ABDUL KARIM KHAN KUNDI, CJ.---The accused/petitioners are charged under section 302/34, P.P.C. Vide F.I.R. No.345 dated 24-2-1989 P.S. Daud Zai. They were refused bail by the Courts below and finally by this Court on merits on 4-8-1993. However in this Court's order the prosecution was directed to put complete challan in the trial Court within 15 days of the receipt of the file where after the trial Court should finally dispose of the case within two months. Since the direction of this Court was not complied with, therefore, the petitioners have again moved for bail in this Court.
2. When the case came up before me in the course of hearing there arose the following three questions for resolution:--
(1) Whether pursuant to the amendment in section 173, Cr.P.C. By Act XXV of 1992, the prosecution Sub-Inspectors and Prosecution Inspectors continue to be Public Prosecutors in the local area through whom the S.H.O. Has to submit a challan in the Court of Magistrate A and the said challan is onward to be submitted by the Magistrate to the Court of Sessions under section 190(3), Cr.P.C.
Where the cases are exclusively triable by the Court of Session.
(2) Whether the Court of Magistrate continues to be seized of cases as to make inquiry into the cases till the cases are sent to the Court of Session for trial under section 190(3), Cr.P.C.
(3) Whether after the amendment by Act XXV of 1992, in cases triable by the Court of Session, the S.H.O. Has to submit a challan in the trial Court through the Public Prosecutor.
Consequently to resolve these questions of public importance involving legal interpretation by my order dated 27-10-1993, I referred the matter to a Division Bench comprising myself and Mr. Justice S. Ibne Ali, J. In this connection M/s. Zahoorul Haq Bar-at-Law and Mr. M. Sardar Khan were asked to assist the Court. They were heard on various aspects. After giving our anxious consideration to the points involved and the arguments advanced by the learned counsel we have come to the following conclusions.
3. Section 173 of the Criminal Procedure Code requires the officer incharge of the Police Station to complete the investigation without unnecessary delay and to forward it to the Magistrate empowered to take congnizance of the offence "through the Public Prosecutor". For academic interest it is deemed appropriate to reproduce section 173, Cr.P.C. It reads:-- "173.--(l) 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, if so, whether with or without sureties, and
(b) 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 commence.
(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 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 costs.
(5) Where the officer-in-charge of 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."
4. A question that falls for determination is whether the Prosecuting Sub-Inspectors and Prosecuting Inspectors working as Public Prosecutors in' the Courts of Magistrates, have any legal cover to act as such and to be called an acknowledged as Public Prosecutors within the meaning of section 173, Cr.P.C. In this context section 492, Cr.P.C. Which deals with the appointment of Public Prosecutor, provides:-- "(1) The (Provincial Government) may appoint, generally or in any case, or for any specified class of cases in any local area, one more officer to be called Public Prosecutors.
(2) The District Magistrate or, subject to the control of the District Magistrate, the Sub-Divisional Magistrate, may in the absence of the Public Prosecutor, or where no Public Prosecutor has been appointed, appoint any other person, not being an officer of police below (such rank as the (Provincial Government) may be prescribed in this behalf) to be Public' Prosecutor for the purpose of (any case)."
From the above it is clear that all the Public Prosecutors are appointed by the Provincial Government under the provisions of aforementioned section of Code of Criminal Procedure to act as Public Prosecutors. It is under this section that the Advocate-General, beside other officers, is appointed as Public Prosecutor for the Province. It may be mentioned that the Public Prosecutors who are working as such in the Court of the Sessions Judges and the Additional Sessions Judges are also appointed as Public Prosecutors by the Provincial Government under section 492, Cr.P.C.
5. So far as the Prosecuting Sub-Inspectors and Prosecuting Inspectors, who are working as Public Prosecutors, are concerned, they are also appointed as such under section 492, Cr.P.C. Read with Rule 27.4 of the Police Rules, 1934. These Rules have been made in exercise of the powers conferred on the Government of the Province concerned under section 7 of the Police Act, 1861, and the relevant part thereof is reproduced:-- "(2)Prosecuting Inspectors and Prosecuting Sub-Inspectors of Police are appointed Public Prosecutors in the local areas specified in the list below for all cases which may be enquired into or be tried by a Magistrate including a Magistrate having powers under section 30 of the Code of Criminal Procedure.
Officers Local Area Every Prosecuting Inspector of Police. Every Prosecuting Sub- Inspector of Police stationed at the headquarters of a district. Every Prosecuting Sub-Inspector of Police stationed at the headquarters of a sub-division.The district in which the Prosecuting Inspector is stationed. The district at the headquarters of which the Prosecuting Sub-Inspector is stationed. The sub-division at the headquarters of which the Prosecuting Sub-Inspector is stationed.
