The Code of Criminal Procedure, 1898

SECTIONS 2, 177, 179 & 180 CR.P.C.

- Trial Court directed to file complaint against applicant for offences under Ss.174, 175 & 228, P.P.C. before Court of competent jurisdiction---Complaint filed against applicant was forwarded to Judicial Magistrate who took cognizance of the case---Only “Executive Magistrate” under Ss. 28 & 29, Cr.P.C. could try offences registered under Ss.174, 175 & 228, P.P.C----Cognizance of case or cases in circumstances, could not be taken by ‘Judicial Magistrate’---Offence against applicant having actually taken place within territorial limits of the concerned District, Magistrate of the District would have jurisdiction to try case against accused and not Magistrate of other District Courts---Judicial Magistrate on both counts was not competent to take cognizance of the case---Proceedings before Judicial Magistrate amounting to abuse of process of Court, were quashed, in circumstances.
Muhammad Ahmed Baig Versus The State
2003 MLD 1 [Karachi]
Before Wahid Bux Brohi, J

- Same transaction.

- The real and substantial test for determination whether several offences were so connected together as to form one transaction, depends upon whether they are related together in point of purpose, or as cause and effect or as principal and subsidiary acts so as to constitute one continuous action.
Sheikh Muhammad Aslam and another
Versus
The State and 2 Others
1991 MLD 1973 [Lahore]
Before Sh. Muhammad Zubair, J
PLD 1958 SC (Pak.) 131 and PLD 1967 Pesh. 32 ref

-   Case was registered against accused under S.377/511 P.P.C. and under S.12 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) and accused was sent up for trial for the same offence---Charge against accused was framed by Trial Court (Sessions Court) only under S. 377, P.P.C. to which accused pleaded not guilty and case proceeded and evidence was recorded---Accused finally was convicted and sentenced under S. 377, P.P.C. who filed appeal against that judgment before Federal Shariat Court---Appeal before Federal Shariat Court, held, was not competent as neither the charge had been framed under S.12 of Ordinance VII of 1979 nor any evidence had come on record for kidnapping and abduction of the victim in order to enable Federal Shariat Court to exercise jurisdiction.
-   S. 20---Federal Shariat Court has jurisdiction when any of the accused is charged under the provisions of Ordinance (VII of 1979) and any other law.
Muzammil Shah   Versus       The State
1990 P Cr. L J 1682
[Federal Shariat court]
Before Abdul Karim Khan Kundi And Abdul Razzaq A. Thahim, JJ

- 28. It may be necessary to mention here that under the present dispensation under the Code there are two kinds of Magistrates, i.e. Judicial Magistrates and Executive Magistrates and both have their respective jurisdictions vis-à-vis competence to take cognizance of specified offences. It has already been mentioned above that the power of a Magistrate to discharge an accused person under the Code is relatable to his competence to take cognizance of an offence. Thus, an Executive Magistrate having no jurisdiction to take cognizance of a particular offence is not competent to discharge an accused person involved in such an offence and, likewise a Judicial Magistrate having not been conferred jurisdiction to take cognizance of a particular offence is not empowered to discharge an accused person involved in such an offence. An order of discharge passed by an incompetent Magistrate is, therefore, an order passed without lawful authority and the same is of no legal effect. A reference may be made in this respect to the cases of Sufi Abdul Qadir v. The state and others 2000 P Cr. LJ 520 and Ghulam Shabbir v. State 2000 P Cr. LJ 141.
Ashiq Hussain Versus Sessions Judge, Lodhran and 3 Others.
PLD 2001 Lahore 271
Before Asif Saeed Khan Khosa, J

-   No case under S.420.P.P.C. was made out from bare reading of complaint and the transaction, if any, was of a civil nature and accusation under S.420, P.P.C appeared to be mala fide---As regards offences under Ss.504 & 506, P.P.C Magistrate had no territorial jurisdiction to take their cognizance against accused and the same even otherwise had no nexus with the offence under S.420, P.P.C. and could not be tried together---Process issued by Court against accused was thus illegal and without jurisdiction---Proceedings pending against accused in the Court of Magistrate were ordered to be quashed in circumstances.
Mehboob Ahmed    Versus   The State and 5 others
1991 P Cr. L J 792 [Karachi]
Before Allah Dino G. Memon, J

-   Special Magistrate appointed under S. 14-Subordinate to District Magistrate not only in respect of his executive but also of judicial functions – Special Magistrate having wider territorial jurisdiction than that of District Magistrate – Appeal lies from order of such Special Magistrate to Sessions Judge within local limits of whose jurisdiction Special Magistrate holds his Court in disposing of cases.
Mansha Muhammad Khan   Versus   The State
PLD 1983 Azad J & K 36
Before Muhammad Sharif, J

-   (a) Criminal trial-“Acquittal”-Meaning-Court not having territorial jurisdiction to try offender-Cannot pass an order of his acquittal.
Sardar Muhammad Yasin Khan, Advocate
Versus
Raja Feroze Khan
PLD 1972 Azad J & K 46
Before Khawaja Muhammad Yusuf Saraf, J

-   Criminal trial-Jurisdiction-Trial Court holding that it lacked jurisdiction to try case-Cannot pass order of acquittal of accused-Proper course for Magistrate in circumstances-To return complaint to complainant for presentation in Court of competent jurisdiction.S.531- Section does not confer any jurisdiction not otherwise possessed by Magistrates - Magistrate far from deciding case on merits, preliminarily holding that he lacked jurisdiction to hear case - Protection available under section 531 cannot be sought in circumstances - Section merely protects trials finalized without defect of territorial jurisdiction being discovered in trial Court.
Sardar Muhammad Yasin Khan, Advocate
Versus
Raja Feroze Khan
1969 P Cr. L J1414 (Azad J & K)
Before Khawaja Muhammad Yusuf Saraf, J

SECTION 4(1) CR.P.C.

- There is no bar against re-investigation of case after submission of report under S.173, Cr.P.C., yet the fact remains that ultimately case has to be decided on the basis of evidence recorded before Trial Court---Purpose of investigation, as defined under S. 4(1), Cr.P.C. is collection of evidence by police officer or by any other person who is authorized by Magistrate in this behalf---As such definition of investigation does not talk of opinion of police officer who is only authorized to collect evidence, therefore, opinion of police officer is neither relevant nor admissible in evidence---Frequent transfers of investigations deprecated.
Javaid Iqbal
Versus
Additional Inspector General of Police, Lahore
2008 PLD 488
Lahore-High-Court-Lahore

SECTION 4(h) CR.P.C.

