2000 PLP 2857 (YLR)

Instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been filed for the quashment of order, dated 2‑10‑1998 passed by Respondent No. l directing Respondent No.2 to submit report under section 173, Cr.P.C. for onwards submission to the learned Sessions Judge Layyah for initiating trial against the accused/petitioners.

2. Briefly stated, the facts are that vide F.I.R. No.315, dated 29‑10‑1996, a case under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 380, P.P.C. was registered against the accused/petitioners at Police Station; Chowk Azam District Layyah. After investigation report under, section 173, Cr.P.C. was. submitted in the Court of learned ‑Senior Civil Judge/ Magistrate Section 30 of Layyah/Respondent No.l for the cancellation of the case. The learned Magistrate did not find favour with the said report and ordered Respondent No.2 to submit challan for onwards transmission to the learned Sessions Judge Layyah. The petitioners have felt aggrieved of order, dated 2‑10‑1998 and have filed the instant writ petition.

3. Argumently have been heard and record perused.

4. Contention of learned council for the petitioner is that after submission of report under section 171 Cr P C the learned Magistrate has, to proceed in accordance with section. 190(3), Cr.P.C., whereby he has to refer the case to the Court of learned Sessions ,Judge, if the said case is exclusively triable by that Court, and he could not direct Respondent No.2 to submit the challan in his Court for onwards transmission to the said Court and .relies upon Falak Sher and another v. The State (PLD 1967 SC 425) Muhammad Nawaz Khan v. Noor Muhammad and others (PLD 1967 Lahore 176) and A.K. Roy v. State of Bengal (AIR 1962 Calcutta 135).

5. Conversely, this legal proposition stands conceded by the learned Additional Advocate‑General.

6. In the instant case, Respondent No.2 submitted report under section 173, Cr.P.C. with Respondent No. l requesting , the cancellation of case registered against the accused/petitioners vide F. I. R. referred above. Accused can be discharged ‑ firstly under section 63, Cr.P.C. which reads as follows: "Discharge of person apprehended.‑ No person who has been arrested by a Police Officer shall be discharged except on his own bond, or .on bail, or under the special order of a Magistrate.," Again an accused can be discharged under section 169, Cr.P.C. which reads as follows: "Release of accused when evidence of deficient.‑‑‑if, upon an investigation under this Chapter, it appears to the Officer‑in‑Charge of the Police Station, or to the Police Officer making the investigation that there is not sufficient evidence or reasonable ground of suspicion if, justify the forwarding of the accused to a Magistrate, such officer shall, such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required before a Magistrate empowered to take cognizance of the offence on a police‑report and to try the accused or send him for trial."

7. There is a third mode of discharging of an accused by the Illaqa Magistrate on the basis of report under section 173, Cr.P.C. which reads 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 prosecution‑‑‑‑ (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 setting forth 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 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 Court 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 cost. (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. "

8. After the submission of report under section 173, Cr.P.C. the trial Court has to act under section 190, Cr.P.C. which reads as follows: "Cognizance of offences by Magistrates. ‑‑‑(I) Except as hereinafter provided, any Judicial Magistrate specially empowered in this behalf by the Provincial Government on the recommendation of the High Court may take cognizance of any offence‑‑‑ (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police officer; (e) upon information received from any person other than a police officer, or upon his own knowledge or suspicion that such offence has been committed. " (2) The Provincial Government may empower any Magistrate to take cognizance under subsection (1), clause (a) or of offences for which he may try or send to the Court of Session for trial: Provided that in the case of a Judicial Magistrate the Provincial Government shall exercise this power on the recommendation of the High Court. (3) A Magistrate taking cognizance under subsection (1) of an offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to Court of Session for trial." According to subsection (3) of section 190, Cr.P.C. a Magistrate taking cognizance under subsection (1) of an offence triable exclusively by a Court of Session has to send the case to the Court of Session for trial without recording any evidence.

9. In the instant case, the matter fell within the exclusive jurisdiction of the Court of Session, as such the Judicial Magistrate was not competent to return the report under section 173, Cr.P.C. to the S.H.O. concerned for submission of challan. It was his duty to forward the said report under section 173, Cr.P.C. to the Court of the learned Sessions Judge for proceeding further in the matter in accordance with law. Thus, the order, dated 2‑10‑1998 passed by Respondent No.l directing Respondent No.2 to submit report under section 173, Cr.P.C. for onwards transmission to the learned Sessions Judge Layyah for initiating trial against the accused/petitioners is not a valid order, Consequently, the petitioner is accepted and the said order is set aside and the case is remanded to the learned Senior Civil Judge/Magistrate Section 30, Layyah, with a direction to forward the report under section 173, Cr.P.C. directly to the Court of the learned Sessions Judge, Layyah for the disposal of the case in accordance with law. H.B.T.N‑34/L Petition accepted.