Farmanullah and others Vs State and others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

W.P No. 170-M/2015

JUDGMENT

Date of hearing: 13.1.2016

Petitioners: (Farmanullah and others) by Mr. Akhtar Munir Khan, Advocate

Respondents: (State and others) by M/S Sabir Shah A.A.G.

HAIDER ALI KHAN, J.- Through this single judgment we intend to dispose of the instant writ petition as well as the connected W.P No. 591-M/2015 as a common question of law is involved in both these petitions.

2.Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners Farman Ullah and five others seek the following relief.

gt}tÅâÄ/PS* [W.P No. 170-M of 2015 Farman Ullah and others Vs. The State and others]

“On acceptance of this writ petition, this Hon’ble Court may graciously be pleased to declare the impugned order dated 27.2.2015 passed by the learned Additional Sessions Judge/Izafi Zilla Qazi-II, Swat as wrong, illegal arbitrary, void ab- initio, ultra vires, against the principles of Sharia, natural justice, without lawful authority, without jurisdiction and unconstitutional, consequently the same my please be set aside by dismissing the application u/s 22-A, Cr.P.C made by the Respondent No.3, Muhammad Yousaf. Any other relief/remedy which is just, appropriate & efficacious may also be awarded in favour of the petitioners though not specifically been prayed for in the instant writ petition”.

Similar is the prayer of the petitioner Imran in the connected writ petition wherein he has prayed for setting aside the order dated 06.11.2015 passed by the learned Additional Sessions Judge-VI/Justice of Peace, Swat.

3.Brief facts of the case in hand are that a criminal case vide FIR No. 284 dated 09.9.2014 under sections 186, 147, 149, 279 PPC was registered against the petitioners at Police Station Malam Jaba, District Swat at the behest of gt}tÅâÄ/PS* [W.P No. 170-M of 2015 Farman Ullah and others Vs. The State and others]

complainant Sarbali Khan Head Constable No. 1082 (Respondent No.3). After completion of the investigation, challan was submitted in the Court of learned Judicial Magistrate-II, Swat who framed formal charge against the petitioners. Later on, Respondent No.4, who was allegedly assaulted by the petitioners in the occurrence, moved an application under Section 22-A, Cr.P.C before the learned Sessions Judge, Swat for insertion of Section 353 PPC in the FIR. The application was entrusted to the learned Additional Sessions Judge- II, Swat for hearing who, while exercising powers under Section 22-A, Cr.P.C, allowed the application of the Respondent No.3 vide the impugned order dated 27.2.2015 and directed the S.H.O Police Station Malam Jaba (Respondent No.1) to insert Section 353 PPC in the FIR. The relevant para of the impugned order is reproduced herein below for convenience sake.

gt}tÅâÄ/PS* [W.P No. 170-M of 2015 Farman Ullah and others Vs. The State and others]

“Thus it is a case of neglect on the part of SHO concerned in relation to the performance of his functions and discharge of duties ordained under Cr.P.C specially its section 154. SHO is now under statutory obligation to rectify the wrong so committed by him in the discharge of his official functions and performance of duties by inserting section 353 of PPC into FIR already chalked out. He shall accordingly do the needful forthwith.”

4.According to the facts of the

connected writ petition, complainant Mst. Kausar lodged FIR No. 614 under sections 354 PPC at Police Station Rahim Abad, Swat, against the petitioner Imran. Later on she filed an application before the learned Justice of Peace u/s 22-A(6), Cr.P.C for addition of Sections 354-A/342/506/34 PPC in the FIR. The application was allowed by the learned Justice of Peace vide order dated 06.11.2015 the relevant portion is reproduced herein below:

کے رويہ1 "سائلہ جو کہ مسئول اليہ نمبر کے3سے مايوس ہوکر مسئول اليہ نمبر خالف درخواست دائر کی اور عائد کرده کی تعريفcognizable offence دفعات

gt}tÅâÄ/PS* [W.P No. 170-M of 2015 Farman Ullah and others Vs. The State and others]

154 ميں آتے ہيں اور اس قسم کی جرائم دفعہ

پر الزم ہے کہSHO ضابطہ فوجداری ميں

کے اندراج کی نسبت درستگیFIR وه

اسلئے،کرکے تفتيشی عمل حرکت ميں الئے

کو ہدايت کی جاتی2 مسئول اليہ نمبرSHO

ہے کہ وه سائلہ کی مناسب رپورٹ متعلقہ

FIR کے خالف3دفعات مسئول اليہ نمبر

506-B/354- درج شده بمطابق قانون دفعات

ت۔پ کی ايزادگی کے ساتھ ساتھA/342/34

متن درست کرے اور مقدمہ ميں مزيد کارروائی بمطابق قانون و خاطر عمل ميں الئے"۔

Being aggrieved of the above

mentioned impugned orders, the petitioners in both the writ petitions have challenged the same before this Court.

4.Arguments heard and record perused.

5.No doubt, the investigating agency has ample powers under section 154, Cr.P.C to register a criminal case provided the information given clearly constitutes a cognizable offence. In this regard Section 7 (d) of The Khyber Pakhtunkhwa Prosecution Service (Constitution, Functions and Powers) Act, 2005 is relevant which lays down that:

gt}tÅâÄ/PS* [W.P No. 170-M of 2015 Farman Ullah and others Vs. The State and others]

7.Additional Powers of District Public Prosecutor/Public Prosecutor.—

(a).............................................

