' The admitted facts entailing the filing of this Writ Petition No,513 of 1995/BWP are as under:-- ' Mst. Kausar Bibi petitioner-complainant got recorded F.I.R. No,146, dated 20-6-1993 at Police Station Yazman under Article 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
She alleged that Maqsood Ahmad alias Khalid accused was her close relative who visited the house of her parents wherein she lived as a virgin/unmarried daughter. About five months before 20-6-1993 at pistol point Maqsood Ahmad alias Khalid committed forcible fornication with her.
Even thereafter he committed Zina-bil-Jabr many times with her whenever she was found alone by him. On 20-6-1993 in the absence of other family members Maqsood Ahmad alias Khalid came to her house who desired to commit Zina-bil-Jabr when she told her that she had become pregnant. The accused gave her some pills which she was taking when her mother Mst. Sakina Bibi and her brother Muhammad Afzal arrived. They saw them. The accused made good his escape.
She intimated about the matter. The bleeding started from her womb. The police investigated the case in every respect and submitted the challan on 10-8-1993 before the Area Magistrate as contemplated under section 173, Cr.P.C. For the prosecution of Maqsood Ahmad alias Khalid accused under Article 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. In terms of section 190(3), Cr.P.C. The Ilaqa Magistrate sent up the challan to the Court of Session. The Sessions Judge entrusted the same to an Additional Sessions Judge who summoned the accused to face the trial. The Additional Sessions Judge, Bahawalpur has charged Maqsood Ahmad alias Khalid accused under Article 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
After the formulation of the charge Letter No, 14364/Crimes/HC, dated 9-10-1994 was sent by the Deputy Inspector-General of Police, Crimes Branch, Punjab, Lahore to the Superintendent of Police, Bahawalpur which is reproduced as under:-- "From ' The Deputy Inspector-General of Police, Crimes Branch, Punjab, Lahore.
' To ' The Superintendent of Police, Bahawalpur.
' No,14364/Crimes/HC, dated 9-10-1994.
' Subject. CASE F.I.R. NO.146 OF 1993 UNDER SECTION 10 ZINA ORDINANCE, POLICE STATION YAZMAN DISTRICT BAHAWALPUR.
' Memorandum ' Mr. Ghulam Muhammad Kalyar, S.P./Crimes was deputed to look into the matter and he has opined that the accused Maqsood Ahmad nominated in the F.I.R. Was falsely roped in and merits to be discharged being innocent.
2. The accused Maqsood Ahmad be got discharged from the case and compliance report be furnished to this office. Earnest efforts may also be made to trace out the real culprit.
' (Sd.)
' S.P. Crimes, ' for Deputy Inspector-General of Police, Crimes Branch, Punjab, Lahore."
2. It happened that thereafter Mst. Kausar Bibi alongwith Liaqat Ali and Muhammad Yasin was removed by the police to Police Station Yazman, District Bahawalpur. Her mother Mst. Sakina Bibi filed Criminal Miscellaneous No,314/H of 1994(BWP) for the recovery of the aforesaid detenus from the illegal and improper custody of the S.H.O. Police Station Yazman, District Bahawalpur. A bailiff was deputed. On 24-10-1994 the aforesaid detenus were released by this Court. During the pendency of the aforesaid habeas petition the statement of Hidayat Ali, S.H.O., Police Station Yazman was recorded who referred to Letter No,14364, dated 9-10-1994 reproduced supra.
3. Mst. Kausar Bibi has filed this writ petition for the proposed relief that she could not be arrested after the framing of the charge against Maqsood Ahmad alias Khalid accused in case F.I.R. No,146, dated 20-6-1993 registered at Police Station Yazman under Article 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and that the order contained in Letter No, 14364/Crimes/HC, dated 9-10-1994 is without jurisdiction, illegal and inoperative. She maintained that the Additional Sessions Judge took cognizance of the case and framed the charge and thereafter the Deputy Inspector-General of Police, Punjab, Lahore had no jurisdiction to pass the order for the discharge of Maqsood Ahmad alias Khalid accused especially when no fresh investigation was conducted by him.
