1983 PLP 370 (SCMR)

ASLAM RIAZ HUSSAIN, J.‑This petition by Habib is directed against the order of the Lahore High Court dated 21‑4‑1982, dismissing his revision petition in a case under section 364‑A, P. P. C.

2. The facts leading to present petition are, briefly, that a case was got registered by Haq Nawaz P. W. against Habib petitioner under section 342/3, 3, P. P. C. The allegation against the petitioner was that he enticed Mst. Rizwana Kausar, 7 years old girl by offering her sweetmeats and confined her in a room. Her cries attracted the witnesses to the room who knocked at the door and made the petitioner open it. On entering the room they found that the child bad been put in a gunny bag. Habib, however, managed to escape. According to the allegation in the F. I. R. Habib had kidnapped the little girl "in order to sell her away to subject to her to slavery or to the lust of any person." Section 364‑A, P. P. C. was, therefore, added in the F. I. R. Habib and his relatives, however, protested innocence. According to the Police Haq Nawaz complainant had agreed during the investigation to settle the question of innocence or guilt of the petitioner on the oath of Muhammad Amir, the brother of the petitioner. Muhammad emir took an oath on the Holy Qur'an to the effect that Habib petitioner was innocent and the Police accordingly moved for the cancellation of the case through an application under section 169, Cr. P. C. before the learned Sessions Judge. Multan. Before that Court, however, Haq Nawaz (complainant) denied having agreed to get. the matter settled, during the investigation, on an oath by Muhammad Amir with respect to the innocence or guilt of Habib. He stated further that his signatures had been obtained on a blank paper. The learned Sessions Judge, therefore, rejected the prayer made by the Police and directed it to submit the challan after preparation of report under, section 173, Cr. P. C.

3. Feeling aggrieved Habib petitioner filed a revision before the High Court, which was dismissed vide the impugned order.

4. Hence the present petition.

5. The counsel for the petitioner submitted that the learned Session Judge had no jurisdiction under the law to interfere in the investigation of a case by Police and compelling the Investigating Officer to submit a challan which, according to the counsel, amounted to an order directing him to place the petitioner in column 3 or 4 as accused persons to be served up for trial. In support of his contention he relied on Emperor v. Khawja Nazir Ahmad (AIR l945PC18) and Shahnaz Begum v. The Hon'ble Judges of the High Court of Sind Baluchistan (PLD 1971 S C 677).

6. We notice that this contention is based on the assumption that the learned Sessions Judge had `interfered' with the investigation as he had required the Investigating Officer to submit a challan showing the, accused as guilty persons' against whom there is sufficient evidence justifying their being sent up for trial. But after reading the order in question, we are of the view that this assumption is not correct because the learned Sessions Judge had not given any such direction. Moreover the two authorities cited by the petitioner's counsel are not applicable to' the facts of the present case. In Khawaja Nazir Ahmad's case the High Court had quashed the proceedings and prohibited further investigation in exercise of its jurisdiction under section 561‑A, Cr. P. C. and it was held by the Privy Council, on appeal, that section 561‑A Cr. P. C. did not give any such power to the Court. In the case of Shahnaz Begum v. The Hon'ble Judges of the High Court of Sind & Baluchistan a learned Judge of the Sind High Court had called upon the Inspector‑General of Police to produce before him all the 'investigation papers' relating to a sensational murder case in Karachi, which was under investigation by the Police, so that he may examine whether the conduct of the investigation had been fair or partial and whether ends of justice required that further investigation be entrusted to any other officer purported exercise of its This action was taken by the High Court under the powers, under clause 22 of the Letters Patent but on an appeal by Begum who was the suspected accused in that case, this Court held that clause 22 of the Letters Patent gives no such powers to the High Court. In the present case the learned Sessions Judge, neither prohibited the inve9tiga?tion nor quashed the same in exercise of his powers under section 561‑A,Cr. P. C. Nor had he interfered with it suo motu to check whether the investigation was being conducted fairly in the purported exercise of powers under clause 22 of the Letters Patent (which are, in fact not conferred on subordinate Courts. In the present case, it is the Police itself which filed an application before the learned Sessions Judge for cancellation of the case under fiction 169, Cr. P. C. under a misconception that such an application could be t moved under the said section.

7. Section 169, Cr. P. C. occurs in Chapter XIV of the Code of Criminal Procedure which starts with section 154 and ends with section

176. It relates mainly to powers of the police to record an F. I. R. and to conduct investi?gation of the offences reported and also deals with powers regarding inquests by Magistrates into sudden or unnatural deaths. Section 154 empowers the recording of the F. I. R. when a cognizable offence is reported to an officer incharge of a Police Station. The power to investigate the offence so reported starts thereafter and ends with section 173, which requires the submission of a final report about the result of the investigation. Sections 174, 175 and 176 relate to inquest into cases of suicide; unnatural or accidental deaths and death of a person while in custody. A reading of sections 154 to 173, Cr. P. C. would show that after recording an F.

