2000 P Cr (PLP)
Mst. NAJMA BIBI‑‑‑Petitioner Versus CIVIL JUDGE, 1ST CLASS/MAGISTRATE SECTION 30, CHISHTIAN, DISTRICT BAHAWALNAGAR and 4 others‑‑‑Respondents
| Citation | 2000 P Cr (PLP) |
| Forum / Court | Lahore |
| Bench Members | Ghulam Mahmood Qureshi, J |
| Parties | Mst. NAJMA BIBI‑‑‑Petitioner Versus CIVIL JUDGE, 1ST CLASS/MAGISTRATE SECTION 30, CHISHTIAN, DISTRICT BAHAWALNAGAR and 4 others‑‑‑Respondents |
Q1: What are the key laws and sections cited in 2000 P Cr (PLP)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2000 P Cr (PLP)?
The case was heard and decided by the Lahore bench comprising: Ghulam Mahmood Qureshi, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2000 P Cr (PLP) (Mst. NAJMA BIBI‑‑‑Petitioner Versus CIVIL JUDGE, 1ST CLASS/MAGISTRATE SECTION 30, CHISHTIAN, DISTRICT BAHAWALNAGAR and 4 others‑‑‑Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- Nadeem Iqbal for Petitioner.
- Malik Muhammad Aslam for Respondents Nos.2 and 3.
- 2. The learned counsel for petitioner has contended that the discharge order passed by the respondent No. l is illegal and without lawful authority. It is contended that after submission of challan, under section 173, Cr.P.C. by the police, to the Court of competent jurisdiction, which has taken cognizance of the case, respondent No. l was not competent to pass the discharge order; it was only trial Court before whom the case was in progress to consider the discharge report if there was any. It is further contended that respondent No. 1 has tried to pre‑empt the jurisdiction of the trial Court and has passed an order which is not warranted by law.
- 3. Conversely, the learned counsel for respondents Nos.2 and 3 has supported the impugned order.
Headnotes / Summary
Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑Ss. 173 & 156‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) S.10(3)‑‑‑Constitution of Pakistan (1973), Art.199‑‑ Constitutional petition‑‑‑Re‑investigation and discharging accused during pendency of criminal proceedings before Trial Court‑‑‑Quashing of order discharging accused‑‑‑Police, after investigation, found the accused guilty and submitted final challan to a competent Court‑‑‑Bail application filed by accused who were arrested and sent to judicial lock‑up was rejected by the Court‑‑‑Police on application of accused for re‑investigation of the case, conducted ex pane re‑investigation without joining complainant and discharged accused and issued Robkar for release of accused from judicial lock‑up‑‑‑Validity‑‑‑Police was not competent to pass discharge order after submission of complete challan under S.173, Cr.P.C. to Court of competent jurisdiction which had taken cognizance of the case‑‑‑Trial Court before which case was in progress could only consider discharge report‑‑‑Trial Court after submission of complete challan under S.173, Cr.P.C. by police having taken cognizance of case, police had no authority to file supplementary challan‑‑‑Police on basis of re‑investigation of case on said challan, could not discharge the accused‑‑‑Prosecution could file complete challan, but could not be permitted to file supplementary challan in Court which had taken cognizance of offence on receipt of complete or incomplete challan‑‑‑Discharge order, incompetently passed by police was declared illegal and without lawful authority, by High Court and was ordered to be quashed. Syed Waqar Hussain Shah v. The State PLD 1988 Lah. 666 and Muhammad Alam and another v. Additional Secretary to Government of N.‑W.F.P. and others PLD 1987 SC 103 ref. ORDER A case F.I.R. No.192 of 1998, dated 4‑6‑1998 under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered at Police Station Saddar, Chishtian. The case was investigated by different Police Officers and finally D.S.P. Crime Branch and S.P., C.I.A., Bahawalpur conducted the investigation and concluded that respondents Nos.2 and 3 were guilty and finally the challan was submitted by the local police against the accused persons under section 10(3) of the said Ordinance to the Court of learned Additional Sessions Judge, Chishtian. The accused were also arrested and sent to Judicial lock‑up. The accused/respondents submitted bail application, which was rejected by the learned Additional Sessions Judge vide order, dated 14-1‑1999.
