2021 P Cr. L J 293
(a) Criminal Procedure Code (V of 1898)---
----Ss. 167 & 344---Procedure when investigation cannot be completed in twenty-four hours---Remand, grant of---Principles to be followed by the Magistrates enumerated.
Following are the guidelines for exercise of powers by the Magistrates under sections 167 and 344, Cr.P.C.
(1) During first 15 days the Magistrate may authorize the detention of the accused in judicial custody liberally but shall not authorize the detention in the custody of the police except on strong and exceptional grounds and that too for the shortest possible period;
(2) The Magistrate shall record reasons for the grant of remand;
(3) The Magistrate shall forward a copy of his order passed under section 167, Cr.P.C., to the Sessions Judge concerned;
(4) After the expiry of 15 days the Magistrate shall require the police to submit complete or incomplete challan and, in case the challan is not submitted, he shall refuse further detention of the accused and release him on bail with or without surety;
(5) After the expiry of 15 days, no remand shall be granted unless the application is moved by the police for the grant of remand/adjournment;
(6) The application moved by the prosecution/police after the expiry of 15 days of the arrest of the accused shall be treated as an application for adjournment under section 344, Cr.P.C.;
(7) Before granting remand the Magistrate shall ensure that evidence sufficient to raise suspicion that the accused has committed the offence has been collected by the police and that further evidence will be obtained after the remand is granted;
(8) The Magistrate shall not grant remand/adjournment in the absence of the accused;
(9) The Magistrate should avoid giving remand/ adjournment at his residence.
(10) The Magistrate shall give opportunity to the accused to raise objection, if any, to the grant of adjournment/remand;
(11) The Magistrate shall record objection which may be raised by an accused person and shall give reasons for the rejection of the same;
(12) The Magistrate shall examine police file before deciding the question of remand;
(13) If no investigation was conducted after the previous remand, the Magistrate shall refuse to grant further remand/adjournment;
(14) The Magistrate shall not allow remand/adjournment after two months (which is a reasonable time) of the arrest of the accused unless it is unavoidable;
(15) In case complete challan is not submitted, the Magistrate shall commence trial on the strength of incomplete challan and examine the witnesses given in the list of witnesses;
(16) If the challan is not submitted within two months, the Magistrate shall report the matter to the Sessions Judge of the district and also bring the default of the police to the notice of Superintendent of Police of the district;
(17) The Magistrate shall not grant remand mechanically for the sake of co-operation with the prosecution/police;
(18) The Magistrate shall always give reasons for grant of remand and adjournment.
The State v. Nasir Javed Rana, Civil Judge Ist Class/Magistrate Section 30, Rawalpindi PLD 2005 SC 86; Ghulam Sarwar and another v. The State 1984 PCr.LJ 2588; Syed Mohsin Ali Shah v. The SHO, Police Station Garh Maharaja 1995 MLD 771 and Muhammad Jilani v. The State and another 2001 YLR 435 rel.
(b) Criminal Procedure Code (V of 1898)---
----Ss. 561-A & 167---First Information Report---Police was to investigate the FIR and collect evidence---Court had no authority to interfere in the proceedings by Police unless those were mala fide or without jurisdiction---High Court could not invoke S. 561-A, Cr.P.C., to issue directions to the Investigators.
Emperor v. Khawaja Nazir Ahmad AIR 1945 PC 18 ref.
(c) Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006)---
----S. 9(5)--- Conduct of prosecution--- Powers of prosecutor to scrutinize report submitted under S. 173, Cr.P.C.---Word "scrutinize", meaning and connotation of---Term "scrutinize" had a wide connotation and included the power to add or delete a section/offence of P.P.C.
Emperor v. Khawaja Nazir Ahmad AIR 1945 PC 18; Shahnaz Begum v. The Hon'ble Judges of the High Courts of Sindh and Balochistan and another PLD 1971 SC 677; Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31; Raja Muhammad Nadeem v. The State and another PLD 2020 SC 282; Rasoolan Bibi v. Additional Sessions Judge and others PLD 2009 Lah. 135 and Nadeem alias Deema v. District Public Prosecutor, Sialkot and 7 others 2012 PCr.LJ 1823 rel.