- Section 4(h), Cr.P.C. specifically excluded the report of Police Officer from the domain of word “complaint”---Report submitted under S.173, Cr.P.C. could not be considered to be a complaint as provided by S.4(h), Cr.P.C.---Section 195, Cr.P.C., placed a specific embargo upon the Trial Court to take cognizance on the report of Police Officer.
Hafiz Muhammad Iqbal Versus State
2009 P Cr L J 934
Lahore High Court, Lahore

SECTIONS 9, 178 & 193

- Ss. 9, 193 & 178---Provincial Government is competent to set up venue for the trial of cases of a particular accused and also nominate any Sessions Judge or Additional Sessions Judge to try those cases which are to be specified by the said Government in Notification/Notifications---No intervention of High Court for transfer of cases from one territorial jurisdiction to another was thus called for and the reference from Sessions Judge in this regard was disposed of in the aforesaid terms.
1990 P Cr. L J 1687 [Karachi]
Before Syed Sajjad Ali Shah, CJ
In re: REFERENCE MADE BY SESSIONS JUDGE,
LARKANA FOR TRANSFER OF CASES

SS.18 &17---Criminal Procedure Code (V of 1898), SS.169, 170 & 173—Filing of Reference before Accountability Court by the Chairman National Accountability Bureau---Mode and procedure---Applicability of SS.169, 170 & 173, Cr.P.C.---Scope and extent---Provisions of SS.169, 170 & 173 Cr.P.C. being not inconsistent with any of the provisions of National Accountability Ordinance, 1999, are applicable to proceedings under National Accountability Ordinance, 1999 but with necessary adaptations and changes as detailed by High Court---Direction of the law is that the accused should be forwarded to custody at the time of filing of reference if the Chairman National Accountability Bureau or any officer of the Bureau duly authorized violates such direction then he is exposing himself to the provisions of S.166 P.P.C. which provide that disobedience of direction of law is an offence; furthermore cases should be disposed of expeditiously within a period of 30-days---Principles.
Zahoor Ahmed Sheikh
Versus
Chairman, National Accountability Bureau, Islamabad.
2007 PLD 243
Karachi -High-Court-Sindh

SECTIONS 17, 18 & 24

- SS.17, 18 & 24---Criminal Procedure Code (V of 1898), SS.169, 170 & 173---Reference to Accountability Court by the Chairman National Accountability Bureau---Procedure---Chairman National Accountability Bureau is required to forward the accused in custody to the Accountability Court at the time of filing reference or if the accused is released under S.169, Cr.P.C. or absconded then such facts should also be mentioned in the Reference so that the Accountability Court my exercise powers provided under S.173(3), Cr.P.C.---High Court observed that the References that have already been filed in which the accused persons have not been forwarded in custody or shown released or absconded at the time of filing Reference, the Trial Court shall take appropriate steps to procure their attendance as per law.
Zahoor Ahmed Sheikh
Versus
Chairman, National Accountability Bureau, Islamabad.
2007 PLD 243
Karachi -High-Court-Sindh

SECTION 22-A & 25 CR.P.C.

- Ss.22-A & 25 [as amended by Code Of Criminal Procedure (Third Amendment) Ordinance (CXXXI of 2002)]---Ex-Officio Justice Of The Peace, Powers of---Amendments introduced in Ss.22-A & 25, Cr.P.C. had been so made to lessen the excessive burden of the High Courts which was got created through tiling of writ petitions seeking registration of criminal cases and transfer of investigation---supreme court observed that if this be so, then Supreme court would not be sure about the questionable wisdom leading to these amendments which sought to relieve an elder brother of his burden by adding the same on to the back of an already over-loaded younger brother---Copies of the present judgments were directed to be sent to Registrars of all the four High Courts in the country who shall, in turn, send the same to al the Sessions Judges in their respective provinces for their guidance and compliance---Law Secretaries of the Federation and the provinces will also be sent the copy of the judgment for re-examining the matter of the amendments in question in the light of observations made in the judgment.
Muhammad Bashir Versus Station House Officer, Okara Cantt.
2007 PLD 539
Supreme-Court

SECTIONS 28, 29 & 30 CR.P.C.
CHAPTER III AND
HIGH COURT RULES (Volume-III)

- Criminal Procedure Code (Cr.P.C)----Ch. III---Scope and application, Chapter III, Cr.P.C, deals with powers of courts. It describes offences cognizable by different courts. Section 28 relates to the offences under Penal Code. It provides that subject to the other provisions of the Criminal Procedure Code any offence under Pakistan Penal Code may be tried by the High Court, or by the Court of Session, or by any other Court by which such offence is shown in the eighth column of the 2nd Schedule to be triable. Section 29 relates to the offences under other laws. It provides that subject to the other provisions of the Code of Criminal Procedure any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court. It further provides that when no Court is so mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under the Criminal Procedure Code by which such offence is shown in the eighth column of the Second Schedule to be triable.
Saeed Shah Versus The State
1991 PLD 66
Federal Shariat Court

- Sections 28 & 30-- Criminal Procedure Code cannot be read in conjunction with each other—Words “subject to other provisions in this Code” appearing in S.28, Cr.P.C., held, not referable/relatable to S.30, Cr.P.C. but they refer to Ss. 190(3), 193, 346 & 347, Criminal Procedure Code which deal with manner of taking cognizance of an offence by a Court of Session, which is not a Court of original jurisdiction--Section 30 of Criminal Procedure Code is only an enabling section and it only confers enhanced powers on a Magistrate First Class.
Ghulam Hussain and others Versus The State.
1985 P Cr. L J 2334 [Lahore]
Before Qurban Sadiq Ikram, J

- Sched. Item 2---Constitution of Pakistan, Art. 203-Dd---Powers and jurisdiction of Federal Shariat Court---Vires of statue---According to the amendment effected in item 2 of Sched. of Anti-Terrorism Act, 1997 dated 21-8-1997, the Federal Government in exercise of power vesting in it under section 3 of the Anti-terrorism Act, 1997 authorized the Anti-terrorism Courts to try some categories of offences relating to Hudood without providing a rider in section 25(i) of the said Act that appeals in cases involving Hudood offence would lie to the Federal Shariat Court---Said amendment in the Schedule without corresponding change in S.25(i) offends the constitutional provision contained in Art.203-Dd which confers exclusive jurisdiction upon Federal Shariat Court in cases relating to the enforcement of Hudood---“Any case decided by any criminal court under any law relating to the enforcement of Hudood” is to be heard and decided by the Federal Shariat Court alone---Such position is therefore travesty of legal constraint imposed by the Constitution.
Mian Abdur Razzaq Aamir
Versus
Federal Government of Islamic Republic of Pakistan
2011 PLD 1
Federal-Shariat-Court

- Scope of review, in civil cases, was wider than the criminal cases; in a civil case, if a mistake or error apparent on the face of record or any other sufficient reason was discovered which called for review, then review jurisdiction could be exercised for avoiding injustice, but that would depend upon the facts and circumstances of each case---In the present case, appreciation of important, cogent documentary evidence was not discussed in the judgment under review; rather the judgment was totally silent in that regard, which had clearly proved that said cogent evidence remained unattended by the court--- such would depict that the material evidence was not considered and appreciated while delivering the judgment under review which was a sufficient reason for acceptance of review petition---review petition was allowed.
Haji Nazeer Ahmed Versus Raja Muhammad Saeed Khan
2010 PLD 47
Supreme-Court-Azad-Kashmir

- Ultimate goal sought to be achieved by the Courts was thus to do complete justice between the parties and to ensure that the rights were delivered to those to whom they belonged and no hurdles were ever considered strong enough to detract the courts from reaching the said end---Incorporation of provision such as section 151, C.P.C.; S.561-A in the Cr.P.C.; revisional powers of wide amplitude exercisable even suo motu under section 115 of the C.P.C.; and S.439 of the Cr.P.C. various provisions of the like contained in O. XLI, Rule 4 and O. XLI, Rule 33 of the C.P.C.; the provisions of O.XXXIII, Rule 5 of the Supreme court Rules of 1980; suo motu powers exercisable under Art. 184(3) of the Constitution and provisions of Art.187 of the constitution were some of the examples which could be quoted as having been made available to the courts at all levels to surmount any impediments which a court might confront in the path of doing complete justice.

