' LIAQAT ALI SHAH, J.---On 25-3-2009 a case was registered at the instance of the petitioner against respondents, Muhammad Sareer and Muhammad Akram under sections 324/337-F(v)/427/34, P.P.C. Vide F.I.R. No,262 dated 25-3-2009 in Police Station Tangi.
2. According to the F.I.R. The petitioner/complainant along with Sher Zaman son of Hakim Khan was proceeding in Motor Car No,U-8925-Peshawar to Bajawar Killay and when reached the spot there accused-respondents and the two unknown accused alighted from a white colour Toyota Motor Car. All the four were armed with fire arms and started firing at the petitioner- complainant, as a result of which he sustained injury on his right hand. The accused decamped from the spot.
3. The case was investigated and after completion of investigation the S.H.O. Placed the names of accused respondents in column No,2.
4. Through the instant petition the petitioner has prayed that direction may be issued for placing the names of respondents in column No,3 and that placement of the names of accused- respondents in column No,2 may be declared against the norms of legal and natural justice.
5. I have heard the learned counsel for the petitioner at length as well as the learned counsel for respondents Nos.1 and 2, Mr. Fazal Rehman Khan, Additional A.G. For the State and considered their arguments.
6. The learned counsel for the petitioner argued that in view of direct charge in the F.I.R. Which was made by the petitioner while in injured condition and which get ample support from medical as well as circumstantial evidence, the Investigating Officer/S.H.O. Had acted illegally by placing the names of accused/respondents in column No,2 and that in view of the facts and circumstances of the case their names should have been placed in column No,3 of the challan.
7. On the other hand the learned counsel for the respondents submitted that the names of accused/respondents have been placed in column No,2 of the challan of the basis of investigation and that the Court/Courts cannot interfere in the investigation. He further submitted that earlier too a abashment petition on the same subject bearing Cr. M.No,146/2009 was filed, but the same was withdrawn and when the accused/respondents have been granted bail, thereafter the present petition has been filed with mala fide intention.
8. Mr. Fazlur Rehman Khan the learned Additional A.G. Supported the petition.
9. The learned counsel for the petitioner placed reliance on the following reported judgments:-
(1) 2009 PCr.LJ 1344,
(2) PLD 2008 Pesh. 63; and (3 2006 SCMR 373.
10. Part V Chapter XIV of the Criminal Procedure Code relates to information to the police and their powers to investigate. This Chapter starts from section 154 of the Criminal Procedure Code and ends at section 176 of the Code. Section 154 deals with information in cognizable cases section 156, with investigation in cognizable cases. Section 157, provides procedure where cognizable offence is suspected. Section 169 of the Criminal Procedure Code empowers the officer in charge of the police Station or the Police Officer making the investigation, to release an accused person on executing a bond with or without sureties for appearance whenever required by a Court, competent to take cognizance, of an offence on police report or send him for trial. Likewise, section 173 provides that every investigation shall be completed without unnecessary delay and the officer in charge of police station shall, (through the public prosecutor)
(a) forward to a Magistrate empowered to take cognizance of the offence on a police-report, a report in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and
(b) Communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.
11. Section 173 (3) provides that:--- "Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit".
12. There can be no two opinions about the fact that the investigating officer cannot act as a Court and it is not his function to release a person under section 169, Cr.P.C. When there is material for and against, but this would in no way affect his powers to prepare a final report and give his opinion about the culpability or otherwise of the accused and then to place him in column No,2 or
3. At the cost of repetition it is observed that such opinion is not binding on the Court. So even the Magistrate may not agree for discharging the accused released under section 169, Cr.P.C. And he is competent to make such orders as thinks fit. Similarly in the judgment reported in 1993 SCMR 197 it was the discharge of an accused under section 173(3), Cr.P.C, which was interfered with by the Honourable High Court under section 561-A, Cr.P.C. In the case initially the accused were placed in column No,2 of the challan but that challan was withdrawn from the Court and fresh challan was submitted in which the names of the accused were omitted and the Magistrate accepted the application for discharge of the accused. In the given circumstances it was held by the honourable apex Court that the honourable Judge of the High Court was justified in setting aside the order of the Magistrate under section 561-A, Cr.P.C. In 2006 SCMR 373 altogether different proposition was before the honourable Apex Court and in no circumstances, the cited judgment of the honourable apex Court is applicable to the case of the petitioner.