4. This writ petition has been resisted by the S.H.O., Police Station Yazman as well as Maqsood Ahmad alias Khalid accused who obviously is deeply interest in the decision of this petition.
5. I have heard the learned counsel for Mst. Kausar Bibi petitioner and Maqsood Ahmad alias Khalid accused. Learned counsel for Mst. Kausar Bibi petitioner-complainant relied upon Muhammad Alam and another v. Additional Secretary to Government of N.-W.F.P. Home and Tribal Affairs Department and 4 others PLD 1987 SC 103, decided on 3-12-1986 and argued that after issuance of process against the accused under section 204, Cr.P.C. And especially framing of the charge the Court had taken the cognizance and cancellation of the case against the accused through his discharge obviously under section 173, Cr.P.C. Is not permissible thereafter which could have been done before that stage. In this case-law the ruling published as Wazir v. The State PLD 1962 (W.P.)
Lah. 405 was also referred to wherein the same dictum was enunciated and was held to be the correct approach. In so far as the point of cancellation of case, after cognizance, is concerned he also relied upon Zulfiqar Ali and others v. The State PLD 1992 Lah. 211 wherein it has been held that once Magistrate has taken the cognizance of the matter and has sent up the case in terms of section 190(3), Cr.P.C. To the Court of Session he (the Magistrate) has no authority either in law or in propriety to then discharge the accused and that such an action of the Magistrate would amount to preempting the exercise of jurisdiction by a superior Court i,e, the Court of Session and besides being highly improper, was even contemptuous. In this ruling after the submission of the challan under section 173, Cr.P.C. Which was sent up to the Court of Session under section 190(3), Cr.P.C. On the basis of the report of the Assistant District Attorney approved and affirmed by the District Attorney as well as the Superintendent of Police (Legal), the Ilaqa Magistrate was moved seeking the cancellation of case and discharge of the accused who discharged the accused and in the Writ Petition No,8 of 1992 disposed of on 25-2-1992 the relevant order, dated 20-11-1991 passed by the Ilaqa Magistrate was set aside. Learned counsel for the petitioner also referred to Syed Waqar Hussain Shah v. The State PLD 1988 Lah. 666 wherein it has been enunciated that when a Court takes cognizance of an offence on receipt of incomplete or complete challan, prosecution is left with two courses; first to produce evidence in Court and allow the trial Judge to decide the case on merits and secondly to seek withdrawal of the case under section 494, Cr.P.C. And that the executive order about the discharge of the accused cannot be passed by the Ilaqa Magistrate. It is further held therein that in such a state of affairs the Court is not bound by the police opinion which has to decide each case on merits on the strength of the evidence recorded during the trial and subsequent investigation after filing of complete challan is always uncalled for, unncessary and must be avoided which does not advance and rather retards the course of justice. In short learned counsel for the petitioner canvassed that after the Additional Sessions Judge had taken cognizance of the matter who had charged Maqsood Ahmad alias Khalid accused under Article 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and summoned the prosecution evidence the fresh challan under section 173, Cr.P.C. Proposing the discharge of the accused could not be submitted. He added that no fresh investigation was conducted by the Deputy Inspector-General of Police, Crimes Branch, Punjab, Lahore who has passed the order mentioned in the aforesaid letter, dated 9-10-1994 on the basis of the opinion of Ghulam Muhammad Kalyar, S.P. Crimes and that such an autocratic order would not help to absolve the accused of his criminal liability and to save his skin. On the contrary learned counsel for Maqsood Ahmad alias Khalid accused relied upon the ruling published as Aftab Ahmad v. Hassan Arshad and 10 others PLD 1984 SC 13, decided on 20-10-1986 wherein it has been held that there is nothing in the Code of Criminal Procedure to prevent Investigating Officer from submitting a subsequent report in supersession of his earlier one either on his own initiative or on the direction of some superior Police Officer. He added that according to this ruling even after a Magistrate has taken cognizance of case and framed the charge under section 364/307/452/148/149, P.P.C. And thereafter the statement of one of the prosecution witnesses was also recorded, the police on the intervention of higher authorities on reinvestigation could submit the fresh report under section 173, Cr.P.C. It shall be proper to express that in this matter in the second report the challan of the prosecution of the accused under sections 336/342/148/149, P.P.C. Was submitted and the other more serious offences were omitted. Learned counsel for the accused canvassed about the large powers of the Investigating Officer(s) in respect of the point in hand.
