2021 P Cr. L J 261
[Balochistan]
Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ
BILAL AHMED and 2 others ---Petitioners
Versus
The STATE--- Respondent
Crl. Quashment No. 151 of 2016, decided on 15th July, 2020.
(a) Criminal Procedure Code (V of 1898) ---
----S.173--- Control of Narcotic Substances Act (XXV of 1997), S.9(c) ---Possession of
narcotics ---Report of police officer ---Discharge of accused ---Scope ---Petitioners assailed the
order passed by Magistrate whereby the accused was discharged from the charges after the
Investigating Officer had found him innocent ---Accused was alleged to have been found in
possession of 60 kilograms of charas and 20 kilograms of opium ---Report of Investigating
Officer revealed that the signature of first witness of recovery memo were not available on the recovery memo; that the said witness had also denied recovery of contraband in his presence; that the earlier Investigating Officer of the case had stated that he was neither appointed as the Investigating Officer nor had he gone to the place of occurrence; that neither
the contraband was sealed nor any parcel was made and it was found to be laying open in the police station and that one of the petitioner had arranged the charas and opium just to save himself and othe rs from the consequences of the FIR which was registered against them
under Ss. 365- A, 342, 416 & 34, P.P.C., by the brother of accused---Two of the petitioners
were DSPs and one of them was SP at CID police station at the relevant time and after departmen tal inquiry they were dismissed from service on the basis of said allegations ---No
illegality or irregularity was committed by the Magistrate in discharging the accused ---
Petition was dismissed, in circumstances.
(b) Criminal Procedure Code (V of 1898) ---
----S. 173--- Report of police officer ---Scope ---Investigating Officer is not bound to base his
conclusion on version of informant or defence but on 'actual facts', discovered during the course of investigation--- Such conclusion shall be submitted in sha pe of prescribed form, as
required by S. 173, Cr.P.C.
Mst. Sughran Bibi v. The State PLD 2018 SC 595 rel.
(c) Criminal Procedure Code (V of 1898) ---
----S. 173 ---Report of police officer ---Scope ---Section 173, Cr.P.C., nowhere describes as to
how the Magistrate shall deal with such report, it, however, empowers the Magistrate to
agree or disagree with the act of Investigating Officer in releasing an accused during investigation under S.173, Cr.P.C. which too, to the extent of discharge of bonds.
(d) Criminal Procedure Code (V of 1898) ---
----S. 173--- Report of police officer ---Powers of Magistrate ---Scope ---Magistrate in
cancelling a registered criminal case is required to act judicially, in that he has to act fairly, justly and honestly, a duty common to the exercise of all state powers, there is no lis before him, there is no duty to hear the parties, there is no decision given, no finality or irrevoc ability attaching to the order ---Party is left free to institute a complaint on the same
facts and the same Magistrate does not even after passing such an order render himself to be funtcus officio--- Magistrate, on the contrary, is quite competent to enter tain and deal with
such a complaint on material presented to him ---Such peculiarities establish beyond doubt
that in so concurring with a report submitted under S. 173, Cr.P.C. Magistrate does not function as a criminal court.
Bahadur v. State PLD 1985 S C 62 ref.
(e) Criminal Procedure Code (V of 1898) ---
----Ss. 173, 561- A, 435 & 439 ---Report of police officer ---Inherent powers of High Court ---
Scope ---Magistrate while concurring with a police report submitted under S.173, Cr.P.C.
does not act as a crimin al court inferior to the Court of Session and the High Court, his order
cannot be revised and modified under the provisions of Ss.435 & 439, Cr.P.C. but in that case it is amenable to the inherent jurisdiction of the High Court under S. 561- A, Cr.P.C.,
provided the order amounts to abuse of process of court.
Arif Ali Khan v. State 1993 SCMR 187; Muhammad Sharif v. State 1997 SCMR 304
and Hussain Ahmed v. Irshad Bibi 1997 SCMR 1503 ref.
(f) Criminal Procedure Code (V of 1898) ---
----Ss. 173 & 190 ---Report of police officer ---Cognizance of offence by Magistrates ---
Discharge of accused ---Scope ---Discharge of accused by a Magistrate is not legally possible
after taking cognizance of the case---After taking cognizance by the Trial Court only three results are po ssible in a criminal case, firstly conviction of the accused either upon admission
of guilt by him or on the basis of the evidence led by the prosecution; secondly, acquittal of the accused either under S. 249 -A or 265- K, Cr.P.C. or on the basis of failure of the
prosecution to prove its case on merits beyond reasonable doubt and thirdly, withdrawal from prosecution by a Public Prosecutor under S.494, Cr.P.C.