13. Chapter 25 of Police Rules, 1934 relates to investigation and 25.2(3) provides:-- "It is the duty of an investigating officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders.
He shall not commit himself prematurely to any view of the facts for or against any person."
14. Form No,25.56 (1) is prescribed for charge sheet, which consists of 7 columns. Column No,2 is for the names and addresses of accused persons not sent up for trial whether arrested for not, including the absconders. The names of absconders are shown in red ink.
15. Article 18(5) of the Police Order, 2002 provides:-- "(5) The District Police Officer shall not interfere with the process of investigation. The head of investigation shall however keep the District Police Officer informed of the progress of all cases which have a bearing on public order. The District Police Officer shall provide full support to the head of investigation in the performance of his duties."
16. The final report prepared by the Investigating Officer is the result of his investigation which includes his opinion qua the accused about his/their innocence or otherwise and the names are accordingly mentioned by him in the form mentioned above. So the scheme of the law is not subject to any doubt about the investigation of a cognizable criminal case. It is the sole prerogative of the investigating officer to put the name of and accused person in column No,2 or in column No,3 subject of-course as a result of his investigation, which in my humble opinion cannot be un- done by any judicial forum or for that matter by the superior officer of his Department or by the Public Prosecutor or Inspect Legal etc. Neither under Criminal Procedure Code, N.-W.F.P. Prosecution Service Act, 2005 nor under Police Order 2002.
17. The same can be un-done if, before submission of challan to the Court of competent jurisdiction, the case is re-investigated in accordance with law and as a result of such re- investigation by any other officer the earlier final report is dissented to and it is found that the names of accused which are placed in column No,2 should be placed in column No,3. It is the duty of the Investigating Officer to bring the real culprits to books, which in other words conveys that he is not supposed to follow the version of complainant blindly. He is duty bound to probe into the plea of accused as well, for which no application is required. Whenever during the course of investigation a pleas is taken by the accused about his innocence, the police officer has no option but to investigate and probe into his pleas without interference even by his own highups. Even otherwise too if it comes on record that the F.I.R. Does not depict the true account, he is bound to bring on record such facts as well. The case law relied upon by the learned counsel for the petitioner in no way deals with the situation like the one in hand.
18. In 2009, PCr.LJ 1344 a petition under section 561-A, Cr.P.C. Was submitted against the release of an accused person under section 169, Cr.P.C. In that case the release under section 169, Cr.P.C. Was set at naught and it was directed that the respondents/accused shall be arrested according to law. Reference has been made in the cited case to 1989 PCr.LJ 2253 the observation of the honourable High Court reproduced by the learned honourable Judge of this Court, are hereby reproduced as well; "It is not the single case from jurisdiction of Bannu District that such a plea has been advanced. In a number of cases I noticed a tendency that such a plea is advanced and relying in Badiuzzaman's case, the accused are being declared innocent and placed in Column No,2 of the challan. In my view, however, the opinion of the police qua the innocence of the respondent in this case is not based on sound material and, therefore, even if he has been placed in Column No,2 of the challan, he would not be entitled to bail. On consideration of the entire material on the file and abscondence of the respondent for over eight months, I have formed the opinion that there are reasonable grounds for believing that the respondent has committed the offence with which he had been charged."
Even in that case no such directions were given by the honourable High Court that the name of accused shall be placed in column No,3 of the challan, however, it was observed that the opinion of the police qua the innocence of the respondents of the case was not based on sound material, therefore, though his name was placed in Column No,2 of the challan, he was held not entitled to bail. Likewise in PLD 2008 Pesh. 63 too the scope of section 169, Cr.P.C. Has been examined.
19. In case "Shahnaz Begum v. The Honourable Judges of Sindh and Balochistan and another" PLD 1971 SC 677 while overruling the judgment "Yaqoob Khan v. State (1971, PCr.LJ 266) it was held by the honourable apex Court that:-- "We have, therefore, upon a review of the relevant judicial opinions, come to the conclusion that the High Court has no power under section 561-A even to quash an investigation."