- Once a judicial determination, be it of a point of fact or of a point of law, has been made and if such a determination covers not only the ones litigating before the courts but some others also, then the dictates of justice would command that the benefits accruing from such a determination should not be restricted only to the litigating parties but should be extended even to those who had not indulged in litigation unless there were some extraordinary unexceptionable reasons to the contrary and that all powers, including the powers inherent in the courts be invoked for the purpose---Such would not only ensure justice for all but would also have the effect of eliminating unnecessary litigation.
Saddaquat Ali Khan Versus Collector Land Acquisition
2010 PLD 878
Supreme-Court

- Early disposal of cases---Supreme Court while identifying the causes of delay, ordered few steps to be taken for the exercise of powers of Magistrate and Sessions Court in the light of various provisions of the criminal procedure Code, 1898, to adopt a uniform procedure in the courts to have expeditious deposal of the cases---Supreme Court directed that a copy of the present order be sent to Registrars of all High Courts for circulating amongst all the Judges and Magistrates for implementation and strict compliance---Sessions Judges of the Districts were directed to supply a copy of the order to the District Bar Associations of their Districts for information and strict compliance---Copy of the order was directed to be sent to PPO/IGPs of all the Provinces and Federal Capital for strict compliance---PPO/IGPs should issue special instructions to all SHOs and concerned officers to produce all the witnesses before the Court of Session for trial, failing which strict action as permissible under the law should be taken with information to the concerned Sessions Judge and High Court.

Muhammad Ramzan Versus Rahib
2010 PLD 585
Supreme-Court

- Administration of justice---argument that all procedures were meant to advance cause of justice and non-observance of any provision would not vitiate the trial, was not untrue in totality, but difference was between the inadvertent failure to follow procedure and deliberate non-observance of provisions-If practice as adopted by the Trial Court was allowed on the pretext that trial was completed by the court without any prejudiced to accused, though not in accordance with mandatory provisions of the Code, it would create a tendency of fleeing from law and then to a stated lawlessness---Law had to be observed as it was, not as it should be or in a manner not authorized by law---Procedural irregularities in civil matters were different than in criminal matters; in civil matters if substantial justice was done, procedure could yield to justice, but in criminal cases, substantial justice could not be said to have been done if due process of law was not observed---Due process of law was the golden rule, not the selected process-

-   Internal administrative arrangement of an institution as to how business had to be regulated or done or who was to conduct business, related to administrative skill but the right and liabilities creating powers had to be exercised in accordance with law, not over and above the law as nobody was above the law including the law makers themselves---Trend to deviating from legal procedure in the name of speedy disposal of cases was dangerous tendency---Marked difference existed between the Speedy Trial Court, Special Courts, Summary Trial Court and the courts of normal criminal and civil jurisdiction---Courts of every category had to act strictly in accordance with procedure which was prescribed for it---Court was duty bound make best use of even a bad law---Harshness of a law could be softened by its wise application and interpretation---Courts could not amend law---Competent Courts declare a law ultra vires the constitution, but as long as it wasp on a Statue Book, no reform or policy could override it---Courts, however, could change earlier interpretation or view in view of changed circumstances, but not the law.
Hakam Deen   Versus       State
2006 PLD 43
Supreme-Court-Azad-Kashmir

-   Were two or more Special courts had jurisdiction, wholly or partly in same territorial limits. High Court was empowered under S. 4-A, Suppression of Terrorist Activities (Special Courts) Act, 1975 to transfer any case from one Special Court to another in interest of justice or for convenience of parties or of witnesses---Enabling provision of S. 4-A of the Act would not have effect of curtailing powers of High Court to transfer case as provided under S.526, Cr.P.C---Powers of High Court under Criminal Procedure Code transfer a case from one Court to another having not been specifically excluded under S.4-A of Suppression of Terrorist Activities (Special Courts) Act, 1975, same would remain intact.
Muhammad Afzal   Versus       State
1999 YLR 1279
Lahore-High-Court-Lahore

- Control of Narcotic Substances Act 1997---Preamble---Establishment of Special Court---Ouster of jurisdiction of Civil Courts---Principles---Failure or omission of designated Authority to frame necessary rules in exercise of powers conferred by Legislature, could not be construed as having effect of rendering statute nugatory and unworkable---While interpreting statutes conferring exclusive jurisdiction on designated Tribunals, Jurisdiction of ordinary Civil Courts would stand ousted only when such statutory fora were actually established---Question of conflict between requirements of Criminal Procedure Code and Special Law could arise only when Special Courts exercising excusive jurisdiction were actually established and a Sessions Court would not stand divested of jurisdiction to try offence till such time.
Aslam Versus State
1999 P CR L J 1033
Karachi-High-Court-Sindh

- Criminal Procedure Code (Cr.P.C)----S. 6---Classes of Criminal Courts---Classification of Magistrates as laid down by S.6 of Criminal Procedure Code, 1898 does not make a Magistrate invested with powers under S.30, Cr.P.C. a different class of Court.
Muhammad Ramzan alias Jana
Versus
State
1998 P CR L J 210
Lahore -High-Court-Lahore

- Statement that “wrong orders should be corrected at the time they are passed because it would take less time for the case to conclude” is a wrong or at least misstatement in present state of law, practice, procedure and proceedings in the courts of law---Such a statement might have been true half a century to quarter century ago, as thereafter the challenge to the interlocutory orders had brought about a deluge in the administration of criminal justice for cases started piling up with the result that the concept of speedy justice came to a grinding halt and powers that many be, started thinking of curtailing remedies even reducing the right of appeals---Little change of practice in the technical field, for example amendment vis-à-vis the subject in S.197, Cr.P.C., would not bring in the need to curtail the remedies as that too in the stage where Pakistan is passing, might be counter productive.
Criminal Procedure Code (Cr.P.C)---Ss. 61, 167 & 344

- Criminal Procedure Code (Cr.P.C)---Ss. 61, 167 & 344--Criminal Trial--Guidelines for Trial Courts -- Courts enjoy a pivotal position in administration of criminal justice--Criminal Procedure at every step places a Court as a guard not only to prevent encroachments upon rights of individuals but also to check misfeasance and mal-feasance of police authorities and investigating officers, but courts relegate themselves to the position of mere silent spectators and have left themselves to the mercy of police, investigating, prosecuting and process-serving agencies--Courts normally exercise restraint in interfering with police investigations, but this does not mean that Investigating Officers have unbridled powers to do just what they want during investigation and toy take as long as they desire in completing the same--Strict adherence to provisions of Sections 61, 167 and 344 Cr.P.C. and demanding strict compliance thereof by courts was desired by High Court.

