' M. BILAL KHAN, J.---The petitioner, namely, Muhammad Iqbal son of Abdul Ghafoor, by filing this constitutional petition challenges the vires of the impugned order, dated 14-9-2005 passed bythe learned Addl. Sessions Judge, Gojra whereby while allowing an application for cancellation of bail moved by Abdul Sattar son of Fazal Din, the complainant, he had ordered that the petitioner be taken into custody and committed to judicial lock-up and further directed the learned trial Court to get the challan prepared under the correct provisions of law by the concerned Investigating Officer. He also asked District Police Officer, T.T. Singh to "initiate proper action against the delinquent Investigating Officer under intimation to this Court".
2. The brief facts of the case are that the petitioner was involved in case F.I.R. No, 134, dated 8-5- 2005, registered under sections 354, 452/34, P.P.C. With Police Station Saddar Gojra at the instance of Abdul Sattar son of Fazzal Din, the complainant. The allegation was that on 10-4-2005 about 8- 30 a.m. When the daughter of the complainant Mst. Mehnaz Bibi was all alone in the house, he (petitioner) while armed with a Chhuri entered into his house and tried to commit zina-bil-jabar with her; on hue and cry raised by her the witnesses were attracted to the spot and on seeing them the petitioner and his co-accused made good their escape by scaling over the wall; during the investigation co-accused of the petitioner was held innocent whereas the present petitioner had been booked in the aforesaid case and had been challaned under sections 452, 354/34, P.P.C.; he moved post-arrest bail application before the learned Illaqa Magistrate who granted him bail vide order, dated 27-6-2005; whereafter on an application of the complainant under section 497(5), Cr.P.C., the learned Addl. Sessions Judge, Gojra, recalled the bail-granting order of the learned Illaqa Magistrate as a consequence of which the petitioner was taken into custody vide his order, dated 14-9-2005 with directions as mentioned hereinabove.
3. Pursuant to the said direction, dated 14-9-2005 an amended challan was filed in the Court of Sessions Judge, wherein apart from sections 354, 452/34, P.P.C., section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance No,VII of 1979 had also been added before the same learned Addl. Sessions Judge, who had issued the impugned direction. The said learned Judge proceeded to frame a formal charge against the petitioner on 3-2-2006.
4. Feeling aggrieved by the impugned order the petitioner moved an application for post-arrest bail bearing Criminal Miscellaneous No,7118-B of 2005 but the same had been disposed of by this Court vide order, dated 20-4-2006 with the following observation:-- "On being informed by the learned counsel for the complainant and the State that not only section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, No, VII of 1979 has been invoked but a charge thereunder has already been framed by thelearned Addl. Session Judge on 3-2-2006, the learned counsel for the petitioner submitted that he would not press this petition for the time being and would make an application for bail to the learned Court of Session in the first instance.
(2) Disposed of as having not been pressed."
' Thereafter the petitioner remained in custody and had been appearing before the learned Trial Court to face his trial. The petitioner has again approached this Court by means of this constitutional petition for setting aside the impugned order, dated 14-9-2005.
5. The learned counsel for the petitioner argued that from the bare reading of the F.I.R. No other offence except section 354, P.P.C. Was made out; that the learned Addl. Sessions Judge was not competent to issue any direction to the learned Trial Court to get the challan completed from the Investigating Officer concerned under any particular provision of law; that addition of section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance No, VII of 1979 consequent to the order of the learned Additional Sessions Judge and framing of charge thereunder was illegal and without justification and that by doing so the learned Addl. Sessions Judge had committed a jurisdictional error; that the impugned order, dated 14-9-2005 is, therefore, liable to be set aside.
6. The learned counsel for the complainant/respondent No,3 has supported the impugned order and submitted that there was no illegality or infirmity in the same; that the learned Addl. Sessions Judge had rightly accepted the application under section 497(5), Cr.P.C. And that there was nothing wrong in issuing the directions that he did.
7. On the contrary the learned Assistant Advocate-General has argued that by issuing the offending directions, the learned Addl. Sessions Judge had exceeded his jurisdiction.
8. I have heard the learned counsel for the parties and have perused the record.
9. It has straightaway been observed that the learned Addl. Sessions Judge, Gojra while dealing with an application for cancellation of bail which had been moved against the present petitioner by Abdul Sattar complainant in case F.I.R. No,134 of 2005 under sections 452, 354/34, P.P.C., registered with Police Station Saddar Gojra vide the impugned order, dated 14-9-2005, had observed that the F.I.R. Had been recorded by applying wrong provisions of law because from the very contents of the complaint submitted by Abdul Sattar, section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, No,VII of 1979 was attracted. While recalling the bail, granted to the present petitioner by the learned Judicial Magistrate, the learned Addl. Sessions Judgedirected that a copy of his order be sent to the Judicial Magistrate, "with the .Direction to get the challan completed from the concerned Investigating Officer under the correct provision of law, as well as to the A District Police Officer, T.T. Singh with the direction to initiate proper action against the delinquent Investigating Officer under intimation to this Court."
10. A plain look at the impugned order would reveal that by issuing the direction that he did, the learned Addl. Sessions Judge had transgressed his jurisdiction. It was not open to him to have directed the challan to be submitted under a particular provision of law. If he thought that the requisite penal provision had not been invoked by the police or that the investigation had not been conducted on proper lines he could have asked the Investigating Officer to reinvestigate the case and submit his report under section 173, Cr.P.C. Directing the police official to file a report under section 173, Cr.P.C. Under a particular provision of law and that too at bail stage amounted to pre- judging the case of the accused and thereby causing serious prejudice to him.
11. Another glaring impropriety discernible from the record is thatJudge ensured that the challan was submitted before him and on receipt after having issued the aforesaid direction, the learned Addl. Sessions of the same he proceeded with the trial himself. Before. The direction issued by the Addl. Sessions Judge, report initially prepared by the police under section 173, Cr.P.C. Was destined to end up with a Magistrate, inasmuch as in the said report police had invoked sections 354, 452/34, P.P.C. It was on account of the direction issued by the Addl. Sessions Judge that section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance No,VII of 1979 was invoked which offence was exclusively triable by a Court. Of Session. Resultantly the challan had been submitted before the Court of Session. The contention of the learned counsel for respondent No,3 that the constitutional petition was not maintainable for the reason that the petitioner could have agitated this grievance before the learned trial Court at the time of framing of charge, does not have any force in the peculiar backdrop of this case. As already stated, since the challan had been submitted before the very learned Addl. Sessions Judge who had ordered addition of a particular penal provision, raising of grievance before the same learned Judicial Officer would have been totally meaningless. Even otherwise itis now well-settled that where the impugned order suffers from lack of jurisdiction the insistence on availing of alternative remedy would be quite misplaced.
Keeping in view the facts and circumstances of the case I am of the considered view that the impugned order, dated 14-9-2005 to the extent of directing the police to submit challan under a particular provision of law is without jurisdiction and is, therefore, not sustainable in law.
12. Resultantly this petition is allowed and the impugned order, dated 14-9-2005 passed by the learned Addl. Sessions Judge, Gojra to the extent of aforesaid direction to the police is hereby set aside. The trial proceedings initiated on the basis of the said order are declared to F be without any legal effect and are also set aside. S.H.O., Police Station Saddar Gojra is directed to file a report under section 173, Cr.P.C. In case F.I.R. No,134, dated 8-5-2005. Uninfluenced by the impugned order passed by the learned Addl. Sessions Judge , dated 14-9-2005. If respondent No,3 feels that the petitioner had committed some aggravated offence he may, if so advised, contest the matter before the relevant forum. There will be no order as to costs.