' Through this Constitutional petition the petitioner has sought a direction from this Court to respondent No,1 to submit the challan in accordance with law and according to his objective findings. He has further prayed for declaration that respondents Nos.2 and 3-D.C. And District Attorney, Mianwali, have no lawful authority to put any pressure on respondent No,1 in this respect and they may be restrained. A case F.I.R. No,28 is registered against the petitioner and other co- accused at Police Station City Mianwali on 26-1-2001 on the basis of judicial inquiry conducted by the ADC(G) Mainwali under sections 302/324/379/411, P.P.C.
2. The brief facts narrated in the abovesaid F.I.R. Are that on 8-1-2001 at 5.45 p.m. Due to the leakage of the Poisonous Gas () from Cylinders in the-thickly populated area of Mianwali City, three persons died and 301 persons were seriously affected and became unconscious. Due to this incident, on public pressure, Deputy Commissioner Mianwali-respondent No .2 directed the holding of a judicial inquiry by ADC(G) Mianwali who conducted the inquiry and submitted his report on the basis of which the above-said F.I.R. Has been lodged.
' During the investigation of the case, the local police on the basis of the evidence which was considered in the judicial inquiry came to the conclusion that offence under sections 302/324, P.P.C.
May be converted into offence under sections 322/337-F, P.P.C and prepared the challan. One of the legal heirs of the deceased moved an application to the D.C. Mianwali against the police on which he called for report and opinion from the District Attorney, Mianwali who gave the opinion that the finding of the police to the extent of submission of challan under sections 322/337-F, P.P.C.
Is incorrect and in view of the circumstances and the evidence on the record prima facie offences are covered under sections 302/324, P.P.C. He called for the report of the police prepared under section 173, Cr.P.0 and directed that the challan should be submitted under sections 302/324, P.P.C.
Instead of challan prepared by the police under sections 322/337-F, P.P.C.
3. The grievance of the petitioner is that in the police hirarchy the high police officials can interfere in the investigation, the officers like S.S.P., D.I.-G. And I.-G.P. The District Attorney and the D.M. Neither have any role in the police rules nor can interfere under the Criminal Procedure Code.
4. Learned counsel for the petitioner has contended that the action of respondents Nos.2 and 3 is illegal, unlawful and is not supported by any provision of law. He has further contended that the police is independent and the higher officers of police can be moved for any grievance against the Investigating Officer. The D.M. And the District Attorney neither under the police rules nor under the Cr.P.C. Have been given any power to interfere in the findings of the police. His contention is that respondents Nos.2 and 3 have no authority or power to convert the police findings for submission of challan under sections 322/337-F, P.P.C. He has further contended that from bare perusal of the F.I.R. And the facts and circumstances of the case, prima facie, case under sections 322/337-F, P.P.C. Is made out and the ingredients of section 302, P.P.C. Are not attracted. He prays for the acceptance of the writ petition and for submission of challan on the basis of the police findings by declaring the findings of the District Attorney and action of the District Magistrate as illegal and without lawful authority.
5. On the other hand Mr. Shan Gul, Advocate, has entered appearance on behalf of the State and has stated that the District Magistrate has not given any direction to the police and on the application of one of the legal heirs of the deceased only he called for a report of the District Attorney. The District Attorney had the power, before submitting the challan to convert the offences mentioned in the challan and to submit the challan under the correct provision of law. One of the legal heirs has engaged Raja Muhammad Anwar, learned Senior counsel. On his behalf Mr. Hasham Sabir Raja, Advocate, has entered appearance and has drawn my attention to section 173, Cr.P.C. In which an amendment was made on 12th of December, 1992 in which the public prosecutor is the official who can submit the challan. The police cannot submit the challan directly in the Court. He states that the public prosecutor in this case is the District Attorney and he has rightly interfered with the opinion of the police and 'while directing to submit the challan under sections 302/324, P.P.C. He has relied upon judgment reported as Mazhar Hussain v. Ishtiaq Hussain and another (PLD 1990 Lah. 249), in which it has been held that it is the duty of the police to confine only to register a case and to draw up charge-sheets and reports under section 173, Cr.P.C. After completing the investigation and submit the same to the District Prosecution Agency which is responsible for putting up the case into concerned Court in a best possible manner. District Superintendent of Police may prior to submission of charge-sheets in an important nature of case can call an opinion from his Legal Branch for his own guidance but that scrutiny is not binding on the District Prosecution Agency and the District Attorney has a final say in the matter including nature of offence allegedly committed by an accused and the Court which is to try him. No police officer, howsoever, senior, can impose his views either on the basis of his own assessment of circumstances of the case or on basis of any advice tendered to him by Legal Branch of District Police Office regarding the aspect of the case. He has also relied upon Sarfraz Khan v. The State (PLD 1988 SC 726) and Javed Iqbal and another v. The State (1991 PCr.LJ 723) on the same subject but these two authorities are not relevant as an observation has been made while deciding the bail application. However, lastly he has relied upon Abdur Rauf v. The State and 2 others (1998 SCMR page 1771).
