ORDER SHAHID HAMEED DAR, J.-- Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the validity of order dated 10-5-2010 passed by the learned Addl. Sessions Judge, Sheikhupura, whereby, he has directed the learned Judicial Magistrate, respondent No.2, to call for a supplementary challan in case F.I.R. No.43 of 2010 dated 14-1-2010 under section 365, P.P.C. Registered at Police Station, Saddar, Sheikhupura after adding all the relevant sections which were applicable.
2. Learned counsel for the petitioner contends that the impugned order passed by the learned Addl. Sessions Judge, Sheikhupura, is patently illegal and that lie enjoyed no such powers whereby he could issue the directions to the learned Magistrate to call for a supplementary challan from the police, after addition of all the relevant sections which were applicable; the impugned order has been passed without application of mind and in an injudicious manner; the observations made by the learned Addl: Sessions Judge, in the impugned order are uncalled for, illegal and void ab-initio; which may be set-aside; the learned Magistrate being persona-designate had -passed the order dated 14-4-2010 which was not amenable to revision. As it was an executive order; the learned ASJ has entertained the revision petition against the above said order illegally and unlawfully, hence, the impugned order cannot be sustained; the impugned order is tantamount to causing interference in the investigation process which cannot be upheld by any stretch of iniaginkion; the learned ASJ, in the capacity of a justice of peace may pass the direction to the police to conduct fair and honest investigation, according to the merits of the case but cannot dictate him to delete or and an offence during the course of investigation but, in the instant case, the authority exercised by the learned A.S .1 .Has grossly resulted in miscarriage of justice. Relies upon Badaruddin v. Others Ahmad Raza, ASJ, hang and 6 others (PLD 1993 SC 399) and Abdul Rehman's Bajwa v. Sultan and 9 others (PLD 1981 SC. 522).
3. Conversely, learned counsel for respondent No.1 has contended that the order dated 14-4-2010 passed by learned Magistrate is a judicial order which is open to revision as a Magistrate has the supervisory authority over the investigation of the criminal cases, falling within his territorial jurisdiction; the learned Magistrate committed a legal error by declining the request of respondent No.1 for addition of sections 365,, 452, P.P.C. On flimsy grounds and thus he had been rightly and lawfully directed by the Add: Sessions Judge, Sheikhupura vide impugned order, to call for supplementary challan in the case after adding all the relevant sections, which were applicable; the investigation had not been conducted fairly by the I.0 and disciplinary action had been justly ordered by the Chairman District Public Safety and Police Complaint Commission under the Police Order, 2002; the revision petition, preferred by the respondent No.1 against the above said order passed by the Magistrate has been legally entertained and decided by the ,learned Addl. Sessions Judge as the Revisional Court; the impugned order is not perverse, capricious or foolish so it may be sustained. Relies upon Muhammad Nasir Cheema v. Mazhar Javaid and others (PLD 2007 SC 31), Brig (Retd.) Imtiaz Ahmad v. Govt. Of Pakistan through Secretary Interior Division, Islamabad and 2 others (1994 SCMR 2142) and Rana Muhammad Farooque and others v. Afiab Hussain and others (PLD 2003 Karachi 309).
4. The area/territorial Magistrate of course, possesses the formal supervisory powers over the investigation of a criminal case but it does not mean that he can dictate the police/I.O. In any manner, to cause interference in the process of investigation, which is the exclusive domain of the police. It has been time and again observed by this court as well as by the august Supreme Court of Pakistan that the police, in its right, has all the necessary legal powers to collect the relevant and required data/ evidence during the course of investigation and their powers cannot be fettered by any authority under any law. The excesses committed and the wrong done during the course of investigation by the police can be checked and remedial measures may be advised and enforced but the Investigating Officer cannot be suggested either by the courts or by any other authority to conduct the investigation, which also includes the deletion or addition of certain offences, in a particular manner or on certain, specific lines, nor any power is vested with any court, including High Court to override the legal command and to direct Station House Officer either not to submit investigation report (challan) or to submit the report in a particular manner i.e. Against only such persons as the court desired or only with respect to such offences as the court wished. I am fortified in this regard, while I rely upon the case Muhammad Nasir Cheema v. Mazhar Javaid and others (PLD 2007 SC 31) wherein the august Supreme Court of Pakistan has observed as under:-- "The only provision relating to the subject which is available in the Code of Criminal Procedure is section 173 which commands expeditious conclusion of the investigations and further ordains that on conclusion of every investigation, the concerned S.H.O. Shall submit a report of the result thereof in the prescribed manner to the Magistrate competent to take cognizance under section 190, Cr.P.C. No power vests with any Court including a High Court to override the said legal command and to direct the S.H.O. Either not to submit the said report (mentioned as challan in the Police Rules and also in the 'impugned order) or to submit the said report in a particular manner i.e. Against only such persons as the Court desires or only with respect to such offences as the Court wishes. The impugned order can also not be sustained because, as has been mentioned above, the challan in question stood already submitted in Court and was thus beyond the reach of the concerned S.H.O."