6. The point for determination in this writ petition is whether the case could be cancelled under section 1734 Cr.P.C. After the Additional Sessions Judge had taken cognizance by framing the charge against the accused. It is proper to express that Maqsood Ahmad alias Khalid has not been discharged as yet as intimated by the S.H.O. The view expressed in PLD 1987 SC 13 is of no help to Maqsood Ahmad alias Khalid accused. In that case after the submission of first report under section 173, Cr.P.C. The accused were charged under section 364/307/452/148/149, P.P.C. While in the second report under section 173, Cr.P.C. The challan (second report) for their prosecution under section 336/342/148/149, P.P.C. Was submitted which means that other more serious offences were omitted. The accused persons were not got discharged. The bail matter was under discussion for disposal in this case. Two Honourable Judges of the Supreme Court of Pakistan disposed of the matter on 20-10-1986. The rulings relied upon by the learned counsel for Mst. Kausar Bibi petitioner- complainant are applicable to the instant dispute. The judgment published as PLD 1987 SC 103 was decided on 3-12-1986 i,e, after 20-10-1986 by three Honourable Judges of the Supreme Court of Pakistan. According to Usman v. Sindh Labour Appellate Tribunal and Karachi Port Trust 1984 CLC 2782 Karachi High Court "Normally, the rule is that where the law laid down differently in two decisions of the Supreme Court by Benches of different strength the different decision of the larger Bench shall be followed as the binding decision on the subject". In this view of the matter the dictum enunciated in PLD 1987 SC 103 has to be followed by this Court, according to which the cancellation of case under section 173, Cr.P.C. Is not permissible after the cognizance has been taken by the Court wherein judgment of the Full Bench of the Lahore High Court published as PLD 1962 (W.P.) Lah. 405 has been approved wherein the same principle has been laid down. PLD 1992 Lah. 212 and PLD 1988 Lah. 666 are also helpful to the petitioner. The challan for the prosecution of the accused under Article 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was submitted before the Ilaqa Magistrate under section 173, Cr.P.C. Who sent up the same to the Court of Session in terms of section 190(3), Cr.P.C. The Additional Sessions Judge has C taken the.
Cognizance of the case and has charged the accused under Article 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Thereafter, the subsequent investigation is simply uncalled for unnecessary which should have been avoided. This is the legal aspect of the matter.
7. The factual aspect of the matter is that the Deputy Inspector-General of Police, Crimes Branch, Punjab, Lahore did not investigate the case. Ghulam Muhammad Kalyar, Superintendent of Police (Crimes) was deputed to look into the matter who opined that Maqsood Ahmad alias Khalid nominated accused in the F.I.R. Was falsely roped in who merits to be discharged being innocent.
No fresh material was collected and it can safely be determined that the opinion expressed by the Deputy Inspector-General of Police, Crimes Branch, Punjab, Lahore is based on conjectural, hypothesis which has no blessing from the law of the land. If the same is given the weight and such a course of action is allowed to continue, the same would create judicial anarchy consequently resulting in administrative chaos. I, therefore, hold that the impugned order of the Deputy Inspector-General of Police, Crimes Branch, Punjab, Lahore contained in Letter No,14364/Crimes/HC, dated 9-10-1994 is illegal and inoperative which is liable to be quashed.
8. I, therefore, accept this writ petition and quash the impugned order contained in Letter No,14364/Crimes/HC, dated 9-10-1994 (Annexure "D"). The result is that the Additional Sessions Judge shall hold and conclude the trial against Maqsood Ahmad alias Khalid accused and the case shall be decided in accordance with law. Consequently the police of Police Station Yazman or any higher Police Officer cannot further investigate the case and such an exercise would simply remain futile.