رپورٹ زیر دفعہ 173 ض ف (چالان) داخل کرنے میں تاخیر ، وجوہات، پولیس اور عدالت کا کردار۔ لاہور ہائیکورٹ کی جاری کردہ ہدایات

2022 LHC 6257 

Judement about late submission of reports under section 173 Cr.P.C. and directions issued by the Lahore High Court.

Late submission of reports under section 173 Cr.P.C. is resulting in miscarriage of justice in large number of cases due to sheer violation of relevant statutory law and guidelines issued by the apex Court. Directions issued for timely submission of reports under section 173 Cr.P.C.

Issue of timely submission of Report under Section 173 Cr.P.C.

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It is a classic textbook case of failure of our criminal justice system and flagrant violations of the law by its main stakeholders resulting in a complete miscarriage of justice and violation of the right to be dealt with in accordance with law, the right to life & liberty and the right to have a fair trial as ensured under Articles 4, 9 and 10A of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter ‘the Constitution’), respectively. It goes without saying that pre-trial proceedings are covered under the right to have a fair trial.

Timely submission of a police report under Section 173 of the Code of Criminal Procedure, 1898 (‘Cr.P.C.’) always remained a challenging issue in our criminal justice system and Courts always came to rescue the accused who were kept in detention without any charge sheet filed against them. Investigating Agencies, Prosecution, Area Magistrates, Trial Courts, Criminal Justice Coordination Committees and Superintendents of Prisons are some of the key players in our criminal justice system and are under a bounden duty to ensure the timely submission of police reports under Section 173 Cr.P.C. I would like to elaborate the scheme of law and measures provided therein for ensuring the well-timed submission of police reports as envisaged under Section 173 Cr.P.C.

As soon as a crime is committed it is reported to the police, whereupon, after registration of a crime report, the investigation is commenced. Under Section 173 Cr.P.C., the investigation agency is obliged to complete the investigation at the earliest and Police Report should be filed with the area Magistrate through the concerned public prosecutor within the stipulated time. The Criminal Procedure Code, as it stands, contains a few provisions to which resort can be made for protecting the interest of the accused and saving him from unreasonable prolixity or laxity at the trial amounting to violation of the right to a fair trial. In this context, it may be observed that the Constitutional guarantee of speedy trial is properly reflected in Sections 173 and 344 Cr.P.C. What are the roles of different state functionaries, regarding the timely submission of charge sheet, have been discussed hereinafter to determine that who is responsible for the delayed submission of investigation report in violation of the mandate of Section 173 Cr.P.C.

Investigation Agency

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Before the amendment , Section 173 Cr.P.C. provided that the report of the police officer shall be filed regarding the result of the investigation with the Area Magistrate within 3 days after the expiration of 14 days. Through the aforementioned amendment concept of interim investigation report was introduced and now Section 173 Cr.P.C. provides for submission of an interim investigation report, in the form prescribed by the Provincial Government, reflecting the result of investigation till then within 3 days of the expiration of 14 days from the registration of the case through the concerned Public Prosecutor. This amendment was introduced with a realization that it is not always possible for the investigating officer to complete the investigation within 14 days, therefore, a cushion of further time had been provided for the completion of an investigation. In Hakeem Mumtaz the revered Supreme Court of Pakistan observed that ‘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.’ It was further observed by the apex Court that the aforementioned amendment was introduced to improve the performance of Investigating Agencies and to restrain the investigating officers from adopting the protracted investigation process for extraneous reasons, thereby rendering the provisions of Section 173 Cr.P.C.

An interim police report connotes a report which reflects the status of an investigation conducted by the investigating officer till that time. The rationale behind the submission of such report before the trial court is to leave it to the discretion of the court to decide whether there is some evidence available on the record which warrants the commencement of the trial or whether police should be granted further time to collect evidence sufficient to start proceedings against the accused. Where no charge sheet either interim or complete is submitted against the accused, his further detention should not be granted without reasonable cause. Submission of an interim report also provides a safeguard against the padding, concoction and dishonest investigation by the investigating officer at subsequent stages of an investigation. Keeping in view the clog contained in Section 172 Cr.P.C., which makes the entire case diary a privileged document, an interim report is the only document that can reflect upon the status of investigation and rule out the possibility of crafting the evidence or false implication of an innocent person as an accused at a belated stage.

Role and Duties of Prosecution.

