2001 M L D 1330

[Lahore]

Before Asif Saeed Khan Khosa, J

AHMAD NAWAZ and another---Petitioners

versus

THE STATE and another---Respondents

Criminal Miscellaneous No.41/Q of 2000, heard on 16th

January, 2001

Criminal Procedure Code (V of 1898)---

----Ss.157, 169 & 173---Penal Code (XLV of 1860), S.

302/34---Discharge of accused who was found to be
innocent---Police, after investigation, found the accused
innocent and sought discharge of the accused of their
bonds-Illaqa Magistrate disagreed with the discharge report
of police and directed Investigating Officer to submit a
challan before the Trial Court ---Validity--Illaqa
Magistrate, while disagreeing with the discharge report had
travelled beyond his jurisdiction in directing the police to
submit chal9an against the accused---Investigation of a
criminal case and resultant arrival by the police at
conclusions regarding guilt or innocence of an accused lay
within the domain and prerogative of the police over which
no other authority had any control---All that the Magistrate
could have insisted upon in the case, was that the
Investigating Officer should submit a report under S.173,
Cr.P.C. incorporating the final opinion of the police based
upon the evidence collected by it during the investigation
---Challan was neither a substitute for nor synonymous
with a report under S.173, Cr.P.C. and same was to be
submitted by the police only where some accused person
was recommended to be tried whereas if accused was no
recommended to be tried in a criminal case then only a
report under S.173, Cr.P.C. was to be submitted without
any challan accompanying therewith.

Ch. Pervez Aftab and Mehr Zauq Sipra for Petitioners.

Altaf Ibrahim Qureshi for the Complainant.

Abdul Hameed Khokhar for the State.

Date of hearing: 16th January, 2001.

JUDGMENT

The necessary facts giving rise to the present petition are

that the petitioners are accused persons in case F.I.R. No.65
registered at Police Station Sadar, Kabirwala, District
Khanewal on 7-3-2000 for an offence under sections
302/34, P.P.C. A number of investigations were conducted
by the police in this case and ultimately the Station House
Officer of Police Station, Sadar, Kabirwala submitted a
report before the Ilaqa Magistrate, i.e. Magistrate Section
30, Kabirwala seeking discharge of the petitioners of their
bonds as, according to the Station House Officer, the
petitioners had been found to be innocent. Through a
detailed order passed by the Ilaqa Magistrate the discharge
report was not agreed with by the Magistrate and the
Investigating Officer was directed to submit a challan
before the trial Court as early as possible. That order passed
by the Ilaqa Magistrate on 17-4-2000 has been assailed
before this Court through the present petition.
2. During the hearing of this petition a consensus has
emerged between the parties to the effect that the refusal of
the Ilaqa Magistrate to agree with the discharge of the
petitioners may not be interfered with by this Court but the
direction issued by the Magistrate to the Investigating
Officer to submit a challan before the trial Court may be
excised from the impugned order.

3. After hearing the learned counsel for the parties and

going through the record it has been noticed that detailed
and elaborate reasons had been given by the Ilaqa
Magistrate for disagreeing with the discharge report
submitted by the Station House Officer of Police Station
Sadar, Kabirwala and this Court is in no position to
substitute its own opinion for that of Magistrate in that
regard. It has, however, been felt by this Court that while
disagreeing with the discharge report the Ilaqa Magistrate
had travelled beyond his jurisdiction in directing the police
to submit a challan against the petitioners. The word '
Challan' does not figure anywhere in the Code of Criminal
Procedure whereas the same finds a mention in the Police
Rules. Investigation of a criminal case and resultant arrival
by the police at conclusions regarding guilt or innocence of
an accused person lie within the domain and prerogative of
the police over which no other authority has any control.
All that the Magistrate could have insisted upon in this case
was that the Investigating Officer should submit a report
under section 173, Cr.P.C. incorporating the final opinion
of the police based upon the evidence collected by it during
the investigation. A chalan is not a substitute for or
synonymous with a report under section 173, Cr.P.C. A
challan is to be submitted by the police only where some
accused person is recommended to be tried whereas if no
accused person is recommended to be tried in a criminal
case then only a report under section 173, Cr.P.C. is to be
submitted without any challan accompanying therewith. It
goes without saying that in an appropriate case a Court can
take cognizance of a case and summon an accused person
to face a trial even if the police has not recommended for
his trial in its report under section 173, Cr.P.C. In the
present case unfortunately the Ilaqa Magistrate had a
blurred understanding vis-a-vis the distinction between a
report under section 173, Cr.P.C. and a challan. In this view
of the matter the direction issued by the Magistrate Section
30, Kabirwala on 17-4-2000 regarding submission of a
challan before the trial Court is hereby excised from the
said order. It shall be open to the Investigating Officer to
record his own opinion regarding guilt or innocence of the
petitioners is his report under section 173, Cr.P.C. and if
the final opinion of the Investigating Officer is that the
petitioners are guilty then he shall also submit a challan in
that regard. With these observations and excising of the
abovementioned direction issued by the Magistrate Section
30, Kabirwala this petition is hereby disposed of.

H.B.T./A-213/L Order
accordingly.