' It was further observed that:-- "If an investigation is launched mala tide or is clearly beyond the jurisdiction of the investigating agencies concerned then it may be possible for the action of the investigating agencies to be corrected by a proper proceeding either under Article 98 of the Constitution of 1962 or under the provisions of section 491 of the Criminal. Prosecutor Code, if the applicant is in the latter case in detention, but not by invoking the inherent power under section 561-A of the Criminal Procedure Code."
' In the same judgment after reproducing section 561-A, Cr.P.C. The Honourable Apex Court has held:-- "It will be observed that the power given thereby can be invoked to give effect to any order under the Code of prevent an abuse of the process of any Court or otherwise to secure the ends of justice. The ends of justice necessarily means justice as administered by the courts and not justice in the abstract sense or justice administered by agencies other than Courts. The word "otherwise to secure the ends of justice", have to be read along with the earlier objects mentioned in this section and must have some co-relation with them and it is in this sense that this Court in the case of M.S. Khawaja v. The State PLD 1965 SC 287 opined that the ends of justice to secure which the inherent power may be invoked "have reference to the purpose which the judicial process is intended to secure, and it is difficult to include actions of investigating agencies within the scope of judicial process."
' While concluding, the honourable apex Court declared the action of the High Court of Sind and Baluchistan as unwarranted and beyond its jurisdiction.
20. In case "Brig. (Retd) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others" 1994 SCMR 2142 the honourable apex Court in para 18 has held:-- "In other words what the petitioner wanted the High Court to do was to assume the role of Investigator: This could obviously not be done, for the authority to register and investigate a criminal case in law vests in the police and not in Court. We must hold, therefore, that the learned Judges in the High Court were eminently justified is not assuming that role."
21. In case "Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others" PLD 1994 SC 281 the honourable apex Court in para 8 at page 287 held:- "8. In the case of the Khawaja Nazir Ahmad (AIR 1945 Privy Council page 18) a word of caution to the Courts in the matter of interfering with the police investigation before submission of the challan was put in the following words:-- "In their Lordships' opinion, however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. Just as it is essential that every one accused of a crime should have free access to a Court of Justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always of course, subject to the right of the Court to intervene in an appropriate case when moved under S.491, Criminal Procedure Code, to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then."
' The most relevant judgment for the present petition is "Habib v. The State 1983 SCMR 370. The point agitated before the honourable apex Court was that the learned Sessions Judge had no jurisdiction under the law to interfere in the investigation of a case by police and compelling the Investigating Officer to submit a challan, according to the counsel, amounted to an order directing him to place the petitioner in column No,3 or 4 as accused person to be served up for trial. The honourable apex Court in para 6 observed that:-- "6. We notice that this contention is based on the assumption that the learned Sessions Judge had 'interfered' with the investigation as he had required the Investigating Officer to submit a challan showing the accused as 'guilty persons' against whom there is sufficient evidence justifying their being sent up for trial. But after reading the order in question, we are of the view that this assumption is not correct because the learned Sessions Judge had not given any such direction."
' In paras 9 and 10 of the same judgment the honourable apex Court has observed:-- "9. The crux of the above-noted provisions i.e, sections 169,170 and 173, 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.
10. As already mentioned there are required to be submitted in the proper Form. These forms have been prescribed under rules 25.26 (1) and 25.57 (2). The form under rule 25.56 (1), is required to be filed, initially, along with an application for remand of the accused under section 167, Cr.P.C. When investigation cannot be completed within the period of 24 hours as prescribed by section 61, Cr.P.C.
It is known as an incomplete 'charge-sheet' and when the final report under section 173, Cr.P.C. Is ultimately submitted by the Investigating Officer in cases where he is of the view that there is sufficient evidence to send the accused for trial, rule 27.1 of the Police Rules provides that the aforementioned 'incomplete charge-sheet' under rule 25.56(1) when however, the police is unable to find sufficient evidence against the accused and proceeds under section 169, Cr.P.C. The Form of the final report to be submitted under section 173, Cr.P.C. Is prescribed under rule 25.57 (2). It is use of the word `challan' in the impugned order which appears to have caused an apprehension in the mind of the learned counsel but as already observed we are of the view that the learned Court passing the order in question did not require the Investigating Officer to do anything more than submitting a 'final report' after completing the investigation, as required by law."
