' This application filed under section 561-A, Cr.P.C., has arisen in somewhat unusual circumstances.
2. On 24-7-1991, the Assistant Director F.I.A. Hyderabad lodged F.I.R. In Crime No,8 of 1991 under section 409-420-468-471/34, P.P.C., read with section 5(2) of the Prevention of Corruption Act, 1947, which is reproduced below:--- "On receipt of reliable source information that Messrs Progressive Tobacco Limited, S.I.T.E. Area, Kotri are illegally manufacturing huge quantity of various brands of Cigarettes viz. Gold Flake, Wilson and K-2 King Size Filter and also fraudulently with the connivance of concerned Central Excise Staff, manufacturing Sunny Gold, 5 Star and Pony and selling the same without payment of Central Excise duty and thereby causing loss to Government of Pakistan for millions of rupees every month and receiving illegal gain for the said amount for themselves. Accordingly a raid was conducted by the undersigned on 24-7-1991 at 20-30 hours under the superivison of Mr. Nash Khan, Assistant Mukhtiarkar and T.C.M., Kotri, and in presence of Mashirs Muhammad Aqeel son of Muhammad Khan Mechanic of the Factory and Muhammad Aslam son of Noor Muhammad Operator of the Factory. During the course of raid Factory was found in running condition and illegally manufacturing K-2, King Size Filter Cigarettes, 90 Trays of K-2 King Size Filter Cigarettes and 81 Trays of Sunny Gold containing 1,400 Cigarettes in each Tray alongwith other manufacturing and packing material were seized. 4 steel dyes of Gold Flake, K-2, 5 Star Filter and Wilson King Size filter were also secured. Various documents, viz, delivery challan books, and 274 delivery challans for the period August, 1989 to June, 1991 relating to illegal manufacturing of Cigarettes and their disposal without payment of Central Excise duty to the tune of millions in each month were also seized.
Record shows that the Mill mostly remained in operation but fraudulently it was shown as closed.
Accused Abdul Sattar son of Abdul Karim and Abdul Ghaffar son of Abdul Sattar Proprietor and Muhammad Zamiruddin son of Ghulam Muhammad Mohiuddin Managers of the said Factory were arrested. During raid it further revealed that the above fraud was, being committed with the active connivance of concerned employees of Central Excise and Land Customs, Hyderabad to whom accused were paying Rs,1,80,000 as monthly bribe to concerned Inspector, Deputy Superintendent, Superintendent, Assistant Collector, D.P.O. And otheRs, Mashirnama was prepared on spot and signed by Mashirs and the Magistrate. The above facts disclosed commission of offence punishable under sections 409, 420, 468, 471, 34, P.P.C. Read with section 5(2), Act II of 1947. Hence this case is registered and investigation is taken up by me. Compliance of 157, Cr.P.C. Is being made to the concerned Court and copies of F.I.Rs, are sent to other concerned authorities."
3. On 25-7-1991 the applicant who was working as Superintendent, Central Excise and Land Customs, Hyderabad was taken into custody on the charge of abetment of the said crime, who was, however, released on bail on 30-7-1991 by the Special Judge (Central), Hyderabad. The applicant who was at the verge of retirement was placed under suspension and although a sufficient long time has elapsed no charge-sheet (Challan) in terms of section 173, Cr.P.C., was produced against him. It was on account of this delay that the applicant has invoked the inherent jurisdiction of this Court with the following prayer:-- "(i) declare that the delay caused by the State in submitting the challan in F.I.R. No,8/91 of F.I.A. In the Court of the Special Judge Anti-Corruption, Hyderabad is illegal, without jurisdiction and against the provisions of section 173, Cr.P.C.;
(ii) direct the F.IA. To immediately submit the challan in the said case to enable the applicant to defend himself;
(iii) or in the alternate direct the quashment of the proceedings against the applicant before the Court of Special Judge, Anti-Corruption (Central), Hyderabad;
(iv) direct production of the record and proceedings from the Court of Special Judge Anti- Corruption, Hyderabad.