6. After examining the various provisions with regard to the appointment of the Public Prosecutors and having held that pursuant to the amendment in section 173, Cr.P.C. By Act XXV of 1992, the Prosecuting Sub-Inspectors and Prosecuting Inspectors continue to be Public Prosecutors available in the Courts of Magistrates and that the Courts of Magistrate continue to be seized of cases as to make inquiry into the cases triable by the Court of Session. We now advert to the procedure of inquiry in the like cases to be followed by the Courts of Magistrates as inquiry Courts. The procedure in this connection has been laid down in the case of "Hafeezur Rehman v. The State PLD 1993 Pesh. 252. It was laid down that the word `inquiry' was given wider meaning as to include that while taking cognizance of an offence under section 190(i), Cr.P.C. The Magistrate may still be required to apply his mind to ascertain if the case in question is required to be sent for trial to the Court of Session or otherwise and until the case is sent to the Court of Session it shall be the Court of concerned Magistrate only to have the powers to postpone or adjourn proceedings and to remand the accused in custody under section 344, Cr.P.C. The amending Act NOXXV of 1992 has made it mandatory on the Investigation Agency not to withhold the submission of challan into the Court but to send an interim report within 17 days of the registration of the case. It is for the Magistrate to commence the trial on the basis of such interim report or not to do so for reasons to be recorded. The Magistrate if it comes to the conclusion after making such inquiry that the case is triable by the Court of Session, he shall send the case to the Court of Session for trial without recording any evidence.
7. According to the provisions of section 492 of the Code of Criminal Procedure read with the Police Rules on the subject, the Prosecuting Sub-Inspectors and Prosecuting Inspectors have been designated as Public Prosecutors in the Courts of Magistrates. Prior to the amendment in section 173, Cr.P.C. The S.H.O. In the locality was also required to submit challans in cases exclusively triable by the Sessions Court to the Court of Magistrate who used to later on send the cases exclusively triable by the Court of Session to the said Court. We are of the considered opinion that the existing practice continues in that the challans of criminal cases shall be submitted to the Court of Magistrate, of course through the Prosecuting Sub Inspector/Prosecuting Inspector of the Court of Magistrate in whose Court they act and conduct themselves and Public Prosecutors by virtue of section 492, Cr.P.C. Read with Rule 24.4 of the Police Rules. Therefore, as a necessary corollary, the S.H.O. Will submit the challan of a criminal case, even though it is triable by the Court of Session, to the Prosecuting Sub Inspector/Prosecuting Inspector in their capacity as Public Prosecutor in the Court of Magistrate and having submitted the challan to him, the latter will deal with the case by submitting the challan into the Court of Magistrate who will onward deal with the case as required under section 190, Cr.P.C. The Court of Session is no longer an inqa1iry Court but a trial Court in cases triable by it and the cases are to be referred to it by the Magistrate for trial.
8. The Public Prosecutor can appear before the Court on behalf of the prosecution at the inquiry stage as well as when the case is put to trial. Essentially, the Court of Magistrate would be the inquiry Court in every criminal case even if it be a case triable by the Sessions Court.
9. In this regard reference can conveniently be made to a case reported in 1981 SCM R 267. The relevant portion of the above-quoted judgment is reproduced as under:-- "Although now a Magistrate is not required to hold an `inquiry' under Chapter XVIII, but that does not mean that he is to act merely as a host office and automatically `send' the case for trial to a Court of Session simply because a section relating to an offence exclusively triable by a Court of Session has been mentioned by the Police or the complainant (as the case may be) in the challan or the private complaint..........Taken cognizance of such a matter to enquire into the case and to apply his mind to whatever material is placed before him, by the police or the complainant, in order to determine whether the allegations made in the police report, private complaint or information received by him, make out a prima facie case triable exclusively by a Court of Session.
In the changed circumstances, after the commitment proceedings have been dispensed with by the Law Reforms Ordinance, this inquiring into the relevant material and application of mind thereto by a Magistrate, to determine the nature of offence i.e. To determine as to whether or not the case is one triable exclusively by the Court of Session, would now constitute an `inquiry' within the meaning of the word as defined in clause (k) of section 4, Cr.P.C. And used in S.344(1), Cr.P.C. A Magistrate could take cognizance of some cases for trying the same. He could also take cognizance of cases triable exclusively by a Court of Session but only for the limited purpose of committing them to that Court for trial. As such for that purpose he head to hold an inquiry under Chapter XVIII of the Code which were commonly known as commitment proceedings. As such it could, under section 344, Cr.P.C. "postpone the commencement of or "adjourn" the trial of cases which he was empowered to try."
10. Our answer, therefore, to questions Nos.1 and 2 formulated above is in the affirmative.
11. This brings us to question No.3. This question need not detain us. We have held that pursuant to the amendment, the S.H.O. Will submit a challan of every criminal case, be it a murder case, to the Public Prosecutor available in the Court of Magistrate and the Court of Magistrate will act as inquiry Court, therefore, the Public Prosecutor attached to the Sessions Court will figure only with the trial of the case in that Court and the procedure of submitting the challan in a murder case through him by the S.H.O. Is not envisaged by the amended law.
12. In view of the above discussion, this reference is accordingly disposed of.
13. So far as the bail of the accused-petitioners is concerned, all the pleas which they had raised before this Court at the time of hearing of their bail application have been considered and they were held not entitled to the concession of bail. Before us the learned counsel for the petitioners could not point out any fresh ground, so as to make the case of the accused-petitioners arguable for the purpose of bail, therefore, their bail application is dismissed.