MEHMOOD MAQBOOL BAJWA, J. - C.M. No. 1487-2011 Learned counsel for the applicant-petitioner does not press this as not pressed.
MAIN CASE Invoking the jurisdiction of this Court present petitioner has assailed the vires of direction vide memo, dated 16.04.2011 issued by Assistant District Public Prosecutor requiring the Investigating Officer of Police Station Shahkot to submit Report under Section 173 of the Code of Criminal Procedure, 1898 (V of 1898) in case F.I.R. 198 of 2011 registered a Police Station Shah Kot against petitioner and others.
2. Briefly the necessary facts for disposal of this petition are that habeas petition was filed at the instance of respondent No. 3 and one Muhammad Zubair in the Court of learned Sessions Judge, Nankana Sahib for the recovery of Nazir Ahmad and Khurshid Ahmad alongwith cattle, which according to stance of respondent No. 3 were in illegal custody of the persons arrayed as respondents in the said petition alongwith S.H.O, of Police Station, Shahkot as well as other police officials. Keeping in view the allegations, Bailiff was deputed and in execution of warrant of search, recovery and production the detenus were recovered and were produced before the Court of Sessions, Nankana Sahib. While disposing the petition vide order dated 16th March, 2011 the learned Sessions Judge, Nankana Sahib issued direction to the District Police Officer, Nankana Sahib to get a case registered against the delinquent after recording statement of respondent No. 3 being petitioner.
3. In pursuance of said order, Report under Section 154 of the Code of Criminal Procedure, 1898 (V of 1898) was recorded. However, cancellation Report was prepared, which was submitted for scrutiny in the office of District Public Prosecutor, Nankana Sahib and the Assistant District Public Prosecutor vide memo, dated 16.04.2011 raised four objections and returned the report to the Investigating Officer for submission of the Report under Section 173 of the Code of Criminal Procedure, 1898 (V of 1898).
4. The learned counsel for the petitioner while assailing the vires of the said direction maintained that it was not well within the right and domain of the Assistant District Public Prosecutor to raise objection on the cancellation Report, which was prepared after due investigation by the D.S.P, concerned. Further maintained that no such power has been conferred either on the Assistant District Public Prosecutor or on the District Public Prosecution under The Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 (III of 2006). With this background prayer was made for cancellation of memo, and issuance of direction by this Court to District Public Prosecutor for forwarding cancellation report to the Court of competent jurisdiction.
5. On the other hand, learned counsel for respondent No. 3 maintained that the office of District Public Prosecutor was obliged and required to examine the cancellation report and after its examination the Assistant District Public Prosecutor reached to a just conclusion by raising objections which are well-founded and as such no exception can be taken to the said objections.
6. The District Public Prosecutor, Nankana Sahib, while making reference to the provisions of Section 9 of The Punjab Cranial Prosecution Service (Constitution, Functions and Powers) Act, 2006 (III of 2006) maintained that, the District Public Prosecutor is obliged and required to distribute work to the prosecutors with respect to the Court of Sessions and Courts of Magistrates within the District and while exercising said power he assigned different duties including exanimation of Report under Section 173 of The Code of Criminal Procedure, 1898 (V of 1898). Making reference to Section 9(5) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 (III of 2006), it was contended that according to sub-section the prosecutor is obliged and required to scrutinize Report or request and then to proceed further as envisaged in clauses (a) & (b) of sub- section (5) of the Act of 2006 the Word "scrutiny" is of significance. The expression "scrutinize" has not been defined in The Act-Ill of 2006 and as such dictionary meaning has to be taken into consideration. The Expression "scrutiny" has been defined in the Merriam Webster's Collegiate Dictionary (Eleventh Edition) which is re-produced for ready reference:- Scrutiny:- Scrutinium, fr. Scrutari to search, examine, prob, fr. ScrutA trash (164) 1: a searching study, inquiry, or inspection: EXAMINATION 2. a searching look 3: close watch."
Keeping in view the definition now I will examine the duties and powers of the prosecutor. Duty has been caste upon the prosecutor to carefully examine Report or request made by the police as and when the same is submitted to the office of the order of the Court and medico-legal District Public Prosecutor. Memo, of objection has been placed on record by the District Public Prosecutor, Nankana Sahib, according to which, the statement of both injured persons (detenus) were not recorded under Section 161 of the Code of Criminal Procedure, 1898 (V of 1898). Similarly, it was opined that both the detenus i.e. Nazir Ahmad and Khurshid Ahmad were medically examined on 17th of March, 2011 by certificates duly issued by the Medical Officer are on the file suggesting injuries on the persons of the detenus which was information to establish the stance of the complainant regarding torture by the police but the same were not considered by the Investigating Officer. The learned law officer raised four objections and cancellation report was returned with the direction to submit the report under Section 173 of the Code of Criminal Procedure, 1898. Keeping in view the language and text of Section 9(5) of Act III of 2006, it can be said without any fear of contradiction that District Public Prosecutor or Prosecutor is not just a post office or forwarding agency. Conscious application of the Code of Criminal Procedure, 1898 or cancellation report. If the prosecutor cannot examine such reports by applying his judicial mind then submission of Reports to the office of District Public Prosecutor will be an exercise in futility. The prosecutor is obliged to examine all aspects of case by attending the material available on record.
One can will imagine the sanctity of cancellation report prepared without recording the statements of detenus under Section 161 of the Code of Criminal Procedure, 1898. Preparation of cancellation Report' in utter disregard of Medico-legal certificates issued after medical examination of detenus by the order of the Court is also not understandable.
Viewed from which ever angle i.e. On legal as well as factual premises, objections raised at the instance of learned Law officer are hardly subject to any exception and as such petition being devoid of any force is dismissed.