4. During the pendency of this application filed under section 561-A, Cr.P.C., a report was called from the concerned agency and the Assistant Director, F.IA., Hyderabad, intimated this Court in writing that the factory involved in this case evaded Central Excise duty to the tune of Rs,1,22,00,000 and sales tax to the extent of Rs,20,89,041. This Court was also intimated that final report in this case was submitted to concerned authorities on 31-12-1991 recommending the prosecution of 15 accused persons including the applicant before the competent Court and proper challan will be submitted against them after obtaining necessary sanction.
5. I have heard Mr. Rashid A. Akhund, learned counsel for applicant and Mr. Abdul Hakim Bijarani, learned A.A.-G. For State. The latter has submitted that the fate of an accused cannot be left undecided and the Investigating Officer must submit the report under section 173, Cr.P.C. Without any further loss of time.
6. Section 561-A, Cr.P.C. Provides that nothing in the Code of Criminal Procedure, 1898, shall be deemed to limit or affect the inherent power of the High Court to make orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. From a bare reading of this provision of law it is apparent that the inherent jurisdiction of the High Courts is neither alternative A nor additional in its character, and is not intended to invest the High Courts with powers to pass any order considered fit in the interest of justice. The police has got a statutory right to investigate a cognizable offence and even the submission of final report under section 173, Cr.P.C, does not bar further investigation of a case and I desire to associate myself with the view taken by Zakiuddin Pal, J. (as he then was) in the case of Muhammad Khan v. Inspector-General of Police, Punjab, Civil Secretariat, Lahore and 2 others, reported in PLD 1978 Lah. 731, on this point. This question was also considered in the case of State and another v. Irfan Ashraf and 4 others reported in 1983 P Cr. L J 852, wherein it was made clear that the Courts are not competent to give a direction to police to complete investigation and submit the challan against an accused person.
7. Section 170, Cr.P.C. Deals with cases to be sent to Magistrate when the evidence is sufficient.
Section 171, Cr.P.C. Provides that the complainant and witnesses are not required to accompany the Police Officer on way to the Court of the Magistrate. Section 173, Cr.P.C. Speaks about the submission of final report to the Magistrate without unnecessary delay, and, as soon as the investigation is completed. Sections 170, 171 and 173, Cr.P.C., contemplate a simultaneous action and are to be read together. In the case of Rahat Hussain and others v. Emperor reported in AIR 1933 All. 582, it was observed that section 173, Cr.P.C., lays down clearly that as soon as the investigation is completed, the Investigating Officer is to send a report to the Magistrate. This view was reiterated in the case of Shaukat v. The State reported in PLD 1985 Lah. 77, wherein the delay caused by the prosecution branch for an indefinite period in bringing the offenders before the Court was strongly deprecated in the following words:- "Section 173, Cr.P.C. Provides that the investigation shall be completed without unnecessary delay and as soon as it is completed, the Officer Incharge of the Police Station shall forward his report to the Magistrate empowered to take cognizance of the offence for proceeding further in the matter.
The prosecution branch is required to see that the investigation has been conducted on the right lines and the challan papers are in order. This job should not ordinarily take more than a few days but experience has shown otherwise. Challan papers continue to lie in the prosecution branch for indefinite period without any genuine cause. It is a matter of common observation that more time is consumed by the police agencies in the completion of investigations and bringing the offenders before the Courts than in the disposal of cases by the trial Courts. In the instant case, the challan was sent to the prosecution branch on 25-10-1984 but till this date they have not sent it to the Court. This slackening attitude of theirs needs to be strictly viewed."
8. The delay in the submission of the charge-sheet (Challan) in this case is also shocking, but as indicated in para. 6 ante, this Court is not clothed with powers to issue direction for submission of Challan against the applicant forthwith which is left to the good sense of Director F.IA., Southern Region, Karachi, to take necessary action in this behalf. Let a copy of this judgment be sent to him.
9. In the result the application filed under section 561-A, Cr.P.C., is dismissed.