1. GHULAM RABBANI, J.---Muhammad Aslam and his two sons namely Sohail Aslam and Pervez Aslam were forwarded to stand their trial in crime No.176 of 1992 registered with Police Station Mithadar, Karachi, under section 408, 468, 471-A and 477, P.P.C.
2. While the matter was proceeding before learned Trial Court, above named accused moved two successive applications for their acquittal under section 265-K, Cr.P.C. On merits both these applications were dismissed by learned VIlth Additional District and Sessions Judge, Karachi, South, on 23-4-1994 and 9-4-1997, respectively. Subsequently, at some later time, third application under section 265-K, Cr.P.C. Was repeated for acquittal of the accused was on the ground that the challan against the accused was submitted on 16-6-1993 with delay of about 9 months after registration of the F.I.R. On 25-7-1992, therefore, entire trial was being held in violation of provision of section 173(1), Cr.P.C. In support of this application, reliance was placed on DB judgments in case of Muhammad Moosa v. The State (1996 PCr.LJ 361) and in case of Abdul Kareem alias Raja and another v. The State (1996 PCr.LJ 507). Here, it may be noted that in the cited case of Moosa (supra) it was observed:-- A plain reading of the above provisions would show that the police is required to conclude the investigation within a period of fourteen days and produce the appellant and the charge-sheet in the Court. However, in case such investigation is not concluded within fourteen days from the date of recording of the F.I.R. Under section 154, Cr.P.C., the Officerin-Charge of the Police Station is mandatorily required to submit an interim charge-sheet within three days of the expiration of such period of fourteen days. This provision has only not been complied with but is contravened. In these circumstances, we are of the view that the present appellant had, remanded in unlawful custody, with the police and was so at the time he was sent up for trial before the Court. Thus the entire proceedings thereafter stand vitiated. Similar view was expressed in the other case. In both the cases, appeals filed by the appellants convicts were allowed, conviction and sentences awarded to them were set aside and appellants were released/ acquitted and ordered to be released. Relying on the dictum laid down as above, Mr. Muhammad Nauman Memon, learned VIlth Additional District and Sessions Judge, Karachi, South, allowed the third application of above named accused and ordered their acquittal vide his judgment, dated 31-5-1999.
3. Aggrieved by the above judgment, complainant, Mian Azam Jamil filed Criminal Acquittal Appeal before this Court under section 417(2-A), Cr.P.C. In which learned counsel for the accused person made reference to the above cited cases and emphasized that the provision of section 173(1), Cr.P.C. Was mandatory and the accused were acquitted rightly on the basis of ratio laid down in the cited cases. He prayed that appeal be dismissed. On the other hand, Mr. A.M. Naqvi, learned counsel for appellant emphasized that provision of section 173(1), Cr.P.C. Is directory and be considered so instead of mandatory and the impugned judgment acquitting the above named accused be set aside. Later, on his application the matter was placed before Hon'ble Chief Justice, who, vide his order, dated 20-5-1999 constituted a larger Bench comprising of one of us (Ghulam Rabbani, J), Justice Dr. Ghous Muhammad (as then he was) and Justice Abdul Hameed Dogar now elevated as Judge of Supreme Court. Finally, in pursuance of an order, dated 24-6-2002 by Hon'ble Chief Justice this matter has come up before us. Mr. A.M. Naqvi, learned counsel for appellant reiterated that the provision of section 173(1), Cr.P.t. Is not mandatory but it is directory in nature and 'non-. compliance of the same would not entail release or acquittal of accused in case of their conviction and sentence, as was ordered in the above cited two judgments. In this case, too he urged that on the same hypothesis, respondent Nos. 1 to 3 could not have 'been acquitted on no fault of complainant, therefore, the impugned judgment causing failure. To justice to the appellant could not be said as just and proper and the same was not sustainable in the eyes of law rendering it liable to be set aside. He suggested that in case of dereliction of duty, only the Police Officer became liable for punishment as per law. In support of his contentions, he placed reliance on case of Mst. Zainab v. Kamal Khan alias Kamla (PLD 1990 SC 1051) and the case of Abdul Rahim and 2 others v. Messrs United Bank Ltd. Of Pakistan (PLD 1997 Karachi 62).
