MUHAMMAD ASLAM Versus THE STATE

ORDER

The petitioner is involved in the case F.I.R. No.43 of 1997 registered on 25-3-1997 at Police Station Muslim Town, Lahore under sections 10 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The petitioner was arrested on 28-3-1997 and is presently confined in judicial lock up at Camp Jail, Lahore. The main contention raised by learned counsel for the petitioner is that although the F.I.R. was registered on 25-3-1997 and the petitioner was arrested on 28-3-1997 yet the final challan or the interim challan has not so far been submitted by the police to .the Court which is violative of section 173 read with sections 154 and 344, Cr.P.C. Learned counsel for the petitioner relying on Asma Khatoon v. Syed Shabbir Hussain Shah A.C.M. and F.C.M. Court IV, Karachi West and 2 others PLD 1996 Kar. 517 And Mooso v. The State 1996 PCr.LJ 361 submits that the detention of the petitioner in the present case has become illegal and the petitioner is entitled to be released at least, on bail.

2. S.I. M. Ayyaz Baig, Investigating Officer is present in Court. The learned A.A.-G. has also appeared on Court call. The complainant is also represented by ' his learned counsel, Mian Muhammad Sikandar Hayat, Advocate. The Investigating Officer states that the incomplete challan is ready and would be submitted to Court today.

3. The F.I.R. was registered on 25-3-1997 and the petitioner was arrested on 28-3-1997 and is still in custody. So far the challan has not been submitted to the Court. Even today, it was stated by the Investigating Officer that only interim challan has been prepared and was to be submitted to the Court today. The fact, therefore, remains that from 25-3-1997 upto 22-5-1997 that is about two months time has passed, even the interim challan has not been submitted to the Court which is against the mandatory provisions of section 173, Cr.P.C. which is as follows:--

" Report of Police Officer .-- (1) Every investigation under this Chapter shall be completed without unnecessary delay, and as soon as it is completed, the officer in charge of the police station shall through the Public Prosecutor:

(a) forward to a Magistrate empowered to take cognizance of the offence on a police report, a report, in the form prescribed by the Provincial Government, settingforth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and if so, whether with or without sureties, and

(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.

"Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under section 154, the officer-in-charge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence. "

(2) Where a superior Officer of Police has been appointed under section 158, the report shall in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer-in charge of the police station to make further investigation.

(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

(4) A copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial;

Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to furnish it free of costs.

(5) Where the officer-in-charge of a police station forwards a report under subsection (1), he shall alongwith the report produce the witnesses in the case except the public servants, and the Magistrate shall bind such witnesses for appearance before him or some other Court on the date fixed for trial. "

It will thus be seen that under section 173, Cr.P.C. the report in the form prescribed by the Government based on the investigation of the case has to be forwarded to the Court. However, proviso to subsection (1) of section 173, Cr.P.C. mandates the Investigating Agency to complete the investigation within a period of fourteen days from the date of recording of the first information report under section 154, Cr.P.C. If the investigation is not completed within the stipulated period of fourteen days, the Officer-in-charge of the police station shall, within three days of the expiration of such period, forward to the Magistrate concerned, the interim report in the form prescribed by the Government stating therein the result of the investigation made until then whereupon the Court may commence the trial of the case, unless, for reasons to be recorded, the Court decides that the trial should not so commence.

5. In the present case the mandate of section 173, Cr.P.C. has been violated by the Investigating Agency/S.H.O. concerned inasmuch as about two months have passed since the registration, of the case, the final or interim report under section 173, Cr.P.C, has not been submitted to the Court.

6. The petitioner could be kept in custody only in accordance with the provisions of section 61, 62, 167, 173 and 344, Cr.P.C. Proviso to subsection (1) of section 173, Cr.P.C, provides that the final or interim report shall be submitted to the Court. Admittedly this procedure was not followed. Therefore, the detention of the petitioner after fourteen days, not being permitted by the law in this manner, is also against the mandate contained in Article 9 of the Constitution which provides that:--

"No person shall be deprived of life or liberty save in accordance with law. "

Similarly sub-Article (2) of Article 10 of the Constitution provides that:--

"(2) Every person who is arrested and detained in custody shall be produced before a Magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the nearest Magistrate, and no such person shall be detained in custody beyond the said period without the authority of a Magistrate.

7. It is thus clear that in the circumstances of the present case, since the report/interim report was not submitted within the time prescribed under section 173, Cr.P.C., the detention of the petitioner in jail after the period of B fourteen days has become unlawful and is violative of the Articles 9 and 10 of the Constitution. In somewhat similar circumstances, a learned D.B. of the Karachi High Court in Asma Khatoon v. Syed Shabbir Hussain Shah PLD 1996 Kar. 517, referred to above, has held as follows:--

"Applying sections 173 and 344, Cr.P.C. to this case, it is obvious that no report in terms of section 173 was submitted either, again rendering the continued custody of the accused without lawful authority."

8. In the light of the above discussion, the petitioner's continued detention is held unlawful and he is released on bail, subject to his furnishing bail bonds in the sum of Rs.50,000 (rupees fifty thousand) with two sureties each in the like amount to the satisfaction of the learned trial Court.

N.H.Q./M-352/L Bail allowed.