SAGHEER AHMAD QADRI, J.---Petitioner Aziz Ullah Khan, who is an accused in case F.I.R. No,234, dated 28-6-2011, under sections 324/34, P.P.C., registered at Police Station Saddar Mianwali, has moved this writ petition challenging the legality and propriety of the remarks recorded by the Assistant District Public Prosecutor whereby when challan was submitted before him for scrutiny purposes he observed on the application moved by the complainant that prima facie from the facts and circumstances of the case offence under section 324, P.P.C. Was made out and how the Investigating Officer deleted the same. The learned Assistant District Public Prosecutor vide order dated 23-8-2011, remarked that no ground was available with the Investigating Officer for deletion of offence under section 324, P.P.C. Subsequently when the challan was submitted in the trial Court the accused appeared and he was charged vide order dated 19-3-2012, to which he pleaded not guilty and now the case is at the stage of recording of evidence.
2. Learned counsel for the petitioner reiterated the stance mentioned in the writ petition and argued that the learned Assistant District Public Prosecutor was not within his jurisdiction to direct addition of section 324, P.P.C. In the report under section 173, Cr.P.C. Learned counsel has placed reliance on Fayyaz Ahmed and another v. The State and others (2008 PCr.LJ 805) and Tanveer Hussain Qureshi and 8 others v. District Public Prosecutor, Sialkot and 2 others (2009 PCr.LJ 1043) with the prayer that this petition be allowed and the remarks recorded by the Assistant District Public Prosecutor be set aside having been passed without any lawful justification and authority.
3. Conversely, the learned Law Officer assisted by the learned counsel for the complainant has opposed the arguments advanced by the learned counsel for the petitioner with the submission that the challan has already been submitted in the trial Court. The charge has already been framed. At this stage the remarks by the Assistant District Public Prosecutor which itself were not a direction rather an observation and in the light of the earlier registration of the case under section 324, P.P.C. Have no material bearing on the case nor it constitutes any direction for addition of offence under section 324, P.P.C. As agitated by the learned counsel for the petitioner.
4. I have heard the learned counsel for the parties and perused the record.
5. Powers and functions of the Prosecutors have been provided under section 9 of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006. Under section 9(5) of the Act, ibid, a Prosecutor is authorized to scrutinize the report under section 173, Cr.P.C. Submitted before him by the Investigating Officer and he shall perform the following functions:- "(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 Investigation 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.
(6) On receipt of an interim police report under section 173 of the Code, the Prosecutor shall
(a) examine the reasons assigned for the delay in the completion of investigation and if he considers the reasons compelling, request C the Court for the postponement of trial and in case investigation is not completed within reasonable time, request the Court for commencement of trial; and
(b) in cases where reasons assigned for delay in the completion of investigation are not compelling, request the Court for commencement of trial on the basis of the evidence available on record.
(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."
' If the above-mentioned provision of section 9(5)(a) is seen, the Prosecutor is authorized to scrutinize the report and to 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 defect as may be identified by him. The defects in said report may be technical defect or otherwise defects apparent from record submitted, on the basis of which the report under section 173, Cr.P.C. Is prepared. The word "defect" has nowhere been defined in the Act, ibid. The words "Defect" and "Defective" have been defined in Black's Law Dictionary as under:- 'Defect": An imperfection or shortcoming, esp. In a part that is essential to the operation or safety of a product.
"Defective": Lacking in legal sufficiency, containing an imperfection or shortcoming in a part essential to the product's safe operation."
' In Chamber 20th Century Dictionary the word "defect" has been defined as a "a deficiency, a want, imperfection, blesmish, fault"
' If the above-mentioned definitions and meanings of the words "defect" and "defective" are seen, it is clear that defect may be of substance or in form. Keeping in view the subject in hand, if section 9(5)(a) of the Act, ibid, is seen, the defect which a Public Prosecutor or a Prosecutor is required to point out in report under section 173, Cr.P.C. Submitted may be a defect in investigation during the collection of facts which constitute as proof admissible in evidence against an accused person or the result constituted on the basis of which those collected facts which form the opinion of a police officer about the commission of an offence under which an accused is forwarded before a court for initiation of action under relevant provision of law. The arguments advanced by learned counsel for the petitioner that District Prosecutor on the basis of record submitted before him has formed an opinion that a specific offence i.e, offence under section 324, P.P.C. Was made out and further sending back the report under section 173, Cr.P.C. With the direction to the I.O. To submit the same after removal of the defect travelled beyond the scope of the powers of a Public Prosecutor as provided under section 9(5)(a) of the Act, ibid, perhaps is not sustainable in the eye of law. To support learned counsel has relied on a judgment passed by this Court cited as "Fayyaz Ahmad v.
The State" (2008 PCr.LJ 805). In the said judgment the question came before a learned Division Bench of this Court whereby a Public Prosecutor, Anti-Terrorism Court, Multan while scrutinizing the report submitted under section 173, Cr.P.C. Opined that offence under section 7-ATA was not made out, therefore, he directed that challan be submitted before a court of competent jurisdiction i.e, an ordinary court of jurisdiction. Learned Division Bench while deciding Fayyaz Ahmad's case (Supra) took into consideration subsection (7) of section 9 of the Act, ibid and concluded that Public Prosecutor was only authorized to submit his opinion about the commission of an offence by an accused against whom report under section 173, Cr.P.C. Was submitted before a court. With due respect perhaps the learned Division Bench lost sight the sequence in which subsection (7) of the Act, ibid, was enacted. If section 9 of the Act, ibid is seen, first the Prosecutors are given the powers and declared them responsible to conduct the prosecution on behalf of the Government before the Courts. Under subsection (2) Prosecutor-General and Additional Prosecutor-General are authorized to further distribute the work to the Prosecutors in different courts and then under subsection (3) a District Prosecutor was authorized to further distribute the work between the Prosecutors to conduct prosecutions in the Court of Session and the Courts of Magistrates within a District. Under subsection (4) of section 9 of the Act, ibid, police report under section 173, Cr.P.C.
