2000 P Cr (PLP)

By way of this Constitution petition order, dated 7‑9‑1999 passed by Civil Judge/Judicial Magistrate, Shujabad/respondent No.2 whereby remand of respondent No.4 asked by the police in a case F.I.R. No.285 of 1999, dated 7-8‑1999 under section 302/34, P.P.C. was disallowed and instead he was discharged from the case, has been called in question, having been passed without jurisdiction and lawful authority.

2. The brief facts of the case are that the petitioners were nominated accused in case registered vide. F.LR. No.285 of 1999, dated 7‑8‑1999. They were arrested in the said F.I.R. on 25‑8‑1999 and remained with the Investigating Officer after getting physical remand for nine days and were interrogated. They were found innocent during the investigation and ultimately the report was prepared for their discharge on 4‑9‑1999 and was submitted before the Judicial Magistrate, Shujabad/respondent No. 1, but the same was not allowed and the petitioners were sent in judicial lock‑up.

3. During the investigation, it was found that Muhammad Saleem, complainant of the case has committed the murder of his brother due to suspicion of illicit relations of his brother with his wife and the petitioners were falsely. Said Muhammad Saleem was arrested by she police for his physical remand was made to effect the recoveries and for further investigation. The report was placed before the Judicial Magistrate/respondent No.2 on 7‑9‑1999, who not only refused the grant of physical remand but also proceeded to discharge Muhammad Saleem, accused. The order of discharge has been impugned by the petitioners through this writ petition. 4, The learned counsel for the petitioners contends that the case registered under section 302, P.P.C. was exclusively triable by the Court of Sessions Judge and the Judicial Magistrate had no jurisdiction to discharge the accused. He could either grant the physical remand or could record the reasons for refusing .the same and should have sent the accused. Muhammad Saleem in judicial lock up. Reliance has been placed on PLJ 1996 Lah. 680 titled Sardar Muhammad v. Zafar Javaid Awan, etc. to argue that the impugned order, dated 7‑9‑1999 is illegal and without jurisdiction.

5. The learned Additional Advocate‑General has also supported me contention of the petitioners and stated that it was an imperative for the police to, prepare the report under section 173, Cr.P.C. either way which should have been sent to learned Sessions Judge, who has the exclusive jurisdiction to try the offence under section 302, P.P.C.

6. The learned counsel for the respondent No.3 has opposed the petition and argued that the opinion of the Investigation Officer was not binding on the learned Judicial Magistrate and he could have passed an appropriate order by refusing the physical remand. The impugned order does not suffer from any illegality.

7. I have considered the argument advanced by the learned counsel for the parties and gone through the record.

8. It is evident from the record that the petitioners were found innocent by the investigation agency and the matter was placed before the competent Authority for their discharge, but the Magistrate concerned/respondent No.1 disagreeing with the report sent the petitioners to judicial lock‑up. Police in the meanwhile continued locating/tracing out the actual culprits as it was their obligatory and statutory duty to find out the offender because nothing could have been brought by the complainant party against the present petitioners and even if they had submitted the challan before the competent Court and before taking the cognizance by the said Court, nothing was to debar/prevent them to submit subsequent report in suppression of earlier one either or Investigation Officer's own initiative or on the direction of the superior Police Officers, as expounded in Aftab Ahmad v. Hassan Rashid and 10 others PLD 1987 SC 13.

9. During the investigation sufficient material had been brought on record of the police regarding the guilt of respondent No.4 Muhammad Saleem, rather he had confessed his guilt to have murdered his real brother on suspicion of his illicit relations with his wife. Police had arrested him on 2‑9‑1999 and remand was obtained till 7‑9‑1999. Some incriminating material still had to be recovered from him so on the expiry of the remand period, extension in the same for 10 days more was prayed but the Judicial Magistrate/respondent No.2 not only disallowed the physical remand but also discharged the accused from the case.

10. Final report had not yet been submitted and the agency had yet to reach at logical conclusion/opinion by acting and performing their duties as provided under the law. Sections 156 to 173, Cr.P.C. provide the frame‑work for the police/Investigating Agency to find out the truth and to present the same before Court by way of admissible and acceptable evidence as it was undertaken to protect innocent and never to let guilty escape.

11. Section 156; Cr.P.C. conferred a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities and it would be an unfortunate result if it should be held possible to interfere with those statutory rights by Judiciary. In the case of Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others PLD 1994 SC 281 their Lordships set aside the order of the High Court whereby periodical reports about the progress of the investigation was called, terming the same as interference by Courts in matter of police investigation before submission of the challan.

12. Remand of respondent No.4 (suspect) was asked for by the police as some material had to be recovered from him for completion of investigation and under section 167, Cr.P.C. there were only two options with the learned Magistrate either to grant/allow the same or to decline for reasons to be recorded and sending the accused to the judicial lock‑up. He had no authority or jurisdiction to take cognizance and discharge the accused as after amendment in section 190, Cr.P.C. section 302, P.P.C. was exclusively triable by Sessions Court debarring the Magistrate from the same. He had to send the case for trial to the competent Court i.e. Sessions. Judge in case of submission of final report under sections 169, 170 and 173, Cr.P.C. as was held in the precedent case‑law referred to above by learned counsel for the petitioners.

13. While passing the impugned order the learned Magistrate has not only exercised beyond his jurisdiction but also usurped the jurisdiction/authority of the Police/Investigating Agency.

14. Consequently, I accept this petition set aside the impugned order, dated 7‑9‑1999 declaring the same illegal, invalid, coram non judice having been passed without jurisdiction. The Investigating Officer is directed to continue with the investigation of the case after associating the accused and the learned Judicial Magistrate will pass an appropriate order on the report if submitted by the Investigating Officer in accordance with law. N.H.Q./M‑1225/L Petition accepted.