' IJAZ AHMAD CHAUDHRY, C.J.---The judicial system of country always suggests an implied motivation to its other ally units to excel their performance for better assistance of Judiciary in imparting. Fair and passable justice to the litigants. There was a time when the representatives of the Attorney-General and the Advocate-General Offices joined hands with the judiciary and contributed to a great deal in dispensing justice among the masses. They always remained vigilant while accepting assignments from the courts of law and put their full strength to defuse the pressure of criminal litigation but with the passage of time the flood of criminal litigation increased gradually and became unbridled which constrained the think-tank to unify their heads together and explore predictability of a new viable system to overpower the massive criminal litigation pending in the courts of law. After analyzing this austere issue with all care and caution the sagacious persons cravingly felt it imperative to establish an independent, effective and efficient institution for prosecution of criminal cases in the courts to ensure prosecutorial independence for better coordination in the criminal justice system of the country whose prime chore was to save the innocent persons from prosecution and leave no culprit to go scot-free. The said efforts matured into reality with the enactment of The Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 (III of 2006). As the human being is fallible and the legislature being from amongst the human being have no exception and the room of improvement in any enactment is always available. The said cumbersome exercise falls on the shoulder of the judiciary inasmuch as while defining any law the courts point out any flaw, in the said legislation. Likewise, in case of any ambiguity in any provision of the law the courts also suggest its real meaning and the intention of the legislature. AS the Punjab Criminal Prosecution.
Service (Constitution, Functions and Powers) Act, 2006 came into force about five years ago, surfacing of certain questions for determination by this Court as well as by the Hon'ble Supreme Court are natural. The point involved in the instant matter is defining the powers of Prosecutors working under the aforesaid Act as certain provisions, though not ambiguous but entail different meanings.
2. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has challenged the directions issued by District Public Prosecutor, Sialkot/respondent No,1 to Station House Officer/respondent No,3 for addition of some penal sections in the final report prepared under section 173, Cr.P.C. And prayed fir declaring the same to be without lawful authority.
Precisely, the facts leading to the filing of this writ petition are that the petitioner along with respondents Nos.7 and 8 were booked in case F.I.R. No,263 registered at Police Station Headmarala, District Sialkot on 23-11-2010 in respect of offences under sections 354/452/148/149, P.P.C. On the application of respondent No,4. The allegations levelled in the F.I.R. Are that during a night between 18/19-11-2010 respondent No,6 was sleeping with his family members when at 12-30 a.m. All of a sudden the petitioner along with respondents Nos.7 and 8, and one Naseer, all armed with firearms and two unknown persons came there. The accused made the complaint as well as his family hostage upon which they started hue and cry. Thereafter Asif Baig accused inflicted a butt blow to the complainant which he sustained on his head. The second blow was inflicted by Naseer accused which the complainant sustained on his chest. Javed accused inflicted a blow of his pistol's handle on the left leg of the complainant. Nadeem alias Deema accused gave a butt blow which hit the complainant on his head upon which he fell on the ground. On fallen condition the accused persons continued giving butt blows to the complainant by their respective weapons and seeing this, his children began crying. The mother of the complainant namely Fatima Bibi came forward to save the complainant from the accused persons but they gave her kicks blows and torn her clothes. The children raised voice of crying upon which the accused after tiding the complainant took out an amount of rupees fifteen thousand, copy of coloured Identity Card and certain other documents from the pocket of the trouser of the complainant. In the meanwhile Yar and Razzaq who were ploughing nearby fields with tractor attracted at the spot while listening the voice of the children and saved the complainant from the assailants. After setting the criminal law into motion by lodging the F.I.R. In question the investigation of the criminal case in question started and respondent No,7 was initially arrested, found guilty, challaned by the police, charged by the learned trial Court and prosecution witnesses were summoned for procuring their evidence. On 20- 12-2010 the petitioner was also arrested in connection with the above said criminal case respondent No, 4 who after completing investigation to his extent found him guilty of the offences under sections 354/452/337-A(i)/337-F(i)/337-L(2)/148/149, P.P.C. And after preparation of report under section 173, Cr.P.C. Send the same to the office of respondent No, 1 for onward transmission to the learned trial Court. The controversy in the instant case broke out when the learned respondent No, 1 took exception to issue direction to the Station House Officer to add some sections to the F.I.R.
