' In this petition under section 561-A, Cr.P.C. The petitioners have prayed for setting aside order dated 14-2-2001 passed by learned Additional Sessions Judge, Liaqatpur whereby application under section 265-K, Cr.P.C. Brought by petitioners was dismissed.
2. The brief facts of the case are that Atta Ullah, complainant/respondent No,3 got registered a case F.I.R. No,97 of 1999 under section 302/34, P.P.C. At Police Station Pacca Laran against the petitioners. During investigation petitioners were found to be innocent but police submitted report under section 173, Cr.P.C. Against the petitioners. The petitioners appeared before trials Court and submitted application under section 265-K, Cr.P.C. Which was dismissed vide order dated 14-2- 2001. Hence this petition.
3. I have heard the arguments and perused the record.
4. Learned counsel for the petitioners submits that impugned order is against law and facts of the case. He further submits that police had not submitted challan against the petitioners, therefore, trial Court could not take cognizance of the case. He contended that final report under section 173, Cr.P.C. Dated 5-7-1999 shows that according to opinion of Investigating Officer no such occurrence took place, therefore, impugned order is liable to be set aside and proceedings before trial Court are liable to be quashed. On the other hand learned counsel for the complainant as well as the State submit that challan was submitted before trial Court and accused/petitioners were placed in Column No,2 of the same, therefore, trial Court could try the case against the petitioners/accused.
Further submit that police declared them innocent only due to the reason that they are employees of Police Department and that charge has already been framed against the petitioners, therefore, this petition has no force.
5. I have considered the submissions made by the learned counsel for the parties. The case of petitioners is that during investigation they were found to be innocent and that police had not submitted challan against them, therefore, trial Court could not take cognizance of the case.
However, the case of respondents is that charge has already been framed against the petitioners and that police had challaned them to face trial, therefore, contention of petitioners has no force.
The perusal of record shows that complainant had filed Writ Petition No,1601 of 1999 and on 8-4- 1999 S.H.O., Police Station Pacca Laran was directed to complete investigation of this casewithin the shortest possible time and to submit the challan against the culprits. Thereafter on 4-6-1999 report under section 173, Cr.P.C. Was submitted. The perusal of said report shows that names of the petitioners have been placed in Column No,2 and that police had requested to hear the case. So it is clear that accused/petitioners have been challaned to face trial. As such contention of the petitioners is devoid of force.
6. Learned counsel for the petitioners has cited two reported cases in support of his contention. In the case of Mahfooz Ahmad v. Additional Sessions Judge PLD 2000 Lah. 136 a writ petition was filed in this Court assailing the order passed by learned Additional Sessions Judge in a revision petition filed by complainant against discharge order in a criminal case (registered under sections 436/34, P.P.C.). In this case initially the Magistrate had, by passing a well-reasoned order, discharged the accused in agreement with the police report, according to which the accused were found to be innocent, it was held that mere alleged offence would not confer jurisdiction on a Special Court. It is only if during investigation police find it a case triable by a Special Court and a report is submitted to that effect that the jurisdiction of Special Court would be attracted. Quite obviously the case of Mahfooz Ahmad (supra) was based on distinguishable facts. Not only the accused were declared to be innocent in that case by the police but in agreement with that finding the Magistrate too had passed a well-reasoned order of discharge. The view so taken was quite obviously in consonance with the rule laid down by the Honourable Apex Court in the case of PLD 1985 SC 62. It is thus, quite clear that rule laid down in the case of Mahfooz Ahmad (supra) cannot be pressed into service in the instant case. The learned counsel for the petitioners also cited the case of Ahmad Nawaz v.
State 2001 M LD 1330 (Lahore). It was held in this case that challan was neither substitute for nor synonymous for a report under section 173, Cr.P.C. And that the same was to be submitted only where some person was recommended to be tried whereas if accused was not recommended to be tried in a criminal case then only report under section 173, Cr.P.C. Was to be submitted without any challan accompanying therewith. I am afraid Courts should not be hampered with the technicalities of a challan or a report of final investigation under section 173, Cr.P.C. According to the scheme of things in Cr.P.C. The two are one and the same thing. Unfortunately the term "challan" does not anywhere exist in the Cr.P.C. The final report of investigation which the police is liable to submit A before criminal Court is spoken of in section 173, Cr.P.C. Generally this final report of investigation is known or referred to as challan. Whatever may be the finding of Investigation Agency about the innocence or otherwise of the accused, the same is to be produced before the criminal Court, by preparing or filing report under section 173, Cr.P.C. Even in the case of Ahmad Nawaz v. State 2001 M LD 1330 (Lahore) it was held that where a police report is placed before the Magistrate recommending the accused to be discharged from the case, it is not necessary for the Magistrate to agree with that report and in an appropriate case the Court can take cognizance of the case and summon the accused person to face the trial even if the police has not recommended for his trial under section 173, Cr.P.C. Quashment of the proceedings of the instant case is primarily sought on the basis of police report, according to which the accused were held to be innocent. In this case no order was ever passed by the. Magistrate discharging the accused on the basis of its finding favorable to them. In fact my learned brother Iftikhar Ahmad Cheema, J. (as he then was) by allowing Writ Petition No,3213 of 1999 passed an order directing the accused to be challaned before the Court of Session. By moving the instant petition, the petitioners practically wish me to review the order so passed in said writ petition but it is not open to me to review the same. The order so passed was never challenged before the Honourable Apex Court. So even if that order was tentative in nature yet the order requiring the accused to be challaned and tried before the Court of Session has become final and cannot be reviewed by me. It would of course be open to the trial Court to decide the case on its own merits on conclusion of the trial. As such I find that order passed by learned Additional Sessions Judge is just and proper. There is no illegality or infirmity in the impugned order.
7. For what has been discussed above I am of the considered opinion that this petition- has no force and the same is accordingly dismissed. The parties shall appear before trial Court on 28-10- 2002. The case was registered on 3-4-1999, therefore, trial Court is directed to decide this case within six months (till 6-4-2003).