' RAJA SAEED AKRAM KHAN, J.---This appeal has been filed against the order of the Shariat Court dated 30-11-2011, whereby while disposing of the revision petition filed by the appellant, herein, the order dated 15-7-2011 passed by the District Criminal Court, Pallandri, has been maintained.
2. The relevant facts culminating into this appeal are that the appellant is running a jewellery shop at Pallandri Bazar. At midnight of 10-1-2011, accused-respondent No, 1, after conspiracy and collusion with his companions, committed the dacoity worth of Rupees 28 lac from the jewellery shop of the appellant by kidnapping his family on gun point. The appellant lodged an F.I.R. Against the unknown persons under sections 458, 34, A.P.C. And section 17(3), EHA at Police Station Pallandri.
After registration of the case, the investigation started and respondent No, 1 was arrested. During the investigation, respondent No,1 disclosed the whole plan and names of the other co-accused.
For obtaining better results of investigation, the Police kept all the investigation secret. An incomplete report under section 173, Cr.P.C. Was presented before the District Criminal Court, Pallandri. The trial Court, vide order dated 15-7-2011, initiated the trial while treating the incomplete challan as a complete one. Being dissatisfied, this order was challenged before the Shariat Court by filing a revision petition on 14-9-2011 which was disposed of vide impugned order dated 30-11- 2011 with the observations that the Police may file any documentary or other evidence after collecting the same during the trial.
3. Mr. Asghar Ali Malik, the learned counsel for the appellant, has argued that the orders of the District Criminal Court and the Shariat Court are against law and facts of the case. Both the Courts below have overlooked the relevant provisions of law and have not correctly interpreted the provisions of section 173, Cr.P.C. Both the Courts also failed to take into consideration that there is only one Police Station in Paltandri and due to rush of work, the complete challan could not be submitted within a reasonable time. He further urged that due to delay in submitting the complete challan, no loss, has been caused to the accused-respondent as he is already enlarged on ball. He lastly argued that both the Courts have miserably failed to examine most important aspect of the case that the complete challan/report under section 173, Cr.P.C. Is mandatory requirement of law.
Treating the incomplete challan as a complete one shall prejudice the case of the appellant- complainant.
4. Ch. Shaukat Aziz, the learned Additional Advocate-General, has supported the arguments advanced by Mr. Asghar Ali Malik; Advocate.
5. On the other hand, Sardar Muhammad Habib Zia, Advocate, the learned counsel for the accused-respondent, has strongly supported the orders of both the Courts below while arguing that the orders are quite legal and perfect. He urged that no recovery was effected from the accused-respondent, that is why the incomplete challan was submitted in the Court. He further argued that the Court is fully competent to take cognizance in an incomplete challan. He lastly argued that respondent No,1 is innocent who has been falsely enroped in the case and the appellant and the Police are lingering on the matter on one or the other pretext.
6. We have heard the arguments at some length and also perused the impugned order minutely. In the instant case the controversy revolves around the report of the Police under section 173, Cr.P.C. In ordinary sense, the term `challan' is used for a report under section 173, Cr.P.C. Vice versa the term 'interim report' as an incomplete challan. Before proceeding further, it would be appropriate to draw a distinction between these two terms. The term 'challan' does not exist anywhere in the Criminal Procedure Code. The final report of investigation, which the Police is liable to submit in criminal cases, is known as `challan'. Likewise, for interim report under section 173, Cr.P.C. The term 'incomplete challan' is used. The term `challan' has been interpreted in a case titled Rasool Bux v.
The State [2003 PCr.LJ 244] in the following manner:-- ' I am afraid Courts should not be hampered with the technicalities of a challan or a report of final investigation under section 173, Cr.P.C. According to the scheme of things in Cr.P.C. The two are one and the same thing. Unfortunately the term `challan' does not anywhere exist in the Cr.P.C. The final report of investigation which the police is liable to submit before criminal Court is spoken of in section 173, Cr.P.C. Generally this final report of investigation is known or referred to as challan.
