' In this writ petition, letter dated 25-5-1998 addressed by the D.S.P, Gujranwala to the S.H.O., Police Station Baghbanpura, Gujranwala, whereby the aforesaid S.H.O., was directed that the report under section 173, Cr.P.C. Be submitted by altering the offence from under section 319, P.P.C. To section 302, P.P.C. Has been challenged. In this behalf, it is contended that the D.S.P. Legal or any police officer has no authority to amend the nature of offence while submitting a report under section 173, Cr.PC. In this respect, reliance is place on PLD 1995 Karachi 10 titled Ali Akbar, etc. v. The State.
2. I have considered the above submissions. It would be proper to state the facts briefly in order to have clear picture of the point in issue. The facts leading to this petition are that on 12-2-1998 at bout 9-30 p.m. The petitioner's brother Sanaullah, son-in-law of Muhammad Mirza was present in latter's house alongwith other family members of aforesaid Muhammad Mirza including his daughter Mst. Naziran Bibi and a grand-daughter Ailesh aged about 1-1/2 years were amongst them. They were sitting in a room, whereas, Mst. Naziran Bibi alongwith her aforesaid daughter was lying on a cot. Muhammad Rafique alias Billoo arrived there and asked Mst. Naziran Bibi to get up and give him some money. She refused and asked him to get lost. This infuriated Muhammad Rafique alias Billoo aforesaid who pulled out a pistol from the 'Naifa' of his 'Shalwar' and fired at Mst.
Naziran Bibi hitting her upper right arm. He also fired two or three shots which hit the minor Ailesh on her abdomen. The family members present at the spot, acting in self-defence and to save the lives of the injured persons snatched the pistol from the assailant. During the scuffle, Muhammad Rafique alias Billoo received injuries. All the injured persons were removed to hospital. Mst. Naziran Bibi and her daughter were discharged from hospital, whereas, Muhammad Rafique alias Billoo aforementioned succumbed to the injuries while admitting in General Hospital, Lahore. Both the parties got cross-cases registered against each other. Abdur Rauf lodged F.I.R. Under section 324/148/149, P.P.C. Against Muhammad Mirza, Sanaullah and three others for causing injuries to Muhammad Rafique. After the death of Muhammad Rafique alias Billoo on 13-2-1992, the offence was changed from under section 324, P.P.C. To section 302, P.P.C. However, during investigation, the offence was changed from under section 302, P.P.C. To section 319, P.P.C. However, under the advice of D.S.P. Legal and after taking into account the investigation conducted in the case, the offence was changed from under section 319, P.P.C. To section 302, P.P.C. And the S.H.O. Concerned was directed to prepare the report under section 173, Cr.P.C.
3. The above facts will show that the Prosecuting Agency after taking into consideration the material on record had advised the S.H.O. To send up case for trial by changing the offence from under section 319, P.P.C. To section 302, P.P.C. It is, thus, obvious that amendment of the offence was made before the report under section 173, Cr.P.C. Was submitted to the Court concerned. In such a situation, the principle laid down in PLD 1995 Karachi 10 would be inapplicable because in that case, the report under section 173, Cr.P.C. Had already been submitted to the Court of Session for an offence under section 302, P.P.C. But the same was directed to be converted under section 365- A, P.P.C. On the direction of the Superintendent of Police so that the offence may be made a scheduled offence under the Suppression of Terrorist Activities (Special Courts) Act, 1975 and for sending the case to the Special Court constituted under the aforesaid Act. It was, however, held in the reported judgment that the police was not competent to amend the offence in the given situation after the report under section 173, Cr.P.C. Had already been submitted to the Court of competent jurisdiction. It was up to the Court concerned to add or amend the offence if considered necessary but the Investigating or the Prosecuting Agency had no power to do so The case in hand is, therefore, distinguishable from the above reported case because in the instant case the report under section 173, Cr.P.C. Had not been sent to the Court of competent Jurisdiction and the offence was proposed to be altered from under section 319, P.P.C. To section 302, P.P.C. For which a direction was given to the S.H.O. Concerned. There is nothing wrong with such direction because the same was made after due deliberation and consultation between the authorities concerned and also by examining the investigation conducted in the case. In such a situation, the petitioner cannot invoke the Constitutional jurisdiction of this Court so as to succeed in this writ petition, which being meritless is dismissed in limine .