1. R. the Police is empowered by section 1 56 to investigate into a cognizable offence .reported to it under section 154, Cr. P. C. without the permission of a Magistrate. Section 160 empowers the Investigating Officer to require the attendance of witnesses, while section 161, Cr. P. C. empowers him to record their statements in order to ascertain the truth. Section 164 relates to recording of judicial confessions by Magistrates during the course of investigation, while sections 165 and 165 relate to searches made by the Police during investigation of an offence. Section 167 provides for remand of an accused person when investigation cannot be completed within the period of 24 hours prescribed by section 61 Cr. P. C. The steps to be taken by the Investigating Officer on the comple?tion of the investigation are given in sections 169, 170 and 173, which have to be read together in order to understand their true meaning. The steps prescribed are briefly, as follows :‑ "If, on the completion of the investigation, the Investigating Officer forms the opinion that sufficient evidence to justify forwarding the accused to Magistrate (for trial) is not forthcoming then, as provided under section 169, Cr. P. C. if the accused is in custody he shall release him on his executing a bond with or without sureties, and direct him to appear, whenever required, before a Magistrate empowered to take cognizance of the offence on a police report."

8. If, on the other hand, the Investigating Officer comes to the conclusion that there is sufficient evidence to send up the accused for trial, he is required under section 170, Cr. P. C. to forward him, under custody, to a Magistrate empowered to take cognizance upon a report under section 173, Cr. P. C. and to try the accused himself or to send him for trial to the Court of Session. Where, however, an offence made out is a bailable one, he shall take surety from the accused to appear before such Magistrate whenever so required by him. He is also required by subsection (2) of section 170 to send to the Magistrate any weapon or other article relevant to the case and to require the complainant and the witnesses to execute bonds to appear before the Magistrate for giving evidence at the trial on the completion of the investiga?tion. Whether he proceeds ‑ under section 169 or under section 170, the investigating officer is required by section 173, Cr. P. C. to submit a report (known as the `final report') to the Magistrate having the required power in 'the form prescribed by the Provincial Government," giving his conclusions in either case i.e. whether be has formed the view mentioned in section 169 that there is no sufficient evidence against the accused or has come to the conclusion mentioned in section 170 as to the guilt of the accused persons. In the later case, he is also required to mention therein, inter alia, the names of the parties, nature of information and the names of the witnesses. Sub?section (3) of section 173, Cr. P. C. provides that :‑ "Whenever it appears from a report submitted under this section that the accused had been released on his bond, a Magistrate shall immedi?ately pass an order discharging of such bond, or otherwise as he thinks fit." The subsection prescribes the course that a Magistrate may adopt when a report under section 173, Cr. P. C. is received by him. When the report shows that the case is covered by section 169, Cr. P. C. i.e. the Investigating Officer has not found sufficient evidence against the accused person and if in custody he has been released on his own bond, the Magistrate may either (i) accept the report relating to the lack of evidence and discharge the bond executed by the accused or (ii) act "otherwise as he thinks fit," that is, he may disagree with the police as to lack of evidence against the accused and, notwithstanding the view of the Investigating Officer, summon the accused to be put on trial. In this behalf reference may be made to Falak Sher and another v. The State (P L D 1967 S C 425) and Muhammad Arif v. The State (1970 S C M R 178). It may be mentioned here that it is in the exercise .of the power under this subsection, permitting him to act "otherwise as he thinks fit," that a Magistrate is also empowered on an application by the Investigating Officer to pass an order `cancelling' a case in which sufficient evidence is not forthcoming against an accused person. If, however, a report under section 173, Cr. P. C. shows that the Police Officer has taken action under section 170, Cr. P. C. and has forwarded the accused under custody for trial, the Magistrate shall proceed to take cognizance under section 190(1)(6), Cr. P. C. or send up the case for trial under sec?tion 190(3), Cr. P. C.

9. The crux of the above‑noted provisions, i.e. sections 169, 170 and 173, is that whatever course the Investigating Officer adopts i.e. whether he acts under section 169 or under 170, Cr. P. C. it is incumbent upon him to submit a `final report" under section 173, Cr. P. C. with regard to the result of his investigation to a competent Magistrate and the said Magistrate shall, thereupon, take such action as he may consider proper under subsection (3) of section 173, Cr. P. C. or under section 190, Cr. P. C. as the case may be. It will be noticed that in the present case, instead of preparing and submitting the `final report' under section 173, Cr. P. C. the Investigating Officer, under misconception as to the true meaning of section 169, Cr. P. C. and the Magistrate's power thereunder submitted an application for cancellation of the case under the said section which of course was not competent. The learned trial Court, therefore, did not accede to the request of the Investigating Officer and directed him to do what he was required to do under law, namely, to submit the final report under section 173, Cr. P. C.

10. As already mentioned these are required to be submitted in the proper Form. These forms have been prescribed under rule 25.56(1) and 25.57(2). The form under rule 25.56(1), is required to be filed, initially, along?with an application for remand of the accused under section 167, Cr. P. C. when investigation cannot be completed within the period of 24 hours as prescribed by section 61, Cr. P. C. It is known as an incomplete 'charge? sheet' and when the final report under section 173, Cr. P. C. is ultimately submitted by the Investigating Officer in cases where he is of the view that there is sufficient evidence to send the accused for trial, rule 27.1 of the Police Rules provides that the aforementioned 'incomplete charge‑sheet' under rule 25.5((1) when however, the police is unable to find sufficient evidence against the accused and proceeds under section 169, Cr. P. C. the Form of the final report to be submitted under section 173, Cr. P. C. is prescribed under rule 25.57(2). ‑ It is use of the word challan in the impugned order which appears to have caused an apprehension in the mind of the learned counsel but as already observed we are of the view that the learned Court passing the order in question did not require the investigating Officer to do anything more than submitting a 'final report' after completing the investiga?tion, as required by law.

11. For the foregoing reasons we find no force in the petition which is consequently dismissed. Petition dismissed.