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Prosecutor is another crucial character in our criminal justice system, especially after the promulgation of The Punjab Criminal Prosecution Service (Constitution, Function and Powers) Act, 2006 (hereinafter ‘the Prosecution Act’). Section 12 (1) (a) of the Prosecution Act provides that an officer incharge of a police station or the investigation officer shall immediately report the District Public Prosecutor, the registration of each criminal case by sending a copy of the First Information Report. Such provision of law clearly envisages the intention of the legislature that at the very inception of a criminal case prosecution and investigating agency should go hand in hand. According to Section 12 (b) of the Prosecution Act, investigation report under Section 173 Cr.P.C. shall be sent to the concerned prosecutor within the stipulated time. Section 12 (1) (c) further lays down that investigating officer shall inform the prosecutor regarding the reasons for the delay in submission of the police report under Section 173 Cr.P.C. to the prosecution. The aforementioned provisions of the law clearly reflect the intention of the legislature that there must be coordination and cooperation between the Investing Agency and the Prosecution.

Memo of Understanding (MOU) signed between Inspector General of Police, Punjab and Prosecutor General, Punjab, dated 13.12.2019 provides a mechanism for submission and receiving the reports under Section 173 Cr.P.C. It clearly states that every investigating officer shall submit a report under section 173 Cr.P.C. within the statutory period as prescribed by the law in the shape of complete, incomplete or interim report, to the concerned prosecutor. If the report is not submitted within the stipulated period, the concerned prosecutor shall bring it to the notice of the Controlling Authority of the delinquent(s). It is the duty of every concerned prosecutor to inform, in black and white, the high-ups of investigating agency regarding non-submission of the investigation report in accordance with Section 173 Cr.P.C. This MOU elaborates the comprehensive mechanism to ensure the mandate of Section 173 Cr.P.C. but unfortunately, it was never followed in its true letter and spirit. A Notification No.Dir(O&R)PPD/7-31/2011 dated 11th August 2021 has also been placed on the record, issued by the Government of Punjab Public Prosecution Department which reflects that instead of submission of a report under Section 173 Cr.P.C. to the concerned prosecutor in accordance with Section 12(1)(b) of the Prosecution Act, it was directed to file that report to the central office of District Public Prosecutor with a purpose of entering submission of that report in Case Management Flow System (CMFS) for effective monitoring. Through this Notification, District Public Prosecutor had been made responsible for the timely submission of investigation reports under Section 173 Cr.P.C. It is said that ‘with great power comes great responsibility’ but it seems that the office of the District Public Prosecutor could not perform its duties effectively which resulted in miscarriage of justice in a large number of cases. Secretary Prosecution Government of Punjab shall also review the vires of the aforementioned Notification to ensure that powers conferred upon the office of District Public Prosecutor should not conflict with Section 12(1)(b) of the Prosecution Act. The report filed by the Prosecutor General, Punjab transpires that a letter has been written regarding the initiation of proceedings against the concerned District Public Prosecutor and concerned prosecutors. It has been further undertaken that the legal mechanism as provided under the statutory law shall be implemented without further fail.

The Punjab Criminal Prosecution Service Inspectorate Act, 2018 (hereinafter ‘the Inspectorate Act’) was also promulgated with the purpose of ensuring an effective system of monitoring and inspection of the Punjab Criminal Prosecution Service. Section 4 of the Inspectorate Act imposes a mandatory duty upon the Punjab Criminal Prosecution Service Inspectorate to monitor the performance, work and conduct of prosecution service to improve its efficiency. According to Section 7, Director General shall be the Chief Executive Officer of the inspectorate. Through a written reply filed by the Director General, it has been admitted that due to shortage of inspection officers, effective monitoring and inspection are not possible. The report is completely silent whether such an issue was brought to the knowledge of the Government to do the needful in order to meet the very object of the Inspectorate Act. The Punjab Criminal Prosecution Service Inspectorate remained a silent spectator and apparently didn’t perform its mandatory statutory duties.

