MUHAMMAD IJAZ KHAN, J.- Through the instant writ petition, the petitioners have prayed as under.
"It is, therefore, very humbly prayed that on acceptance of instant writ petition, the Section 365 and 337-A(i) may kindly be deleted from the FIR No. 1467".
2. Precisely, the facts of the case as spelling out from the record of this case are that the brother of the present petitioner namely Muhammad Faizan lodged a report on 03.12.2022 to the local Police Station which was initially entered in a Roznamcha and then it was incorporated into FIR No. 1467 dated 31.12.2022, whereby, respondent No. 2 to 4 were charged as accused. The record further indicates that respondent No. 4 namely Muhammad Rehan Khan who was not an accused in the aforesaid FIR also lodged his report as counter version of the aforesaid FIR which was also incorporated into Madd No. 12 dated 03.12.2022. The record also shows that Mst. Bazam Abbasi i.e. respondent No. 2 was not satisfied with the added sections of law in Madd Report No. 12, therefore, she approached to the Justice of Peace at Abbottabad for insertion of proper section of law, however, who instead of passing any order over her petition referred her to the Investigating Officer. The record further speaks that the Investigating Officer after getting opinion from the prosecution branch leveled section 394/341/ 354/342/34 PPC in her report and, thereafter, the present petitioners were arrested as accused but later-on they were granted bail. The record further indicates that respondent No. 2 Mst. Bazam Abbasi was even then not satisfied from the aforesaid sections of law, therefore, she submitted another application to The Regional Director Prosecution Hazara Abbottabad and on the said application too, the opinion of prosecution branch was obtained whereby it was directed that section 506/427/337-A(i) PPC be added, however, respondent No. 2 again submitted an application to the high-ups of police for insertion of section 365-B PPC which was again marked to the prosecution branch and this time too it was opined that instead of section 365-B PPC, section 365 PPC be inserted. The petitioners are aggrieved of the aforesaid order of insertion of new sections of law, therefore, they have approached to this Court through the instant petition for the aforesaid prayer.
3. Arguments of learned counsel for petitioners were heard in considerable detail and the record perused with his able assistance whose main objection was that the Investigating Officer or the Public Prosecutor have no authority to issue repeated orders for addition of section of -law and that the Justice of Peace has failed to perform his duty by referring the respondent No. 2 to the Investigating Officer of the case and lastly this Court may direct the Investigation Officer to delete section 365 PPC read with section 337-A(i) from Mad Report No. 12 dated 03.12.2022.
4. In view of the above stated facts, the petitioners are aggrieved of the addition of section 365 and section 337-A(i) PPC in the counter version of the instant FIR lodged by the respondent No. 4 Muhammad Rehan Khan vide Madd Report No. 12 dated 03.12.2022, whereby, the present petitioners are charged as accused. The record further indicates that after registration of the FIR/Madd Report the investigation of these cases is still in progress and both the parties have either obtained their bail from the Court of law or the same are pending adjudication, however, during the course of investigation, respondent No. 2 submitted successive application for addition of relevant sections of law in her report which her applications have also found favour with the prosecution branch and in consequence thereof it has directed the Investigating Officer to add section 365 and section 337-A(i) PPC in the Madd report of respondent No. 2, from which addition of section of law the present petitioners are aggrieved, therefore, in the given facts and circumstances this Court is confronted with the following questions of law:- 1) Whether the addition or deletion of section of law in a criminal case is the domain of the Investigating Officer or it is the domain of Public Prosecutor?
2) Whether the local Area Magistrate who is supervising the investigation of a criminal case has any authority to order for addition/insertion or deletion of section of law?
3) Whether the Justice of Peace has any authority to order for addition or deletion of section of law or not?
4) Whether this Court in its Constitutional jurisdiction could direct the Investigating Agency to add or delete section of law or not?
5. To answer the aforesaid questions, it would be relevant to mention here that the overall prosecution of a criminal case is to be conducted by the Public Prosecutor, however, after the registration of a criminal case, the Investigating Officer, The Public Prosecutor and the Local Area Magistrate all have their powers and functions to effectively regulate and conduct the investigation process and thus when the information with respect to the commission of a cognizable offence is conveyed to the local police, the same are to be incorporated in a Murasila/FIR and, thereafter, the processes of investigation is set in motion. Though the investigation too has different phases and dimensions, however, as far as the controversy involved in the present petition is concerned, it would be relevant to mention here that almost all kinds of offences are either defined in the Pakistan Penal Code or by special laws made for special kinds of offences and thus when the case is entrusted to the Investigating Officer for investigation then he as per his own wisdom can insert/impose a panel provision/section of the Pakistan Penal code or any other special law, however, such insertion/imposition or deletion of the section of law would be subject to the final opinion/direction of the prosecution branch.
