2005 PLP 3244 (YLR)

RAHMAT HUSSAIN JAFFERI, J.

The present application under section 561-A, Cr.P.C. has been filed to challenge the order dated 21-6-2005 passed by the learned Civil Judge and Judicial Magistrate III, Khairpur by which the learned Magistrate directed the police to submit the challan within seven days in Crime No.5 of 2005. The said order was passed on a letter sent by S.P. (Investigation), Khairpur for cancellation of the case along with four other cases. The learned counsel for the applicant has stated that in the same crime the learned Additional Advocate-General had issued letter to the police for registration of F.I.R.; that the police on the said letter had registered another F.I.R. bearing Crime No.87, of 2005. He has further stated that the police had formed opinion that Crime No.5 of 2005 was a false case, therefore summary was submitted to the Magistrate for passing an appropriate order but the learned Magistrate disagreed with the said report and passed impugned order, which is patently illegal and without jurisdiction, therefore, he has requested that the said order may be set aside and the Magistrate may be directed to accept the summary of the police by disposing of Crime No.5 of 2005 under `C' Class. Conversely, the learned State counsel has stated that the Magistrate was within his competence to pass such order as the required material was not placed before the Magistrate as provided by law. I have given due consideration to the arguments gone through the material available on the record and perused the various provisions of Criminal Procedure Code. The police start the investigation after lodging the F.I.R. After the investigation the police have to form an opinion from the evidence collected by them as to whether the accused are involved in the case or otherwise. If the police form the opinion that the accused are innocent then the police have power to release them under section 169, Cr.P.C. If' [lie police form the opinion that the sufficient evidence is against the accused connecting them with the commission of crime then they have to forward the accused to the Magistrate empowered to take cognizance of the offence under section 170, Cr.P.C. In both the cases either releasing accused under section 169, Cr.P.C. or forwarding the accused to the Magistrate under section 170, Cr.P.C., the police are required to submit a challan within the meaning of section 173, Cr.P.C. and for that the Government have provided a pro forma. In the present case, the learned Magistrate passed the impugned order on the letter sent by S.P. (Investigation), (B Khairpur, which reads as follows:-- "OFFICE OF THE SUPER INTENDENT OF POLICE/ INVESTIGATION KHP: No. SP/INV:/R/1617/Khairpur dated 30-4-2005. To, The Honourable Civil Judge and Judicial Magistrate, Khairpur. Subject: DISPOSAL OF CASES. The following cases have been disposed off as shown against each are sent herewith for issuing necessary summary orders. S. F.I.R. with of Law Disposed No. No. section and of P. S. 1 5/2005 under P.S. A Cancelled section section `C'Class 322, P.P.C. 2. 144/2004 under sections -do- -do- 420 and 406, P.P.C. 3. 51/2005 under sections do -do- 337-F (ii) and 504, P.P.C. 4. 48/2005 under section -do- Cancelled 381-A, `B' Class P.P.C. 5. 143/2004 under section -do- Cancelled 381-A, C Class P.P.C. (Sd. ) S.P. Investigation Khairpur. " From this letter it is clear that it is not in any pro forma as provided under section 173, Cr.P.C., therefore, the Magistrate was within his jurisdiction to direct the police to submit the challan on the pro forma provided by the Government with whatever their opinion may be with regard to the involvement of the accused or otherwise and then the Magistrate is required to pass an order within the meaning of section 190 or 173, Cr.P.C. In the impugned order the learned Magistrate did not pass any other order excepting, directing the police to submit challan within seven days. The said order is legal and proper and there is no illegality or irregularity in the impugned order. As such 1 it does not require any interference. It is for the police to put the accused in whatever column they may like after examining the evidence collected by them in the appropriate columns of the challan. The above view is supported by the Honourable Supreme Court of Pakistan in the cases of Habib v. The State (1983 SCMR 370) and Muhammad Alam v. Additional Secretary to Government of N.-W.F.P. (PLD 1987 SC 103). In the case of Habib (supra) at page 373, it has been observed as under:-- "

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 a 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." Consequently, the application is dismissed along with listed-application. The interim order already passed is vacated. The police are directed to comply with the order of the Magistrate within the required period. H.B.T./M-274/K Application dismissed.