(b).............................................

(c)..............................................

(d)the Public Prosecutor on completion of investigation shall scrutinize the case file and refer the shortcomings or faults in investigation to the Head of Investigation for removing or improv- ing the same, which shall be complied with by the Head of Investigation within seven days, and on fulfillment thereof, it shall be sent to the Public Prosecutor putting it in the court.

The above provision of law alongwith other provisions of the Act ibid has clearly prescribed the powers of the prosecutor to scrutinize the case and as such the insertion or deletion of any section of law falls within the exclusive domain of the prosecutor. This point has been discussed by the Lahore High Court in its judgment reported as 2008 YLR (Lahore) 2017 the relevant portion whereof is reproduced herein below:

“From the above, it is evident that the learned Ex-Officio Justice of Peace cannot make any observation

gt}tÅâÄ/PS* [W.P No. 170-M of 2015 Farman Ullah and others Vs. The State and others]

with regard to the nature of offence or direct addition or deletion of a penal provision as the same exclusively falls within the domain of the Investigating Officer before the challan is submitted and thereafter the trail Court which is fully competent to add any offence if made out from the F.I.R, report tendered in terms of section 173, Cr.P.C and other material available on the record at the time of framing of the charge. Further, the parties also have the right to address arguments at the time of framing of charge in support of their contentions”.

On the same ratio there are other judgments reported as PLD 2015 (Lahore) 84, PLD 2009 (Lahore) 135 and 2007 P.Cr.L.J (Lahore) 124 wherein the powers of the Justice of Peace have been discussed at length. While laying down proper guideline in this regard, this Court in a judgment reported as 2010 P.Cr.L.J (Peshawar) 45 observed that:-

“29. Before closing this judgment, it is directed that all Justices of Peace shall keep in mind that the provisions of section 22-A, Cr.P.C have no surperimposing or overriding effect on other provisions of the Cr.P.C. relating to the gt}tÅâÄ/PS* [W.P No. 170-M of 2015 Farman Ullah and others Vs. The State and others]

investigation, inquiry and trial, rather these are ancillary and supplementary in nature. The object behind it is to provide a check over the police but of limited nature and within the defined parameters contained in all the three clauses of subsections (6) thereof, it shall not be construed to be wider in scope giving absolute powers to the Justice of Peace to interfere with the scheme clearly laying down the procedure, privileges, duties, powers and obligations of Police Officer connected with the course of registration of criminal cases, investigating the same and filing of charge-sheet/cancellation reports before the Court competent to take cognizance. The right to investigate the crime, identify the suspects, catch and interrogate them and once their investigations are complete, they have to file the charge-sheet against the accused or if no case is made out to file a cancellation report. The different stages of investigation in this regard have been well defined and clearly laid down in Chapter-XVIII of the Cr.P.C. The Justice of Peace shall not interfere with the police investigation if it is conducted in accordance with the requirements of the provisions of the said chapter and in case of any complaint in that regard, the Justice of Peace has to oversee the said course with a limited scope of interference whenever it becomes imperative on well established facts”.

In view of the provisions of the relevant law and reasoning contained in the above gt}tÅâÄ/PS* [W.P No. 170-M of 2015 Farman Ullah and others Vs. The State and others]

referred reported judgments, it is held that insertion or deletion of an offence in the FIR, being a job of the investigation, falls within the exclusive domain of the Prosecutor/Investigating Agency and the Justice of Peace has no power either to interfere with the process of investigation or to direct deletion or insertion of section of law in the FIR.

6.So far as power of the trial Court with regard to alteration of charge is concerned, in this regard Section 227 of the Cr.P.C empowers the trial Court to alter or add to any charge at any time before the judgment is pronounced. Since, in both the cases the prosecution evidence is yet to be recorded, therefore, it is within the powers of the trial Courts to insert the sections in the FIRs prayed for by the applicants/respondents in both the cases, however, the trial Courts shall consider the allegations levelled in the FIRs and other gt}tÅâÄ/PS* [W.P No. 170-M of 2015 Farman Ullah and others Vs. The State and others]

circumstances of the cases for making their mind to insert the offence/offences in the FIRs. If the material on the record and evidence of the prosecution suggest that a cognizable offence is made out then the trail Court has the power to insert the relevant section/sections of law in the FIR and amend the charge either on application or on its own motion.

7.In view of what has been discussed above, interference by this Court in the impugned orders is inevitable. Therefore, the instant writ petition as well as the connected writ petition bearing W.P No. 591-M/2015 are allowed.

Resultantly, the order dated 27.2.2015 passed by the learned Additional Sessions Judge-II/Justice of Peace, Swat impugned in the

instant writ petition and the order dated 06.11.2015 passed by the learned Additional gt}tÅâÄ/PS* [W.P No. 170-M of 2015 Farman Ullah and others Vs. The State and others]

Sessions Judge-VI/Justice of Peace, Swat are

hereby set aside.

Announced.

Dt: 13.1.2016 JUDGE

JUDGE

gt}tÅâÄ/PS* [W.P No. 170-M of 2015 Farman Ullah and others Vs. The State and others]