' This order will dispose of the Constitution petition under Article 199 of the Constitution of Islamic Republic. Of Pakistan, 1973 filed by the petitioner Allah Bux.
' The facts giving rise to the present petition are that on 20-11-2002 at 11 p.m. The petitioner lodged an F.I.R No,101 of 2002 at Police Station Drigh under section 324, 34, P.P.C. Against some nominated accused persons. It is alleged that the respondents Nos.1 and 2 who are the S.H.O of Police Station Drigh and S.H.O./Incharge Investigation of Police Station Drigh have failed to complete the investigation or apprehended the culprits in spite of repeated requests and that they are not investigating the case and submitted the challan within 15 days as required by law, therefore, he has filed this petition for giving direction to the respondents Nos.1 and 2 to conclude the investigation and submit the challan before the Court of law.
' Article 199 of the Constitution of Islamic Republic of Pakistan gives discretionary powers to the Court to issue such type of direction and the same can be exercised, if there is no adequate remedy available under the provisions of relevant law.
' A perusal of Chapter XIV of Criminal Procedure Code reveals that under section 154, Cr.P.C. An Officer of Incharge of Police Station is duty bound to register the F.I.R. If cognizable offence is committed. Under section 157, Cr.P.C. He is required to send a copy of F.I.R. To the Magistrate empowered to take cognizance, if he feels that he is empowered to investigate the case under section 156, Cr.P.C. Under the said provision, the Officer Incharge of a police station is authorized to investigate a cognizance offence without an order of the Magistrate. Under section 157(1)(b) of Cr.P.C. The Officer Incharge of a police station is empowered not to investigate the case, if there is no sufficient ground for entering into investigation, but when he forms such opinion wen under subsection (2) he is required to inform the complainant for not conducting the investigation and send such report to the Magistrate. Under section 159, Cr.P.C. The Magistrate is empowered to direct the police to investigate the case after receiving thz F.I.R. From the police station. Under section 156(3), Cr.P.C. The Magistrate, empowered to take cognizance under section 190, Cr.P.C. Is further authorized to order the police for registration of F.I.R. Investigating the same and submission of the challan if there is sufficient evidence against the accused. Section 156(3), Cr.P.C. Was considered by Pakistan and Indian High Courts in cases of Akhshoy Kumar v. Jogesh Chandra AIR 1956 Cal.
Page 76, AIR 1959 Assam page 231, Munawar Khan v. Muhammad Ishaque PLD 1975 Lab. Page 577 and Munir Ahmed v. State 1990 PCr.LJ 1547. In the above mentioned authorities, the ratio was that tinder section 156(3), Cr.P.C. The Magistrate is competent to direct the police to register the case, investigate the same and submit the challan.
' Under section 61 read with section 67, Cr.P.C. An investigation of a case is required to be completed within a period of 24 hours. If it is not completed and accused is in custody, then a remand of an accused person is to be obtained from the Magistrate. If the investigation is not completed within the above period, then the Police Officer under section 173, Cr.P.C.. Is required to submit a challan after completion of investigation within the period mentioned in it. The said provision reads as under:-- "173. Report of Police Officer.--- (1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the Officer Incharge of 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, and, if so, whether with or without sureties, and
(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given: ' 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 Incharge 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 cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may pendirg the orders of the Magistrate, direct the Officer Incharge 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 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 cost.
(5) Where the Officer Incharge of a police station forwards a report under subsection (1), he shall alongwith the report produce the witnesses in the case, except the public servants, and the Magistrate shall bind witnesses for appearance before him or some other Court on the date fixed for trial.
' From the perusal of above provisions, it is clear that every investigation is to be completed without unnecessary delay, and, as soon as it is completed, the Officer Incharge of the police station is required to submit a report/challan through Public Prosecutor, but not later than 14 days. If the investigation is not completed within the period of 14 days from the date of recording of the first information report, then the Officer Incharge of police station, within three days of the expiration of such period, forward to the Magistrate through Public Prosecutor an interim report 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. Thus, it is the direction of the law that the police are required to complete the investigation within 24 hours as required under section 61 read with section 167, Cr.P.C. Or within 14 days from the date of the registration of F.I.R. And after completing the investigation submit a challan in the Court as required under section 173, Cr.P.C.