6. It is also relevant to mention here that conduction of prosecution of a criminal case is to be carried out in the overall supervision of the prosecution branch and similarly during the course of investigation, the Investigating Officer is bound to obey and follow all the directions/instructions issued by the prosecution branch and to regulate the duties of an Investigating Officer and the powers and functions of the District Public Prosecutor the legislatures have enacted an Act with the name of The [Khyber Pakhtunkhwal Prosecution Service (Constitution, Functions and Powers)
Act, 2005 where under section 3 the government is bound to establish an institution which has already been established by the Government of Khyber Pakhtunkhwa with the name as Khyber Pakhtunkhwa Prosecution Institution whereas sections 4, 5 and section 7 stipulate the powers and functions of the Public Prosecutor/District Public Prosecutor. These sections of law being relevant for the present controversy are reproduced below.
4. (b) Powers and Functions of a Public Prosecutor. -- A District Public Prosecutor or a Public Prosecutor, as the case may be, shall be in-charge of the Prosecution in the district concerned and in discharge of his lawful duties with respect to a case the prosecution whereof is lawfully assigned to him, shall perform the following functions, in relation to conducting prosecution of offences before courts of competent jurisdiction, namely:
(a) ....................
(b) shall, on receipt of the final report, -
(i) lodge the same before the competent court trial; or
(ii) withhold the same for want of proper evidence and return it to the Investigation Officer with written direction to resubmit the report after removal of the deficiencies so identified by him;
5. Conduct of prosecution.--The prosecution of criminal offences shall be conducted in the following manner, namely:
(a) the Investigation Officer shall send the case together with the evidence to the concerned Public Prosecutor; (b).................
(c) ............................
(d) a Public Prosecutor may, within his jurisdiction, issue general guidelines to police officers regarding' the state of their investigation and other matters necessary for the fulfillment of the purpose of effective prosecution;
(e) ............................
(f) .............................
7. Additional Powers of District Public Prosecutor/Public Prosecutor.--A Public Prosecutor, in discharge of his lawful duties and in respect of a case lawfully assigned to him, may also exercise the following powers, in addition to the powers conferred by section 4 of this Act, namely:
(a) ...........................
(b) ...........................
(c) ...........................
(d) the Public Prosecutor on completion of investigation shall scrutinize the case file and refer the shortcomings or faults in investigation to the Head of Investigation for removing or improving the same, which shall be complied with by the Head of Investigation within seven days, and on fulfillment thereof, it shall be sent to the Public Prosecutor putting it in the court. (underline supplied for emphasis)
Similarly, under section 12 of The Act of 2005 the Provincial Government has been empowered to make rule and thus while exercising the aforesaid powers the Government of Khyber Pakhtunkhwa has made rules with the name of Khyber Pakhtunkhwa Prosecution Service (Constitution, Functions and Powers) Rules, 2012, (hereinafter referred to as The Rules of 2012), whereby, an office of Regional Director has been established who will be a divisional officer and will assist the Director General Prosecution. Rule 4 of the aforesaid Rules describes the powers and functions of the Regional Director, whereas Rule 5 describes conduct of inspection by the Public Prosecutor. Sub Rule (i) and (ii) of Rule 5 of The Rules of 2012 being relevant for the present controversy are reproduced below.
5. Conduct of inspections by Public Prosecutors---(1) The inspections will be conducted in the following manners: i. on receipt of copy of First Information Report, and first investigation report, the same shall be scrutinized by the District Head of Prosecution who shall issue necessary guidelines to the Investigation Officer who will provide legal assistance to him from time to time. The Investigation Officer after completion of the investigation in the light of directions of the District Head of Prosecution, shall submit complete challan to the District Head of Prosecution within stipulated period who shall further scrutinize the same through Public Prosecutors and case files complete in all aspects shall be forwarded to the Court for trial: ii. at the time of registration of the case if some ambiguity is found in applicability of correct section of law, the concerned police officer shall contact the District Head of Prosecution in order to ascertain as to which section of law is applicable in the case. The District Head of Prosecution shall tender legal opinion in this regard, so that there shall be no apprehension of having vital lacuna in the case at initial stage; (underline supplied for emphasis).