- Courts must insist on submission of challans within fifteen days of arrest of accused person and in absence thereof must refuse to authorize further detention as also postponement of trails unless a really valid and satisfactory cause is shown to deviate from this principle---Courts have ample powers to meet the increasing menace of non-appearance of witnesses or non-production of accused persons from jail which are bestowed upon courts for being exercised effectively---Such luxuries on the part of police, prosecution, jail authorities or witnesses must be met by resort to coercive and penal measures against delinquents and posture of helpless passive onlookers adopted by Trial Courts should be met with exemplary measures---Ultimate responsibility of administration of justice rests with courts---Police and Investigating agencies are only instruments to assist them in discharge of this responsibility---Courts are operators and not slaves of these tools---Courts if at any stage feel that these instruments have got blunted or rusted, then courts must sharpen and chisel them through lawful means.
Ashfaq Ahmad Alias Shakoo Versus State
1989 PLD 4777
Lahore -High-Court-Lahore

- Criminal Trial----Review powers of ---No power to review its own orders to lower courts under Criminal Procedure Code – All orders regarding disposal of property, excepting exparte orders, final.
Fazal Hussain Versus The State
1976 P CR L J 747
Lahore -High-Court-Lahore

SECTION 63 Cr.P.C.

- S.63---Discharge of accused---Jurisdiction of Magistrate---Scope---Magistrate is competent under S.63, Cr.P.C to Discharge accused, when he is taken into custody in any case triable by Magistrate, Court of Session or any Special Court---Provisions of S.63, Cr.P.C. empowers a Magistrate to Discharge arrested accused person irrespective of the fact, whether or not he himself is competent to try him in case of submission of challan against him.
Mst. Mehnaz
Versus
Judicial Magistrate Ist Class/ Civil Judge, Attock
2008 YLR 1669
Lahore High Court, Lahore

SECTION 63 Cr.P.C.

- After completion of investigation and submission of case Magistrate concerned had power to Discharge accused under S.63, Cr.P.C. in case of his innocence, that in case Magistrate found accused innocent, he would refuse to take cognizance of the matter; that Rule 24.7 of the Police Rules, 1934 made a provision for cancellation of cases during the course of investigation under the orders of the concerned Magistrate and that remedies were available to accused who claimed to be innocent and could seek relief without going through the entire length of investigation.
Ghulam Yasin Versus D.S.P
2010 P Cr L J 946
Lahore High Court, Lahore

SECTION 63 & 561-A Cr.P.C.

- Discharge of accused---Exercise of discretion by Magistrate---Principles---Accused were Discharged by Magistrate under S.63 Cr.P.C. on the ground that alleged forged document was also subject-matter of civil suit pending before civil court and no complaint was filed by the court concerned---Order passed by Magistrate was maintained by Lower Appellate Court but High Court in exercise of powers under S.561-A, Cr.P.C. set aside the discharge order---Validity---Magistrate concerned had discretion to pass order under S.63, Cr.P.C to discharge accused persons---Such discretion must be exercised by the concerned Magistrate justly and fairly; in case discharge order was passed by Magistrate mechanically without application of his independent mind to the facts of the case, blindfolded acceptance of a recommendation of police in that regard, perversity of reasoning and adoption of a procedure which offended against letter and spirit of law, relating to discharge, then High Court had ample jurisdiction to interfere and set aside such order under S.561-A Cr.P.C.
Hidayatullah and Others.
Versus
The State through Advocate General, NWFP,
Peshawar High Court, Peshawar.
2006 SCMR 1920
SUPREME COURT

Criminal Procedure Code (Cr.P.C)----Ss. 87, 88 & 90

- Criminal Procedure Code (Cr.P.C)----Ss. 87, 88 & 90---Administration of justice---Duty of Court stated. The subordinate courts must bear in mind that administration of justice is essentially the obligation of the courts of law. The agencies such as the Police, the Prosecutors and the Process-Servers are merely instruments provided to the courts of law for their assistance in the discharge of this obligation. The courts of law cannot, therefore, abdicate their powers and duties in favour of these agencies and become passive spectators in the administration of justice or sit only as dummies placed in the citadel of justice who are incapable of doing anything on their own and are at the complete mercy of others for the performance of their functions.
Waris Iqbal Versus The State
1991 P CR L J 1978
Lahore -High-Court-Lahore

SECTION 145 CR.P.C.

- S. 145---Judicial requirements for assumption of jurisdiction under S.145, Cr.P.C are (i) existence of a dispute, (ii) such dispute is likely to cause breach of peace, (iii) dispute is concerning land, water, building, markets, fisheries, crops or other produce of the land and the rents or profits of such property, (iv) dispossession if alleged is within two months prior to the initial order passed by the Magistrate, and (v) dispute is within the territorial jurisdiction of the Magistrate concerned.

- S.145---Object of---Purpose behind S.145, Cr.P.C. is to enable the Executive Authorities to maintain status quo till the parties have their matter decided by the Civil Court of competent jurisdiction.
Mst. Nasim Akhtar Versus The State and others
1996 P Cr. L J 560 [Lahore]
Before Tassaduq Hussain Jilani, J

- Criminal Procedure Code (Cr.P.C)----S. 145---Powers of Criminal Courts in proceedings under S.145, Cr.P.C., regarding immovable property, which is subject-matter of such proceedings, are subordinate to powers of Civil Courts, which have dealt with same property.
Muhammad Hussain Versus State
1990 P CR L J 827
Karachi-High-Court-Sindh

SECTIONS 161, 223, 219, 109, 120-B CR.P.C.

- Prevention of Corruption Act 1947 S.5(2)---Penal Code (XLV of 1860), S, 161/ 223/219/109/120/-B---Criminal Procedure Code (V of 1898), S. 439---Constitution of Pakistan (1973), Art. 185(3)---Suo Motu notice issued to accused by High Court for cancellation of bail---Law had conferred suo motu powers of revision on High Court to ensure that the courts subordinate to it had acted strictly within the legal bounds without transgressing their jurisdiction and the findings, sentence or orders recorded or passed by them were just and legal, but nevertheless in order to avoid any impression of arbitrariness in the exercise of such power, the order of initiating suo motu proceedings by the High Court should have mentioned the ostensible error or irregularity in the orders or proceedings of the subordinate courts in order to enable the parties to know the reasons for such an action---High court, no doubt, had the jurisdiction to initiate suo motu proceedings by issuing notice to the accused for cancellation of his bail, but in view of the well reasoned order of the Special Judge granting bail to the accused, no circumstances justifying the suo motu action against him by the High Court were available---Petition for leave to appeal was consequently converted into appeal and the suo motu proceedings initiated by the High Court against the accused were quashed.
Waqar Hussain Versus State
2000 SCMR 735
Supreme-Court
Ss.169, 170 & 173 Cr.P.C.

- Ss.169, 170 & 173---cancellation of F.I.R---Powers of Investigating Officer and Magistrate---Investigating Officer can dispose of F.I.R. as cancelled if he finds the same false, founded on mistake of law or a dispute of civil nature or untraceable, after taking all necessary steps to the best of his endeavour and ability, but order of cancellation of F.I.R. must be obtained from a Magistrate competent to take cognizance of the offence and to try the case, or to send the matter for trial to higher Court.
Mst. Eram
Versus
Muhammad Adnan Chaudhry
2010 YLR 1580
Karachi High Court, Sindh

- SS.169, 170 & 173---Administration of criminal Justice---Crux of provisions of SS.169, 170 & 173, Cr.P.C. is that whatever the course Investigating Officer adopts i.e. whether he acts under S.169 or under S.170, Cr.P.C., it is incumbent upon him to submit a ‘final report’ under S.173, Cr.P.C., with regard to the result of his investigation to a competent Magistrate and the said Magistrate, shall thereafter, take action as he may consider proper under S.173, Cr.P.C. or under S.190, Cr.P.C. as the case may be ---Principles.
Zahoor Ahmed Sheikh
Versus
Chairman, National Accountability Bureau, Islamabad.
2007 PLD 243
Karachi -High-Court-Sindh

SECTION 169 Cr.P.C.