' It is the further direction of law that if for any reasons the investigation is not completed within 14 days as mentioned above then the Officer Incharge of a police station is required to submit an interim report within three days of the expiry of above mentioned period, showing therein the result of the investigation made until then and thereafter the Court is required to commence the trial on the basis of such report unless for reasons to be recorded, the Court decides that the trial should not so commence. In such situation, the natural consequence is that the Magistrate can grant further time to the police on an application moved by them showing reasons for grant of further period to complete the investigation and further time can be granted by the Magistrate on cogent grounds with direction to the police to complete the investigation within the said period, but the time should not be more than 14 days. For any reasons if the investigation is not completed during the further extended time then the Magistrate can further extend the said time but it should not be more than 14 days at a time. Under such situation, the police is required to inform the Magistrate about the investigation conducted during the extended period and then the Magistrate can commence the trial of the case if he is not satisfied with the progress of the investigation.
' Section 173, Cr.P.C. Was amended vide Act XXVI of 1992 with a sole purpose that the investigation should be completed within the time fixed by the law and the investigation should not be left at the mercy of police to their own sweet will to complete the investigation. If the police fails to discharge their duties then the Magistrate should check them and compel them to submit the challan or interim challan so that the case should be proceeded with expeditiously. It appears that neither the police are taking the above provision seriously nor the Magistrate. Even the Sessions Judges are not exercising their supervising powers to check this excess of police and Magistrate with a result that section 173, Cr.P.C. Is becoming redundant day by day as the Complaints and petitions are being filed for compliance of the said provision.
' The situation has reached to such an extent that Honourable Supreme Court of Pakistan has taken upon itself to interfere and shown a great concern about the lapses on the part of police, Magistrate and Sessions Judges. The Honourable Supreme Court of Pakistan issued directions to all concerned to comply the said provision strictly and further directed the superior officers of police and High Courts to take action against delinquent officer in a case' of Mumtaz Ahmed v. State reported in PLD 2002 SC page 590. A relevant portion of the observation of the Honourable Supreme Court appearing in paras. 7 to 12 at page 595 and onwards are as under:- "7. The above statement of facts makes it clear that Investigating Agency/Police of Mandi Bahauddin had no justification to detain the petitioner in custody from the date of expiry of period of remand of 14 days till submission of challan i,e, 17th January, 2001. For this negligence the Judicial Magistrate who has been remanding the accused in judicial custody in terms of section 344, Cr.P.C.
Would be equally responsible because if he had insisted upon the Police/Investigating Agency to at least submit interim challan failing which accused would not be remanded to custody, the police had no option but to comply with his order. Difficulty is that in such situation neither the police nor the District Attorney nor the Magistrate granting police as well as judicial remand are ready to take responsibility in not complying with the provisions of section 173, Cr.P.C. Which prescribes procedure for submissions of challan even if investigation has not been completed. But all the concerned functionaries i,e, Investigating Agency/Police, District Prosecution Agency and Presiding Officer of the Court who had been granting remand of the accused either to the police or the judicial remand demonstrated inefficiency in performing their statutory obligations thus exposing themselves for departmental actions under relevant Efficiency and Discipline Rules, accordingly.
8. It is not only this case in which it has been noticed that the Investigating Agency as well as District Attorney have failed to submit challan of the case registered against accused within the stipulated period but in majority of the case the police report/challan under section 173, Cr.P.C. Is not filed despite expiry of stipulated period due to which accused persons involved in criminal case remain languishing in custody without trial and ultimately for such reason accused claim bail despite their detention in the offences which are heinous in nature because denial of bail to an accused in non-bailable offence under the circumstances would be against the principle of administration of justice.
' Admittedly, for such delay no one else except the police and the office of the District Attorney can be held responsible for not submitting the challan. Surprisingly, in the instant case, the representatives of both the agencies i,e, the then Superintendent of Police, Mandi Bahauddin and the District Attorney instead of accepting their fault found their rescue for not complying with the mandatory provisions of law under section 173, Cr.P.C. Started blaming each other but ultimately failed to furnish satisfactory explanation for not complying the process of submission of challan within stipulated period of 14 days. Factually both the agencies are equally responsible for not complying with the provisions of law because as far as Superintendent of Police is concerned he is not only a figure head of the District Police but it is his one of the duty to adopt effective devices to ensure that criminal cases registered by the Police within his jurisdiction are processed strictly in accordance with law and if it is not possible to submit final challan then he should ensure submission of at least interim challan in terms of proviso to section 173(1), Cr.P.C. And if the S.H.Os.
