' IJAZ-UL-HASSAN KHAN, J.--- The above captioned petitions for leave to appeal, proceed against a common judgment, dated 28-4-2008 and order, dated 22-7-2008 passed by learned Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby Writ Petitions Nos.55 and 179 of 2008 and Criminal Miscellaneous No,604/B of 2008 filed for quashment of F.I.Rs, and for grant of bail to petitioner Muhammad Aslam (Amir Aslam), have been dismissed.
2. The facts as gathered from the record are, that the petitioners invoked constitutional jurisdiction of learned High Court by way of filing above mentioned petitions for quashment of F.I.Rs, Nos.951 and 952 dated 9-12-2007 registered at Police Station Civil Lines, Rawalpindi under section 9(c) of the Control of Narcotic Substances Act, 1997, averring that house of the petitioners was raided on the night of 28th of May, 2005 by Civil Lines Rawalpindi Police and besides violating the privacy of the house, petitioner Muhammad Aslam were mercilessly beaten as a result of which his right leg was fractured. Against such criminal misdeeds, Writ Petition No,1508 of 2005 was filed before learned Lahore High Court, Rawalpindi Bench, for registration of a criminal case against respondent police officials which was disposed of with the direction to approach the Court of Session in the first instance. Sequel to petition under section 22-A of the Code of Criminal Procedure, learned Additional Sessions Judge, Rawalpindi, vide order, dated 28-6-2005 referred the matter to District Police Officer, Rawalpindi, for proceedings in accordance with law in the light of submissions made in the said petition. However, since nothing came out, therefrom, the petitioners were constrained to file Writ Petition No,3293/Q of 2005 which was admitted to regular hearing and is pending adjudication. Petitioners also averred that in furtherance to nefarious designs, petitioner Muhammad Aslam was arrested by S.-I. Muhammad Ramzan &Police Station, Civil Lines, Rawalpindi and subjected to torture on the night between 8th and 9th of December, 2007 and thereafter lodged the mentioned F.I.Rs, against petitioners Muhammad Asiam and Muhammad lmran, alleging that they were riding on a motorcycle and when stopped at Marrir Hassan bus stop, Rawalpindi the motorcycle slipped as a result of which petitioner Muhammad .Aslam was hauled up while Muhammad Imran succeeded to make good his escape. A shopping bag containing "Charas" weighing 1150 'grams was recovered from the possession of petitioner Muhammad Aslam whereas Mohammad Imran while running threw a shopping bag containing 1111 grams of "Charas" wrapped in a plasm paper. Petitioner Muhammad Aslam applied for bail to learned Additional Sessions. Judge, Rawalpindi, which was dismissed vide order, dated 29-5-2008.
3. The above referred writ petitions for quashment and criminal miscellaneous for grant of bail were dismissed by learned High Court vide impugned judgment and order, giving rise to the 'filing of instant petitions.
4. We have heard Sardar Muhammad Latif Khan Khosa, Advocate for the petitioners and Ch. Munir Sadiq, Deputy Prosecutor-General for the State. We have also examined the record with their assistance.
5. Learned counsel for the petitioners bitterly criticized the impugned judgment and order and contended that petitioners had no hand in the affair and they have been falsely implicated in the case and made victim of excesses on account of refusal of Mst. Anwar Sultana, sister of the petitioners, to withdraw the case against officials of Civil Lines Police Station, Rawalpindi, registered pursuant to the orders of learned Sessions Judge, Rawalpindi. Learned counsel also submitted that material on record has not been appreciated in its true perspective and provisions of sections 173 and 344, Cr.P.C. Had been flagrantly violated in this case. Concluding the arguments, learned counsel contended that in view of facts and circumstances of the case, learned High Court had no justification to decline to grant bail to Muhammad. Aslam petitioner, quash F.I.Rs, in question and dismiss the writ petitions in limine. To supplement the contentions, reliance was placed on Government of Sindh through the Chief Secretary, Karachi and 4 others v. Raeesa Farooq and 5 others 1994 SCMR 1283, Maqbool Rehman v. The State 2002 SCMR 1076 and The State v. Amjad Ali PLD 2007 SC 85.
6. Conversely, learned Deputy Prosecutor-General, defended the impugned judgment and order maintaining that the course of action adopted by learned High Court was neither illegal nor arbitrary or opposed to the settled principles of law of safe dispensation of justice and that the High Court was perfectly justified in dismissing the writ petitions and refusing to quash the proceedings pending against the petitioners.
7. The Courts have to safeguard the fundamental rights of every citizen and to protect the life and liberty from illegal, unauthorized and mala fide acts of omission or commission by an authority or person. In cases where the liberty of a citizen was involved, the action initiated by the police when found to be mala fide the Court should not hesitate to step in and grant relief to the citizens.