District and Sessions Judges and Superintendents of Prisons

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The report filed by the Superintendent Camp Jail, Lahore reveals some shocking numerical figures, stating therein that on 17.12.2020 and on 19.01.2021 the District Public Prosecutor, Lahore as well as learned District and Sessions Judge, Lahore were sent the lists of 2614 and 2865 undertrial prisoners respectively, who were confined in that jail for more than 03 months, for submission of investigation reports in the concerned courts. When inquired by the Court about the number of total undertrial prisoners in his jail, it was submitted that approximately 3900 undertrial prisoners are detained in jail under his supervision. It means that in more than 70% of the cases investigation reports were not submitted before the trial courts in sheer violation of Section 173 Cr.P.C. The number of cases in which accused persons were granted bail would make this figure even worse and violative of the right to a fair trial as ensured under Article 10A of the Constitution.

Under Rule 395 of Pakistan Prison Rules, 1978 every Sessions Judge of the District and Officer Incharge of Prosecution shall visit, once a month, the undertrial prisoners confined in the prison or prisons under his jurisdiction with the express object of knowing all those cases which appear to be delayed. The rule further makes it mandatory for the Superintendent of the prison to submit a monthly list to the District and Sessions Judge and the Officer Incharge of the Prosecution and Inspector General (Prisons) detailing therein the names and other particulars of all under-trial prisoners other than those committed to Sessions, who have been detained in prison for more than three months since their first admission. The very purpose of District and Sessions Judge to visit a jail monthly is to redress the miseries of the prisoners and make sure that the law is strictly adhered to. In the present case effective implementation of the above-referred Rule could have addressed the issue but the same, unfortunately, was not done.

Criminal Justice Coordination Committees.

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Under Article 109 of the Police Order, 2002 there shall be a Criminal Justice Coordination Committee (CJCC) in every district. It shall consist of the concerned District and Sessions Judge as its chairperson, District Police Officer, District Public Prosecutor, District Superintendent Jail, District Probation Officer, District Parole Officer and head of Investigation, as its members. Its meeting shall be held at least once a month. Article 111 provides that this committee shall keep under review the operation of the criminal justice system, work towards the improvement of the system as a whole and promote understanding, cooperation and coordination in the administration of the criminal justice system. Case in hand also raises serious questions about the efficacy and performance of this committee which is headed by the Senior Judicial Officer heading a District. It shall not be out of place to mention here that on 26.07.2021 on the direction of Honourable Authority, Director General, directorate of District Judiciary issued instructions vide letter No. 11125/DDJ/MNT, for guidance and compliance regarding holding of effective, meaningful and vibrant meetings of CJCC to overcome the issue of unnoticed delay in submission of reports under Section 173 Cr.P.C. It seems that the aforementioned instructions were never complied with in their true letter and spirit. The case in hand also depicts the poor performance and ineffectiveness of CJCC as this matter was not taken up and remained unattended until reached this Court in the form of this bail petition.

Role of Area Magistrates

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The Area Magistrate is overall incharge of every investigation conducted in his area and he is under a bounden duty to ensure that investigation in every criminal case is conducted strictly in accordance with the law.

The law clearly draws a distinction between remand to police custody regulated under Section 167 Cr.P.C. and remand to judicial custody governed under Section 344 Cr.P.C. I have also gone through the remand papers which reflect that in the present case concerned Magistrate at the relevant time kept granting/extending judicial remand, without insisting/compelling the concerned investigating officer to file his police report under Section 173 Cr.P.C., in most mechanical manner without applying his judicious minds in sheer violation of Section 344 Cr.P.C., which clearly envisages that judicial remand cannot be extended without reasonable cause. No application of investigating officer could be produced before the Court assigning reasons for not submitting the report under Section 173 Cr.P.C. for such long time. The accused was produced before the Magistrate for months and his detention was extended from time to time by mere endorsement on loose papers which bear rubber stamp seal impression without furnishing any reasonable cause to extend the period of his detention/judicial remand in sheer violation of Section 344 Cr.P.C.

According to Lahore High Court Rules and Orders, an order to grant/extend judicial remand must show good grounds.

The instructions supra issued by the Directorate of District Judiciary also instructed the Magistrates to play their effective supervisory role regarding the timely submission of reports under Section 173 Cr.P.C. According to these instructions, every Area Magistrate is required to maintain a proper register disclosing the dates of lodging of FIR, sending the accused to judicial lock up and due date of submission of the report under Section 173 Cr.P.C. It was also specifically instructed that submission of the interim report is not the substitute for the complete report under Section 173 Cr.P.C. and Magistrates have to remain vigilant to ensure submission of the complete report under Section 173 Cr.P.C. as early as possible by issuing the directions to the concerned SHO. I have no hesitation to hold that the concerned Magistrate completely failed to discharge his duties in the spirit of Section 344 Cr.P.C., which contributed to the failure of the Criminal Justice System that occurred in this case.

