Quashment of the order dated 24.5.2007 has been sought on the ground that after completion of enquiry u/S. 156 (3) Cr.P.C. FIR No,259 dated 26.4.2007 registered at PS Paharipura Peshawar, the investigation completed and the challan was submitted on 3.5.2007, whereas the impugned order was passed on 4.5.2007 i,e, after the challan was put into the Court.
2. Mr. Afridi Khan, Advocate the learned counsel for the petitioner argued that the justice of peace has no lawful authority for passing the order for adding or deleting any Section of law after the challan is put into the Court. The second limb of his arguments was that even if the matter was under investigation, the trial Court could exercise its power after the challan was submitted in the Court then a proper charge under the relevant Section of Law was to be framed. Reliance in this regard was placed on 2005 YLR 3127 and PLD 2005 Lahore 470.
3. On the other hand Barrister Mr. Adnan Saboor Rohaila representing Respondent No 3 and Mr. Ryas Ahmad Qureshi, Advocate the learned counsel representing the State vehemently opposed the application. Their precise argument was that the challan was only completed on 3.5.2007 and the same has not yet been submitted to the Court, therefore, the first argument of the learned counsel for the petitioner was not available to him. So far as second limb of the argument is concerned, it was contended that as peg provisions of Section 20-A(6) (iii) the justice of peace had been given powers to pass proper order, if there was an neglect, failure or excess committed by the police authorities in relation to his functions and duties and since proper Sections of law has not been incorporated in the FIR, he has properly exercised his powers.
4. The admitted position in this case is that the challan of the case was not put in Court on 3.5.2007.
The impugned order was passed on 4.5.2007. Perusal of Clause (iii) of sub-section (6) of Section 22-A shows that it puts no embargo for passing such an order during the investigation, if any neglect, failure or excess committed by the police authority in relation to its functions and duties is brought to the notice of Court and proper direction to eradicate the failure of the police officials is sought. There is no cavil with this proposition, that the trial Court taking cognizance after the challan is put in Court u/S. 173 Cr.P.0can take cognizance of any offence disclosed by the material available on the record of the investigation even if a police had not applied the relevant penal provisions. The charge can also be framed in respect of an offence disclosed by the record. If any Section is omitted from the charge, the Court has the powers to rectify its mistake.
In the case in hand while exercising his powers u/S. 22-A (6) (iii), the justice of peace has not committed any illegality. The impugned order, therefore, cannot be quashed. Resultantly the petition in hand is, dismissed.