The brief facts leading to the present criminal revision are as follows:-- That the petitioner, alongwith 14 others, is accused of offences under section 302/307/148/149, P.P.C.
Vide F.I.R. No. 323/86 dated 19-11-1986 registered at Police Station Shorkot, District Jhang. And that the police had submitted a challan on 12-1-1988 in respect thereof, which was taken cognizance of by the learned trial Court. However, even after that the investigation of the case was being conducted by one Investigating Officer or the other, and as a result of one such inquiry, the petitioner and co-accused, Mohsin, Shafqat and Azhar were declared innocent and consequently got discharged by order, dated 20-8-1989, passed by the Magistrate 1st Class, Shorkot. Thereafter, the said four accused applied to the learned trial Court contending that as they have been discharged from the case, therefore, they be not tried and in fact should be discharged from the case.
2. However, the learned counsel conceded that if the challan is before the Court of Session, the Magistrate cannot order the discharge of any accused named in the said challan.
3. But stated that he shall make submissions to support the present petition, nevertheless.
Therefore, submitted that although all the accused have been named as accused in the challan dated 12-1-1988, but as in the same challan, it has been stated that earlier, accused, Anwar Ali Shah, Mohsin Ali Shah, Ajmal Ali Shah and Azhar Ali Shah, had been placed in column No.2, therefore, argued it cannot be said that they had been sent up as accused persons. Further submitted that if there was an earlier challan submitted to the trial Court then the challan in question dated 12-1-1988 cannot be considered as a challan/report under the provisions of section 173, Cr.P.C. Further submitted in the alternative, that neither the earlier challan if any nor the one referred to above can be treated as a report under the provisions of section 173, Cr.P.C. In this respect further submitted that as the report under section 173, Cr.P.C. Is tire one which is submitted after the completion of the investigation by the police; and further pointed out that as in the instant case there has been a subsequent investigation by the police, therefore, it cannot be said that the challan submitted on 12-1-1988 or earlier, if any, are in accordance with the provisions of the said section. Further submitted that even if the challan/report is submitted under section 173, Cr.P.C. But subsequently under the provisions of subsection (2) of the said section a superior police officer orders reinvestigation then as a result thereof an earlier report submitted shall not be treated as the report under section 173, Cr.P.C. Further argued that the case in the first instance remained that of the complainant, till, as he put it, the investigation starts, and as the purpose of the investigation is to take a final decision on the basis of the investigation whether the State shall adopt the case of the first informant or after investigation adopt its own version of the case; and it is only for this purpose provisions of Chapter 14 Part 5 have been incorporated in the Cr.P.C. Further submitted that the Courts take cognizance of the report submitted under section 173, Cr.P.C. And not of the statement of the complainant recorded under section 154, Cr.P.C. Obviously the intention of the law is that a truth or falsehood of the complainant's version shall be determined by the Investigating Officer and then he shall submit a complete report after collection of evidence wherein it shall be stated as to what is the State case. Otherwise the purpose of the investigation is vitiated and the licence is given to the first informant to prosecute whom so ever he likes. Submitted that the instant case, the State case was that the aforementioned petitioner and other accused persons are not the `accused persons'. Further submitted that it is the State case which is prosecuted in the Court. If that is not kept in view then it will be obliging the public prosecutor to commit professional misconduct i.e. Not prosecuting the case of his client i.e. The State. In this respect further explained that even earlier and after 12-1-1988 the challans had been submitted, but failed to refer to anyone in particular.
4. However, as the learned counsel for the petitioner had at the very out--set conceded that if the challan/report under section 173, Cr.P.C. Stands submitted to the trial Court, the Magistrate shall not be competent to pass the order of discharge in respect of the accused named in the said challan, therefore, the Court is of the view that as the only challan/report under section 173, Cr.P.C. As pointed out by the learned counsel, is the one submitted on 12-1-1988, the copy of which is attached to the present revision petition, therefore, there is no illegality or error of jurisdiction of any manner in respect of the impugned order, dated 1-10-1989, whereby the application of the petitioner was dismissed by the learned Additional Sessions Judge. In this respect it is further observed that the challan having been submitted to the trial Court and the cognizance of the same having been taken by the said learned Court, it was for the said Court to determine the innocence or guilt of the accused person before it in accordance with law at any stage of the trial.
5. As this order was being dictated in open Court, at this stage, the learned counsel for the petitioner submitted that the point conceded by him was only under the circumstances where no subsequent challan has been submitted. The same makes no difference to the case as the only challan referred to in the instant case by the learned counsel is dated 12-1-1988, as stated above.
Therefore, the contentions raised by the learned counsel for the petitioner are totally irrelevant hence untenable.
6. Pursuant to the above discussion, the present criminal revision, being devoid of merit, is hereby dismissed.