Or Investigating Officers are found negligent in not complying with the mandatory provisions of law, he should initiate action against them promptly and if he himself is contributory in this behalf for any reason then action could also be initiated against him departmentally as well by the Courts for causing delay in the trial of cases and detaining accused person in custody without trial contrary to the provision of Article 9 of the Constitution of Islamic Republic of Pakistan because this Article provides that no person shall be deprived of his life or liberty save in accordance with law.
Therefore, if an accused is arrested in a cognizable offence by the police or law-enforcing agencies, it is his right to be dealt with save in accordance with law i,e, a justification has to be shown for his detention in custody because on the arrest of an accused initially he can be detained without permission of the Court for a period of 24 hours under section 61, Cr.P.C. And if during this period investigation of the case is not completed and the police has reasons to believe that the accusation or information is well-founded then he shall be produced before the Magistrate who after having satisfied himself about progress of the case may authorize detention of such person in police custody for a period not exceeding 15 days as a whole under section 167, Cr.P.C. On completion of maximum period of Police remand the accused becomes entitled for trial and every Investigating Officer is duty bound to complete interrogation of the accused within stipulated period and no unnecessary delay is tolerable in this behalf because after completion of investigation, challan is to be submitted before the Court of competent jurisdiction through the Public Prosecutor. As per section 344, Cr.P.C. It is the duty of the Police Officer to furnish justification for detention of accused in custody if challan under section 173, Cr.P.C. Has not been filed and trial has not commenced, otherwise in absence of report of a police officer or challan, detention of the accused would be unjustified and against the provisions of law.
9. Delay in submission of challan/police report under section 173, Cr.P.C. Has been noticed invariably in the criminal cases, despite the fact that section 173, of the Code of Criminal Procedure has been amended by Act XXV of 1992 whereby a facility has been extended to the Investigating Agency for submitting interim report the period of 3 days from the completion of period of 14 days of the police remand but instead of deriving benefit from this provision of law, the Police Authorities including S.H.Os and high-ups up to the rank of Senior Superintendent of Police never bothered to comply with this mandatory provision of law.
10. Undoubtedly section 173, Cr.P.C. Was amended vide Act XXV of 1992 with a view to improve performance of the Police Department and simultaneously to stop the police from adopting protracted investigation process for one or the other pretext but the police authorities had in fact rendered the provisions of section 173, Cr.P.C. Ineffective by not following its spirit. In this behalf it is to be noted that unconvincing delaying tactics are adopted by the concerned Investigating Officers as it has exactly happened in the instant case because the then Superintendent of Police, Mandi Bahauddin who is supposed to be Incharge of criminal cases as per rule 5.1, Chapter 5 of the Punjab Law Department Manual, 1938 failed to furnish reasons for not submitting the challan before the Court through Public Prosecutor as per the provisions of section 173, Cr.P.C. Similarly Public Prosecutor who is also the Incharge of District Prosecution Agency in terms of rule 5-A2, Chapter 5- A of the Punjab Law Department Manual, 1934 could not satisfy the Court for not submitting the challan/police report final or interim within the stipulated time.
11. It may be noted that in the case of Mazhar Hussain v. Ishtiaq Hussain and another (PLD 1990 Lahore 249) it has been held that primarily it will be the function of the District Prosecution Agency to finally scrutinize the charge-sheet or report under section 173, Cr.P.C. Of a case and on receipt of report from the police submit the same before the Court concerned. On having seen the conduct of the Investigating Agency and District Prosecution Agency we are of the opinion that in absence of good working relations between both the agencies it is not possible to strictly adhere to the provisions of section 173, Cr.P.C. But on account of non-cooperation between both the agencies no one has suffered except the accused/petitioner who remained in detention without trial for a considerable period as it has been noted hereinabove. In this regard the Court which had been granting judicial remand of the petitioner in terms of section 344, Cr.P.C. Would also equally responsible for the delay in commencement of trial case because if it had insisted hard upon police to comply with the provisions .Of section 173, Cr.P.C. Or to face consequence for keeping the accused in custody there was no reason that concerned S.H.O./Investigating Officer had not put up challan against the accused. It is a general practice that we do point out weaknesses in the system but don't bother to discharge the duty cast upon the functionaries seized with the matter. We are sure that if the provisions of section 173, Cr.P.C. Are complied with in letter and spirit the delay in submission of challan and completion of trial in criminal cases can conveniently be controlled.