(commonly known as "the challan") as well as a report for cancellation of the F.I.R. Or a request for discharge of a suspect or an accused, has to be first submitted before the Prosecutor enroute the court. Under subsection (5) of section 9 ibid it is mandatory for a Prosecutor to scrutinize the above mentioned reports or the request and he is further authorized to return the same to the Officer Incharge of the Police Station or Investigating Officer, if he finds the same as defective, for removal of such defects as may be identified by him. In case if report is found fit for submission before the court then it be submitted in the court for further necessary actions on the part of the court by the Prosecutor. Under subsection (6) of section 9 ibid if report under section 173, Cr.P.C. As per proviso to section 173(1)(b) is submitted beyond the period of 14 days from the date of recording of the First Information Report, then in that eventuality the Prosecutor shall examine the reasons for delay in submission of said report by the Incharge of Police Station or an I.O. And in case those reasons assigned for delay in completion of the investigation are not compelling, request the court for commencement of trial on the basis of evidence available on record. Subsequent to above mentioned provisions i.e, subsection (6) of section 9 of the Act, ibid, if a Prosecutor is satisfied then he may submit the result of his scrutiny in writing to the court on the basis of evidence available as well as his opinion about the offences applicable against an accused as per facts and circumstances of the case. The provisions of subsection (7) of section 9 come into play in case when a Prosecutor under subsection (6) finds no reasonable ground for delay or report under section 173 Cr.P.C. In its present form is fit to be submitted before a court and in that eventuality he can submit his opinion as required under subsection (7). However, if a Prosecutor when under subsection (4) of section 9 of the Act, ibid, report under section 173, Cr.P.C. Is submitted before him he may return the same by pointing out the defects within 3 days as discussed above to the Incharge of Police Station or to the I.O. For its removal and for submission of the report further before the court of competent jurisdiction. It is further to be cfarified that in that eventuality when report would be submitted under section 173, Cr.P.C. By the I.O./SHO then it be submitted after removal of those defects. These defects as already discussed may be of form or in substance.
Admittedly, report under section 173,. Cr.P.C. When submitted it accompanies the evidence collected against the accused under certain allegations and when report is submitted it is also submitted by mentioning the provisions of relevant law/offences allegedly to be tried against an accused person by a court of law. Hence, the pointation of a defect in report under section 173, Cr.P.C. Whereby a Prosecutor directs the SHO concerned or I.O. To submit the report under a specific provision/offence, it is permissible under section 9(5)(a) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006. To fortify this view, reference can be seen from a judgment cited as "Abdul Hafeez Junejo v. The State" (2010 YLR 470) whereby a learned Single Bench of Hon'ble Sindh High Court observed:-- "A minute perusal of the aforesaid provision reflects that the conduct of the Prosecution on behalf of Government is the responsibility of the Prosecutors and every report under section 173 of the Code of Criminal Procedure including the report for cancellation of F.I.R. Or discharge of a suspect or an accused has to be filed in Court after the same is scrutinized by the Public Prosecutor and under clause (a) of subsection (5), Prosecutors have the power to return such report to the Officer Incharge of a Police Station or the Investigating Officer if they find it defective for the removal of identified defect. Furthermore, under subsection (7) the result of such scrutiny as an expert opinion may be placed before the Court for its convenience and consideration of course without any binding force. Even otherwise, the Prosecutor having expertise in the field is in a better position to opine that on the basis of the investigated fact the accused can be tried under a specific provision and in the instant case the fact that the accused persons being officers/official of police cannot be ignored. In view of such clear mandate provided to the Prosecutors, the opinion of the District Public Prosecutor in the instant case totally appears to be in consonance with such mandate and the acceptance thereof by the Investigating Officer followed by changes of section cannot be questioned and holding otherwise would amount to render the provision of section 9 of Ordinance 2006 as redundant."
Here in this case, the report under section 173, Cr.P.C. Was submitted before the District Public Prosecutor and he on the basis of record available as initial F.I.R. Was registered under section 324, P.P.C., however, the Investigating Officer during investigation opined that offence under sections 337-F(v), 337-A(i), 337-L(2) and 337-H(2) was made out while deleting section 324 intended to submit report before the learned trial court. The Public Prosecutor while exercising the powers under section 9(5)(a) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 observed that application of section 324, P.P.C. Was made out and he returned the report with the observation that challan be submitted before the Court under the relevant provision of law. Challan was submitted in Court and learned trial Court accordingly charged the accused under section 324, P.P.C. To which he pleaded not guilty and presently the case is at the stage of recording of evidence. Keeping in view these circumstances, the objection raised by the learned counsel for the petitioner at this stage has no force. In view of the above discussion, no ground exists to interfere into the above mentioned observation made by the Public Prosecutor while exercising extraordinary writ jurisdiction hence, this petition is hereby dismissed.