MUHAMMAD AKBAR Versus STATE

1. SALAHUDDIN AHMED, J.‑ This appeal by special leave is from the order of a learned Single Judge of the High Court of Lahore refusing to quash a criminal case pending against the appellant under section 376 of the Pakistan Penal Code. The case was registered on the 6th June 1970, against the appellant, leis brother Bashir and a cousin Salamat, at the instance of Kist. Zubaida Begum. The Station House Officer submitted a final report on the 23rd June 1970. On the application of the mother of Mst. Zubaida Begum to the higher Police Authorities, the C. I. A. Staff further investigated the case. On the 16th July 1970, Mst. Ismat Bibi, Jan Muhammad and Habib submitted affidavits in support of the complainant's case. It appeared that there was a party faction in the village and while one party supported the complainant, the other supported the accused persons. The Investigating Officer reported to the higher authorities that no case had been made out. The Senior Superintendent of Police then examined the whole matter, and in view of the background of litigation, bitterness in matrimonial relations and tendentious statements, he directed the Station House Officer to put the case in Court. Accordingly on 1‑12‑1970, the Station House Officer submitted a charge‑sheet against the accused persons including the appellant for their trial in the Court of the Assistant Commissioner.

2. It has been contended before us that the cognizance of the case by the Magistrate was illegal inasmuch as the Senior Super intendent of Police was not competent to direct the Station House Officer to file a charge‑sheet in Court. The learned Advocate appearing in support of the appellant has argued that the Station House Officer alone was competent to put in the charge sheet.

3. As regards the first contention, the appellant has not included in the Paper‑Book the charge‑sheet that was submitted before the Magistrate nor has he produced it before us. In these circum stances the only legitimate inference that can be drawn is that the charge‑sheet constituted an act of the Station House Officer under section 170(1) of the Code of Criminal Procedure, and that it furnished a good ground for taking cognizance by the Magistrate under section 190(1)(b), Cr. P. C. Section 170(1), Cr. P. C. is in these terms :

4. "If, upon an investigation under this Chapter, it appears to the Officer‑in‑Charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a. Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed."

5. Even on the first report alleged to have been submitted under section 173, Cr. P. C., the Magistrate could, irrespective of the opinion of the Investigating Officer to the contrary, take cogniz ance, if upon the materials before him he found that a prima facie case was made out against the accused persons. After all the police is not the final arbiter of a complaint lodged with it. It is the Court that finally determine upon the police report whether it should take cognizance or not in accordance with the provisions of section 190k'U(b) of the Code of Criminal Procedure. This view finds support from a decision of this Court in the case of Falak Sher v. State (P L D 1967 S C 425).

6. As regards the latter contention it can be at once disposed of by saying that under section 551, Cr. P. C. the Senior Super intendent has the requisite powers to put in the charge‑sheet. The section is a3 follows

7. "Police Officers superior in rank to an Officer‑in‑Charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station."

8. We agree with the observations of the learned Judge of the High Court that there is nothing in the Code of Criminal Procedure to prevent the Investigating Officer from submitting a subsequent report in supersession of his earlier one, either on his own initiative or on the direction of the superior Police Officer.

9. There is no substance in this appeal and it is accordingly dismissed.

10. Appeal dismissed.