My this order shall dispose of Cr.M.No.15/91 and Cr.M.No.134/91. The former has been filed by Mst.Zohra Bibi under section 561-A, Cr.P.C. For direction to the Ilaqa Magistrate to pass an appropriate order on the report under section 173, Cr.P.C. Read with sections 169/63, Cr.P.C. And also for her release from Darul-Aman Abbottabad, while the latter has been filed by her father Sayed Miskeen Shah for direction to SHO Mansehra respondent No.l for, submitting complete/incomplete challan in case F.I.R. No.363/90 dated 31-5-1990, Police Station, Mansehra under section 11/16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 494, P.P.C:
2. On the application of Sayed Miskeen Shah father of Mst. Zuhra Bibi a report on 11-5-1990 in Daily Diary at Mad No.21 was registered which was incorporated into FIR No.363 dated 31-5-1990. Another report by Mst.Zuhra Bibi was recorded on 10-5-1990 vide Mad No.14 which was also incorporated in the same FIR.
3. Sajid. Hussain and Mst. Zuhra Bibi after their arrest filed an application in the Court of S.D.M., Mansehra who vide his order dated 7-8-1990 allowed them bail. The complainant Sayed Miskeen Shah feeling aggrieved of the aforesaid order applied for the cancellation of bail in the Court of Sessions Judge Mansehra which was rejected on 29-11-1990. He still feeling dissatisfied moved the learned High Court for the cancellation of bail which was also dismissed on 22-5-1991.The complainant then filed a petition for Special Leave to Appeal in the learned Supreme Court of Pakistan for the cancellation of bail which was converted into an appeal and the learned Supreme Court of Pakistan was pleased to order as follows: "Both the sides agree that Mst. Zohra Bibi respondent. No.2 shall be lodged in Darul Aman, Abbottabad. We think that it is fair to keep .Her in Darul Aman for no longer a period as is necessary. However, we direct in order to do complete justice, that the investigation shall be completed within one month and in any case at least an interim report under section 173, Cr.P.C.
Shall be submitted at the end of one month. The other questions, if any, shall be brought to the notice of the High Court and shall be controlled by it.
Mst. Zohra Bibi respondent No.2 shall be sent to Darul Aman in police protective custody in accordance with the rules. In this context the impugned order is modified."
4. From the perusal of the record it appears that thereafter S.H.O., Police Station Mansehra prepared the challan on 9-8-1991 and submitted the same to the Prosecution Department for onward submission in Court. The SHO also prepared a progress report on 11-8-1991 wherein he had given the gist of his investigation and stated that he had already submitted a complete challan for its submission in Court. There is a note on the progress report directing the P.I., Mansehra for necessary action and to submit the complete challan in Court on or before 13-8-1991. Another challan was prepared on 27-8-1991, which contains a note to the effect that the Superintendent of Police after examining Mst. Zuhra Bibi and Maulvi Noor Ahmad directed that final challan for cancellation of the case be submitted in Court. Accordingly this challan was prepared for the purpose.
5.On 3-9-1991 an application was addressed to the District Magistrate Mansehra by Mst. Zuhra Bibi wherein it was stated that the local police has drawn a challan wherein cancellation of case has been prayed for and requested that the file be submitted in a competent Court for appropriate.
Orders so that she could be released from Darul Aman. On the said application the Magistrate passed an order which is reproduced below and which order has been impugned by her in Cr.M.No.15/91: "Case file perused. As per orders of honourable Supreme Court vide CrA.No.96 of 1991, the matter shall be taken up before Honourable High Court for orders. Case file is returned to PSI."
6. I have heard learned counsel for the parties at length and have gone through the record of the case.
7. As far as the allegations levelled by Sayed Miskeen Shah father of Mst. Zuhra Bibi are concerned there is sufficient material on the record which suggests that there is some substance in the same.
But it would not be proper here to give any opinion about the same. The learned Supreme Court of Pakistan had ordered that after completing the investigation within one month, the challan be put in Court at the end of month i.e. July 1991. The police, however, did not comply with the orders and it appears that after the investigation by S.H.O. a challan was prepared on 9-8-1991 which at the direction of the Superintendent of Police was re-prepared and was to be submitted in Court for appropriate orders. The Prosecution Department has not gone ahead even a step and an order again was passed on an application made by Mst. Zuhra Bibi which is impugned herein.
8. The case file gives a very gloomy picture and it so appears that the Prosecution Department has not been acting independently and has been swayed sometimes by the one party and sometimes by the other, therefore, it could not form its own opinion by application of its mind. Although there is no provision in Criminal Procedure Code debarring Police Investigation Officer from submitting a fresh report in supersession to the earlier one either on his own initiative or on the direction of the superior police officers, but it implies that the report would be prepared and submitted after proper and independent application of mind. In the instant case there is sufficient material for and against the parties and the police cannot be allowed to adjudicate the same by cancelling the case against the accused. It would be in the fitness of things in order to arrive at a just and fair conclusion that the challan be put in Court as has been directed by the learned Supreme Court of Pakistan and it should be left to the Court to decide the matter one way or the other.
9. In view of the above observation, both the criminal miscellaneous petitions are disposed of accordingly.