دفعہ ایزاد یا حذف کرنے کا اختیار پراسیکیوٹر یا علاقہ مجسٹریٹ کو ہے

 The prosecutor has the power to scrutinize the available evidence and applicability of offences against all or any of the accused as per facts and circumstances and as such the addition of the case or insertion of any offence falls within the exclusive domain of the prosecutor. The question whether the Prosecutor has rightly deleted and added and adjudged the section will better be seen by the learned trial court at the time of framing of the charge but the petitioner cannot invoke the constitution al jurisdiction of this Court for the relief prayed for as it amounts to interfering with the process of investigation which is not the mandate of law.

It is also noteworthy that the incharge of a overall 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 inv estigating officer to consider addition or deletion of any penal provision. After submission of a report under section 173, Cr.P.C. the Court seized with the trial of the case can take cognizance of any offence disclosed from material available with th the e 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 any offence made out from the record even if the same finds not mentioned or wrongfully incorporated in the report submitted under section 173, Cr.P.C. With so many opportunities being available with the Magistrate and the trial Court regarding rectification of a mistake committed by the police in this connection, it would not be appropriate for this Court to interfere with such a matter at this premature stage.

Writ Petition-Criminal Proceedings-Anti-Terrorism
12-22
MUHAMMAD SAQIB VS SHO
Mr. Justice Muhammad Tariq Nadeem
05-01-2022
2022 LHC 1216