Whatever may be the finding of Investigation Agency about the innocence or otherwise of the accused, the same is to be produced before the criminal Court, by preparing or filing report under section 173, Cr.P.C. Even in the case of Ahmed Nawaz v. State 2001 MLD 1330 (Lahore) it was held that where a police report is placed before the Magistrate recommending the accused to be discharged from the case, it is not necessary for the Magistrate to agree with that report and in an appropriate case, the Court can take cognizance of the case and summon the accused person to face the trial even if the police has not recommended for his trial under section 173, Cr.P.C.
7. Now we advert to examine section 173, Cr.P.C. An amendment was brought in section 173, Cr.P.C., through Act XXV of 1992 with effect from 12-12-1992. It would be appropriate to reproduce below the original section 173, Cr.P.C. As it existed before amendment:-- "173. Report of police officer.---(1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer in charge of the police- station shall:
(a) forward to a Magistrate empowered to take cognizance of the offence on a police-report, a report in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and
(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.
(2) Where a superior officer of police has been appointed under section 158, the report shall, in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police-station to make further investigation.
(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
(4) A copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial: ' Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to furnish it free of cost."
' After amendment, the section speaks as under:- "173. Report of police-officer.---(1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer-in-charge of the Police- station shall, through the public prosecutor,-
(a) forward to a Magistrate empowered to take cognizance of the offence on a police-report, a report in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and
(b) communicate, in such manner as may be prescribed by the. Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given; ' Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under section 154, the officer-in-charge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded; the Court decides that the trial should not so commences.
(2) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may, pending the 'orders of the Magistrate, direct the officer-in-charge of the police-station tc make further investigation.
(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
(4) A copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial.
' Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to furnish it free of cost.
' Where the officer-in-charge of a police-station forwards a report under subsection (1), he shall along with the report produce the witnesses in the case, except the public servants, and the Magistrate shall bind such witnesses for appearance before him or some other Court on the date fixed for trial."
8. A perusal of the aforesaid provisions reveals that a proviso was added vide supra amendment in which procedure has been laid down that in case, an investigation could not be completed within a period of 14 days from the date of lodging the F.I.R. Under section 154, the Incharge Police Station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the prescribed form stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons, to be recorded, the Court decides that the trial should not so commence. Prior to amendment; there was no such provision for submission of interim report or any other report under section 173, Cr.P.C. But after the insertion of the proviso in section 173, Cr.P.C., the interim report can be submitted. As envisaged under section 173, Cr.P.C., in a case if the investigation is not completed within the stipulated period, i.e,, within 14 days, then it is the requirement of law to submit the interim report on the basis of material collected by the police.
After submission of the interim report, if the police succeeds to collect other material that can be placed along with final report before the Court of competent jurisdiction and on the basis of that, the Court can amend/alter the charge if it has already been framed. We are fortified in our view by a case titled Talib Hussain v. D.I.-G. And others (1996 PCr.LJ 1294) in which it has been held as under:-- ' At this stage I am tempted to express that to avoid such a belated situation the amendment was effected through the incorporation of the proviso to subsection 1(b) of section 173, Cr.P.C. Through Ordinance No'. XXV made operative w.e.f, 12-12-1992. According to this proviso of law after the lapse of a period of fourteen days from the date of recording of the First Information Report, in case the investigation is not completed, within a period of next three days the interim challan has to be submitted by the police before the Area Magistrate who has to decide whether or not to start the trial. The investigation was continued by the concerned Police without any justification in violation of the aforesaid mandatory provisions of law. A perusal of the Inspection Note initially prepared by the Investigating Officer on his first visit to the place of occurrence has made out that the version of the complainant party stands projected. The wisdom behind the introduction/incorporation of proviso to subsection 1(b) of section 173, Cr.P.C. Is the creation of a sort of check/restraint upon the police working as the protracted investigation (especially through transfer of investigation) and non-submission of the challan as required by the law is one of the reasons whereby the law and order situation is worsening in the Province.