(d) Constitution of Pakistan---
----Art. 199---Constitutional jurisdiction of High Court---Criminal investigation---Prosecution of accused---Scope---High Court did not entertain Constitutional petitions challenging insertion or deletion of sections of P.P.C. or offence(s) by the Investigating Officer and could not allow requests for judicial review of the opinion/direction of the public prosecutor given to the police for such amendment, on the ground that error, if any, did not prejudice either party and could be rectified by Trial Court at time of framing of charge.
Nadeem Sarwar v. Station House Officer, Police Station Sadar, Hafizabad and 2 others 2000 YLR 756; Nadeem alias Deema v. District Public Prosecutor, Sialkot and 7 others 2012 PCr.LJ 1823 and Azizullah Khan v. SHO Police Station Sadar, Mianwali and 4 others 2013 PCr.LJ 1411 rel.
(e) Criminal Procedure Code (V of 1898)---
----Ss. 22, 22-A & 22-B---Justice of the Peace---Functions to be performed---Nature-Petitions under Ss. 22-A & 22-B seeking direction of Justice of Peace to Investigating Officer to add or delete an offence were not tenable as Justice of Peace under said sections had no jurisdiction to issue such directions.
Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470; Messrs Shamim Bibi v. Additional Sessions Judge, Lahore and another 2008 YLR 2017; Rasoolan Bibi v. Additional Sessions Judge and others PLD 2009 Lah. 135 and Muhammad Sharif v. District Police Officer and 2 others PLD 2015 Lah. 84 rel.
(f) Criminal Procedure Code (V of 1898)---
----Ss. 167, 173 & 344--- Procedure when investigation cannot be completed in twenty-four hours---Remand, grant of--- Adding / deleting of offence(s)---Report of Police Officer---Nature of powers of Magistrate under S. 167, Cr.P.C.----Scope----At time of remand, Magistrate could direct Investigating Officer to add, delete or substitute an offence mentioned in FIR if circumstances so warranted, however he / she could not ask the Station House Officer (SHO) to submit report under S. 173, Cr.P.C. in a particular manner, that is, against a person he/she desires, or in respect of such offence(s) he / she wished for.
Ch. Muhammad Anwar Samma and others v. The State 1976 SCMR 168; Allah Bachaya and 3 others v. The State 2001 PCr.LJ 1082; Haq Nawaz v. The State 2002 YLR 1234; Laeeq Ahmad v. The State 2006 YLR 664; Ashiq Hussain and another v. State and another PLJ 2016 Cr.C. (Lahore) 153; Muhammad Waqas v. The State 2002 SCMR 1370; Cantonment Board, Rawalpindi through Executive Officer and others v. Lt.-Col.(Retd.) Allah Dad Khan and another 2015 SCMR 832; Haji Farman Ullah v. Latif-ur-Rehman 2015 SCMR 1708; Shahzeb and others v. The State 2016 SCMR 1740; Syed Arshad Ali Shah Bukhari v. The State and others 2011 SCMR 1644; Rafiq Haji Usman v. Chairman, NAB and another 2015 SCMR 1575; Mirza Shaukat Baig and others v. Shahid Jamil and others PLD 2005 SC 530; Chhatrapal Singh v. State of U.P. 2003(2) A.A.R. 56A (HC); Sanaul Haque v. State of U.P. and another 2008 Cri.LJ 1998; Munni v. State of Haryana and another 2013 (8) R.C.R. (Criminal) 3011; Nadeem Sarwar v. Station House Officer, Police Station Sadar Hafizabad and 2 others 2000 YLR 756; Muhammad Jilani v. The State and another 2001 YLR 435; Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470; Abdul Sattar v. Amir Muhammad Khan and others PLD 2007 Lah. 444; Noor Jahan v. Judge, Anti-Terrorism Court, Bahawalpur and 8 others 2010 YLR 139; Faisal Ejaz v. State and 3 others PLJ 2012 Lah. 18 and Sajid Parvez v. The State and 4 others 2018 MLD 380 rel.
Ch. Ahsan Ali Gill for Petitioner.
Ahmad Nadeem, Assistant Advocate General for the State.
Malik Muhammad Ijaz Khokhar for Respondent No.4.
Date of hearing: 19th June, 2020.