The aforesaid mandate of The Act of 2005 and The Rules of 2012 would show that the Public Prosecutor has over all power to issue general guidelines to the Investigating Officers to effectively conduct an investigation and other matter necessary for effective prosecution and in the process the Investigating Officer is bound to send the case file along with material to the Public Prosecutor and the Public Prosecutor shall scrutinize the case file and will refer the shortcoming or fault in the investigation to the head of the investigation for removing or improving the same which shall be complied with by the head of investigation within seven days and shall send back the same to the public prosecutor. It is also the duty of the Investigating Officer that he has to submit the final report to the Public Prosecutor and who could either lodge the said report before the competent Court of law for trial or he may withheld the same for want of proper investigation and return it to the Investigation Officer with written direction to resubmit the same after removal of the deficiency(ies) so identified by the Public Prosecutor. Similarly, as per The Rules of 2012 on receipt of copy of the First Information Report, the same has to be scrutinized by the District Head of the Prosecution and who shall issue necessary guidelines to the Investigating Officer from time to time and at the time of registration of the case if some ambiguity is found in applicability of correct section of law the concerned police officer shall contact with the District Head Prosecutor in order to ascertain as to which section of law is applicable in the case and then the Public Prosecutor is bound to tender legal opinion in this regard. In view of the above statutory mandate, the Investigating Officer may impose any section of law as per his own wisdom, however, if he is not sure about the correct section of law he may sought the opinion of District Public Prosecutor and even in cases of absence of any opinion so sought by the Investigating Officer the District Public Prosecutor on its own will scrutinize the record and will issue necessary direction for the correction of the section of law.
7. It is also relevant to mention here that on one hand as per the aforesaid mandate of law there is a close liaison between the investigating officer and District Public Prosecutor/Public Prosecutor and on the other hand under the provisions of Cr.P.0 the Local Area Magistrate too has the authority to pinpoint any deficiency/shortcoming in the investigation as during the course of investigation the Local Area Magistrate being head of the investigation of the area may have many opportunities to have the investigation file before him, therefore, his direction too are binding on the Investigating Officer. It may be relevant to mention here that in such capacity the Magistrate would not be acting as a Judicial Magistrate but he is acting as head of the investigation of the area concerned.
8. It is also relevant to mention here that after submission of the police report before the trial Court, it too, before framing of the charge shall peruse the police report and all documents and statements filed by the prosecution and thus it shall frame the charge under those penal provisions of law, which are spelling out from the police report/documents/ statements and thus in such exercise the sections of law imposed/inserted by the Investigating Officer/Public Prosecutor could be checked by the trial Court so much so that even the charge, if already framed, could be altered or amended as per the material collected by the Investigating Officer or the evidence produced by the prosecution.
9. Keeping in view the aforesaid mandate of law, the answer to question No. 1 & 2 are that addition or deletion of section of law in a criminal case is the domain of the Investigation Officer and District Public Prosecutor/Public Prosecutor and in this regard the Local Area Magistrate too, in his administrative capacity where it deems appropriate could also issue necessary direction(s).
10. In view of the above mandate of law the plea of the petitioners that the Investigating Officer/Public Prosecutor has no authority to issue direction for addition of sections of law is misconceived as in this case too respondent No. 2 submitted various applications to the high-ups of the police which were marked to the Investigating Officer and then the Investigating Officer, obtained the opinion of the District Public Prosecutor/ Prosecutor and, thereafter, new sections of law were added, therefore, the Investigation Officer and the District Public Prosecutor have acted within their lawful authority and they have not committed any excess of their authority. In the case of "Farman Ullah and 5 others vs. The State through Additional Advocate General, Peshawar and 4 others" reported as 2016 P Cr. L J 1096 this Court has held that insertion or deletion of an offence in the FIR, being a job of the investigation, falls within the exclusive domain of the Prosecutor/ Investigating Agency and the Justice of Peace has no power either to interfere with the process of investigation or to direct deletion or insertion of section of law in the FIR. Similarly, in the case of "Muhammad Sharif vs. District Police Officer & 2 others" reported as PLD 2015 Lahore 84 wherein it has been held that deletion or insertion of any offence, the District Prosecutor had the powers to scrutinize the available evidence and applicability of offences against all or any of accused as per facts and circumstances of the case. Deletion or insertion of any offence, fell within the exclusive domain of the Investigating Police Agency and District Prosecutor. Likewise, in the case of "Rasoolan Bibi vs. Additional Session Judge and others" reported as PLD 2009 Lahore 135, it has been held that the prosecutor has the powers to scrutinize the available evidence and applicability of offences against all or any of the accused as per facts and circumstances of the case, as such, the deletion or insertion of any offence falls within the exclusive domain of the Prosecutor.
