MUHAMMAD FAROOQ QURESHI vs JUDICIAL MAGISTRATE SECTION 30 and 2

ORDER

' RAJA MUHAMMAD SHAFQAT KHAN ABBASI, J.---Through this writ petition, the petitioner, Muhammad Farooq Qureshi has assailed the order dated 27-2-2009 passed by the Judicial Magistrate Section 30, Kehror Pacca whereby he has disagreed with the cancellation report prepared by the local police.

2. Brief facts of the case are that case F.I.R. No,310 of 2008 dated 22-11-2008 under section 496- A/380, P.P.C. Police Station Dhanote, District Lodhran was registered at the instance of respondent No,3/Siraj Ahmad against the petitioner. After the registration of case abductee/ Abida Parveen recorded her statement under section 161, Cr.P.C. Wherein she has stated that she has not been abducted by anyone whereupon local police prepared a cancellation report which was placed before the Judicial Magistrate Section 30, who disagreed with the said report and passed the following order:-- "In the light of the above said observation and discussion, it has been found that Akhraj report is not satisfactory and in the interest of justice, same should be adjudicated after recording of evidence in accordance with law and Akhraj report is hereby turned down and complete challan report under section 173, Cr.P.C. Be produced before Court within stipulated period."

3. Learned counsel for the petitioner contends that alleged abductee has stated before the Judicial Magistrate as well as Investigating Officer in her statement under sections 164 and 161, Cr.P.C. That neither anybody abducted her nor committed Zina with her. She filed a suit for dissolution of marriage against her husband which was decreed in her favour. She categorically denied taking away any articles from the house, hence, offence under sections 496-A and 380, P.P.C. Are neither attracted nor made out, therefore, local police has rightly come to the conclusion and cancelled the case.

4. Arguments heard. Record perused.

5. Impugned order indicates that in the application of complainant learned Magistrate directed the S.H.O./Investigating Officer to furnish challan report and to arrest the accused. It may be observed that investigation of a criminal case and the resultant arrival by the police at a conclusion regarding the guilt or innocence of the accused lay within the domain and prerogative of the police over which no other authority had any control. Judicial 'Magistrate while disagreeing with the discharge report had travelled beyond the jurisdiction in directing the police to submit the challan against the accused, which indicates that learned Judicial Magistrate has pre-judged the case, which can cause prejudice to the accused. He was not supposed to direct arrest of the accused or submission of the challan or recording of evidence. Matter should be left to the investigating agency to submit report under section 173, Cr.P.C. It will be opened for the investigation officer to record his own opinion regarding the guilt or innocence of the petitioner in his report under section 173, Cr.P.C. And if the final opinion of the investigating officer is that petitioners are guilty, then he shall be at liberty to submit the challan accordingly. I am aware of the fact that alternative remedy is available to the petitioner as well as the complaint but fact remained that where the impugned order suffers from lack of jurisdiction insistence on availing of alternate remedy will not be mandate of the law. It is settled proposition of law that challan is not the substitute of report under section 173, Cr.P.C. Challan can only be submitted when investigating agency comes to the conclusion that accused is found guilty and recommended to be tried under the relevant offence, whereas if the accused was not recommended to be tried in the case then the report under section 173,, Cr.P.C. Was to be submitted without any challan. I am fortified by the judgment titled as Ch. Muhammad Ashraf v. The State 2006 PCr.LJ 518, Shahid Rashid and others v. Station House Officer and others 2005 PCr.LJ 1559 and Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31, Ahmad Nawaz and another the State and another 2001 M LD 1330, Muhammad Iqbal v. The State 2007 M LD 995, Muhammad Shabbir alias Shabo and 5 others v. Judicial Magistrate Duniyapur, District Lodhran and 4 others 2007 YLR 1373. It has been held in case titled Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31 that 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 i.e. Against only such persons as the Court desired or only with respect to such offences as the Court wished.

6. The upshot of the above discussion is that impugned order to the extent of directing the police to submit the challan was without jurisdiction and lawful authority and the same is set aside.

Proceedings initiated on the basis of the said order be declared without legal effect. Station House Officer police station concerned is directed to file report under section 173, Cr.P.C. Without being influenced by the impugned order or order passed by this Court.

7. Disposed of in the above terms.