2021 P Cr. L J 293[Lahore (Multan Bench)]Before Tariq Saleem Sheikh, JMUNIR AFTAB---PetitionerVersusThe STATE and others---RespondentsWrit Petition No. 6076 of 2020, heard on 19th June, 2020.
JUDGMENT
TARIQ SALEEM SHEIKH, J.---Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the Petitioner assails the vires of Order dated 21.5.2020 passed by the learned Judicial Magistrate, Kot Addu, District Muzaffargarh, whereby he directed the Investigating Officer to add section 452, P.P.C. in FIR No.207/2020.
2. Brief facts giving rise to this petition are that Respondent No.4 made a complaint to the SHO, Police Station Daira Din Panah, District Muzaffargarh, to the effect that on 19.5.2020 his maternal cousin Razia Bibi came to see his family. All of a sudden Razia Bibi's husband, Munir Aftab (Petitioner herein), barged into his house and started battering her. Then he drew a knife from his pocket and stabbed her with intent to murder her but she escaped and received only a minor injury on the arm. Respondent No.4 further stated that Razia Bibi's cries attracted a number of people of village to his house, including PWs Ahmad Raza and Muhammad Ibrahim, whereafter the Petitioner left the scene hurling threats at the lady. In pursuance of the said complaint case FIR No.207/2020 dated 20.5.2020 was registered against the Petitioner for an offence under Section 354, P.P.C. The investigation of this case was entrusted to Muhammad Irfan Faiz/ASI who immediately arrested him. The following day, i.e. on 21.5.2020, he produced him before the Judicial Magistrate who granted his physical remand for 14 days. However, while doing so he observed that section 452, P.P.C. was also attracted to the facts and circumstances of the case and directed the Investigating Officer to insert the same in the FIR. Hence, this petition.
3. The learned counsel for the Petitioner contended that the Judicial Magistrate had no authority to interfere in the investigation and exceeded his jurisdiction while directing the Investigating Officer to add section 452, P.P.C. in the FIR. On facts, he contended that Respondent No.4 had lodged a false case against the Petitioner. The alleged occurrence did not take place. The prosecution specifically alleged that the Petitioner injured Razia Bibi but she was not medically examined. He maintained that in the peculiar circumstances of the case medical evidence was essential to corroborate the ocular account. The learned counsel further submitted that the Petitioner was not a stranger but brother-in-law of Respondent No.4. As such, even if the prosecution version was assumed to be correct, section 452, P.P.C. could not be invoked against him. The impugned order had thus seriously prejudiced him.
4. The learned Assistant Advocate General vehemently opposed this petition and supported the impugned order. He contended that the Investigating Officer was obligated to place all the relevant papers before the Magistrate while seeking remand of an accused. In turn the Magistrate was required to act judicially while considering that request and in doing so if he found that a particular offence was made out he was competent to direct the Investigating Officer to add the relevant section in the FIR. On facts, he submitted that section 452, P.P.C. was very much attracted and no exception could be taken to Judicial Magistrate's direction in this regard.
5. The learned counsel for Respondent No.4 also controverted the Petitioner's contentions. He contended that the Magistrate was the overall incharge of the criminal case. Hence, if circumstances required he could direct the Investigating Officer to add or omit a particular section. The impugned order was valid and justified.
6. Arguments heard. Record perused.
7. At the very outset, I am anguished over the way the Judicial Magistrate granted physical remand in this case. He mechanically accepted the police's request and entrusted the Petitioner's custody for 14 days to them without giving any reasons and considering whether it was necessary, just and proper. In The State v. Nasir Javed Rana, Civil Judge Ist Class/Magistrate Section 30, Rawalpindi (PLD 2005 SC 86), the Hon'ble Supreme Court of Pakistan held that it is the sacred duty of the Magistrate to protect rights of the people. He should not grant remand only because the police have requested for it but see whether it is justified.