11. As far as the question No. 3 is concerned that as to whether Justice of Peace can order for the addition or deletion of section of law or not, the answer to above question is a big No. In this case too when the respondent No. 2 approached to the Justice of Peace, Abbottabad for addition of section of law he did not pass any order and referred respondent No. 2 to the Investigating Officer and rightly so as the Justice of Peace has no authority to order for addition or deletion of any section of law. It is relevant to mention that whenever the jurisdiction of Justice of Peace is invoked by an aggrieved person under section 22-A and 22-B Cr.P.0 its only domain is to see that as to whether the contents of petition filed before it constitute the commission of a cognizable offence or not and if it does then he is bound to order for the registration of the FIR and if the same does not then it has to decline the same and thus apart from it, Justice of Peace has no authority to order for the addition or deletion of any panel provision in the already registered FIR. Similarly, the Justice of Peace while issuing direction of lodging of any FIR it could not issue a direction for insertion of any specific panel provision, therefore, in view of the above Justice of Peace has no authority to order for the addition or deletion of any section of law. In case of "Sved Abdul Hameed vs. Mian Izhar Ahmad and 2 others" reported as PLD 2019 Peshawar 154 it has been held that rationale behind conferring of powers upon Justice of Peace under the Code was to enable aggrieved person to approach court of Justice of Peace for redressal of his grievances i.e., non-registration FIRs, excess of police, transfer of investigation to courts situated at district level or session or at particular sessions division. Main purpose of enactment was to create a forum at doorstep of people for their convenience and instead of invoking or approaching High Court in its extraordinary jurisdiction under Art.199 of the Constitution, public would have access to courts situated at their respective districts for redressal of their grievances provided under S.22-A(6) Cr.P.C.
12. It is also relevant to mention here that an act/order of Investigating Officer or Public Prosecutor to impose or insert or delete any sections of law in the pending criminal case could neither be challenged before the Justice of Peace nor the same has any lawful authority to issue any order in this regard as on plain reading of section 22-A & 22-B Cr.P.C such powers falls outside the domain of Justice of Peace. In the supra cases of "Muhammad Sharif vs. District Police Officer & 2 others" and "Rasoolan Bibi vs. Additional Secessions Judge and others" it has been held that the questions whether the Investigating Officer or Public Prosecutor have rightly inserted or deleted any section of law could neither be challenged before the Justice of Peace nor it could pass any order in this regard.
13. As far as question No. 4 is concerned that whether this Court has got any power to order for addition or deletion of penal provision of law in its constitutional jurisdiction, the answer for the same is also in negative as exercising such powers by this Court would amount to pre-empt the power of the Investigating Officer and public prosecutor and it would also amount that this Court in its constitutional jurisdiction would act as parallel investigator. In the case of "Dr. Ghulam Mustafa vs. The State and others" reported as 2008 SCMR 76, the Hon'ble Supreme Court has held that our constitution is based on the "principle of trichotomy" of powers. The Courts have right to interpret the law and the High Court had no jurisdiction whatsoever to take the role of the investigating agency. In the case of Shahnaz Beum vs. The Hon'ble Judges of the High Court of Sind and Baluchistan reported as PLD 1971 Supreme Court 677, the Hon'ble Apex Court has held that the High Court in exercise of its constitutional jurisdiction should not interfere in police investigation. Under this Constitution, a High Court has been given the power of judicial review of executive actions by Article 98 in certain specified circumstances. The High Court has also no power of supervision or control over investigating agencies and thus as per the aforesaid constitutional mandate, the High Court could not control the investigation in its constitutional jurisdiction, therefore, on the above touchstone this Court too has no power to order for addition or deletion the section of law.
14. Accordingly, this petition being bereft of any merits is hereby dismissed in limini, however, we hold and declare as under: - a) The insertion or deletion of section(s) of law in a criminal case/FIR is the domain and authority of the Investigating Officer and the Public Prosecutor, however, in case of any uncertainty the Investigating Officer shall seek the opinion of the Public Prosecutor and the Public Prosecutor is bound to tender his opinion, which opinion shall be binding upon the Investigating Officer or if the Public Prosecutor himself take notice of a wrong and improper section of law in a criminal case/FIR he may on his own can direct the Investigating Officer to impose, insert or delete any section of law. b) The Local Area Magistrate too, where he deems appropriate, could issue necessary direction for conducting the investigation in an effective manner and his such direction would also be binding on the Investigating Officer. c) The Justice of Peace has no legal or lawful authority to issue any direction for insertion or deletion of any section of law in a criminal case/FIR. d) This Court (High Court) too, in its constitutional jurisdiction could not issue any direction to the Investigating Officer for insertion or deletion of any section of law in a criminal case/FIR.