- S.169---Constitution of Pakistan (1973), Art.199---Constitutional petition---Magistrate had discharged the accused while cancelling the case under S.169, Cr.P.C.---Validity---Evidence against the accused on record was deficient, on the strength of which the accused could not have been sent to face trial, because it would have been a futile exercise and wastage of time of the Court---Magistrate had passed the impugned order after consulting the record and making discussion therein, to which no exception could be taken---Constitutional petition was dismissed accordingly.
Mst. Amna Bibi Versus State
2008 P Cr. L J 956
Lahore High Court, Lahore.

SECTION 169 Cr.P.C.

- Investigation Officer who had arrested respondents had been requesting Magistrate for authorization of detention of said accused persons through remand---After getting permission/authorization as envisaged under S.167, Cr.P.C., Investigating Officer could not discharge said accused for all times to come---Investigating Officer could release accused after their executing a bond with or without sureties, but could not discharge them, who earlier were detained with Investigating Officer by the permission of Magistrate---Words of S.169, Cr.P.C. “release him on his executing a bond with or without sureties” could not be expounded as having authorized or empowered Investigating Officer to discharge accused---From wording of subsection (3) of S.173, Cr.P.C., it became evident that accused released on bond, with or without sureties, was not a person released for all times to come, in fact, it was a temporary release, which had to be confirmed through an order of discharge from the Magistrate---Release of an accused under S.169, Cr.P.C. was uptil confirmation of the action of Investigating Officer for the release of accused and uptil discharge or order of Magistrate as provided in S.173, Cr.P.C.
Abdul Wahid Versus State
2007 P L D 65
Lahore High Court, Lahore
SECTION 169 Cr.P.C.

- Report of Police Officer/Investigating Officer discharging respondents under S.169, Cr.P.C., was concurred by the Trial Court---Appellant, thereafter, filed private complaint under Ss.302 & 34 P.P.C. against discharged respondents before the Trial Court after about one year of order of the Trial Court---Trial Court issued process against respondents, which process was challenged before Shariat Court which culminated into the impugned order---Validity---Appellant did not, challenge the order confirming discharge of accused/respondents earlier passed by the Trial Court, but instead filed private complaint after, about one year---Belated private complaint was not favoured by the Supreme Court, more so, when the order by police under S.169, Cr.P.C. was confirmed by same Court, which had tried other accused who were part of the case in which respondents were discharged--- In absence of any fault in the order passed by Shariat Court, appeal against said order, was dismissed.
Muhammad Basharat Versus Khadim Hussain
2006 P Cr. L J 1253
Supreme Court, Azad Kashmir

SECTION 169 Cr.P.C.

- If Magistrates were given the powers to discharge and release an accused at the very initial stage, there would be no room for success in blind heinous criminal cases which were always investigated on different theories of probabilities based on spy information---Once an accused was apprehended and found innocent, he could be set free during investigation by obtaining discharge order from the Court---discharge of an accused was also governed by S.169, Cr.P.C. which was at the conclusion of investigation and on submission of report under S.173, Cr.P.C.
State Versus Ubaidullah
2005 M L D 1883
Peshawar High Court, NWFP

- Words of S. 169, Cr.P.C. “release him on his executing a bond with or without sureties” could not be expounded as having authorized or empowered Investigating Officer to discharge accused.
Abdul Wahid Versus State
2007 PLD 65
Lahore-High-Court-Lahore

SECTION 167 & 169 Cr.P.C.

- Refusal to grant remand and discharge of accused from the F.I.R.---If the Magistrate had no jurisdiction to try accused produced before him for remand, he could authorize the detention, but if he considered the detention unnecessary, he could order the accused to be forwarded to a Magistrate having such jurisdiction--- Impugned order whereby remand was refused and accused was discharged from F.I.R., was passed by Duty Magistrate on Sunday---Said Magistrate did not have the jurisdiction to try the accused--- If said Magistrate thought that further detention was unnecessary, he could have forwarded the accused to the Magistrate having jurisdiction to try him---Impugned order had been passed by the Magistrate without jurisdiction and same was void ab initio---Magistrate being not competent to pass order of discharge of accused while exercising powers under S.167, Cr.P.C., High Court accepted Constitutional petition set aside order being illegal, unjustified and untenable.
Abid Hussain Versus Ikram-ul-Haq Chaudhry
2005 P Cr. L J 1403
Lahore High Court, Lahore

SECTION 169 Cr.P.C.

- Discharge of accused---discharge of an accused under S.169, Cr.P.C. was an administrative act of Magistrate and it would not amount to an acquittal of accused---Order of discharge could be recalled by the Magistrate subsequently and accused could also be summoned by Trial Court to face the trial.

Malik Hamid Saeed Versus The State
2004 P Cr L J 117
Peshawar High Court, NWFP

SECTION 169 Cr.P.C.

- Discharge of accused---Police having found the accused innocent, requested Judicial Magistrate to discharge the accused, request of the police was turned down by the Magistrate, on the ground of lack of jurisdiction as the case was triable by the Sessions Court---Validity---discharge of the accused from the case did not amount to his acquittal.
Jamil Asghar Bhatti Versus The State
2001 M L D 1578
Lahore High Court, Lahore
SECTION 169 Cr.P.C.

- Criminal Procedure Code (Cr.P.C.)----Ss.169 & 173---discharge of accused after submission of challan in the Court---Once the challan is submitted in the Court under S.173, Cr.P.C., the provisions of S.169, Cr.P.C. cannot be invoked.
Syed Sikandar Shah
Versus
Inspector General Police, NWFP, Peshawar
2000 P Cr L J 25
Peshawar High Court, NWFP

SECTION 169 Cr.P.C.

- Investigating Officer has discretionary power under S.169, Cr.P.C. to release accused on bail bond during course of investigation before submission of challan---Such interim relief has been made permissible under law to innocent person who would have to stand the test of judicial scrutiny to be made by Trial Court at a proper stage---Right course to be adopted by Investigating Officer is that at the conclusion of investigation he should place name of accused discharged under S.169, Cr.P.C. in column No.2 of challan with his own remarks---Court has to form its own opinion on basis of material on record---Resort to provisions of S.169, Cr.P.C., by Investigating Officer during investigation or re-investigation deprecated---Serious notice should be taken by superior Police Officers including Superintendent of Police and Deputy Inspector General concerned in the interest of justice by having a strict observance over investigation so that said discretionary powers of Investigating Officer were not misused in any way nor exercised blindly without any valid and legal base---Police, before submission of challan, can resort to S.169, Cr.P.C. at preliminary stage of investigation---Trial Court should not interfere at such a stage as that would be premature.
Mastan Shah
Versus
Additional Sessions Judge/Special Judge, Bannu.
1999 P Cr L J 469
Peshawar High Court, NWFP

SECTION 173 & 190 CR.P.C.