6. I have heard the learned counsel for the parties at length. The contentions raised by the learned counsel for the petitioner are repelled in Abdur Rauf's case reported in "1998 SCMR 1771" in which it has been held as under:--- "Accused must first be charged for Qatl-e-Amd under section 302, P.P.C. And only when such charge had been established, provision of section 308, P.P.C. Could be applied to the case. Sessions Court had substituted the charge framed under section 302, P.P.C. With that under section 308, P.P.C. Which was not warranted by law. Case was, consequently remanded to Sessions Court for taking further action in accordance with law."
' The offence under sections 302/324, P.P.C. Is made out, according to the report of the District Attorney. On the other hand the police whose duty is to collect the evidence and prepared the challan has done so but at the same time has given the opinion that the offence under section 322, P.P.C. Is made out and that challan should be submitted under the abovesaid provision. The District Attorney under section 173, Cr.P.C. Is empowered to submit the challan before the Court of competent jurisdiction. What nature of offence has been committed, is to be seen by him. He is duty-bound to carefully examine the statements and the documents sought to be produced by the prosecution during the trial. It is also the duty of the District Attorney to examine the nature of offence committed by the accused and if a wrong provision has been mentioned in the challan he is fully competent and has the lawful authority to convert the challan into the offence which according to his opinion prima facie have been committed. Section 173, Cr.P.C. Is very clear on this subject. Learned counsel for the petitioner does not find any support from the said provision rather this provision is against the contentions raised by the learned counsel for the petitioner. Even otherwise police cannot be given the power to decide the nature of the offence and to submit the challan in the Court of its choice. Both these functions are concerned with the legal opinion and only the legal expert can decide the nature of the offence committed and submission of challan to which Court is the duty of the District Attorney who is the legal expert and finding B of police is not binding upon him. I would like to go a step ahead by holding that if the case is registered under section 302, P.P.C. The challan should be submitted before the Court of Session and it will be the trial Court (learned Sessions Judge or learned Additional Sessions Judge) to look into the evidence which is proposed to be produced by the prosecution and then frame the charge under the relevant provision of law and if the Sessions Court comes to the conclusion that the charge should be framed under the provision which are triable by a Magistrate then the challan should be transmitted with the order of the learned Sessions Judge or the learned Additional Sessions Judge to the Court of competent jurisdiction. The police cannot be given the cower to convert itself the offences and submit the challan under the provision of their choice. This is a judicial function and it should be exercised by the Court while framing the charge. My this view is fully supported by the case of Abdul Rauf (supra).
7. The petitioner has no case and the writ petition has no merit which is accordingly dismissed. As it is a case of public importance I direct the District Attorney to submit the challan before the Sessions Court which will decide at the time of framing of charge under the relevant provision and this order will not prejudice the case of any of the parties.
8. Before parting with the case I have noticed that the police is becoming more powerful and exercising the powers of judicial officer by converting the offences from section 302, P.P.C. To 'section 322, P.P.C. Or section 302, P.P.C. To section 308, P.P.C. And submit the challan instead of section 302, P.P.C. To other sections which are punishable with lesser punishment and are triable by a Magistrate. This tendency is very dangerous. In each and every case which is registered under section 302, P.P.C. The police, if comes to a conclusion to submit challan against the accused in some other offences, even then it should submit the challan before the Sessions Court and the Sessions Court will decide whether the case is triable by it or not.
9. A copy of this order shall be sent to the Inspector-General of Police to restrain the police from interfering into the judicial functions by converting the offence from section 302, P.P.C. To offence of lesser punishment by itself.