8. In this case we find that petitioner Muhammad Aslam is in jail ever since his arrest on 9-12-2007.
Sub-inspector Nazir Ahmed, on Courts' query stated that all the witnesses except the Investigating Officer, had been examined and the trial is likely to conclude in near future. However, on verification it transpired that not a single witness has been examined and the trial is being delayed on one pretext or the other. When attention of the Sub-Inspector was drawn to this aspect of the case, he had no plausible reply to make. Record reveals that pursuant to Court order a Medical Board was constituted to examine petitioner Muhammad Aslam. The Board noted a number of multiple injuries on the person of the petitioner. One of the legs of the petitioner was also found fractured.
This shows the atrocities committed by the police. We also find that in the initial report of the Chemical Examiner, traces of "Charas" were not found and the Chemical Examiner asked for further B sample. It was held by this Court in The State v. Amjad Ali PLD 2007 SC 85 that "once a substance had been tested them extraordinary reasons must exist and must be given before directing fresh examination of such a substance". We also find force in the submission of learned petitioner's counsel that formalities of sections173 and 344, Cr.P.C. Had not been complied with and challan against the petitioner has not been submitted within the stipulated period, resulting in grave miscarriage of justice.
9. In the case of Hakim Mumtaz Ahmed and another v. The State PLD 2002 SC 590 following observations were made by this Court:-- "(8) It is not only this case in which it has been noticed that the Investigating Agency as well as District Attorneys have failed to submit challan of the case registered against accused within the stipulated period but in majority of the cases the police report/challan under section 173, Cr.P.C. Is not filed despite expiry of stipulated period due to which accused persons involved in criminal case remain languishing in custody without trial and ultimately for such reason accused claim bail despite their detention in the offences which are heinous in nature because denial of bail to an accused in non-bailable offence under the circumstances would be against the principle of administration of justice.
' Admittedly, for such delay no one else except the police and the office of the District Attorney can be held responsible for not submitting the challan. Surprisingly, in the instant case, the representatives of both the agencies i,e, the then Superintendent of Police, Mandi Bahauddin and the District Attorney instead of accepting their fault found their rescue for not complying with the mandatory provisions of law under section 173, Cr.P.C. Started blaming each other but ultimately failed to furnish satisfactory explanation for not complying the process of submission of challan within stipulated period of 14 days. Factually both the agencies are equally responsible for not complying with the provisions of law because as far as Superintendent of Police is concerned he is not only a figure head of the District Police but it is his one of the duty to adopt effective devices to ensure that criminal cases registered by the Police within his jurisdiction are processed strictly in accordance with law and if it is not possible to submit final challan then he should ensure submission of at least interim challan in terms of proviso to section 173(1), Cr.P.C. And if the S.H.Os.
Or Investigating Officers are found negligent in not complying with the mandatory provisions of law, he should initiate action against them promptly and if he himself is contributory in this behalf for any reason then action could also be initiated against him departmentally as well as by the Courts for causing delay in the- trial of cases and detaining accused person in custody without trial contrary to the provision of Article 9 of the Constitution of Islamic Republic of Pakistan because this Article provides that no person shall be deprived of his life for liberty save in accordance with law. Therefore, if an accused is arrested in a cognizable offence by the police or law-enforcing agencies, it is his right to be dealt with save in accordance with law i,e, a justification has to be shown for his detention in custody because on the arrest of an accused initially he can be detained without permission of the Court for a period of 24 hours under section 61, Cr.P.C. And if during this period investigation of the case is not completed and the police has reasons to believe that the accusation or information is well-founded then he shall be produced before the Magistrate who after having satisfied himself about progress of the case may authorize detention of such person in police custody for a period not exceeding 15 days as a whole under section 167, Cr.P.C. On completion of maximum period of police remand the accused becomes entitled for trial and every Investigating Officer is duty bound to complete interrogation of the accused within stipulated period and no unnecessary delay is tolerable in this behalf because after completion of investigation, challan is to be submitted before the Court' of competent jurisdiction through the Public Prosecutor. As per section 344, Cr.P.C. It is the duty of the Police Officer to furnish justification for detention of accused in custody if challan under section 173, Cr.P.C. Has not been filed and trial has not commenced, otherwise in absence of report of a police officer of challan, detention of the accused would be unjustified and against the provisions of law.
(9) Delay in submission of challan/police report under section 173, Cr.P.C. Has been noticed invariably in the criminal cases, despite the fact that section 173 of the Code of Criminal Procedure has been amended by Act XXV of 1992 whereby a facility has been extended to the Investigating Agency for submitting interim report the period of 3 days from the completion of period of 14 days of the police remand but instead of deriving benefit from this provision of law, the Police Authorities including S.H.Os. And high-ups up to the rank of Senior Superintendent of Police never bothered to comply with this mandatory provision of law.