8. The Rules and Orders of the Lahore High Court, extensively deal with the subject of remand. Keeping in view the said Rules and the case-law developed in this regard over time, in Ghulam Sarwar and another v. The State (1984 PCr.LJ 2588), this Court laid down guidelines for exercise of powers by the Magistrates under sections 167 and 344, Cr.P.C. which were subsequently reiterated in Syed Mohsin Ali Shah v. The S.H.O., Police Station Garh Maharaja (1995 MLD 771) and Muhammad Jilani v. The State and another (2001 YLR 435). For the sake of convenience and as a reminder for all the Magistrates in the province they are reproduced hereunder:
"(1) During first 15 days the Magistrate may authorize the detention of the accused in judicial custody liberally but shall not authorize the detention in the custody of the police except on strong and exceptional grounds and that too for the shortest possible period;
(2) The Magistrate shall record reasons for the grant of remand.
(3) The Magistrate shall forward a copy of his order passed under section 167, Cr.P.C. to the Sessions Judge concerned.
(4) After the expiry of 15 days the Magistrate shall require the police to submit complete or incomplete challan and, in case the challan is not submitted, he shall refuse further detention of the accused and release him on bail with or without surety.
(5) After the expiry of 15 days, no remand shall be granted unless the application is moved by the police for the grant of remand/adjournment.
(6) The application moved by the prosecution/police after the expiry of 15 days of the arrest of the accused shall be treated as an application for adjournment under section 344, Cr.P.C.
(7) Before granting remand the Magistrate shall ensure that evidence sufficient to raise suspicion that the accused has committed the offence has been collected by the police and that further evidence will be obtained after the remand is granted.
(8) The Magistrate shall not grant remand/adjournment in the absence of the accused.
(9) The Magistrate should avoid giving remand/ adjournment at his residence.
(10) The Magistrate shall give opportunity to the accused to raise objection, if any, to the grant of adjournment/ remand.
(11) The Magistrate shall record objection which may be raised by an accused person and shall give reasons for the rejection of the same.
(12) The Magistrate shall examine police file before deciding the question of remand.
(13) If no investigation was conducted after the previous remand, the Magistrate shall refuse to grant further remand/adjournment.
(14) The Magistrate shall not allow remand/adjournment after two months (which is a reasonable time) of the arrest of the accused unless it is unavoidable.
(15) In case complete challan is not submitted, the Magistrate shall commence trial on the strength of incomplete challan and examine the witnesses given in the list of witnesses.
(16) If the challan is not submitted within two months, the Magistrate shall report the matter to the Sessions Judge of the district and also bring the default of the police to the notice of Superintendent of Police of the district.
(17) The Magistrate shall not grant remand mechanically for the sake of co-operation with the prosecution/police.
(18) The Magistrate shall always give reasons for grant of remand and adjournment."
9. It is by now well settled that it is the duty of the police to investigate the FIR and collect evidence. The courts have no authority to interfere in their proceedings unless they are mala fide or without jurisdiction. Even the High Court cannot invoke section 561-A, Cr.P.C. to issue directions to the investigators. Emperor v. Khawaja Nazir Ahmad (AIR 1945 PC 18) is the seminal case on this point in which the Privy Council observed:
"In their Lordships' opinion, however, the more serious aspect of the case is to be found in the resultant interference by the court with the duties of the police. Just as it is essential that every one accused of a crime should have free access to a court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under section 491, Criminal P.C., to give directions in the nature of habeas corpus."
10. The Hon'ble Supreme Court of Pakistan reaffirmed the above principle in Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another (PLD 1971 SC 677) when it held:
"If an investigation is launched mala fide or is clearly beyond the jurisdiction of the investigating agencies concerned then it may be possible for the action of the investigating agencies to be corrected by a proper proceeding either under Article 98 of the Constitution of 1962 or under the provisions of section 491 of the Criminal Procedure Code, if the applicant is in the latter case in detention, but not by invoking the inherent power under section 561-A of the Criminal Procedure Code."
11. In Muhammad Nasir Cheema v. Mazhar Javaid and others (PLD 2007 SC 31) the Hon'ble Supreme Court ruled that the High Court is not competent even to require the police to submit report under section 173, Cr.P.C. in a particular manner. Relevant excerpt is reproduced hereunder:
"The only provision relating to the subject which is available in the Code of Criminal Procedure is section 173 which commands expeditious conclusion of the investigations and further ordains that on conclusion of every investigation, the concerned SHO shall submit a report of the result thereof in the prescribed manner to the Magistrate competent to take cognizance under section 190, Cr.P.C. No power vests with any Court including a High Court to override the said legal command and to direct the SHO either not to submit the said report (mentioned as challan in the Police Rules and also in the impugned order) or to submit the said report in a particular manner i.e. against only such persons as the Court desires or only with respect to such offences as the Court wishes."
