Javed Iqbal, J.--This petition for leave to appeal is directed against judgment dated 20.5.2010 whereby writ petition preferred on behalf of Muhammad Khan (respondent) has been accepted with the following directions:-- "15. Therefore, we accept this petition and remit the case file to the SP Investigation, Lakki Marwat, who should entrust the same to any other impartial Investigating Officer for conducting fair investigation. He is at liberty to collect evidence of prosecution or defence, if produced before him, and place the same on record. After that challan may be submitted before the competent trial Court, who is the proper and competent forum to decide the fate of the case in accordance with law after awarding full opportunity to either side."
2. Precisely stated the facts of the case are that FIR was got lodged by one Muhammad Khan on "22.02.2009 at Police Station Naurang District Lakki Marwat. The petitioner reported the matter to Gulmar Jan Khan ASI PS, Naurang in injured condition at Civil Hospital, Naurang, wherein he was medically examined after lodging the report. The injury sheet of the petitioner was also prepared and medical examination was also conducted wherein two bullet entry wounds were found of firearm on medical side, of right leg (in middle) size 1/2 inch x 1/2 inch skin and muscle deep.
Corresponding holes in shalwar were also found which was handed over the police, probable duration of the injury was one two hours. The I.O. after registration of the case inspected the spot and recovered blood-stained earth from the spot where the petitioner had received the injury and eight empty shells of 7.62 bore from Point No, 2 where respondent Hayatullah Jan was shown to be present and one magazine of .30 bore pistol having one live cartridge was also recovered from the spot where respondent Saleemullah was shown to be present at the time of occurrence. Similarly, from the spot of Abdul Matin respondent also empty shell 7.62 bore was recovered. The FSL report regarding the empties, recovered from the spot reveals that the crime empties were fired from different 7.62 MM bore rifles. The occurrence was also stated to have been witnessed by Azam Khan and Muhammad Zahid Khan, cousin and son of the petitioner respectively". It is worth mentioning that learned Sessions Judge granted pre-arrest bail in favour of Hayatullah Jan and Samiullah (petitioners). The investigation was conducted by DSP Lakki Marwat who, after conclusion of investigation, submitted report for cancellation of bail as, according to him, sufficient incriminating material was lacking. The learned Judicial magistrate by means of order dated 12.9.2009 agreed with the conclusion as arrived at by the Investigating Officer and directed to file the case. Being aggrieved, Muhammad Khan (complainant/respondent) moved the learned High Court by means of writ petition which has been accepted vide judgment impugned, hence this petition.
3. Mr. Muhammad Arif Khan, learned Sr. ASC entered appearance on behalf of petitioners and contended that the legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice and besides that the provisions as enumerated in sections 169 and 173 Cr. P.0 have been misinterpreted and misconstrued. It is next contended that it was within the competency of Investigating Officer to furnish his independent opinion on the collected evidence and it is not obligatory to send each accused for trial if no case is, prima facie, made out or incriminating material is insufficient to substantiate the accusation. It is next contended that no restraint whatsoever has been placed on the authority of Investigating Officer who is authorized to make an independent, impartial and transparent investigation which should be given due weight unless some mala fide or dishonesty alleged which is not the case of respondent. It is also argued that the learned Magistrate has endorsed the view of Investigating Officer after having scrutinized the entire evidence diligently and the case was directed to be closed. It is pointed out that discretion as conferred upon the learned Judicial Magistrate and order so passed cannot be interfered with as no lawful justification whatsoever is available for it. It is also contended that the learned High Court is not competent to pass the impugned order in exercise of its Constitutional jurisdiction and such order could have been passed under Section 561-A Cr. P.0 which was never pressed into service.
