AHMAD NAWAZ And Another vs THE STATE And Another

The necessary facts giving rise to the present petition are that the petitioners are accused persons in case F.I.R. No.65 registered at Police Station Sadar, Kabirwala, District Khanewal on 7-3-2000 for an offence under sections 302/34, P.P.C. A number of investigations were conducted by the police in this case and ultimately the Station House Officer of Police Station, Sadar, Kabirwala submitted a report before the Ilaqa Magistrate, i.e. Magistrate Section 30, Kabirwala seeking discharge of the petitioners of their bonds as, according to the Station House Officer, the petitioners had been found to be innocent. Through a detailed order passed by the Ilaqa Magistrate the discharge report was not agreed with by the Magistrate and the Investigating Officer was directed to submit a challan before the trial Court as early as possible. That order passed by the Ilaqa Magistrate on 17-4-2000 has been assailed before this Court through the present petition.

2. During the hearing of this petition a consensus has emerged between the parties to the effect that the refusal of the Ilaqa Magistrate to agree with the discharge of the petitioners may not be interfered with by this Court but the direction issued by the Magistrate to the Investigating Officer to submit a challan before the trial Court may be excised from the impugned order.

3. After hearing the learned counsel for the parties and going through the record it has been noticed that detailed and elaborate reasons had been given by the Ilaqa Magistrate for disagreeing with the discharge report submitted by the Station House Officer of Police Station Sadar, Kabirwala and this Court is in no position to substitute its own opinion for that of Magistrate in that regard. It has, however, been felt by this Court that while disagreeing with the discharge report the Ilaqa Magistrate had travelled beyond his jurisdiction in directing the police to submit a challan against the petitioners. The word ' Challan' does not figure anywhere in the Code of Criminal Procedure whereas the same finds a mention in the Police Rules. Investigation of a criminal case and resultant arrival by the police at conclusions regarding guilt or innocence of an accused person lie within the domain and prerogative of the police over which no other authority has any control. All that the Magistrate could have insisted upon in this case was that the Investigating Officer should submit a report under section 173, Cr.P.C. Incorporating the final opinion of the police based upon the evidence collected by it during the investigation. A chalan is not a substitute for or synonymous with a report under section 173, Cr.P.C. A challan is to be submitted by the police only where some accused person is recommended to be tried whereas if no accused person is recommended to be tried in a criminal case then only a report under section 173, Cr.P.C. Is to be submitted without any challan accompanying therewith. It goes without saying that in an appropriate case a Court can take cognizance of a case and summon an accused person to face a trial even if the police has not recommended for his trial in its report under section 173, Cr.P.C. In the present case unfortunately the Ilaqa Magistrate had a blurred understanding vis-a-vis the distinction between a report under section 173, Cr.P.C. And a challan. In this view of the matter the direction issued by the Magistrate Section 30, Kabirwala on 17-4-2000 regarding submission of a challan before the trial Court is hereby excised from the said order. It shall be open to the Investigating Officer to record his own opinion regarding guilt or innocence of the petitioners is his report under section 173, Cr.P.C. And if the final opinion of the Investigating Officer is that the petitioners are guilty then he shall also submit a challan in that regard. With these observations and excising of the abovementioned direction issued by the Magistrate Section 30, Kabirwala this petition is hereby disposed of.