The above views were recently reiterated in Raja Muhammad Nadeem v. The State and another (PLD 2020 SC 282).
12. A criminal case that commences with the registration of FIR under section 154, Cr.P.C. has a long journey before it is decided and the accused is/are acquitted or convicted. FIR sets the law in motion. The police investigate the allegations of the complainant party, collect evidence, identify the offences committed by the accused and determine what penal provisions are attracted. After that they draw a report under section 173, Cr.P.C. which is submitted to the court through the office of the District Public Prosecutor. Section 9(5) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 (III of 2006) obligates the public prosecutor to scrutinize the said report and submit it to the court if it is in order. However, if it is defective he shall return the same to the officer-in-charge of the police station or the investigating officer (as the case may be) for correction. The term "scrutinize" has a wide connotation and includes the power to add or delete a section. Reliance is placed on Rasoolan Bibi v. Additional Sessions Judge and others (PLD 2009 Lahore 135) and Nadeem alias Deema v. District Public Prosecutor, Sialkot and 7 others (2012 PCr.LJ 1823).
13. The trial court is neither bound by the opinion of the police nor the prosecutor regarding applicability of a penal provision. At the time of indicting the accused it is bound to go through the entire record, apply its own judicial mind and frame charge against him for all those offences which appear to be made out from the evidence collected by the police. Section 9(7) requires the prosecutor to assist the court in this matter. However, under section 227, Cr.P.C. the court is competent to amend the charge at any time before judgment is pronounced.
14. It may not be out of place to mention here that the High Court does not entertain constitutional petitions challenging insertion or deletion of section by the Investigating Officer.1 Similarly, it does not allow requests for judicial review of the opinion/direction of the public prosecutor given to the police for such an amendment on the ground that the error, if any, does not prejudice either party and it can be rectified by the trial court at the time of framing of charge.2
15. At times petitions are filed under sections 22-A and 22-B, Cr.P.C. with the Justice of Peace seeking direction to the Investigating Officer to add or delete an offence. It is by now well settled that even he has no jurisdiction to issue such direction. In Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470) a Full Bench of this Court ruled:
"The complaints about failure by an investigating officer to add appropriate penal provisions to an FIR or a cross-version of the accused party. Such complaints are not worthy of being taken with any degree of seriousness by an ex-officio Justice of the Peace. The stands taken by the complaining persons in this regard normally touch the merits of the allegations and an ex-officio Justice of the Peace would be well advised to refrain front entering into any such controversy at a premature stage."
The above dictum has been consistently followed. For this reference may inter alia be made to the cases reported as Messrs Shamim Bibi v. Additional Sessions Judge, Lahore and another (2008 YLR 2017), Rasoolan Bibi v. Additional Sessions Judge and others (PLD 2009 Lahore 135) and Muhammad Sharif v. District Police Officer and 2 others (PLD 2015 Lahore 84).
16. In a nub, during investigation the prosecution agency and after cognizance is taken it is the court which decides how the accused is to be charged. Nonetheless, after the registration of FIR and before the commencement of trial there may be various stages when the matter may be brought to the court. Quite often a controversy arises as to whether during the course of such proceedings the court is competent to direct the Investigating Officer to add or omit a particular section in the FIR. Ch. Muhammad Anwar Samma and others v. The State (1976 SCMR 168) is one of the early cases in which the Hon'ble Supreme Court had the occasion to consider this question. The FIR was lodged under sections 148, 365, and 506/149, P.P.C. but during investigation the police added section 307, P.P.C. A learned Single Judge of this Court dismissed the pre-arrest bail application of the accused and in his order also observed that section 367, P.P.C. was attracted. He wrote: "as soon as the complainant and his companions were forcibly dragged out of the car, the offence of abduction was committed. Therefore, even though no case had been registered under section 367, P.P.C. nor the said section has been added afterwards, the allegations prima facie disclose an offence thereunder and the same falls within the prohibitory clause of subsection (1) of section 497, Cr.P.C." On appeal the apex Court held that mere pulling a person out of the car does not constitute an offence under section 367, P.P.C. and added:
"We are also unable to agree that what has been done by the High Court, namely, importing a new offence with which the accused had not been charged, was proper."