(10) Undoubtedly section 173, Cr.P.C. Was amended vide Act XXV of 1992 with a view to improve performance of the Police Department and simultaneously to stop the police from adopting protracted investigation process for one or the other pretext but the police authorities had in fact rendered the provisions of section 173, Cr.P.C. Ineffective by not following its spirit. In this behalf it is to be noted that unconvincing delaying tactics are adopted by the concerned investigating officers as it has exactly happened in the instant case because the then Superintendent of Police Mandi Bahauddin who is supposed to be incharge of criminal cases as per rule 5.1, Chapter 5 of the Punjab Law Department Manual, 1938 failed to furnish reasons for not submitting the challan before the Court through Public Prosecutor as per the provisions of section 173, Cr.P.C. Similarly Public Prosecutor who is also the Incharge of District Prosecution Agency in terms of rule 5-A.2, Chapter 5- A of the Punjab Law Department Manual, 1934 could not satisfy the Court for not submitting the challan/police report final or interim within the stipulated time.
(11) It may be noted that in the case of Mazhar Hussain v. Ishtiaq Hussain and another (PLD 1990 Lahore 249) it has been held that primarily it will be the function of the District Prosecution Agency to finally scrutinize the charge-sheet or report under section 173, Cr.P.C. Of a case and on receipt of report from the police submit the same before the Court concerned. On having seen the conduct of the Investigating Agency and District Prosecution Agency we are of the opinion that in absence of good working relations between both the agencies it is not possible to strictly adhere to the provisions of section 173, Cr.P.C. But on account of non-cooperation between both the agencies no one has suffered except the accused/petitioner who remained in detention without trial for a considerable period as it has been noted hereinabove. In this regard, the Court which had been granting judicial remand of the petitioner in terms of section 344, Cr.P.C. Would also equally responsible for the delay in commencement of trial case because if it had insisted hard upon police to comply with the provisions of section 173, Cr.P.C. Or to face consequence for keeping the accused in custody there was no reason that concerned-S.H.O./Investigating Officer had not put up challan against the accused. It is a general practice that we do point out weaknesses in the system but don't bother to discharge the duty cast upon the functionaries seized with the matter.
We are sure that if the provisions of section 173, Cr.P.C. Are complied with in letter and spirit the delay in submission of challan and completion of trial in criminal cases can conveniently be controlled.
(12) We may observe here that on completion of period of police, remand under section 167, Cr.P.C.
If final or interim report has not been submitted the Magistrate before whom accused has been produced for remand can insist upon the prosecution by passing order in writing to comply with the provisions of section 173(1), Cr.P.C. Or record reasons for remanding the accused to judicial custody for want of challan in terms of section 344, Cr.P.C. And simultaneously direct initiation of departmental proceedings against police officer responsible for submission of challan for not complying with mandatory provision of law and proving thereby himself/themselves to be inefficient police officers, the positive result shall start coming forward. Similarly in the instant case the Magistrate as well as Additional Sessions Judge, who had been granting police or judicial remand without insisting upon the S.H.O./Investigation Officer to submit challan against him was not put-up but when request for grant of bail was repeated he granted bail to the accused instead of initiating stern action against S.H.O./ Investigating Officer as well as Superintendent of Police for not submitting the challan is also responsible for unjustified detention of the accused.
10. In the facts and circumstances of the case, we feel that continuation of the proceedings would be a futile exercise and wastage of time. In view of the material on file no offence has been made out and the charge on the face of it appears to be groundless and there is no possibility of conviction. In law, nothing warrants for the argument that since charge has been framed by the trial Court, the proceedings could not be buried by way of 'quashment. There is no invariable rule of law and it was dependent on the facts of each case whether to allow the G proceedings to continue or to nip in the bud. In our opinion, a case of interference by this Court is made out.
Consequently, we. Convert Civil Petitions Nos.652 and 653 of 2008 into appeals, and allow the same, setting aside the impugned judgment dated 28-4-2008 of learned High Court. Resultantly, F.I.Rs, Nos.952 and 953 dated 9-12-2007 registered at Police Station Civil Lines; Rawalpindi, are quashed. Jail Authorities are directed to release Muhammad Aslam, petitioner, forthwith, if not required in any other case.
11. In view of the above, learned counsel for the petitioners does not press Criminal Petition No,270 of 2008 for grant of bail to petitioner Amir Aslam. The same is dismissed as not pressed.
12. Above are the detailed reasons of our short order dated 21-8-2008.
F.I.Rs, quashed.