- High Court had directed that the petitioners before it in the constitutional petition who were accused persons in an F.I.R., would not be treated as accused and would not be challaned in the case, only because the Investigating Officer had informed the High Court that the involvement of the said accused persons in the case could not he established and that they had not forged any document or offered any kind of inducement to the complainant to secure any pecuniary benefit---Investigation according to S. 4(1), Cr.P.C only meant collection of evidence and no more---Determination of guilt or innocence of the accused persons was an obligation cast on the Courts of law which task could never be permitted to be delegated to the police officers investigating a case---Provisions of S. 63, Cr.P.C. had prohibited discharge of an accused person except under a special order of a ‘Magistrate---Rule 24.7 of the Police Rules, 1934, had also prohibited cancellation of F.I.Rs without the orders of the Magistrate---Provisions of S.173, Cr.P.C. had provided only that after the available material had been collected by the S.H.O. during investigation, result of the same had to be reported to the Magistrate competent to take cognizance under S. 190, Cr.P.C. and thereafter the Magistrate was to decide whether the accused did or did not deserve to be tried---Impugned order passed by High Court only on the alleged opinion of the Investigation Officer, therefore, was not sustainable and the same was set aside by converting the petition for leave to appeal into appeal which was allowed---S.H.O. was directed to proceed with the matter in accordance with law.
Syed Muhammad Ahmed Versus State
2006 PLD 316
Supreme-Court

-   Contention of applicants was that Magistrate could not deal with any police report under S. 173 or S. 174, Cr.P.C. either accepting or refusing same in a Sessions case.
-   Further contention of applicants was that such report was to be forwarded to concerned Sessions Judge for disposal according to law.
-   Submission of respondents on the other hand was that wording of S.190(2), Cr.P.C. had made it very clear that Magistrate was fully empowered to deal with police reports and thereafter either accept or reject them.
-   Magistrate should send case to the Sessions court if it was a Sessions case upon acceptance of police report and again discharge accused if he did not agree with the same---Exercise to be conducted by the Magistrate under S. 190, Cr.P.C., was not a judicial one and he could not determine the guilt or innocence of accused, but only had to assess evidence on record in a summary fashion and thereafter make up his mind whether or not to discharge accused.
Hakim Ali, SIP   Versus   State
2006 PLD 302
Karachi-High-Court-Sindh

SECTION 173 CR.P.C

Magistrate concurring with Police Report submitted under S.173, Cr.P.C. discharging accused and cancelling a criminal case registered under S.379/420, P.P.C does not function as criminal Court—Order of cancellation of criminal case for that reason is not amenable to revisional jurisdiction of High Court under Ss.435 to 439, Cr.P.C.—Penal Code (XLV of 1860), Ss. 379 & 420 –Criminal Procedure Code (V of 1898).
Under the Criminal Procedure Code a Magistrate is entrusted with diverse duties and in discharging the same does not always function as a Court, conduct judicial proceedings or is amenable to the revisional jurisdiction. Some of his powers and duties under the Code are administrative, executive or ministerial and he discharges these duties not as a Court but a persona designata. Mere name or designation of a Magistrate is not decisive of the question because “Judges often administer and administrators often Judge.”

A Magistrate, even while concurring in cancellation of a case is required to judicially examine the report submitted under section 173, Cr.P.C. and this has led to the impression that he must while doing so be acting and functioning as a Court. This obviously is a mistaken impression.

The primary characteristics of ‘pure’ judicial functions, by whomsoever exercised, are:-

(1) The power to hear and determine a controversy.
(2) The power to make a binding decision (sometimes subject to appeal) which may affect the person or property or other rights of the parties involved in the dispute.

Administrative functions, on the other hand, consist of those activities which are directed towards the regulation and supervision of public affairs and the initiation and maintenance of the Public services.
Though 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:

(i)   There is no lis before him
(ii)   There is no duty to hear the parties
(iii)   There is no decision given
(iv)   No finality or irrevocability attaching to the order
(v)   And the same Magistrate does not even after passing such an order render himself functus officio.

On the contrary he is quite competent to entertain and deal with such a complaint on material presented to him. These peculiarities establish beyond any doubt that in so concurring with a report submitted under section 173, Cr.P.C. he does not function as a criminal court. For that reason his order is not amenable to revisional jurisdiction under sections 435 to 439, Cr.P.C. This appeal is, therefore, allowed, and the impugned order of the High Court is set-aside, as one without jurisdiction.

SECTION 63 & 173 CR.P.C

SS. 63 & 173 Cr.P.C-----Sometimes either through misunderstanding of law or through lack of proper application of mind by those concerned a simple concept of law or practice assumes a meaning which is neither contemplated by the relevant law itself nor the same fits into the normal scheme of things. One such example is the law relating to ‘discharge’ of an accused person in a criminal case. It is unfortunate that of late a lot of confusion has been created bout the true meaning and scope of discharge of an accused person in a criminal case. Lately an understanding is gaining ground that discharge of an accused person in a criminal case means that further investigation qua him or his prosecution for the reported crime has come to an end, he has finally been absolved of the allegations with his discharge virtually having the effect of an acquittal and, because of such a consequence of an order of discharge, such a discharge can be ordered only by the court competent to try the offence in question and not by a Magistrate if he otherwise lacks jurisdiction to try the relevant offence. All these views have in fact been expressed before me in the present case by the learned counsel for the petitioner. Unfortunately all such notions and impressions about discharge are misplaced and misconceived. Therefore, through the present judgment I propose to restate the legal position in this regard.

29. For facility of cognition and reference the above discussion is summed up with the following resume and conclusions:

(i)   The concept of discharge is relatable only to custody of an accused person in a criminal case and it has no relevance to anything else during an investigation or a trial.
(ii)   The Investigating Officer of a criminal case may discharge an accused person under section 63 of the Code of Criminal Procedure and release him from custody during the investigation on executing a personal bond regarding his appearance before the Investigating Officer or a Magistrate whenever required to do so during the investigation. Likewise under the same provision of law an accused person may be discharged from custody during the investigation either on bail or under the special order of a Magistrate.
(iii)   Upon receipt of the police report under subsection (3) of section 173 of the Code of Criminal Procedure a magistrate may discharge an accused person of his bond if such an accused person has already been released upon executing a bond.
(iv)   There is a difference between discharge of an accused person by an Investigating Officer on a bond or on bail or under the special order of a Magistrate under section 63 of the Code of Criminal Procedure and discharge of such an accused person of his bond by a Magistrate under subsection (3) of section 173 of the Code of Criminal Procedure as in the former case the accused person is released on the condition of executing a bond whereas in the latter case he is released of his bond making his release unconditional and unfettered for the time being.
(v)   Discharge of an accused person does not amount to smothering of the investigation qua him, cancellation of the case against him, termination of his prosecution or his acquittal.
(vi)   A discharged accused person can always be associated by the police with the investigation of the given criminal case at any subsequent stage during the investigation without obtaining any permission from the Magistrate discharging the said accused person as long as that accused person is not to be taken into custody during such subsequent investigation.
(vii)   If after his having been discharged by a    Magistrate the police needs to arrest an    accused person during any subsequent    state of the investigation then a formal    permission from the Magistrate is    necessary for the purpose.
(viii)   Discharge of an accused person has    nothing to do with the prospects of such    an accused person ultimately facing a    trial    or not as his discharge is not from    the case but only on or of his bond.
   Whether an accused person had been discharged or not and whether the police had opined about his guilt or not in its report under section 173 of the Code of Criminal Procedure are factors which are irrelevant to the issues whether cognizance of the offence is to be taken or not and whether such an accused person is to be summoned or not to face a trial because such decisions are to be made by the Magistrate taking cognizance of the offence and the Trial Court on the basis of the material collected during the investigation and the attending circumstances of the case and not on the basis of any opinion formed by the police o the basis of such material.
   Discharge of an accused person by a Magistrate is not possible after taking of cognizance of the case by the Trial Court.
(xi)   An order regarding discharge or otherwise of an accused person lies within the competence of a Magistrate having jurisdiction to take cognizance of the offence and it has not relevance to the question as to which Court is to ultimately try the offence in question unless a special statute provides otherwise specifically.
   An order regarding discharge of an accused person is an administrative and   not a judicial order.
(xiii)   An order regarding discharge is essentially a discretionary order which may not ordinarily be interfered with by a higher forum unless strong and compelling reasons exist for such interference.
30.   For what has been discussed above I have failed to find any merit in the present petition which is hereby dismissed.
Ashiq Hussain   Versus   Sessions judge, Lodhran
PLD 2001 Lahore 271
Before Asif Saeed Khan Khosa, J