And then submit report under section 173, Cr.P.C. Before the learned trial Court which prompted the petitioner to knock the door of this Court.
3. The learned counsel for the petitioner contends that the learned District Public Prosecutor, Sialkot has no jurisdiction under the law to pass a direction with regard to add sections 395/397, P.P.C. In the report under section 173, Cr.P.C. To the police. While issuing the impugned direction the learned respondent No, 1 has assumed the role and authority of the learned trial Court as well as that of the Investigating Officer and in this way he has travelled beyond his authority. ' Neither the provisions of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 allow the learned District Public Prosecutor to issue any direction regarding addition, deletion or insertion of any section into the report under section 173, Cr.P.C. Nor the Police Rules or Cr.P.C. Permit him to interfere into the mode of conducting, investigation or recording findings over the same. The direction issued by him against the verdicts given in the cases of Tanveer Hussain Qureshi and 8 others v. District Public Prosecutor, Sialkot (2009 PCr.LJ 1043) and Fayyaz Ahmad and another v. The State and others (2008 PCr.LJ 805). He goes on to maintain thai a bare perusal of the F.I.R. And the outcome of the investigation reflected that the petitioner has been found guilty for offences under sections 354/452/337-A(i)/337-F(i)/337-L(2)/148/149, P.P.C. At the end the learned counsel for the petitioner prayed that by accepting this writ petition the impugned direction of the learned District Public Prosecutor, Sialkot may kindly be declared unlawful and contrary to the provisions of Police Rules, the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 and The Code of Criminal Procedure, 1898. The provisions of section 173, Cr.P.C. Authorized the Officer Incharge of the Police Station to submit report under section 173, Cr.P.C. Through the Public Prosecutor, thus, the District Public Prosecutor was only meant for receiving of and passing through the report to the learned trial Court only.
4. On the other hand the learned Additional Advocate-General, the learned Additional Prosecutor- General and the learned counsel for respondent No, 6 argued in unison that under subsection (1) of section 173, Cr.P.C. The. Police Incharge of the relevant Police Station is duty bound to submit challan through the Public Prosecutor and the above said provision was made through a special amendment dated 12th of December, 1992. The intention of legislation for making such amendment was that independent legal agency may be established in between the police and the courts to approve or disapprove the report under section 173, Cr.P.C. Under the shadow of legal experience so that the same could reach the court after removal of all legal defects. The provisions of subsection (7) of section 9 of the Punjab Criminal Prosecution Service (Constitution, Functions And Powers) Act, 2006 (III of 2006) clearly empower to a Prosecutor to submit the court his result of scrutiny in writing as to available evidence and applicability of offences against all or any of the accused and circumstances of the case. Thus, the above Provisions of law apparently laid a direct obligation upon Prosecutor to first make complete scrutiny of the report under section 173, Cr.P.C.
And then after probing the applicability of the offences into the matter forward the same to the court of competent jurisdiction for trial. The word 'scurrility' makes it clear that the Prosecutor has the power to add, delete or insert any section applicable against one or any of the accused keeping in view the incriminating evidence collected against him and other material available on the police file. If this is not enough the provisions of supra Act also leave no room for any confusion about the jurisdiction of a Prosecutor in respect of ascertaining the applicability of offence alleged against any particular accused in the report of section 173, Cr.P.C. And then submission of his legal opinion in this regard. The duty of an Investigating Officer has been portrayed in section 4(1), Cr.P.C.
Wherein it has been described that the function and duties of the investigator is only to take steps during his investigation to ascertain that whether any offence has actually been committed at all or not and if so, by whom the offence has been committed. He has only to collect evidence for the above said purpose and any opinion about the guilt or innocence with respect to any particular accused amounts to transgression of his limits which the law does not permit him to do so. The learned Additional Prosecutor-General has gone on to maintain that as soon as the police submits report under section 173, Cr.P.C. To the Prosecution Office for its onward submission to the court concern it is duty of the Prosecutor to inspect the file and provide his legal expertise so as to forward the report into the court of competent jurisdiction in a best suitable manner. Although the Superintendent of Police (Investigation) may prior to submission of charge-sheets in an important nature of case can call an opinion from his Legal Branch for his own guidance yet this exercise does not by itself create any binding upon the Prosecutor to act upon the same rather the Prosecutor has to independently make a scrutiny and then finally express his expert opinion over the matter which also includes nature of offence allegedly committed by an accused. No police officer howsoever higher in rank can impose his views either on the basis of his own predictions of circumstances of the case or on the basis of any advice tendered to him by the Legal Branch.
