Petitioner Faisal Ejaz filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan read with Section 561A, Cr.P.C. while challenging the order dated 08.02.2011 passed by the learned Judicial Magistrate, Multan, through which the learned Judicial Magistrate at the time of granting physical remand of the petitioner directed the I.O. to add Section 392, PPC in the case FIR No. 34/2011 dated 02.02.2011 under Sections 337-F(v), 337-A(i), 337-F(i), 337-L(ii), 379, PPC registered at Police Station Lohari Gate, District Multan.
According to prosecution case complainant had given an amount of Rs. 1,21,65,000/- to the petitioner for establishing a business, but subsequently he did not pay the profit as well as the said amount. It is alleged in the FIR that on the day of occurrence Faisal Ejaz called the complainant at the clinic, where during conversation hot words were exchanged and Faisal Ejaz petitioner along with Umar Qureshi and three unknown persons started abusing the complainant and injured him.
During the said occurrence, petitioner along with his co-accused also allegedly snatched certain amount, mobile phone and stamp papers, which was written in connection with the said business.
The petitioner was arrested in the said case on 03.02.2011. He was produced before the learned Judicial. Magistrate and police obtained his physical remand till 07.02.2011. On 07.02.2011, petitioner was produced before the Magistrate and only one day's physical remand was granted. On 08.02.2011 learned Judicial Magistrate again granted two days physical remand of the petitioner and in that order learned Judicial Magistrate observed "specific allegation of forcible snatching of stamp papers from the complainant has been levelled regarding which offence U/S 392 PPC is made out. Therefore, I.O. is directed also to invoke the offence U/S 392 PPC in this case and investigate the matter accordingly".
2. Learned counsel for the petitioner contended that learned Judicial Magistrate has no authority to interfere into the investigation and he had gone beyond his jurisdiction when learned Judicial Magistrate directed the I.O. to add Section 392, PPC. Learned counsel for the petitioner contended that learned Judicial committed a patent illegality by directing the I.O. to add a particular section.
Further contended that the addition of Section 392, PPC by the orders of a Magistrate seriously prejudice the case of the petitioner. Learned counsel for the petitioner relied upon PLD 2007 S.C. 31.
3. On the other hand, learned counsel for Respondent No. 4 opposed the contention raised by learned counsel for the petitioner by contending that under Section 63 of Cr.P.C, a Magistrate can discharge an accused person, hence, he had authority to direct the Investigating' Officer to add or omit certain section. Learned counsel further contended that Magistrate is overall, incharge of the whole investigation and while dealing with such type of matter he had to give observation with conscious mind.
4. Heard. Record perused.
5. The learned Judicial Magistrate while granting remand of the petitioner had directed the Investigating Officer to add Section 392, PPC in this case and while doing so the learned Judicial Magistrate actually had gone beyond his jurisdiction. I am not going to dilate upon the merits of the case, as it would prejudice the case of either of the party in the subsequent proceedings. I am also not going to give any observation whether offence under Section 392, PPC has made out or not. I have also gone through Case Diary No. 7 dated 8.2.2011, wherein it is specifically mentioned by the IO that {{URDU TEXT}} This sentence in the Case Diary indicates that the Investigating Officer blindfoldly relied upon the direction of the learned Judicial Magistrate. It is the duty of the Investigating Officer to investigate the case on its own facts and circumstances and then add or omit penal Sections according to his investigation. Learned Magistrate has no power to interfere into the investigation and direct to add or omit any penal section. Such type of order would amount to interfering into the investigation conducted by the police. It is time and again observed by the apex Court that the Courts cannot interfere into the investigation of any case. The recent judgment relied upon by the learned counsel for the petitioner i.e. Muhammad Nasir Cheema Vs. Mazhar Javaid and others (PLD 2007 SC 31).
Honourable Supreme Court observed:-- "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".
From the said observation of the Honourable Supreme Court, it is quite clear that no powers are vested with the Courts including this Court to interfere into the investigation or to direct the SHO to submit report under such and such offences. Directing the I.O. to add or omit certain penal section would amount to interfering with the process of investigation, which was not the mandate of law, due to which apparently the order of the learned Judicial Magistrate to the extent of directing the I.O. for adding Section 392, PPC is illegal and without any lawful authority. Consequently, this Writ Petition is allowed and the impugned order dated 08.02.2011 passed by the learned Judicial Magistrate, Multan to the extent of adding of Section 392. PPC is set aside. However, it is made clear that Investigating Officer is at liberty to investigate all the aspects of the case and then add or omit any section, which according to his investigation is made out.