P L D 1997 Supreme Court 339 (PLP)

MUKHTAR AHMED JUNEJO, J.

Leave to appeal is sought against a judgment dated 15-10-1996 delivered by Lahore High Court in Writ Petition No.2057/95. Writ petitioners Mansha and others were mentioned as accused in F.I.R. No.292 lodged on 27-10-1994 at Police Station Bahlak by respondent No.5 Ghulam Qadir. The F.I.R. relates to murder of Noor Muhammad and Ahmad on 27-10-1994 at "Degarwella". Petitioners Zahid Iqbal, Mohabbat and Dost Muhammad fired in vain at Noor Muhammad. Effective shots were fired at Noor Muhammad by Akram and petitioner Muhammad Amin. Noor Muhammad received the shots and injuries to which he succumbed. Ahmad tried to conceal himself under cover of bushes, but he was fired at, by petitioners Mansha, Aslam, Sakhi Muhammad, alongwith Qudrat, Nawaz and Murtaza. Ahmad received the injuries as a result of which he died. The incident was witnessed by respondent 5 Ghulam Qadir, Dost Muhammad and Sakhawat. After registration of the case on F.I.R. of Ghulam Qadir, police took over the investigation and arrested the accused persons, who were remanded to police custody and then to jail custody and were ultimately required to be produced in the Court on 27-12-1994. Under a remand order dated 14-12-1994, a Magistrate remanded the arrested accused to custody till 27-12-1994. . However, on 15-12-1994 the S.H.O. submitted a statement before the Magistrate that the accused in custody were found innocent. The statement of the S.H.O. was bearing endorsement of the D.S.P. Consequently, on 15-12-1994, the Illaqa Magistrate discharged the accused after going through Zimni No.26 dated 10-12-1994 prepared by S.I.P. Aggrieved by aforesaid order, respondent No.5 Ghulam Qadir through his Writ Petition No.2057/95 in the Lahore High Court, prayed that the order dated 15-12-1994 passed by the Illaqa Magistrate discharging the accused be declared as of no legal effect and the D.I.G., Faisalabad be directed to get the investigation in the case conducted by some independent police agency. Said petition was accepted by the High Court under the impugned judgment, operative part of which reads as below: "For what has been stated above, the writ petition is accepted and the order dated 15-12-1994 passed by Illaqa Magistrate is declared to have been passed without lawful authority and of no legal effect. The case is remitted to the Magistrate, who shall pass appropriate order keeping in view the fact that the investigation was abruptly taken back from Saif Ullah Waraich, D.S.P. Headquarters and the discharge report was submitted on the same day while the case was fixed before him for further proceedings on 28-12-1994." Hence this petition for leave to appeal. Mr. M. Anwar Sipra, learned counsel for the petitioners argued that the High Court had no writ jurisdiction to interfere with the police investigation, that while acting under section 173 of Cr.P.C. the Magistrate cannot substitute his own finding for finding of police and that the alleged mala fide had not been substantiated: Section 173 of Cr.P.C. enjoins upon investigating police to forward to the Magistrate a report setting forth the names of the parties, nature of the information and names of the witnesses, when the Magistrate is desired to take cognizance of an offence. Section 173 of Cr.P.C. read with section 169 of Cr.P.C. authorises incharge of a police station to release an accused with or without bonds where there is no sufficient evidence or reasonable ground. of suspicion to justify challaning of the accused to a Court. In such circumstances the Magistrate shall make such order for the discharge of bond of the accused as he thinks fit. These provisions have been interpreted in some of the cases decided by this Court. It may be mentioned here that a Magistrate is not helpless on receiving the report from police under section 173 of Cr.P.C. read with section 169 of Cr.P.C. In the case of Falak Sher and another v. The State PLD 1907 Supreme Court 425 it was held that a Magistrate is not bound by the report submitted by the police under section 173 of Cr.P.C. and he may take congnizance of case of accused shown in column 2 of the police report as innocent. In the case of Habib v. The State 1983 SCMR 370 it was held that whatever course the Investigating Officer adopts by acting under section 169 or under section 170 of Cr.P.C., it is incumbent upon him to submit a 'final report' under section 173 of Cr.P.C., with regard to result of his investigation to a competent Magistrate. In said case police submitted an application for cancellation of case under section 169 of Cr.P.C., and this was held to be not competent. In the present case the High Court was within its Constitutional jurisdiction to declare the order dated 15-12-1994 to be without lawful authority and of no legal effect. Besides, what the High Court has done is, to remit the case to the Magistrate for passing appropriate order in the circumstances of the case where investigation was not allowed to be carried on independently. No exception can be taken to the impugned judgment. For the foregoing reasons, this petition stands dismissed. A.A./M-3353/S Petition dismissed.