Reliance is placed OR the cases of Mazhar Hussain v. Ishtiaq Hussain and another (PLD 1990 Lahore 249), Aziz Ullah Khan v. S.H.O. Police Station City, Mianwali and 2 others (2001 YLR 263), Bahar Ali and 2 others v. State and another (PLD 2008 Pesh. 28), Rasoolan Bibi v. Additional Sessions Judge and others (PLD 2009 Lahore 135), Noor Hussaini v. Chief Prosecutor-General, Punjab and 5 others(sic.)
(PLD 2008 Lahore 470) and Lal Khan and another v. Station. House Officer, Police Station Kotwali Jhang and 6 others (2010 PCr.LJ 182)
5. I have heard the learned counsel for the parties and have gone through the documents appended with this writ petition in addition to the relevant law on the subject relied upon by the respective sides. The criminal jurists know it very well that the criminal proceedings always take start as and when the arrow of criminal law is thrown in the air by lodging an F.I.R. After registration of a criminal case the law-enforcing agency comes into motion at once for investigating the matter so as to find out the truth or otherwise of the allegations set forth therein. The basic responsibility imposed upon an Investigating Officer is to ascertain the commission of offence, collection of the substantiating material in support of the allegations and identifying the persons who perpetrate the offence in question to bring their guilt at home. A past analysis of the procedure adopted by the police while conducting investigation in criminal cases shows That the outcome of their efforts in that regard always found shorn of legal justifications. The Hon'ble Judges of higher judiciary have always been expressing anxiety in their judgments and uninterruptedly realizing the police that the sole purpose of investigation is to only collect evidence in support of the allegations levelled against an accused person in the F.I.R. As is evident from section 4, Cr.P.C.
And opinion of an Investigating Officer would not make any accused person guilty or innocent of the offence but on all occasions the police is seen in utilizing its skill towards declaring the accused innocent or guilty. Although it has not happened in each and every case yet, in most of cases, this practice is being adopted either due to unfamiliarity of the Investigating Officers from law or it happened due to their corrupt practices. I shall also like to say here that the conducive behaviour of the people towards the police to achieve result in their favour also promote/ expand the practice of the police in declaring an accused guilty or innocent. In any case the lack of legal knowledge always remained a lame excuse to hamper application of canons of safe administration of justice in criminal cases for which the prosecution only suffer and face consequence. To avoid from such a wretch condition the public exchequer has been burdened to achieve for reaching public welfare aims and objects of improving investigation and removing difficulties of Investigating Officers through appropriate legal guidance at apt time, who are normally expected to be unaware of legal intricacies, interpretations, as well as guidelines given by the Superior Courts in various ruling about the standards and required strengths of proof, in order to resist defense attacks, successfully. Now on the eve of establishment of Prosecution Agency, the Prosecutors are expected to prove worth of prosecution institution in the minimum possible time by attaining the target of improving standard of investigation in all cases and especially in the cases like the one in hand by motivating launching and promoting endeavors through District Public Prosecutors, with a well-oriented check and balance system, so that the cases may successfully face all kinds of scrutinizing on the dissection table of qualified and experienced laws experts, in courts of law. After enactment of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 certain confusions erupted into the mind of persons relating to judicial department with regard to the jurisdiction and obligations of the Prosecution Agency. The instant case is also an example of such confusion which is being clarified after going through the case- law so far available in this respect. The grievance voiced through the instant petition is that the District Public Prosecutor, Sialkot was not competent to issue direction to the Station House Officer inrespect of submission of a report under section 173, Cr.P.C. In a particular manner and the Station House Officer was not under obligation to comply with the directions of adding or deleting section in the report. To resolve this pivotal question I would like to first venture the provisions of section 173, Cr.P.C. Wherein the words, "through the public prosecutor" have been added through a special amendment dated 12th of December, 1992. The intention of the legislation to step in the services of Prosecution agency in between the police and the courts of law was to explore some worthwhile ambience so as to outset a trial in a criminal case in such a manner which will prove inspiring enough to the courts to reach to a just conclusion. Thus, I am not readily persuaded to accept the submission of the learned counsel for the petitioner that the Office of District Public Prosecutor is meant for only a post-office, the duty of which is only to receive the report under section 173, Cr.P.C.
