2006 P Cr (PLP)

MUHAMMAD SADIQ LEGHARI, J.

The facts leading to this order are that Muhammad Rafique lodged F.I.R. at Kala Kot Police Station on 29-4-2004 for offence under sections 420/468/471/34, P.P.C. After the investigation an interim charge-sheet was submitted by the Investigating Officer under section 173, Cr.P.C. The XIVth Judicial Magistrate, Karachi South agreed with the report and took cognizance of the offence. The final report about the investigation was submitted on 21-8-2004 by another Police Officer of the same investigation wing of Kala Kot Police Station mentioning therein that the evidence on prosecution side discloses the commission of offence under section 467, P.P.C. also. The Judicial Magistrate accepted that report. He then passed order, dated 31-8-2004 that the case be sent to the learned Sessions Judge, Karachi South as the offence under section 467, P.P.C. was exclusively triable by him. By same order he also issued notice to the accused as to why their bail should not be cancelled. On the same date i.e. 31-8-2004 the same Judicial Magistrate passed another order, the concluding part whereof read as under:-- "I have perused the R&P and the argument, since the sanction and comments of not available hence the reference to the Court of Session is hereby withheld and the Investigating Officer is directed to submit copies of the comment of P. D. S. P. , report under section 168, Cr.P.C. and the approval of S.S.P. Investigation for prosecution under section 467, P.P.C. at early so that the reference may be sent to the Court of Session, and the offence punishable under section 467, P.P.C. is exclusively triable by the Court of Session." The orders of the learned Magistrate were assailed by the accused through revision before the learned Sessions Judge, Karachi South. The revision was assigned to the learned Vllth Additional District and Sessions Judge who heard and decided it by order, dated 27-1-2005. By that order the learned Additional District and Sessions Judge set aside the subsequent order passed by the Judicial Magistrate on 31-8-2004 maintaining the earlier one. The orders of the two Courts below have been impugned through present application under section 561-A, Cr.P.C. The applicants' learned counsel has contended: (i) That the Judicial Magistrate had agreed with the earlier report submitted by the Investigating Officer under section 173, Cr.P.C. and taken cognizance of the offence therefore, it was not open for him to entertain the subsequent report and pass yet another order for sending the case to the learned Sessions Judge. (ii) That even otherwise the subsequent report under section 173, Cr.P.C. was bad for the reason that it was based on no further or additional evidence. (iii) That the investigation after the submission of the earlier report was in violation of the Article 18(6) of Police Order, 2002. According to him the transfer of investigation can be made only by a three members board of the Officer not below the rank of Superintendent of Police including the incharge of investigation of the concerned District and in the present cause no direction was given by any such board, therefore, the further investigation was bad under the law. (iv) The offence under section 467, P.P.C. is non-cognizable therefore, the. Police Officer could not investigate it without an express order from the concerned Judicial Magistrate under section 175, Cr.P.C. (v) That the case could not be sent by the Magistrate to the Sessions Judge under section 147, Cr.P.C. without recording the evidence in trial. In support of his contentions the learned Advocate had referred to a decision of Lahore High Court in case of Muhammad Tasneem v. S.H.O. Police Station Thikriwala District Faisalabad reported in 1997 MLD 1555 and pronouncement of Honourable Supreme Court in case of Muhammad Alam and others v. State reported in PLD 1967 SC

259. Mr. Khalid Mehmood Siddiqui, Advocate appearing for the State has contended that the first order passed by the learned Judicial Magistrate on 31-8-2004 was legal and the subsequent one was bad in law and had rightly been set aside by the Additional District and Sessions Judge in exercise of revisional jurisdiction. According to him present application is without merit and the order does not call for interference in exercise of powers under section 561-A, Cr.P.C. It is an admitted fact that after lodging of the F.I.R. by Muhammad Rafique, the investigation was conducted and the interim report submitted by the Investigating Officer. It is also an accepted fact that the learned Judicial Magistrate agreed with the conclusion arrived at by the Investigating Officer and accepted his report. He also took cognizance of the offence. After submission of the interim report the final report was yet to come, proviso to clause (b) of subsection (1) of section 173, Cr.P.C. provided for it. If the final report was submitted beyond the period provided by the proviso it cannot be treated as void. Also after acceptance of the final report of the Magistrate the investigation of non-cognizable offence cannot be treated as void. Moreover, this was not the case where the investigation was. conducted in respect of the commission of only non-cognizable offence, here the same is alleged to have been committed along with the cognizable offences, during same transaction. The submission of final report is also not violative of Police Order, as present case is not the case of transfer or change of investigation by police authorities under the said Order. The investigation remained with the same section. If the remaining part of the investigation was completed and final report submitted by another officer that by itself does not make it illegal. The case-law referred to by applicant's learned counsel is not helpful to him in the circumstances of the present case. The pronouncement by the Lahore High Court approves the submission of final report after taking of the cognizance of the offence by the Court on the basis of interim/incomplete report submitted under section 173, Cr.P.C. The verdict of the Honourable Supreme Court deals with the question of cognizance and not the question involved in present case. As regards section 347, Cr.P.C. that also does not require the Magistrate to send the case after recording the evidence during trial. It on the contrary, empowers him to send the case to the Sessions Court at .any stage of the proceedings. In view of the above the order impugned through present application does not call for interference. Consequently; the application is dismissed. H.B.T./A-63/K??????????????????????????????????????????????????????????????????????? Application dismissed.