17. The above-mentioned case thus laid down the rule that a court should decide the bail application of an accused with reference to the sections mentioned in the FIR and not on the basis of the penal provisions which it considers would also be attracted to the allegations levelled by the complainant. Barring a couple of exceptions3 this rule has been consistently followed in bail matters. In this regard reference may be made to Allah Bachaya and 3 others v. The State (2001 PCr.LJ 1082), Haq Nawaz v. The State (2002 YLR 1234), Laeeq Ahmad v. The State (2006 YLR 664) and Ashiq Hussain and another v. State and another (PLJ 2016 Cr.C. (Lahore) 153). More recently, the Hon'ble Supreme Court itself reaffirmed this view in Shahzeb and others v. The State (2016 SCMR 1740).
18. Allah Bachaya's case, supra, requires a special comment because of its peculiar facts. In that case the FIR was registered under sections 337-L(1)/34, P.P.C. The accused moved an application for pre-arrest bail which was dismissed by the Additional Sessions Judge. Subsequently the police deleted section 337-L(1), P.P.C. and inserted section 341, P.P.C. in the FIR. Since the offence under that provision was bailable, they did not arrest them and after completion of investigation submitted challan against them. The learned trial court took cognizance and indicted them under sections 341/34, P.P.C. A few days later the police re-introduced section 337-L(1), P.P.C. and required their arrest. Thereupon the accused applied to this Court for pre-arrest bail. A learned Single Judge accepted their application holding as under:
"It may be added that it was held by the Hon'ble Supreme Court of Pakistan in the case of Ch. Muhammad Anwar Samma and others v. The State (1976 SCMR 168) that a bail application is to be decided by a Court of law on the basis of the penal provisions actually invoked in the FIR and not on the basis of penal provisions which a Court may consider to be also attracted to the allegations contained in the FIR. Extending the same principle to a situation like the one in the present case it may be held that once a charge has been framed against an accused person by a trial Court then his bail application should be decided on the basis of the allegations contained in the charge and not on the basis of any other penal provision which the police or the complainant party may consider to be also attracted to that case."
19. It is common knowledge that while deciding bail applications the courts often make observations with regard to applicability of one or more sections mentioned in the FIR. For example, in Syed Arshad Ali Shah Bukhari v. The State and others (2011 SCMR 1644) the FIR was registered under sections 324/395/342/148/149/353/186/224/225, P.P.C. and section 7 of the Anti-Terrorism Act (XVII of 1997). While hearing bail application of one of the accused the Hon'ble Supreme Court observed that although there was specific allegation in the FIR that he and his cohorts thrashed members of the police party, there was no medico-legal certificate to support it so applicability of section 324, P.P.C. was a suspect. Further, four out of the eight nominated accused had been declared innocent by the investigating agency so section 392, P.P.C. rather than section 395, P.P.C. would apply. Lastly, since the aggression alleged against the police party was not "serious" within the meaning of clause of section 6(2) of Act XVII of 1997, an offence under section 7 of that Act was not constituted. Similarly, in Rafiq Haji Usman v. Chairman, NAB and another (2015 SCMR 1575) a firm of developers launched a commercial-cum-residential plaza, booked units against advance payments but even a long time after the due date neither transferred ownership rights nor delivered possession to the allottees/ purchasers. The National Accountability Bureau filed reference against the petitioner and others who were partners in that firm accusing them of criminal breach of trust. The Hon'ble Supreme Court held that every breach of promise or contract does not ipso facto attract section 405, P.P.C. Criminal breach of trust occurs when a person being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts it to his own use, or dishonestly uses or disposes of the same in violation of any law or contract. The NAB's reference did not show that the petitioner had committed any omission which falls within the ambit of section 405, P.P.C. so an offence under Section 9(x) of the National Accountability Ordinance, 1999, was not made out. Accordingly, it admitted the petitioner to post-arrest bail. Observations like these do not militate against the law laid down in Ch. Muhammad Anwar Samma's case, supra, because bail applications are not decided in a vacuum. In Mirza Shaukat Baig and others v. Shahid Jamil and others (PLD 2005 SC 530) the Hon'ble Supreme Court said that the courts are obligated to diligently go through the record and carefully examine the nature of allegations to determine what legal provisions are attracted to the facts of the case. If the court mechanically accepts the prosecution version it may cause miscarriage of justice. Importantly, such observations are tentative in nature and are not intended to direct the Investigating Officer to revise the sections invoked in the FIR. They also have no bearing on the trial. It is important to note that even in Ch. Muhammad Anwar Samma's case the apex Court opined that the contents of the FIR did not constitute an offence under section 367, P.P.C.
