MUHAMMAD JAMIL Versus S.H.O., P.S. AHMADPUR, DISTRICT SHEIKHUPURA

This petition is directed against the order, dated 12‑7‑1994 passed by the Assistant Advocate‑General Punjab, respondent No.2 by which he had directed the respondent No.1, S.H.O. Police Station Ahmadpur, District Sheikhupura to get the respondents Nos.3 and 4 accused in case F.I.R. No. 12 of 1994 under section 435, P.P .C. dated 4‑2‑1994; discharged from the case.

2. The relevant facts are that the criminal case mentioned above registered against the respondents Nos.3 and 4; after investigation; the I.O, submitted the challan against the accused person to the prosecution branch where some objections were raised and the challan was sent back to the S.H.O./I.O. for clarification. The S.H,O./I.O. respondent No.1 re‑submitted the challan after meeting the objections raised with the request for submitting the same before the competent Court for its trial.

3. The prosecution branch did n'6t submit the challan before the Court till 25‑7‑1994; when the complainant moved an application before the learned Illaqa Magistrate for direction to the S.H.O. respondent No.1 to submit the challan; hence the learned Magistrate passed the order accordingly.

4. The respondent No. l/S.H.O. reported to the learned Magistrate that the challan of the case was sent to the Court of Suppression of Terrorist Activities at Lahore on 10‑7‑1994 but the respondent No.2 vide its letter, dated 12‑7‑1994 directed him to get the accused discharged from the case as; "the prosecution case is highly doubtful and merits discharge of the accused from competent Court. The Investigating Officer shall prepare the discharge report of the two accused and submit the same immediately before the competent Authority for further legal action".

5. I have heard the arguments of learned counsel of both the sides and have perused the record.

6. Under section 169; if it appears to the I.O. that there is no sufficient evidence or reasonable ground or suspicion to justify the forwarding of the accused to a Magistrate, such officer shall; if such person is in custody, release him on his executing a bond and direct him to appear before a Magistrate; when so required, under section 170(1), if it appears to the I.O. that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate competent to take cognizance.

7. Under section 173(1) when the investigation is completed the I.O. shall forward the report to the competent Magistrate to take cognizance of the offence on a prescribed form known as a "challan". The Magistrate after receipt of the challan under section 173(3) may agree or may not agree with the police report is a quite different matter which is not under consideration.

8. It is mandatory for an I.O. to submit report to a Magistrate competent to take cognizance; even if according to his investigation there is no sufficient evidence or reasonable ground or suspicion to justify forwarding of the accused under section 169; other on the completion of investigation is duty bound to submit the challan without unnecessary delay before the competent Court.

9. In the case in hand; the respondent No.2 has given his opinion that:‑‑‑

"The prosecution case is highly doubtful and merits discharge of the accused from the competent Court;" if so the I.O. is not debarred from to re‑investigate the case as pointed out; even if submits the same challan; there is nothing in the Cr.P.C. to prevent the I.O. from submitting a subsequent report in suppression of his earlier report under section 173 on his own motion or on the directions of higher authorities.

10. In the present case in hand, there is no justification in not submitting the challan; the S.H.O. either should have submitted the report under section 169, C,r.P.C. and have re‑investigated the case in the light of opinion tendered by the respondent No.2 and should have submitted the final report under section 173, Cr.P.C.

11. In view of the above discussion; the respondent No.1, S.H.O. is directed to submit the challan of case F.I.R. No.12 of 1994, dated 4‑2‑1994 before the competent Court without any further delay; failure to do so otherwise it would amount to 'misconduct' liable to action under the law, as the submission of final report is a must only on which Magistrate can order cancellation of case or to refuse to do so as he thinks proper while exercising powers vested in him under section 173 read with section 169, Cr.P.C.

12. For what has been stated above, the writ petition is accepted accordingly.

H.B.T./M‑2131/L Petition accepted.