From the police and forward the same to the court for trial rather the purpose of establishment of Prosecution Office is to forward the report into the courts, after decorating it with all legal formalities required by a court of law in convicting an accused person and also after making a narrow scanning, to remove all the legal defects and lapse occurred on account of shabby and shaky investigation.
6. Now adverting to the question whether the District Public Prosecutor can pass direction to the Station House Officer for putting up report under section 173, Cr.P.C. After inserting, sections according to the instructions given to him by the District Public Prosecutor or not. For this purpose a careful perusal of subsection (5)(a)(b) of section 9 of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 has become inevitable, thus, the same is reproduced as under:--
(5) The prosecutor shall scrutinize the report or the request and may
(a) return the same within three days to the Officer Incharge of Police Station or Investigating Officer, as the case may be; if he finds the same to be defective, for removal of such defects as may be identified by him; or
(b) if it is fit for submission, file it before the Court of competent jurisdiction.
' A careful analysis of the above said section shows that the word 'scrutinize' is having a vital effect which will be helpful to determine the authority of the Prosecutor over taking steps towards report under section 173, Cr.P.C. The word "scrutinize" has nowhere been defined in the Act-III of 2006, thus, to better understand the word I shall consider the meaning from The Merriam-Webster's Collegiate Dictionary (Eleventh Edition) which is reproduced as under:- "Scrutiny:-scrutinium, fr. Scrutari to search, examine, prob, fr. ScrutA trash (1604) 1: a searching study, inquiry, or inspection; EXAMINATION 2, a searching look 3: close watch."
So far as I gather the meaning of scrutinizing a matter from the above meaning is that to examine a matter from all pros and cons and attend all its aspects with due care and caution inasmuch as to make a deep search or inspect the matter in a close, care and thorough manner. Even the Advanced Chamber Dictionary provides meaning of scrutiny as "a searing look" which shows a look that would enable a person to minutely investigate or examine the matter from all corners. So this mandatory exercise of course delegate upon the Prosecutors to find out the lacunae into the report under section 173, Cr.P.C. Or in the investigation so that the same can be cured before submission the same to the court of law for its trial. If the Prosecutor is prohibited to make such an exercise then his job would only confine to the extent of receiving and forwarding the report which exercise obviously will end to nothing but futility. I am confident in expressing that the Office of District Public Prosecutor is not only a post-office but it is a bridge between the police and court to promote the procedure of prosecution for better achievement of justice.
7. Now by proceeding with the discussion it has become available that after making scrutiny of the report under section 173. Cr.P.C. The Prosecutor has to take two steps as have been described in subsection (5)(a)(b) of section 9 of the Act, and that are, either he has to return the report to the Incharge of Police Station or the Investigating Officer after pointing out the defects/lapses with the instructions to remove the same or he has to forward the same to the court of law, if he found the same fit for submission before the learned trial Court. This exercise also makes it clear that the intention of the Act is to confer the Prosecutor with the powers to examine the matter minutely and then take steps as he deems appropriate after making his legal expert opinion. Thus, I have no manner of doubt in my mind to express here that on every stretch of imagination the Office of District Public Prosecutor is not mere a post office for collecting the report from the police and pushing up the same towards the court but to make it unpolluted from any defect and present it in a ship-shape manner.
8. The discussion made above does not stop here because the above said section only authorizes the Prosecutor to point out defects and send back the report under section 173, Cr.P.C. For its removal whereas subsection (2) of section 12 of the Act makes it crystal clear that the ' Incharge of the Police Station or the Investigating Officer under obligation to comply with the directions of the Prosecutor with regard to removal of defects/irregularities point out by him in the report. For ready reference the supra section is reproduced hereunder:-
(12) Responsibility of Police Towards Prosecutors
(1) .