Non-submission of the investigation reports under Section 173 Cr.P.C. due to inefficiency and indifference on the part of Investigating Agencies, Prosecutors, Area Magistrates, Trial Courts, District and Sessions Judges, Superintendents of Prisons and Criminal Justice Coordination Committees is resulting in complete miscarriage of justice in a large number of cases, therefore, it shall be appropriate to issue directions to the concerned to ensure strict adherence to the relevant provisions of law and guidance provided by the apex Court:-

(i) Investigating Agencies, Prosecution Department, Area Magistrates and Trial Courts shall strictly comply with the dicta laid down in the case titled Hakeem Mumtaz supra without further fail in the spirit of Articles 189 & 190 of the Constitution.

(ii) The instructions issued on the direction of Honourable Authority, by the Director General, Directorate of District Judiciary vide letter No. 11125/DDJ/MNT dated 26.07.2021, shall be strictly complied with to ensure the timely submission of reports under Section 173 Cr.P.C. These instructions contain comprehensive guidelines for District & Sessions Judges, Judicial Magistrates and Trial Courts to meet the ends of justice and resolve the issue of delay in submission of reports under Section 173 Cr.P.C.

(iii) The Secretary Prosecution, Government of Punjab shall take up the matter immediately and after determining the liability of the concerned prosecutor(s) shall conclude the action in accordance with the law, as the matter has already been sent to him by the Prosecutor General, Punjab. He shall also submit his report through the Deputy Registrar (Judicial) of this Court, for perusal in Chamber.

(iv) The Secretary Prosecution, Government of Punjab shall also take cognizance of the ineffectiveness and the poor performance of the Punjab Criminal Prosecution Service Inspectorate and shall ensure that The Punjab Criminal Prosecution Service Inspectorate Act, 2018 is implemented in its true letter and spirit for effective internal accountability of delinquents.

(v) In case of failure on the part of the investigating officer to submit report under Section 173 Cr.P.C. within the stipulated time, concerned prosecutor shall bring the matter to the notice of the relevant Superintendent of Police (Investigation) for initiation of legal proceedings against the delinquent. Matter shall also be reported to the Area Magistrate being overall incharge of investigation for action against the concerned investigating officer.

(vi) Copies of this judgment shall also be sent to the Provincial Police Officer (PPO), Punjab to ensure strict compliance of Section 173 Cr.P.C. Every Divisional Superintendent of Police (Investigation) shall supervise the process of timely submission of the investigation reports under Section 173 Cr.P.C. and if any investigating officer is found negligent, he shall be proceeded against strictly in accordance with the law. In case of slackness in the supervisory process, the concerned Superintendent of Police (Investigation) shall be held responsible.

(vii) Every Superintendent of Prison, being a member of Criminal Justice Coordination Committee, shall place his report, regarding the under-trial prisoners who are incarcerated without submission of the report under Section 173 Cr.P.C. in the trial court, before that committee to ensure that no one is kept behind the bars without submission of charge sheet against him within the stipulated time.

(viii) Inspector General (Prisons), Punjab shall also take cognizance of the issue and shall ensure that every Superintendent of Prison, within the province, performs his duties strictly in accordance with the law as provided under the Prisons Act, 1894 and Pakistan Prisons Rules, 1978.

(ix) Criminal Justice Coordination Committees throughout the province shall keep the issue of timely submission of investigation reports under Section 173 Cr.P.C. on their agenda as the top priority item in every meeting and shall ensure that needful is done without further fail. Copy of this Judgment shall be sent to all the District and Sessions Judges of the province for compliance.

(x) All the Area Magistrates shall ensure that Section 344 Cr.P.C. is strictly complied with while granting/extending judicial remands of under-trial prisoners. They shall also ensure that in every criminal case, registered with the police station falling within their territorial jurisdiction, report under Section 173 Cr.P.C. is submitted in accordance with the stipulated timeframe. In case of failure of the investigating officer, matter shall be brought to the notice of his high ups for initiation of proceedings against him.

Crl. Misc. 23198/22
Muhammad Razzaq Vs The State etc.
Mr. Justice Ali Zia Bajwa
18-08-2022
2022 LHC 6257