9. Now the question arises whether on the basis of interim report, the Court can take cognizance of the interim report. The report submitted under section 173, Cr.P.C., is not the opinion of the Police Officer, rather it is a documentary evidence and it is not the job of the Police to adjudicate the guilt or innocence of an accused nor it is the duty of the Police to decide as to which of the parties was in the wrong as has been held in a case titled Sharafat Ali and another v. The State [2007 YLR 779] in the following manner:-- "15. It is also notable that during the investigation number of persons appeared before the police, who were the natural witnesses being the shopkeepers and the residents of the dame area, who professed about the innocence, of the appellants and their acquitted accused whereupon the police came to the definite conclusion that the appellants and their acquitted accused had not participated in the incident, but the actual culprits were Muhammad Amin and Zahoor Ahmad and report under section 173, Cr.P.C. Was submitted against them. In the present case the complainant of this case filed private complaint being not satisfied with the opinion of the police and the trial was conducted in the present case. It was not opinion of the police rather it was documentary evidence in the shape of report under section 173, Cr.P.C. Submitted by the police relying upon the witnesses of the locality about involvement of Muhammad Amin and Zahoor Ahmad in the occurrence. We are conscious that opinion of the police is not binding on the Courts being not a substantial piece of evidence.
10. It is the sole prerogative of the trial Court which, on the basis of the report and other material, has to form the independent opinion after applying its judicial mind. The trial can be initiated under the law on the basis of interim report submitted under section 173, C P.C. And even a charge can be framed as laid down in a case reported as Muhammad Ashraf v. The State [PLD 2008 Lah. 578] in which it has been held as under:-- "(7) It may be stated, at the very outset, that the grievance of the petitioner/accused raised through this criminal revision was premature in that the learned Additional Sessions Judge had not yet framed the charge and simply the report under section 173, Cr.P.C. Had been entertained. Mere entertaining of the report under section 173, Cr.P.C. Could not lead to a conclusive presumption that the charge would be framed under a specific section especially when the material had not yet been examined by the learned Court for the purposes of framing the charge. The report under section 173, Cr.P.C. Is submitted by the police for providing the information and the material to the Court enabling it to commence the trial of the accused, which includes the material calculated by it through the investigation of the case registered on the receipt of information regarding the commission of an offence.
(8) The trial of an offence is permissible under.The law on the basis of the interim report under section 173, Cr.P.C. The learned trial Court was competent to frame the charge even on the basis of the interim report and as at that point of time the opinion of the medical officer had not yet been added by the police in its report, then had the learned Court framed charge under section 302, P.P.C., it could not have been lawfully disputed by the petitioner/accused persons."
' In another case titled M. B. Abbasi v. The State [PLD 1998 Kar. 230] in which it has been observed as under:-- "It appears that the trial Court granted adjournments mostly on the ground that the matter was still under investigation and final charge-sheet was not submitted. We are of the view that so many adjournments should not have been granted on above ground and in view of proviso of subsection
(1) of section 173, Cr.P.C. The trial shall have been commenced on the basis of the interim charge- sheet. Accordingly, we direct that trial shall be started without any further delay."
11. In view of above discussion it can be safely said that there is no bar for the trial Court to take cognizance of a case on the basis of interim report. Later on, on collection of new evidence, the Investigation Officer is fully competent to place the same before the Court and the Court shall consider it as one of the relevant factors while deciding the case. However, on the excuse of the final report, the matter cannot be lingered on for an indefinite period as has been laid down in a case titled Hakim Mumtaz Ahmed and another v. The State [PLD 2002 SC 590] in the following manner:-- ".... ..... However, our emphasis is that notwithstanding the fact that before or after completion of investigation period prescribed under section 167, Cr.P.C. If it is not possible to submit final report, the Investigating Agency should strictly adhere to the provisions of section 173(1), Cr.P.C. And must submit interim challan through Public Prosecutor for trial and the accused arrested in the case should not be kept in custody for indefinite period without any legal justification."
' In another case reported as Javaid Iqbal v. Additional inspector- General of Police, Lahore and 4 others [PLD 2008 Lah. 488], it was observed as under:-- ' Though, there is no bar against re-investigation of the case after the submission of report under section 173, Cr.P.C. As has been held by the honourable Supreme Court in the case of Bahadur Khan v. Muhammad Azam and 2 others (2006 SCMR 373), yet the fact remains that ultimately, the case has to be decided on the basis of evidence recorded before the learned trial Court. The purpose of investigation, as defined under section 4(1), Cr.P.C. Is the collection of evidence by a police officer or by any other person (other than a Magistrate) who is authorized by a Magistrate in this behalf.