Muhammad Alam and another v. Additional Secretary to Government of NWFP
Home and Tribal Affairs D epartment and 4 others PLD 1987 SC 103 and Nasira Surriya v.
Muhammad Aslam and 7 others 1990 SCMR 12 ref.
(g) Criminal Procedure Code (V of 1898) ---
----Ss. 173 & 190--- Report of police officer ---Cognizance of offence by Magistrate--- Scope --
-Even in cases triable exclusively by a Court of Sessions, the Magistrate's power under the
Code of Criminal Procedure, 1898 remains intact till such time the case is formally sent by
him to the Court of Sessions for trial.
Mehar Khan v. Yaqub Khan and another 1981 SC MR 267 ref.
Manzoor Ahmed Rehmani for Petitioner.
Mushtaq Ahmed Qazi, A.P.G. for the State.
Date of hearing: 25th June, 2020.
JUDGMENT
ROZI KHAN BARRECH, J .---This petition has been filed under section 561- A,
Cr.P.C. with the following prayer:
"It is, accordingly respectfully prayed, that impugned orders dated 25.11.2013 and
7.02.2014 passed by Judicial Magistrate X Quetta in case FIR No. 03/2013 P.S CID Quetta as well as order dated 16.05.2016 passed by ASJ III, Quetta as well as order dated 05.11.2016 passed by SJ Quetta may be quashed with direction for initiating proceedings upon challan already submitted before the District Attorney and now part
of record of JM X Quetta, in the interest of justice."
2. Brief facts of the case are that petitioner No.1 lodged a criminal case being FIR No.
03/2013 under Section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter "CNS Act") with Police Station CID Balochistan Quetta against one Abdul Qudoos with the allegation that on 19.1.2013 he recei ved spy information that one person namely Abdul
Qudoos is dealing in drugs and that he is currently present at Hazar Ganji for handing over Charas and Opium to other persons; on said information the complainant along with Qutub Khan DSP, Raja Khalid Mehmood IP, Muhammad Ilyas SI, Muhammad Qasim Head Constable and Gul Hassan constable reached the place of occurrence at about 5:00 p.m., where they apprehended a person holding two bags in his hand who disclosed his name as Abdul Qudoos son of Syed Muhammad an d 60 kilograms of charas and 20 kilograms of
opium was recovered from the bags, which was taken into possession through recovery memos in the presence of witnesses.
After registration of the case investigation was carried out. The Investigation Officer
submitted his report recommending ( ) before the learned Judicial Magistrate- X
Quetta ("JM"). The learned JM being satisfied with the report submitted by the I.O. passed the following order on 25.11.2013:
"……..Record perused, perusal of record reveal that re port under section is annexed
with it which reveals that investigation officer after investigation find accused Abdul
Quddoos innocent and discharged him from the charges, as I am satisfied with the
report of investigation officer, therefore, case file aft er its completion and compilation
be consigned to record"
3. Subsequently, in the month of February 2014, the petitioner filed an application
before learned JM for review of the above order, which was dismissed vide order dated 7th February 2014.
4. Being aggrieved the petitioner assailed both the above orders of learned JM before
learned Sessions Judge Quetta, by filing Criminal Revision Petition No. 06 of 2016 under sections 435 and 439, Cr.P.C., which was subsequently transferred to the court of learned Additional Session Judge -III, Quetta ("revisional court").
The revisional court dismissed the revision petition vide order dated 16th May 2016.
5. In the month of November 2016 the petitioner filed an application under section 173,
Cr.P.C. bearing No. 83/2016 before the learned Sessions Judge Quetta for submission of challan, which was also dismissed vide order dated 5th November 2016.
Now the petitioner has assailed all the above orders before this court by invoking the
jurisdiction of this court unde r section 561 -A, Cr.P.C.
6. Before attending the merits of the case it is deemed appropriate to first discuss the
difference between the role of Investigating Officer and that of 'Magistrate' in relation to investigation and the outcome thereof.
Every investigation is conducted with reference to Chapter XIV of the Criminal
Procedure Code as well as the relevant Police Rules.