2. After submission of challan, respondents Nos.2 and 3 submitted an application for re‑investigation of the case and the Additional S.P., Bahawalpur after conducting ex parte investigation, as the petitioner/ complainant was never joined in the said proceedings, directed respondent No.4, S.H.O. concerned, to prepare the discharge report. In compliance with that order the S.H.O. submitted discharge report to respondent No.1, who vide order, dated 4‑3‑1999 agreed with the discharge report and discharged the accused persons from the case and issued Robkar for their release from the judicial lock‑up.
4. I have heard the learned counsel for parties and have also perused the record, therefore, the present case is being decided as a notice case. Perusal of the discharge report shows that respondent No.4 did not mention about the submission of challan in the Court. It appears that it was deliberately done as by concealment of this material fact, respondent No. l succeeded in procuring the discharge order.
5. The learned Additional Sessions Judge, Chishtian while dismissing bail application of respondents Nos.2 and 3 observed that version of complainant is supported by medical version and there was incriminating material. While submitting supplementary challan before respondent No. 1, it was specifically mentioned that the report of Chemical Examiner is in negative and the finding of doctor is not supporting the prosecution version. 5‑A. The above narrated facts sufficiently indicate that the learned Additional Sessions Judge has taken cognizance of this case, on the report submitted under section 173, Cr.P.C. appended with the complete challan, in which Abdul Razzaq and Mahmood Ahmad, respondents Nos.2 and 3 were arrayed in column II. Thereafter, respondents Nos.2 and 3 were got discharged by the police during pendency of trial on the basis of further investigation and supplementary challan. The prosecution had no jurisdiction/authority to file supplementary challan after filing' complete challan in the Court, as held in Syed Waqar Hussain Shah v. a State PLD 1988 Lah.
666. There is no cavil with the proposition that the police can investigate the case even after filing of complete challan, but there is no law allowing filing supplementary challan thereafter, before a different Court who was even not competent to take cognizance of the offence mentioned in the F.I.R. The prosecution can file incomplete challan and then complete challan under the Code of Criminal Procedure and Police Rules but it does not permit to file supplementary challan in the Court, who has taken cognizance of the offence on the receipt of complete or incomplete challan. In the instant case the prosecution has tried to favour respondents Nos.2 and 3 in a manner which is. not permitted under the law. In case Muhammad Alam and another v. Additional. Secretary to Government of N.‑W.F.P. and others PLD 1987 SC 103 Honourable Judge of Supreme Court held as under: ‑‑ "After taking the cognizance and even before the issuance of the process, the normal procedure under the Code or the Regulation, as the case may be, would be followed. The police report would not relieve the Court of its obligation to continue the proceedings until their proper termination under the relevant law. The cancellation of case under section 173 is not permissible after the cognizance has been taken. But it could have been done before that stage. It was so held in the Full Bench case of Lahore High Court Wazir v. The State PLD 1962 (W.P.) Lah. 405, which we feel is correct approach in so far as the point of cancellation, before cognizance, is concerned. "
6. In view of the above discussion this Constitutional petition is allowed and the impugned discharge order, .dated 4‑3‑1999 is declared to have been passed without lawful authority and of no legal effect. Parties shall hear their own costs. H.B.T./N-19/L Petition allowed.
Judgment & Decree
A case F.I.R. No.192 of 1998, dated 4‑6‑1998 under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered at Police Station Saddar, Chishtian. The case was investigated by different Police Officers and finally D.S.P. Crime Branch and S.P., C.I.A., Bahawalpur conducted the investigation and concluded that respondents Nos.2 and 3 were guilty and finally the challan was submitted by the local police against the accused persons under section 10(3) of the said Ordinance to the Court of learned Additional Sessions Judge, Chishtian. The accused were also arrested and sent to Judicial lock‑up. The accused/respondents submitted bail application, which was rejected by the learned Additional Sessions Judge vide order, dated 14-1‑1999.
