' By filing this revision petition, the petitioners have challenged the order dated 24-5-2003 passed by the learned Sessions Judge, Sheikhupura whereby he had directed the Investigating Officer to submit the complete challan before the learned trial Court after addition of the offence under section 295-B, P.P.C.
2. The revision petition has been filed on the plea that the complainant i.e. Umar Hayat had got registered F.I.R. No.425 on 19-9-2002 (in Police Station Bhikhi, District Sheikhupura) on the allegation that on the day of occurrence i.e. On 19-9-2002, the complainant alongwith his daughter Mst. Faiza Bibi was present in his house when Anwar petitioner No.1 who was empty-handed, accompanied by 19 nominated accused, besides 4/5 unknown persons who were equipped with arms trespassed in his house and on the Lalkara of petitioner No.1, his co-accused resorted to aerial firing in order to scare the inmates of the house and thereafter they sprinkled petrol on the household articles lying there and also on the ceiling of the room and Almirah and thereafter set the same ablaze. After the entire belongings of the complainant and the house were burnt, the accused fled away raising Lalkaras. The complainant alleged that on account of the said act of the accused he had suffered a damage of almost Rs.8/10 lacs. A mention was also made of the motive in the F.I.R.
3. The case was initially registered under sections 436, 427, 337-H(ii), 148; 149 and 452, P.P.C.
However, later the complainant made a supplementary statement before the Investigating Officer to the effect that on the day of occurrence, two copies of the Holy Qur'an, some books of 'Ahadith' and other Islamic books which were lying in his house were also burnt to ashes during the incident.
However, as a result of further investigation into the matter, the Investigating Officer declined to add section 295-B, P.P.C. On account of the existence of doubt. However, subsequently, the complainant moved an application before the learned Sessions Judge, Sheikhupura on 20-5-2003 seeking a direction to the Police to challan the accused by adding the offence under section 295-B, P.P.C. As well. Vide his order dated 24-5-2003 the learned Sessions Judge issued the requisite direction to the Investigating Officer i.e. For submission of complete challan before the trial Court with the addition of offence under section 295-B, P.P.C. Aggrieved of the said order of the learned Sessions Judge, the petitioners have come up in revision.
4. The learned counsel for the, petitioners has argued that the learned Sessions Judge had acted illegally and with material irregularity by entertaining the application for addition of the offence under section 295-B, P.P.C. And by issuing a direction to the Police to add the aforesaid offence in the challan. He has argued that although the later part of the impugned order gives the impression that the matter had been left to the discretion of the Investigating Agency, yet the observation made in the earlier part of the impugned order contains a clear direction to the police to add the desired offence or otherwise the investigation would be deemed to be mala fide. He has argued that the learned Sessions Judge has exceeded his jurisdiction by interfering in the police investigation and hence the impugned order had clearly prejudiced the case of the accused/petitioners. He has argued that it was for the Investigating Agency to submit the challan under whatever provision of law it considered to be appropriate and that the learned Sessions Judge had no power whatsoever to direct to advise the Investigating Agency to submit the challan under a specific provision of Pakistan Penal Code or of some other law and hence the impugned order of the learned Sessions Judge dated 24-5-2003 is liable to be set aside.
5. The learned counsel for the State has supported the contentions of the learned counsel for the petitioners and has argued that the learned Sessions Judge had no lawful power to direct the Investigating Agency to submit the challan under specific provision of law. However, the learned counsel appearing on behalf of the complainant has controverted the arguments of the learned counsel for the petitioners and has argued that it was a result of the investigation that it had been found that section 295-B, P.P.C. Was applicable to the facts of the case and hence the challan had been submitted subsequently under the said provision and it had not been done under the direction of the learned Sessions Judge. He has referred to the provision of section 22-A(6) of Cr.P.C. And has argued that the learned Sessions Judge being an ex-officio Justice of the Peace can issue appropriate direction to the police authority where he notices neglect, failure or excess committed by the police authority in relation to its functions and duties. He had argued that while issuing the direction in question to the police, the learned Sessions Judge had not exceeded his powers under the law and hence there is no lawful justification for interfering with the said order.
6. I have carefully considered the arguments.
7. Although section 22-A(6), Cr.P.C. Empowers the learned Sessions Judge as an ex-officio Justice of the Peace to issue appropriate directions to the police authorities concerned on a complaint regarding (i) non-registration of a criminal case; (ii) transfer of investigation from one police officer to another; and (iii) neglect, failure or excess committed by a police authority in relation to its functions and duties, yet there is nothing in the said provision of law to empower the learned Sessions Judge to direct the police authorities to submit the challan of a case under a specific provision of law. It is the function of the Investigating Officer to come to a conclusion, as a result of his investigation, under what provision or for what offence the challan is to be submitted. It is another matter that the learned trial Court is not bound by the report of the police officer and hence at the time of framing of charge it can charge the accused with a different offence than that for which the challan had been submitted. Obviously the trial Court has to peruse the police report or, as the case may be, the complaint and all other documents and statements filed by the prosecution and then has to form its opinion as to whether there is a ground for proceeding with the trial of the accused and if the Court finds that there does exist the ground for proceeding with the trial of the accused, only then it has to frame a charge in writing against the accused person/persons. It may also be mentioned here that although vide order dated 4-5-2003 the learned Sessions Judge, Sheikhupura had - directed the police authority to submit the complete challan before the Court with the addition of offence under section 295-B, P.P.C., however the learned Sessions Judge had also observed that the aforesaid order will not prejudice the Investigating Officer conducting the investigation of the case and the Investigating Officer concerned i.e. The S.P. (Investigation), Sheikhupura can come to another conclusion, if sufficient evidence in rebuttal is produced before him by the accused persons. It is obvious that the Investigating Officer would have acted on the basis of the order of the learned Sessions Judge, Sheikhupura dated 24-5-2003 as a whole and not merely on the basis of its first part. Anyhow, as mentioned above, it is clear that the learned Sessions Judge is not empowered to direct the Investigating Agency to submit the challan under a specific provision of law or for a particular offence as the Investigating Agency has to submit the challan as a result of the investigation conducted by it. However, if the complete challan had been submitted in the Court by the Investigating Officer on the basis of the evidence collected by him during the course of investigation, it is another matter, yet by filing this revision petition, the petitioners have challenged merely the first part of the order of the learned Sessions Judge i.e. Only to the extent of the direction to the Investigating Officer to submit the challan with the addition of offence . Under section 295-B, P.P.C. Since to that extent the order of the learned Sessions Judge dated 24-5-2003 is not legally sustainable, therefore, the revision petition is accepted and the impugned order- dated 24-5-2003 only to that extent is set aside. However, before parting with this order, it is directed that before framing the charge if the learned Magistrate finds after perusing the police report and also all other documents and statements filed by the prosecution that the offence under section 295-B, P.P.C. Is prima facie made out alongwith other relevant offences, he will send up the case to the appropriate Court having jurisdiction in the matter for trial (if he has not already done so).
However, if he reaches the conclusion that prima facie the case under section 295-B, P.P.C. Is not made out and if the matter falls within his jurisdiction, he will himself proceed to frame formal charge and to proceed with the matter in accordance with law. Revision .