The vitality of role of Investigating Officer cannot be denied because it is the very
first person, who as per law, is authorized to dig out the truth which too, without any
limitations including that of version of informant/complainant. However, after registration of the FIR, the Investigation Officer has the authority to determine the truthfulness or falsehood of the allegations leve lled against the accused but the same is subject to affirmation of the
competent Court. If the Investigation Officer comes to the conclusion that the allegations contained in the FIR are incorrect, he may refer the matter under section 63, Cr.P.C. to the Magistrate for discharge of the accused. The Police Officer has also the authority to release
accused in terms of section 169, Cr.P.C. if he comes to the conclusion that there is no sufficient evidence or reasonable ground of suspicion to justify the forwar ding of accused to
the Magistrate. Such Officer shall, if such person is in custody, release him on executing bond with or without sureties and direct him to appear, if and when required before the Magistrate empowered to take cognizance of the offence. It is then the Magistrate to pass
such order as deemed appropriate under section 173, Cr.P.C. for discharge of such bond or otherwise as he deems fit.
7. The authoritative view of Hon'ble Apex Court, given in the case of Mst. Sughran Bibi
v. The State (PLD 2018 SC 595), reads as follows:
"(iv) During the investigation conducted after the registration of an FIR the
investigating officer may record any number of versions of the same incident brought to his notice by different persons which versions are to be r ecorded by him under
section 161, Cr.P.C. in the same case. No separate FIR is to be recorded for any new version of the same incident brought to the notice of the investigating officer during the investigation of the case;
(v) During the investigation the investigating officer is obliged to investigate the matter from all possible angles while keeping in view all the versions of the incident brought to his notice and, as required by Rule 25.2(3) of the Police Rules, 1934 "It is the duty of an investigating officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person."
(vi) .
(vii) Upon conclusion of the investigation the report to be submitted under section 173, Cr.P.C. is to be based upon the actual facts discovered during the investigation irrespective of the version of the incident, advanced by the first informant or any
other version brought to the notice of the investigating officer by any other person."
8. From above, it is quite clear that an investigating officer is not bound to base his
conclusion on version of informant or defence but on 'actual fa cts', discovered during course
of investigation'. Such conclusion shall be submitted in shape of prescribed form, as required
by section 173 of the Criminal Procedure Code.
9. At this juncture, it would be relevant to refer the provision of section 173 of the
Criminal Procedure Code, which reads as follows:
"173 (1) Report of Police Officer. Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the Officer Incharge of the police station shall through the public prosecutor ---.
(a) forward to a Magistrate empowered to take cognizance of the offence on a police report, in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the, persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties , and
(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.
(2) Where a superior officer of pol ice has been appointed under section 158, the
report shall, in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of
the Magistrate, direct the Officer Inch arge of the police station to make further
investigation.
(3) Whenever it appears from a report forwarded under this section that the accused
has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise a s he thinks fit.
10. A bare perusal of the above provision explicitly makes it clear that on conclusion of
every investigation, a police report shall be forwarded to the Magistrate so empowered to take cognizance thereon which must include all details, as directed in above provision.
It no where describes as to how the Magistrate shall deal with such report, it however
empowers the Magistrate to agree or disagree with the act of Investigating Officer in releasing an accused during investigation under secti on 173, Cr.P.C. which too, to extent of
discharge of bonds.
11. The petitioner assailed the order passed by the trial court with regard to discharge of
the accused Abdul Qudoos by filing Criminal Revision Petition No. 06 of 2016 under sections 435 and 439, Cr.P.C. before the Additional Session Judge -III, Quetta.
Let us now refer to the nature of the order passed by the Executive Magistrate in such
eventualities and whether such order is revisable by this Court or the Court of Sessions Judge in exercise of revisional jurisdiction in terms of sections 435 and 439, Cr.P.C.
The above question came up before the full bench of Hon'ble Supreme Court in the
case of Bahadur v. State PLD 1985 SC 62 wherein it has authoritatively been laid down that
a Magistrate in cancelling a registered criminal case is required to act judicially in that he has to act fairly, justly and honestly, a duty common to the exercise of all state powers, there is no lis before him, there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order. It was ruled that the party is left free to institute a complaint on the same facts and the same Magistrate does not even after passing such an order render himself functus officio. On the contra ry he is quite competent to entertain and
deal with such a complaint on material presented to him. After such assessment Hon'ble Supreme Court concluded that these peculiarities establish beyond doubt that in so concurring with a report submitted under sec tion 173, Cr.P.C. he does not function as a
criminal court. With reference to treatises on Justice ad Administrative Law by different well-known authors, the Hon'ble Supreme Court expressed the view that some of the powers
of the Magistrate are administrat ive, executive or ministerial and he discharges these duties
not as a court but as a 'personal designate'. This view was further followed in the case of Arif Ali Khan v. State 1993 SCMR 187 and Muhammad Sharif v. State 1997 SCMR 304 and Hussain Ahmed v. Ir shad Bibi 1997 SCMR 1503.