12. We may observe here that on completion of period of police remand under section 167, Cr.P.C. If final or interim report has not been submitted the Magistrate before whom accused has been produced for remand can insist upon the prosecution by passing order in writing to comply with the provisions of section 173(1), Cr.P.C.. Or record reasons for remanding the accused to judicial custody for want of challan in terms of section 344, Cr.P.C. And simultaneously direct initiation of departmental proceedings against police officer responsible for submission of challan for not complying with mandatory provision of law and proving thereby himself/themselves to be inefficient police officers, the positive result shall start coming forward. Similarly in the instant case the Magistrate as well as Additional Sessions Judge, who had been granting police or judicial remand without insisting upon the S.H.O./Investigation Officer to submit challan had failed to discharge his/their duties. Surprisingly, the Additional Sessions Judge vide order, dated 26-9-2000 declined bail to petitioner because challan against him was not put up but when request for grant of bail was repeated he granted bail to the accused instead of initiating stern action against S.H.O./Investigation Officer as well as Superintendent of Police for not submitting the challan is also responsible for unjustified detention of the accused.
' We believe that not only the police and Judicial officers who were associated with instant case have violated the mandatory provisions of law but similar attitude is demonstrated by suchlike officers throughout the country with the result that number of accused persons have been rotting in the jails without trial and their such detention would be in clear violation of provisions of Article 9 of the Constitution of Islamic Republic of Pakistan as well as the principles of administration of justice in criminal cases."
' A serious effort should be made to implement the provision of section 173, Cr.P.C. In letter and spirit and to implement the directions of the Honourable Supreme Court of Pakistan. In this connection, it is pointed out that during inspections of the Courts of the Magistrates, it was found that the Magistrates were having a single file containing all the F.I.Rs, of the police stations within their jurisdiction. It was further observed that the remand reports submitted to the Magistrate by the police for obtaining remand of the arrested accused persons during the pendency of investigation were also put in one single file containing all such reports of all the police stations within their jurisdiction. This practice was continuing since long. This practice has become out-dated in view of the amendment made in section 173, Cr.P.C., therefore, it, is not serving the purpose and meet the requirement and new challenges. The Magistrates through old procedure and practice cannot effectively put strict check over the police for compliance of section 173, Cr.P.C., therefore, the said procedure and practice has to be changed and modified.
' In order to effective implement the above decision of the Honourable Supreme Court of Pakistan and provision of section 173, Cr.P.C. The Magistrates should prepare a separate file of each F.I.R received by them. As soon as such F.I.R. Is received, it should be put in the said file by maintaining a diary mentioning therein the date, time of receipt of F.1.R. And then fix the matter on the 15th day of the date of registration of F.I.R. In order to see whether the police had complied with the provision of section 173, Cr.P.C., or not by filing challan. On the said fixed date if it is found that challan has not been submitted by the police then a notice can be issued to the delinquent police officer an. The matter may be fixed on the 3rd day in order to see whether an interim challan as provided under section 173, Cr.P.C. Has been submitted or not. During the said period if a remand report of any other proceedings is carried out in connection with the said F.I.R then all those papers should be put in the said file by maintaining regular diaries of relevant dates. On the date fixed (18th day of lodging for F.I.R.) the matter be taken up to examine whether the police had complied with the provision of section 173, Cr.P.C. Or not. If no challan or interim challan is submitted by the police then a notice should be given to the concerned police officer calling for his explanation for not submission of the police report, challan or an interim report within the required period mentioned in section 173, Cr.P.C. The Sessions Judges are also required to effectively supervise the work of the Magistrates so as to ensure that the police and Magistrates had effectively complied with the requirement of section 173, Cr.P.C. In letter and spirit or not. At the same time the Magistrate can initiate proceedings against the delinquent police officer for offences punishable under section 166, P.P.C. (Public servant disobeying law with intent to cause injury to any person) and also under Police Ordinance, 2002. If the above procedure is adopted, then the complaints of non-submission of the challan or interim challan within the meaning of section 173, Cr.P.C. Can be culminated and the direction of the Honourable Supreme Court of Pakistan can also be implemented effectively thereby saving the Magistrates or Sessions Judges from the consequences pointed out in the said judgments.
' In the light of what has been stated above, an adequate remedy by approaching the Magistrate, is available to the petitioner, therefore, the petition is not maintainable.
' Above are the reasons of my short order, dated 15-1-2003.