4. We have carefully examined the contentions as agitated on behalf of petitioners in the light of relevant provisions of law, perused the order of learned Judicial Magistrate as well as the judgment impugned. After having gone through the entire record it transpired that there is no denial to the fact that FIR was got lodged with promptitude by attributing a specific role of firing against the petitioners duly supported by medical evidence and the report of Arms Expert qua recovered empties from the place of occurrence. The pivotal question which needs determination would be as to whether the learned Judicial' Magistrate and Investigating Officer have exercised their discretion judiciously and in accordance with law or otherwise? We have carefully examined the order passed by the learned Judicial Magistrate which mainly revolves around the points prevailed upon the Investigating Officer to discharge the petitioner. It is worth mentioning that the said order has not been passed by the learned Judicial Magistrate with diligent application of mind and has toed the line of action as suggested by the Investigating Officer by ignoring the fact that the question of determination of guilt or innocence squarely falls within the jurisdictional domain of learned' trial Court. The learned Judicial Magistrate has no authority to endorse the view of Investigating Officer where sufficient incriminating material connecting the accused, prima facie, with the commission of alleged offence has come on record. The question of alibi, its repercussion and implication, medical evidence which corroborates the ocular version and evidentiary value of firearm expert's report can only be decided by the. learned trial Court having substantial bearing on merits of the case. Let we mention here at this juncture that the plea of alibi being a distinct plea is required to be substantiated by adducing cogent and concrete evidence which aspect of the matter has been altogether ignored by the Investigating Officer as well as the learned Judicial Magistrate. Besides that the Investigating Officer cannot be considered such a skillful person to give his opinion on the medical evidence and the question as to Whether it corroborates the ocular version or otherwise cannot be determined by him. We have not been persuaded to agree with the learned Senior ASC for the petitioner that Constitutional jurisdiction should have not been exercised and the learned High Court was competent to pass impugned order in exercise of powers as conferred upon it under Section 561-A Cr. P.0 which is not the correct legal position. It is well settled by now that "the High Court has no power under Section 561-A of the Cr.P.C. to interfere with police investigations into criminal offences. In the case of Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317 the Supreme Court had occasion to point out that the power given by Section 561-A, Cr.P.C., "can certainly not be so utilized as to interrupt or divert the ordinary course of criminal C procedure as laid down in the procedural statute." If an investigation is launched mala fide 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 Procedure 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." (Shashadhar Acharjya v. Sir Charles Tegart AIR 1932 Cal: 229, Muhammad Hussain v. Inspector-General of Police PLD 1967 Lah. 1123, Shamsuddin v. Captain Gauhar Ayyub PLD 1965 SC 496, Crown v. Muhammad Sadiq Niaz PLD 1949 Lah. 562, Emperor v. Kh. Nazir Ahmad AIR 1945 PC 18, State of West Bengal v. S. N. Basak AIR 1963 SC 447, Sher Khan and others u. The State 1968 SCMR 62, Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317, M. S. Khawaja v. The State PLD 1965 SC 287, Shahnaz Begum v. The Hon'ble Judges of The High Court of Sindh and Baluchistan (PLD 1971 Supreme Court 677).
5. The judicial consensus seems to be that "under the criminal administration of justice, and Code of Criminal Procedure a criminal case is initiated on filing F.I.R. After registration of the F.I.R. the police officer starts investigation for collecting the evidence. After collecting the evidence and completing the investigation the Investigating Officer, if he finds that there is no sufficient evidence collected against the accused then he has to release the accused as provided under Section 169 of the Code. If he finds that there is sufficient evidence against the accused then he is required to submit the report within the meaning of Section 170 of the Code. In both the cases the police officer is required to submit a police report or challan as provided under Section 173(1)(a) of the Code in the form provided by the Provincial Government containing various columns. The crux of sections 169, 170 and 173, Cr.P.C. is 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 provided under sub-section (3) of Section 173, Cr.P.C., or under Section 190, Cr.P.C. as the case may be." (Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607, Ahmed Siyal v. National Accountability Bureau 2004 SCMR, 265, Habib v.
State 1983 SCMR 370 Zahoor Ahmed Sheikh v. Chairman, National Accountability Bureau PLD 2007 Karachi 243).
6. There is no cavil to the proposition that "in every investigation there are by and large three different phases. First of all, the administrative phase; next, the judicial phase; and, finally, the executive phase when the orders of the Court or the Tribunal are, if necessary, executed or promulgated. Quite plainly fairness to the suspect demands that he should be given a chance of stating his case before the final period: the execution. Equally fairness demands that the suspect shall be given a chance of putting his side of the case before the judicial inquiry is over. But on the other side, and the other side is entitled to fairness just as the suspect is. Fairness to the inquirer demands that during the administrative period he should be able to investigate without having at every stage to inquire from the suspect what his side of the matter may be. Of course it may be difficult to find out the particular point at which the administrative phase ends and the judicial phase begins. Every public officer who has to decide whether to prosecute or raise proceedings ought first to decide whether there is a prima facie case, but no one supposes that justice requires that he should first seek the comments of the accused or the defendant on the material before him. So there is nothing inherently unjust in reaching such a decision in the absence of the other party." (Norwest Hoist Ltd. v. Department of Trade and others (1978) 3 All ER 280, Wiseman v.
Borneman (1971) AC 297, Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan 1994 SCMR 2142).
7. In the light of what has been discussed herein above, we are of the view that the judgment impugned being unexceptionable does not warrant interference. The petition being merit less is dismissed and leave refused.