SECTION 173 CR.P.C.

- Even after the completion of the investigation and submission of a report under S.173 Cr.P.C. petitioner, would have another remedy before the Trial Court for redressal of his grievance --- Fate of a criminal case depended upon the contents of F.I.R. and the prosecution evidence, and not on provisions of offence, under which the F.I.R. was registered by the Police; as the courts were not bound by the ipse dixit of Police.
Muhammad Ramzan Versus Station House Officer
2011 PLD 175
LAHORE HIGH COURT, LAHORE

- Conduct and manner of investigation was not normally to be scrutinized by the High Court in its constitutional jurisdiction which would amount to interference in the Police investigation---Constitutional petition was dismissed.
Javed Iqbal Versus S.H.O
2011 P Cr. L J 447
LAHORE HIGH COURT, LAHORE

- Registration of criminal case---Taking cognizance by the court---Registration of a criminal case was entirely a different phenomenon from the one, pertaining to the taking of cognizance by a court of law on the report under S.173, Cr.P.C---Complaint within the meaning of S.195 Cr.P.C., could be made a part of the prosecution record, even after the registration of F.I.R.; as no compelling restriction was available in that regard.
Syed Faraz Shah Versus State
2011 MLD 535
LAHORE HIGH COURT, LAHORE

- S.173---Magistrate disagreeing with the police report recommending/suggesting/seeking disposal of F.I.R. in class, directed police to submit the charge sheet against the accused persons---Applicant/accused contended that the Magistrate could not order the challan to be submitted---Validity---Magistrate dealing with the report under S.173, Cr.P.C. though acted in administrative capacity, yet he had to pass a speaking order---Court below had observed the cases of both the complainant and the accused were supported by their witnesses---Veracity of witnesses could be determined by the Trial Court only after recording evidence---Magistrate had given reasonable and plausible explanation for disagreeing with the police report and rightly ordered the challan to be filed in prescribed proforma in the court competent to try the offence---Where Magistrate arrived at a conclusion contrary to the police report which sought disposal or cancellation of F.I.R. as ‘B’ or ‘C’ class, he had to make an order for submission of challan in prescribed form---Accused’s application was dismissed in circumstances.
Sabir Ali Arian Versus State
2011 P Cr. L J 732
KARACHI HIGH COURT, SINDH

- Proceedings under S.173, Cr.P.C. are of administrative nature and can be challenged before High Court by invoking inherent jurisdiction of High Court under S.561-A, Cr.P.C.
Fida Hussain
Versus
Government of Singh through Home Secretary
2011 MLD 766.
KARACHI HIGH COURT, SINDH

- Second F.I.R. in respect of the same offence---Judicial Magistrate refused to accept the Investigating Officer’s recommendation for cancellation of the second F.I.R.-Validity -- Second F.I.R. seemed to be fabricated as reported by the Investigating Officer in the wake of submission of challan in respect of the first F.I.R.---Magistrate passed impugned order in haste after discussing evidence which was not permissible under S.173, Cr.P.C. Second F.I.R after the first one could not be considered as true---Impugned order was set aside and proceedings qua second F.I.R. were quashed.
Syed Wahid Bux Shah alias Chacho Shah
Versus
State
2011 MLD 64
KARACHI HIGH COURT, SINDH

- Contention of petitioner/complainant was that submission of report under S.173 by Police Official other than S.H.O., was bad in the eyes of law and could not be acted upon by the Magistrate and that allegations contained in F.I.R. could only be resolved after recording evidence---Validity---Under provisions of S.173 , Cr.P.C. report of inquiry was to be submitted by the Incharge of Police Station through Public Prosecutor---Under Police Order, 2002, function of the Police Department had been reorganized and under said reorganized system, S.H.O was replaced by other Police Officer belonging to the Investigating Department---In the present case report under S.173, Cr.P.C. having been submitted by Sub-Inspector, Incharge Investigation, same was in accordance with the Police Order, 2002, which could not be objected.
Noor Muhammad Khan
Versus
State
2010 YLR 2249
PESHAWAR HIGH COURT-NWFP

- Report under S.173, Cr.P.C was not signed by the S.H.O concerned, which was a violation of the mandatory provisions of the Police Rules---Investigating Officer prima facie, being in league with the accused had declared him innocent in a clandestine manner---S.S.P. (Investigation) in such, circumstances had entrusted the investigation to S.P. Headquarters, on the application moved by the complainant for transfer of the same---Challan already submitted by the S.H.O against law and without collecting any evidence could not be made a basis for stopping re-investigation in the case, which was necessary in the given circumstances---Magistrate was restrained from passing any order on the application of the accused presented under S. 249-A, Cr. P.C. for acquittal, till the matter was reinvestigated and fresh final report under S. 173, Cr. P.C was submitted in the Court---Final verdict had to be passed by the Court after evaluating the evidence adduced before it during the trial---Constitutional petition was dismissed accordingly.
Mian Muhammad Asif Versus S.S.P. Operation, Lahore
2010 YLR 944
Lahore-High-Court-Lahore

-   Police report under S. 173, Cr.P.C., showed that police during investigation, found accused persons to be innocent and their names were placed in column No.2---Report of the Police though was not binding upon the court, but it was a relevant circumstance to be taken into consideration while determining such like question.
Jahangir    Versus    State
2010 PCrLJ   769
Lahore-High-Court-Lahore

- S.173---Report of Police Officer---Scope---Challan was not the substitution of report under S.173, Cr.P.C challan could only be submitted when Investigating Agency would come to the conclusion that accused was found guilty and recommended to be tried under the relevant offence, whereas if accused was not recommended to be tried in the case, then the report under S.173,Cr.P.C was to be submitted without any challan---No power vested with any court including High Court to override the legal command and to direct S. H.O., either not to submit investigation report (challan) or to submit the report in a particular manner i.e. against only such persons as the court desired or only with respect to such offences as the court wished.
Muhammad Farooq Qureshi
Versus
Judicial Magistrate Section 30
2010 P Cr L J 261
Lahore-High-Court-Lahore