2. After submission of challan, respondents Nos.2 and 3 submitted an application for re‑investigation of the case and the Additional S.P., Bahawalpur after conducting ex parte investigation, as the petitioner/ complainant was never joined in the said proceedings, directed respondent No.4, S.H.O. concerned, to prepare the discharge report. In compliance with that order the S.H.O. submitted discharge report to respondent No.1, who vide order, dated 4‑3‑1999 agreed with the discharge report and discharged the accused persons from the case and issued Robkar for their release from the judicial lock‑up.
2. The learned counsel for petitioner has contended that the discharge order passed by the respondent No. l is illegal and without lawful authority. It is contended that after submission of challan, under section 173, Cr.P.C. by the police, to the Court of competent jurisdiction, which has taken cognizance of the case, respondent No. l was not competent to pass the discharge order; it was only trial Court before whom the case was in progress to consider the discharge report if there was any. It is further contended that respondent No. 1 has tried to pre‑empt the jurisdiction of the trial Court and has passed an order which is not warranted by law.
3. Conversely, the learned counsel for respondents Nos.2 and 3 has supported the impugned order.
4. I have heard the learned counsel for parties and have also perused the record, therefore, the present case is being decided as a notice case. Perusal of the discharge report shows that respondent No.4 did not mention about the submission of challan in the Court. It appears that it was deliberately done as by concealment of this material fact, respondent No. l succeeded in procuring the discharge order.
5. The learned Additional Sessions Judge, Chishtian while dismissing bail application of respondents Nos.2 and 3 observed that version of complainant is supported by medical version and there was incriminating material. While submitting supplementary challan before respondent No. 1, it was specifically mentioned that the report of Chemical Examiner is in negative and the finding of doctor is not supporting the prosecution version. 5‑A. The above narrated facts sufficiently indicate that the learned Additional Sessions Judge has taken cognizance of this case, on the report submitted under section 173, Cr.P.C. appended with the complete challan, in which Abdul Razzaq and Mahmood Ahmad, respondents Nos.2 and 3 were arrayed in column II. Thereafter, respondents Nos.2 and 3 were got discharged by the police during pendency of trial on the basis of further investigation and supplementary challan. The prosecution had no jurisdiction/authority to file supplementary challan after filing' complete challan in the Court, as held in Syed Waqar Hussain Shah v. a State PLD 1988 Lah.
666. There is no cavil with the proposition that the police can investigate the case even after filing of complete challan, but there is no law allowing filing supplementary challan thereafter, before a different Court who was even not competent to take cognizance of the offence mentioned in the F.I.R. The prosecution can file incomplete challan and then complete challan under the Code of Criminal Procedure and Police Rules but it does not permit to file supplementary challan in the Court, who has taken cognizance of the offence on the receipt of complete or incomplete challan. In the instant case the prosecution has tried to favour respondents Nos.2 and 3 in a manner which is. not permitted under the law. In case Muhammad Alam and another v. Additional. Secretary to Government of N.‑W.F.P. and others PLD 1987 SC 103 Honourable Judge of Supreme Court held as under: ‑‑ "After taking the cognizance and even before the issuance of the process, the normal procedure under the Code or the Regulation, as the case may be, would be followed. The police report would not relieve the Court of its obligation to continue the proceedings until their proper termination under the relevant law. The cancellation of case under section 173 is not permissible after the cognizance has been taken. But it could have been done before that stage. It was so held in the Full Bench case of Lahore High Court Wazir v. The State PLD 1962 (W.P.) Lah. 405, which we feel is correct approach in so far as the point of cancellation, before cognizance, is concerned. "
6. In view of the above discussion this Constitutional petition is allowed and the impugned discharge order, .dated 4‑3‑1999 is declared to have been passed without lawful authority and of no legal effect. Parties shall hear their own costs. H.B.T./N-19/L Petition allowed.