20. The question as to whether the Magistrates should also follow Ch. Muhammad Anwar Samma's principle while considering the request of the police for remand under section 167, Cr.P.C. is, however, problematic. One set of authorities argue that the Magistrate is competent to direct addition or deletion of an offence from the FIR4 while the other set thinks that he cannot because such a direction amounts to interference in the investigation which is prohibited. According to them, this power can only be exercised by the trial court when it indicts the accused5. The situation in the Indian jurisdiction is equally confounding. In Chhatrapal Singh v. State of U.P. [2003 (2) A.A.R. 56A (HC)] a Single Bench of the Allahabad High Court held that a Magistrate exceeds his jurisdiction when he makes an observation at remand stage that a particular section is attracted. On the other hand, in Sanaul Haque v. State of U.P. and another (2008 Cri.LJ 1998), another judge of the same High Court, and in Munni v. State of Haryana and another [2013 (8) R.C.R. (Criminal) 3011], the Punjab and Haryana High Court approved the Magistrate's action.
21. In our jurisdiction, in my opinion, the controversy can be resolved on the basis of the view of the Full Bench in Khizer Hayat's case, supra, wherein their Lordships unanimously held:
"It goes without saying that the overall incharge of a criminal case is the Area Magistrate who, even during the progress of an investigation, gets many opportunities to go through the record of investigation conducted by the police and in an appropriate case and at an appropriate stage he can require the investigating officer to consider addition or deletion of any penal provision. Be that as it may, after submission of a report under section 173, Cr.P.C./Challan the Magistrate taking cognizance of the offence or the trial court taking cognizance of the case can take cognizance of any offence disclosed by the material available on the record of investigation even if the police have not invoked the relevant penal provision. Even at the time of framing of the charge a trial Court can frame a charge in respect of an offence disclosed by the record even if the same finds no mention in the report submitted under section 173, Cr.P.C./Challan. With so many opportunities being available with the Magistrate and the trial Court regarding rectification of a mistake, deliberate or otherwise, committed by the police in this connection it would be unwise for an ex-officio Justice of the Peace to interfere with such a matter at an inappropriate and premature stage."
(emphasis added)
22. The Division Bench case Abdul Sattar v. Amir Muhammad Khan and others (PLD 2007 Lahore 444) is, however, more instructive. Relevant excerpt therefrom is reproduced hereunder:
"6. After hearing the arguments of both the sides and going through the record, we have observed that while deciding the question of grant of physical remand, Judge Anti-Terrorism Court II, Multan, had directed the Investigating Officer to delete section 7 of Anti-Terrorism Act, 1997, while acting as Duty Judge. The Duty Judge enjoys the same powers as the incumbent Judge enjoys. While deciding the question of grant of remand, the concerned court is not expected to act blindly and such orders are expected to be passed with due application of judicial mind. Impugned order cannot be set aside simply on the ground that the same was passed by the Duly Judge."
(emphasis added)
23. Under the law of precedents the above dicta would prevail. In the result, it must be held that at the time of remand the Magistrate can very well direct the Investigating Officer to add, delete or substitute an offence mentioned in the FIR if the circumstances warrant. However, he cannot ask the SHO to submit report under section 173, Cr.P.C. in a particular manner, i.e. against the persons he desires or in respect of such offences that he wishes.
24. For what has been discussed above the impugned order dated 21.5.2020 is upheld and this petition is dismissed.
KMA/M-120/L Petition dismissed.
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