' Column No,2 of Form No,25.56 (1) is meant for names and addresses of accused persons not sent up for trial, whether arrested or not arrested, including absconders (show absconders in red, ink) whereas column No,7 is meant for charge or information:-- Names and offence and circumstances connected with it, in concise detail and under what section of the law charged.
21A. As discussed in the preceding paras, the opinion of police officer is not so much relevant nor having any influence upon the Court. The Magistrate while taking cognizance has to form his own opinion on the basis of material/evidence placed before him in the shape of complete challan. He is competent to try the accused placed in Column No,2 or to send them for trial.
' It may also be mentioned that Magistrate/Court takes cognizance of an offence and not qua accused. The Court may summon any person, after taking cognizance, whether shown in column No,2 or even if not shown in the challan but if the Court is of the opinion that he has nexus with the offence.
22. The Investigating Officer has not been left unchecked. Section 5(e) of the N.-W.F.P. Prosecution Service (Constitution, Functions and Powers) Act, 2005 provides:-- "(e) a District Public Prosecutor may ask the Head of Investigation in a District to take disciplinary action against Investigation Officer, where sufficient reasons exist to believe that Investigation Officer has colluded or has not exercised due diligence or honesty in conducting investigation, or misrepresented the facts of the case or prepared the report inefficiently."
23. Not only this but in the Police Rule, 1934 in Rule 16.38 sub-rules (5) and (6) it is provided:-- "(5) Orders have been issued by the Honourable Judges of the High Court making it obligatory on all civil and criminal Courts, whenever they make strictures on the personal character or professional conduct of a police officer, to send a copy of the judgment to the executive authorities. In the case of the High Court itself the copies will be forwarded to the Provincial Government. In the case of all other Courts, (including Courts of Session), the copies will be sent by the Judges and Magistrates concerned to the District Magistrate.
(6) In cases in which strictures are passed on the conduct of the police by a Sessions Court or by a Magistrate's Court and no specific recommendation is made by the Court making such strictures that an enquiry should be made, the District Magistrate will decide whether an investigation into the matter is necessary, and if so, whether it shall be conducted by a police officer or by a selected Magistrate having 1st class powers, If he decides that an investigation shall be made, the procedure subsequent to such investigation shall be that laid down in sub-rule (2) above. In cases in which the Court passing strictures on the conduct of the police suggests that an enquiry should be made, the District Magistrate will comply with such request in accordance with the procedure prescribed in paragraphs (1) and (2) above."
' The above sub-rules are self explanatory and needs no further discussion. However, as the vacancy/post of District Magistrate does not exist at present, the Court of session or Magistrate shall convey their strictures to the concerned head of the police department and an enquiry, mentioned in sub-rule (6) above, can be directed by the District and Sessions Judge on the request of the concerned head of the police department.
24. In view of the above legal position, no room for any doubt is left about the check on the investigation by the Courts but that stage comes when the Court takes cognizance of the offence.
25. Above are the reasons for the short order dated 19-2-2010 vide which this petition was dismissed.
' A copy of this order be sent to the. DIG (HQ) and Prosecutor-General N.-W.F.P. With the direction that the former shall positively send copies of this order to all the Heads of Investigation and the latter to all the public Prosecutor in the Province for following what has been observed in this order about the role and powers of the Investigating Officer and the bar placed on the authorities in the matter of investigation. Both the DIG (HQ) as well as the Prosecutor-General N.-W.F.P shall intimate the compliance to the Additional Registrar (Judicial) of this Court who shall convey the same to the Private Secretary of the undersigned.
' It is made clear to the police authorities, the Public Prosecutor and the Investigating Officers that in future they shall act within their legal parameters, as has been explained above and any deviation shall be considered and taken as disobedience of this order.