Ratio decidendi in all the above cases appears to be that since the Magistrate while
concurring with a police report submitted under section 173, Cr.P.C. does not act as a Criminal Court inferior to the Court of Session and the H igh Court, his order cannot be
revised and modified under the provisions of sections 435, 439, Cr.P.C. but in that case it is amenable to the inherent jurisdiction of the High Court under section 561- A, Cr.P.C.
provided the order amounts to abuse of proces s of Court.
The petitioner assailed the order dated 25.11.2013 passed by the learned JM by filing
criminal revision petition before the learned Session Judge, in the year 2016 i.e. almost after
three years.
For what has been discussed above we are convinced that the order for discharge of
the accused Abdul Qudoos being an executive order was not amenable to revisional jurisdiction.
12. Learned counsel for the petitioner contended that the challan was forwarded to
learned JM by the investigating officer through the District Attorney and he further contended that after taking cognizance, the learned JM had no jurisdiction to discharge the
accused on the basis of report of the investigating officer under section 173, Cr.P.C.
It is worthwhile to mention here that challan was received by the District Attorney on
05.03.2013 but same was returned to the I.O. by the District Attorney on 12.04.2013 and it
was not forwarded to the learned Sessions Judge through the Judicial Magistrate, meaning thereby that the learn ed JM or the trial court had taken cognizance of the case.
13. It is well settled principle of law that discharge of an accused by a Magistrate is not
legally possible after taking cognizance of the case. It may be added here that after taking cognizance by the trial court only three results are possible in a criminal case, firstly conviction of the accused either upon admission of guilt by him or on the basis of the evidence led by the prosecution; secondly, acquittal of the accused either unde r sections 249 -
A/265 -K, Cr.P.C. or on the basis of failure of the prosecution to prove its case on merits
beyond reasonable doubt; and thirdly, withdrawal from prosecution by a Public Prosecutor under section 494, Cr.P.C.
In the case of Muhammad Alam and another v. Additional Secretary to Government
of NWFP Home and Tribal Affairs Department and 4 others PLD 1987 SC 103, it has been held by the Hon'ble Supreme Court that discharge of an accused or cancellation of case by a Magistrate are not legally possible after cognizance of the case has been taken by the trial court.
The above judgment was followed and the said principle was reiterated by the Hon'ble
Supreme Court of Pakistan in the case of Nasira Surriya v. Muhammad Aslam and 7 others 1990 SCMR 12.
14. In the case in hand the trial court and the court of session have not taken cognizance
of the case and the investigating officer filed his report ( ) for cancellation of the FIR
before the learned JM, who agreed with the report of IO and discharged the accused Abdul
Qudoos from the case in exercise of its executive jurisdiction.
15. It was further contended by learned counsel that accused was discharged by learned
JM despite the fact that the case was triable by learned Sessions Judge/Special Judge Cont rol
of Narcotic Substances; that learned JM had no jurisdiction to discharge the accused Abdul
Qudoos in the said case.
It is worthwhile to mention here that in a case triable exclusively by learned Sessions
Judge, the Judicial Magistrate's power to discharge an accused under the Code remain unaffected.
In the case of Mehar Khan v. Yaqub Khan and another 1981 SCMR 267 the Hon'ble
Supreme Court has declared that even in cases triable exclusively by a Court of Sessions, the Magistrate's power under the Code remained intact till such time the case was formally sent
by him to the Court of Sessions for trial.
The law declared by the Hon'ble Supreme Court in the subsequent case of Habib v.
The State 1983 370 (sic.) left no doubt about the legal position that the Magistrate's power to
discharge an accused person of his bond under subsection (3) of section 173 of the Code
even in cases triable exclusively by a Court of Session remains unaffected by the amendments introduced by the Law Reforms Ordinance, 1972 and a lso that in such cases the
power of discharge remains vested with the Magistrate and not with the trial Court, i.e. the Court of Session.
For the above reasons, there is no substance in the contention raised by learned
counsel for the petitioner on the above points.