4. Mr. Sohail Muzaffar, learned counsel fot respondent Nos. 1 to 3 argued. That the provisions of section 173, Cr.P.C. is mandatory in nature requiring the Investigating Agency to produce the report before the Court of competent jurisdiction within maximum period of 17 days and since the mandatory requirement of the said proiision was not fulfilled the trial on the basis of police report submitted in violation of the mandate vitiated all proceedings before the Couit. He supported the impugned judgment and contended that the same dill not suffer from any legal infirmity. Syed Zaki Muhammad, learned Deputy Attorney General, argued that in majority of criminal cases the ground realities faced by. The Investigating Agency were numerous; people including complainant party and others did not cooperate with the police and some times the. Investigating/Police Officer remained involved in emergent duties with the result that delay was occasioned in submission of the Report of Police. He urged that in such cases the delay occasioned on the, part of police be not taken to obviate the aims and objects of administration of criminal justice, such as doing justice to complainant party, as well. Mr. Habib Ahmed, learned Assistant Advocate General, Sindh, argued that provision of section 173, Cr.P.C. Do not provide any adverse consequences iii case the Report of Police was submitted beyond the period of time stipulated in the said provision, therefore, the proceedings of trial initiated by Courts on taking cognizance of offence on such delayed report could not be said to be nugatory, illegal or unlawful to hold that the same stood vitiated. He argued further that the complainant who was normally an injured party ought not be penalized on account of delay occasioned be inadvertent or unintentional in submission of the Report of Police as the same would be tantamount to doing injustice to the complainant party. Mr. Abdul Qadir Halepota, who was appointed as amicus curiae vide order, dated 3-2-2002 was very fair and stated that in the above cited case of Abdul Karim alias Raja and another (1996 PCr.LJ 503) he had represented the appellants and had argued the case, on their behalf, before the D8 of this Court touching the pointg involved in the above appeal.
5. We have given our due attention to the arguments of the parties, with their assistance, we have perused the relevant record and also we have gone through the case-law referred to by Mr. A.M.
6. Naqvi, learned counsel for appellant. In our view, following questions fall for determination:
(1) Whether provision of section 173, Cr.P.C. Is mandatory in nature or it is directory?
(2) Whether on account of delay occurring in submission of report by the Police Officer/Investigation Officer he becomes liable for penal consequences or the delay so occasioned per se washes away the worst effect of crime letting the offender go escot free without being punished and depriving the complainant party of his right to relief?
(3) Whether the delay, intentional or unintentional or owing to mistake of Police Officer in sending report by itself causes such an effect to provide to the Magistrate of jurisdiction a reason to discredit the evidence collected during investigation or sending the delayed report to the Magistrate of jurisdiction divests him of his powers from applying his judicious mind to and pass appropriate orders on the material so collected showing involvement of accused in Commission of alleged crime? What are the consequences in case the Magistrate has applied his mind and has taken cognizance of the offence on such delayed report of Police.
1. Regarding first question, mentioned 'above, it "may be stated that there is no hard and fast rule to hold a provision of an enactment either mandatory or directory. The real intention of legislature having regard to the whole scope and purpose of the enactment is to be kept in view for ascertainment of a provision to treat it mandatory or directory in nature. In this view, we are fortified by the case of Dr. Sher Afghan v. Amir Hayat Khan and 2 others (1987 SCM R 1987), wherein it is observed that the case of each enactment has to be construed in the light of general object intended to be secured, the subject-matter and the importance of the provision and then it can be decided whether the enactment is imperative or only directory. This Court has also followed the above rule of interpretation in case of Abdul Rahim and 2 others v. Messrs United Bank.. Ltd. Of Pakistan (PLD 1997 Kar. 62).
7. Reverting back to the provision of section 173(1) to ascertain on the touch stone of the above principle the intention of legislature, it will be appropriate, in the first instance, to reproduce the same as follows:--
(173) Report of Police Officer.---(1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is complete, the officer-in-charge of the 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 in charge 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) to (5)..................
8. Perusal of the above provision of law reveals that it is couched in such words which reflect a clear mandate peremptorily directing the Officer in charge of the Police Station to forward to the Magistrate through the public prosecutor an interim report within next 3 days in the form prescribed by the Provincial Government in case where investigation is not completed within a period of fourteen days from the date of recording of First Information Report under section 154, Cr.P.C. And the Court shall commence the trial on the basis of such report unless for the reasons to be recorded it decides that the trial shall not commence. The language so used in the above provision makes the intention of the legislature very clear to construe safely that the aim and object of the said provision is to see that the investigation is completed with accelerated pace and in case the investigation is incomplete whatever material is collected within the stipulated time that be brought to the notice of the Magistrate so that trial may also not delay for which Magistrate is to apply his judicious mind and pass orders within his competence when he finds, in all fairness and reasonably, appropriate to commence the trial. In case of Mst. Zainab (supra), Supreme Court has held that "the law presupposes that legislature presumes that enactment will operate fairly, justly and B equitably and not unreasonably, therefore, a construction has to be made which would be beneficial to the widest maximum extent" . Which, in our opinion, supports our view. Thus, evaluating the relevant provision, in the above context, we are clearly of the view that the provision of section 173(1), Cr.P.C. Is mandatory, as far as the Officer in charge of Police Station is concerned requiring him to perform his duty as per stipulation stated in the said provision.