The said definition does not talk of the opinion of the police office, who under the said definition, is only authorized to collect the evidence, therefore, the opinion of the police is neither relevant nor admissible in evidence.
12. While taking the opportunity we would also like to discuss section 167, Cr.P.C. Which has the nexus with section 173, Cr.P.C. It would be appropriate to reproduce section 167, Cr.P.C. As under.-- "167, Procedure when investigation cannot be completed in twenty-four hours.---(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty tour hours fixed by section 61, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police- station or the police-officer making the investigation if he is not below the rank of sub-inspector shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has no jurisdiction to try the case or send it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.
' Provided that no Magistrate of the third class, and no Magistrate of the second class not specially empowered in this behalf by the Provincial Government shall authorize detention in the custody of the police.
(3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing.
(4) The Magistrate giving such order shall forward a copy of his order, with his reasons for making it, to the Sessions Judge.
(5) Notwithstanding anything contained in sections 60 and 61 or hereinbefore to the contrary, where the accused forwarded under subsection (2) is a female, the Magistrate shall not except in the cases involving gall or dacoity supported by reasons to be recorded in writing, authorise the detention of the accused in police custody, and the police-officer making an investigation shall interrogate the accused referred to in subsection (1) in the prison in the presence of an officer of jail and a female police-officer.
(6) The officer in charge of the prison shall make appropriate arrangements for the admission of the investigating police-officer into the prison for the purpose of interrogating the accused.
(7) If for the purpose of investigation, it is necessary that the accused referred to in subsection (1) be taken out of the prison, the officer in charge of the police station or the police-officer making investigation, not below the rank of Sub-Inspector, shall apply to the Magistrate in that behalf and the Magistrate may, for the reasons to be recorded in writing, permit taking of accused out of the prison in the company of a female police-officer appointed by the Magistrate.
' Provided that the accused shall not be kept out of the prison while in the custody of the police between sunset and sunrise."
' Sections 173 and 167, Cr.P.C., provide a mechanism for the Investigating Officer of the case and in case the investigation is not completed within the stipulated period, the guideline has been provided for the Investigating Officer. If an investigation is not completed within the period prescribed under sections 173 and 167, Cr.P.C., and if it is not possible to submit the final report, the Investigating Agency should strictly adhere to the provisions of section 173(1), Cr.P.C. And must submit the interim challan through the public prosecutor for trial of the accused as has been observed in the cases referred to above.
13. The crux of the above discussion is that the proviso to section 173(1)(b), Cr.P.C., has been inserted keeping in mind that in most of the cases the investigation is not completed within the stipulated G period for one reason or the other, that is why the term 'interim report', was introduced in the above said section so that the Court can take cognizance on the basis of the material placed before it.
Under the proviso to section 173, Cr.P.C., no unlimited power has been assigned to the Investigation Officer to complete the investigation with his sweet will. He is duty bound to complete the same as soon as possible and place the outcome of the investigation before the trial Court. As it is apparent from the opening words of the section that every investigation under this Chapter shall be completed without unnecessary delay', an inference can be drawn that if on the, sound reasons assigned by the Investigating Officer for not completing the investigation within the stipulated period, the provision of the interim report can be invoked and there is no bar for the trial Court to take the cognizance and commence the trial on the said report.
14. As we have observed in supra paragraphs that later on during the investigation, if some new facts/evidence comes on the record, the same shall be placed before the Court and the Court shall take into consideration the same in accordance with law.
15. In view of the above discussion, we are of the view that the argument of the learned counsel for the appellant that cognizance cannot be taken by the trial Court on an interim report has no force.
Therefore, the same is repelled. Resultantly, the appeal is dismissed.
' Before parting with the judgment, we may observe that the Investigating Officer shall complete the investigation of this case as soon as possible but not beyond the period of two weeks from the date of receipt of order of this Court and place the fresh material, if any, before the Court.