with law is set aside.