2. Regarding other question whether on account of delay occurring in submission of report, the Officer in Charge of Police Station becomes liable for penal consequences or the delay so occasioned per se washes away the worst effect of crime letting the offender go escot free without being punished depriving the complainant party of a right of justice being done to them, it may be stated that we have, in the fore-going paras, already observed that the provision of section 173(1), Cr.P.C. Is mandatory as far as the Officer in charge of Police Station is concerned requiring him to perform his duty as per stipulation of the said provision of law. In other words, the above provision of law only enjoins upon the Officer in Charge of Police Station, who is a public servant within terms of section 21, P.P.C., to perform an obligatory direction of the law viz. To forward the report as per stipulation contained therein. In case he, fails to forward such report the natural conesquence is that in case of accused remaining in custody beyond prescribed days he shall be construed to have caused an injury to the accused rendering him guilty, among others, of disobedience of direction of the law with intent to cause injury to any person and liable for commission of an offence falling under section 166, P.P.C. Which read as follows:--
166. Public servant disobeying law, with intent to cause injury to any person: Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may expend to one year, or with fine, or with both.
9. The Officer in charge of Police Station failing in his duty, as above, can also inflict upon a punishment by competent superior authority in disciplinary proceedings initiated against him under Police Act and the Rules made thereunder. All other functionaries responsible for delay may also be proceeded against. In this view, we are fortified by case of Hakim Mumtaz Ahmed and another v. The State reported in PLD 2002 SC 590 where the F.I.R. Was lodged on 9-9-2000 against the petitioner, who was arrested on the same day and remained in custody up to 11-11-2000 when he was released on hail because of non-submission of challan which was finally submitted in Court on 17-1-2001. In this case the delay, in the above case and in other criminal cases, invariably occurring in submission of challan/Police Report under section 173, Cr.P.C. Was noticed and following observation was made:--
(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....
10. It was furthel-'- observed:
(12) We may observe here that on completion of period of police remand under section 167, Cr.P.C.
11. 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 provisions of law and proving thereby himself/ themselves to be inefficient police officers, the positive result shall start coming forward.
12. (Under lining is by us).
13. Coming to the other part of the above question, it may be stated that provisions of section 173(1), Cr.P.C. By itself, does not provide the consequences to follow on account of delay occasioned in forwarding the Police Report interim or final. In our view, the crime committed by an offender does not loose the worst effect of its adversity in case report of Police is not forwarded within prescribed period of time. Neither it could be said that by fixing the responsibility of the Officer in Charge of a Police Station to forward the report to the Magistrate within stipulated time, the intention of legislature could be to wash away the worst effect of crime letting the offender go escot free without being punished in case such report is delayed. Had that been so then any unscrupulous Police officer responsible for sending such report could conveniently, on being influenced for whatever reason, delay the report in heinous crime and oblige any accused go unpunished. For instance in case of a murder, an Officer in charge of Police Station could wilfully delay the requisite report and cause the benefit accrue to the culprit. We are more than sure that this could not be the aim and object of enactment of the relevant provision of law. Regarding third question, it may be stated that reading of section 173(1), Cr.P.C., reflects that it neither shadows nor contains any embargo on the powers of Magistrate in taking cognizance of offence under section 190(1)(b), Cr.P.C. On delayed submission of Report of Police be that intentional, unintentional or owing to mistake of Police Officer.
14. Conversely stated, no legislative expression has been made in the above provision of law that it would be obligatory for a Magistrate to stay his hands off from the material collected during investigation on a F.I.R. On account of non observance of peremptory directions on the part of Police Officer in charge of a Police Station. Having seen the relevant provision in the above context, we are clearly of the view that the Magistrate of jurisdiction can apply his judicious mind to the material colleCted during an investigation in a crime and may take cognizance of the offence on the report of police which is submitted before him within or beyond the period of time prescribed under section 173(1), Cr.P.C.
15. And may proceed further with trial in accordance with law. In other words on account of delayed submission of report of Police the proceedings consequently initiated thereon by the Magistrate of jurisdiction commencing the trial against accused person(s) by Court shall not be construed to have become an illegal exercise to vitiate such proceedings.
16. Considering the above facts, circumstances and the case law we had, by our short order, dated 22-9-2003, unanimously held that delay in filing of challan/charge-sheet under section 173, Cr.P.C.
17. In a criminal case by Police against an accused shall not ipso. Facto vitiate trial of an accused and/or end in acquittal on that ground alone. We had also by the said order remanded the above criminal appeal No. 85 of 1997 to the learned Single Bench, for hearing and deciding the same on merits and directed the Office, as well, to place Cr. Misc. No. 34 of 2001 as per rules. These are the reasons for the same. Before parting, we deeply wish to thank Mr. Abdul Qadir. Halepota, who, on various dates took pains to appear as an amicus curiae and very fairly expressed himself. We also require the Registrar of this Court to circulate this decision among all Judicial Officers subordinates to this Court, for their guidance.