The dishonest investigation can be taken care of under relevant. Provisions of law and the Investigating Officer may also be taken to task with reference to penal provisions of the statute but he cannot be cowed down to conduct the investigation within a certain framework of the desires and whims of the parties,, attached to a criminal case. 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 on functions. The courts are not vested with any authority or power to register or investigate a criminal case as it only vests in the police. While adjudicating upon the case, titled Brig (Retd) Imtiaz Ahmad v. Govt.
Of Pakistan through Secretary Interior Division, Islamabad and 2 others (1994 SCMR 2142), the apex court took note of an identical situation wherein the High Court had passed two orders during the pendency of a writ petition. In the first order the Investigating Officer of a criminal case was directed to finalize the investigation by a. Certain date and in the second order, passed on the statement of the investigation officer, that out of the 21 accused persons only 2 had been arrested and that challan was being submitted, the learned Judge observed that if "most of the accused have not been arrested, what is the use of submitting the challan" and that he was not satisfied with the performance of the Anti-Corruption Department and directed issuance of a notice to the Additional Director, Anti-Corruption to appear in a show cause as to .Why adverse observation about his efficiency and performance should not be passed and the -same should be placed on his personal file. The august Supreme Court thought it necessary to reiterate the privy council's classic words of caution to the courts in the matter of interference with the police investigation in Kh. Nazir Ahmad case, AIR 1945 Privy Council 18 as under:-- "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 matter which are within their province and into which the law imposes upon them the duty of enquiry... ...
There is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without enquiring 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 on function always of course, subject to the right of the Court to intervene in an appropriate case when moved under section 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 begins when a charge is preferred before it and not until then.
5. The order dated 14-4-2010 passed by the learned Magistrate though in the capacity of a persona-designate, is a lawful order whereby, correct approach and appreciation of law has been demonstrated by him, as, the learned trial court/ Magistrate has all the necessary powers, vide Chapter XIX of the Criminal Procedure Code, 1898, to take into account the prosecution's case to frame a charge against the accused, facing the trial. Notwithstanding, the game of addition or deletion of certain offences by the police during investigation, complete authority rests with the trial court to look into the probability of charge sheering the accused by keeping in view the material available against the under trial person(s). The charge may be ,amended, corrected or altered at any stage of the trial, before pronouncement of judgment in a criminal case. So, there cannot be any cavil to the validity of the observations made by the learned Magistrate in the above said order. The learned Additional Sessions. Judge has clearly erred in law while passing the impugned order in exercise of his revisional jurisdiction which cannot be justified by any argument.
The language of section 439-A, Cr.P.C. Is plain and vivid which points to exercise of Sessions Judge's powers of revision as conferred on the High Court by section 439, Cr.P.C, in the case of any proceeding before a Magistrate, the record of which has been called for by the Sessions Judge or which otherwise comes to his knowledge, with further enunciation that an Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under the chapter In respect of any case which may be transferred to him under any general or Special order of the Sessions Judge. The order dated 14-4-2010 indicates that no criminal trial/case was pending adjudication before the learned Magistrate and only on a, miscellaneous application, moved by the respondent No.1, the above said order was passed. The learned Additional Sessions Judge is required to judge himself the validity of the impugned order passed by him as the requirement of section 439-A, Cr.P.C. Clearly barred the re-visional jurisdiction, as invoked by him against the administrative order passed by the learned Magistrate.
6.. For what has been discussed above, the instant petition is allowed and the impugned order dated 10-5-2010 passed by the learned. Additional Sessions Judge, Sheikhupura is set aside, resultantly, the order dated 14-4-2010 passed by the learned Magistrate Sheikhupura stands restored.