(a)
(b) .
(c) .
(2) An Officer Incharge of the Police Station or Investigating Officer shall within the time specified by the Prosecutor, comply with the directions and remedy the defects pointed out by the Prosecutor in a police report under section 173 of the Code including report for cancellation of the first information report or request for discharge of an accused or suspect.
The word 'shall' put an Officer Incharge of the Police Station orthe Investigating Officer under obligation to comply with the directions of the Prosecutor at every cost. On one hand subsection
(2) of section 12 of the Act reproduced above imposed compulsion on the police to comply with the direction of the Prosecutor in respect of submission of report under section 173, Cr.P.C. On the other hand it also leaves no room in understanding that the Prosecutor can issue direction to the incharge of the Police Station or the Investigating Officer to comply with his guidelines/instructions/directions within a specified period. Thus, if the conduct of the Prosecutor as enshrined in section 9 of the Act and responsibilities of the police towards the Prosecutor as defined in section 12 of the Act, read together then the clouds of messy would obviously shatter with the result that the Prosecutor has been bestowed with the powers to issue directions to the Investigating Officers or the incharge of Police Station to uproot the defects and thereafter submit the report according to the directions. That is why the Prosecutor has also been empowered to highlight lapses of the Investigating Office in acute cases of negligence and Suggest appropriate departmental punitive action to promote sense of responsibility as well as accountability of the Investigating Officer if he does not comply with the directions.
8. Now in the shadow of discussion made above I would like to resolve the question that whether the Prosecutor can add, delete or substitute section in report under section 173, Cr.P.C. In this regard the provisions of subsection (7) of section 9 of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 (II of 2006) suggest that the Prosecutor can also make scrutiny of the report for applicability of offence against all or any of the accused as per facts and circumstances of the case. For better appreciation of the section the same is reproduced as under:--
(7) A Prosecutor may submit to the Court results of his scrutiny in writing as to the available evidence and applicability of offences against all or any of the accused as per facts and circumstances of the case.
' This section also leads towards an implied impression into the mind of a prudent person that the Prosecutor is duty bound make scrutiny into the report under section 173, Cr.P.C. Submitted by the police and he is also bestowed with a privilege to oblige the court in respect of his scrutiny in writing after proposing applicability of offence in writing as well.. The obligation of a Prosecutor does not stop to the extent of making a scrutiny into the matter but it extends to the applicability of offence against all or any of the accused, as the case may be, as per facts and circumstances of the case. The discussion made above segregated the job/obligations/duties/responsibilities of a Prosecutor into two folds, one is towards the police the detail of which has already been provided above and the other is towards the court where he may put his stance in writing in respect of applicability of offence involved in the criminal case to the court. The provisions of subsection (7) of section 9 of the Act will be exercised by the Prosecutor only when he would receive the report under section 173, Cr.P.C. From the police according to his own whims and volitions. Although there is no direct expressed language in the Act, which denotes about the addition .Deletion or substitution of sections in the report under section 173, Cr.P.C. By the Prosecutor yet the implied expression of the supra section provide a direct interpretation that the Prosecutor can add or delete sections in or from the report ,under section 173, Cr.P.C. For the sake of arguments if the Prosecutor is prohibited from adding, deleting or substituting sections from the report under section 173, Cr.P.C. Then one should shake one's head in wonder that at one side the prosecutor can submit to the court his scrutiny in writing with regard to applicability of offences against all or any of the accused as per facts and circumstances of the case but on the other side he could not get the same practice carried out from the Incharge of Police Station or the Investigating Officer in the same manner by issuing directions. The spirit of above quoted subsection (7) of the Act apparently make the Prosecutor competent to examine the nature or offence committed by the accused and if he found that the wrong provisions/sections have been mentioned in the report then he is fully competent and has the lawful power to convert the report according to the offences which according to his opinion prima facie have been committed. Thereafter it is the court which has to see before framing of the charge that which offence is actually applicable in the case after perusing the available record before it. The object of this exercise is that the matter of applicability of offences will be decided by law knowing agencies and not by the police which cannot provide legal opinion directly to the court.
9. For what has been discussed above this writ petition is devoid of any merit and the same is hereby dismissed.