16. Reverting to merits of the case, perusal of the record reveals that FIR No. 03 of 2013
was registered under section 9(c) of the CNS Act with Police Station CID Quetta on the
report of the petitioner Bilal Ahmed against Abdul Qudoos with the allegation of recovering
60Kg Charas and 20Kg opium from his possession during a raid conducted on spy information. The said FIR was registered on 19.01.2013 at 6:00 p.m.
On the other hand another FIR bearing No. 03 of 2013 Police Station Bijli Road
Quet ta was registered against the petitioner and co -accused by the complainant Lieutenant
Ghulam Murtaza of Ghazabund Headquarters, FC Balochistan with the allegation that on 19th January 2013 at 17:45 p.m. a person namely Abdul Baqi came to him at FC Headquar ters Ghazabund with the report that his brother namely Abdul Qudoos was
kidnapped and the kidnappers are demanding ransom of Rs. 50,00,000/ - for his release; that
the kidnapper called him from the cell -phone of his brother and told his name as Iqbal and
that he is an employee of ANF and also threatened him for dire consequences in case he
asked for help from FC in release of his brother. On receiving said information a team was constituted for raid and the raiding party reached Double Road on the time given by
Muhammad Iqbal, where it found a person namely Hussain Langov who was caught red handed while receiving Rs.300,000/ - and he disclosed that he made a phone call with the
fictitious name of Muhammad Iqbal and that he does not work for any department rather he works for his officers. He further disclosed that he was sent to receive the ransom amount by CID officers namely SP Tariq Manzoor, DSP Qutub Khan and DSP Bilal. He further disclosed that Abdul Baqi's brother Abdul Qudoos is with CID. On such disclos ure of
Hussain Langov FC personnel raided the CID office and recovered Abdul Qudoos and
arrested the concerned officers of CID as well, who were handed over to police later on.
Hence, the aforesaid criminal case being FIR No. 03 of 2013 was registered with PS Bijli
Road Quetta under sections 365- A, 342, 416 and 34, P.P.C. against the petitioner and others.
17. The investigation of case registered by the petitioner against accused Abdul Qudoos
under section 9(C) of the CNS Act vide FIR No. 03/2013 PS CID Que tta was transferred to
Crimes Branch police by the Inspector General of Police. Perusal of the report of
investigation officer for ( ) reveals that the signature of first witness of recovery
memo namely Muhammad Ilyas SI/CID is not available on the recover y memo with regard to
allegedly recovered 60 kg charas and 20 kg opium mentioned in FIR No. 03/2013 PS CID
Quetta.
Statement of Muhammad Ilyas was recorded by the investigating officer under section
161, Cr.P.C. in the case in hand and he denied his signa ture on the recovery memo and also
denied the recovery of contraband from Abdul Qudoos in his presence.
Similarly, the name of investigation officer was mentioned as Khalid Mehmood
IP/CID in the said FIR whose statement was also recorded under section 161, Cr.P.C. in the present case and he stated that neither he was appointed as I.O. nor he went to the place of occurrence.
It is also mentioned in the ( ) report that neither the above contraband was
sealed nor any parcel was made and the same was lying op en in the CID police station.
18. In respect of preparation of forged recovery memo and falsely mentioning the name
of Muhammad Ilyas as a recovery witness, another FIR bearing No. 13 of 2013 dated 05.11.2013 for an offence under sections 420, 467, 468 and 471, P.P.C. was registered at
Police Station CID Quetta against the petitioner.
It is also mentioned in the final report of the investigation officer that the petitioner
arranged the alleged charas and opium just to save himself and the co- accused from
consequences of the FIR which was registered against them under sections 365- A, 342, 416
and 34, P.P.C. with Police Station Bijli Road Quetta.
19. It is worth mention here that for the allegedly recovery 60 kg charas and 20 kg opium,
another FIR bearing No.22 of 2013 was registered with Police Station CID against the petitioners under section 9(c) of CNS Act with the allegation that they (petitioners) themselves arranged the said contraband.
It is also important to mention here that the petitioners namely B ilal Ahmed and
Qutub Khan were DSPs and petitioner No.3 Manzoor Ahmed was SP at CID police station at the relevant time and after departmental inquiry they have been dismissed from service by the Inspector General of Police on 5th June 2014 on the basis of the above allegations.
20. For what has been discussed above, it is concluded that no illegality or irregularity
has been committed by the learned Judicial Magistrate -X, Quetta while passing the impugned
order dated 25.11.2013, warranting interference by this Court in exercise of it s inherent
jurisdiction under section 561- A, Cr.P.C. For the above reasons, the petition is dismissed.
SA/171/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.