- Police prepared a cancellation report and placed it before the Magistrate who disagreed with said report and ordered to complete challan under S. 173, Cr.P.C. and to produce before the court---Validity---Investigation of a criminal case and the resultant arrival by the Police at a conclusion regarding the guilt or innocence of accused lay within the domain and prerogative of the Police over which no other authority had any control---Magistrate while disagreeing with the discharge report had travelled beyond the jurisdiction in directing the Police to submit the challan against accused---
Muhammad Farooq Qureshi
Versus
Judicial Magistrate Section 30
2010 P Cr L J 261
Lahore-High-Court-Lahore

- In case the Investigator would fail to collect sufficient evidence in support of the charge/allegation, he was required to prepare negative final report under S.173 read with S. 169, Cr.P.C., and to lay it before the Area Magistrate and it was prerogative of the Area Magistrate to agree or disagree with the Police investigation---Under S. 190(1)(b), Cr.P.C. the Trial Court would take cognizance of the offence and not of the offender---If the Trial Magistrate would find that sufficient evidence was available against accused, he was competent to take cognizance of the offence on submission of negative/cancellation report---Contrary to that if the evidence in support of the charge was sufficient, the Investigator would submit final report under S.173 read with S.170 Cr.P.C. before the court---

- After submission of challan in the court, the prosecutor was required to prosecute cause of the State by producing material falling within the definition of “legal evidence”--- Function of the Trial Court was to form an opinion after perusing the Police report, all the documents and statements filed by the prosecution as to whether or not sufficient grounds were available to proceed with the trial of the challaned accused in order to determine the question of his guilt or innocence---Section 265-D, Cr.P.C. governing the subject had laid down that if sufficient ground was available to proceed with the trial, the court would frame a charge against accused; on the other hand, if some material would not exist to connect the challaned accused with the alleged crime; and the Trial Court considered that probability of accused being convicted of any offence or the charge was groundless, accused would be acquitted at any stage of the case under S.265-K or 249-A, Cr.P.C.
Lal Khan
Versus
Station House Officer, Police Station Kotwali Jhang
2010 P Cr L J 182
Lahore-High-Court-Lahore

- Direction of Court to police to submit challan under a specified section---Jurisdiction---Scope---Anti-Terrorism Court had directed the Investigating Officer to submit challan under S.365-A, PPC in the court---Validity---Special Court constituted under Anti-Terrorism Act, 1997, had traveled beyond its jurisdiction while directing the Investigating Officer to submit challan in the court under S.365-A PPC, which was the sole job of the Investigating Agency to submit a report under S.173, Cr.P.C. before the Court of competent jurisdiction---Even S.19 of the Anti-Terrorism Act, 1997, did not empower to the Trial Court to issue such type of direction to the police---Impugned order was not sustainable in law and the same was consequently set-aside---Constitutional petition was accepted accordingly.

- Submission of final report of investigation by police in Court---Court not vested with the power to direct police to submit challan under a specified provision of law---Mandate of law---Section 173, Cr.P.C. is the only provision in the Code of Criminal Procedure enabling the concerned S.H.O. to submit a report of the result of every investigation in the prescribed manner in the Court---No Court including the High Court has the power to override the said legal command and to direct the S.H.O. either not to submit the said report i.e., the challan or to submit the same in a particular manner either against only such persons as the Court desires or only under such offences as the Court wishes.
Ch. Khalid Mushtaq Versus Special Judge (Admn.)
2010 PLD 114
LAHORE HIGH COURT, LAHORE

- Filing of final report by Investigation Officer for cancelling case under “C” class---Disagreement of Magistrate with such report due to availability of sufficient evidence on record to connect accused with offence, thus, directed Investigating Officer to submit report accordingly---Validity---After filing of such report, Magistrate had option either to agree or disagree with the same, but in case of disagreement, he could order further investigation of case by police, and in case when no investigation required to be conducted, then he could take cognizance of offence in terms of S.190, Cr.P.C. Magistrate had no power or authority to direct Police Investigating Officer to file another report under S.173, Cr.P.C., from the one disagreed by him---High Court set aside impugned order and directed Magistrate to pass appropriate orders on such report in accordance with law.
Imran Versus Liaquat Ali
2010 YLE 3288
KARACHI HIGH COURT SINDH

- Report of police officer to be examined judicially by Magistrate---Magistrate while exercising his powers under S.173, Cr.P.C. does not act in a mechanical manner---Order of Magistrate must show his application of mind, his opinion must be supported by reasons and his conclusion must be laced with evidence showing application of judicial mind---Despite all this, order passed by Magistrate is not a judicial order, but is an administrative order, however, it must be a judicious order.
Mst. Eram Versus Muhammad Adnan Chaudhry
2010 YLR 1580
KARACHI HIGH COURT SINDH

-   Case was recommended to be disposed of in class ‘B’ on that basis, however Superintendent of Police (Investigation) had not concurred with the said report and ordered for disposal of case under class ‘A’---Acting on such order, a report under S.173, Cr.P.C was submitted before the Magistrate who without having recourse to the material available with Police passed the impugned order---Sections 457 & 380, P.P.C. and S. 14 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, were non-compoundable---Magistrate had to apply his judicial mind while passing such order, which was conspicuously lacking, and it was not ipsi dixit of the police to decide the fate of a criminal case---Impugned order being not speaking one, no justification of such an order was found from the text of impugned order---Impugned order was set aside and case was remanded to the court of Judicial Magistrate, with the direction to pass proper, legal and speaking order afresh after affording an opportunity of being heard to the applicant, his witnesses and State Counsel.
Meenhan Khan      versus   S.P. Investigation Hyderabad
2010 YLR   40
Karachi-High-Court-Sindh

- Magistrate while scrutinizing the report under S.173,Cr.P.C. and passing order thereon, would not act as a court of law and his order was only an administrative order; however, it must be a speaking order giving valid reasons for his conclusion---Fact that order of Magistrate was an administrative order, would not mean that Magistrate could act arbitrarily; it could not be a judicial order, but it must be judicious one---Magistrate had power to disagree with the conclusion recorded in the Police report---If the Magistrate disagreed with the police report, he had the option of ordering further inquiry---Any other option available to the Magistrate was to take cognizance under S.190, Cr.P.C.---Magistrate could not order cancellation of F.I.R which was in respect of offence triable by a Court of Session.
Rasool Bux Shaikh Versus State
2010 P Cr L J 733
Karachi-High-Court-Sindh

- Said Magistrate on such complaint would proceed with the complaint filed under S. 200, Cr.P.C and after examining the evidence would pass appropriate order by conducting Judicial proceedings without being influenced by his earlier order passed under S.173, Cr.P.C., which was an administrative order judicially made.
Haji Muhammad Zakria Versus State
2010 P Cr L J 691
Karachi-High-Court-Sindh

- Strict adherence of the Investigating Agency to the provisions of S.173 (1), Cr.P.C. stressed---If final report cannot possibly be submitted before or after completion of investigation period prescribed under S. 167, Cr.P.C., the Investigating Agency should strictly adhere to the provisions of S.173 (1), Cr.P.C. and must submit interim challan through Public Prosecutor for trial and should not keep in custody the accused arrested in the case without any legal justification for indefinite period.
Rehan Versus State
2009 SCMR 181
Supreme-Court

- Trial should normally commence, if possible, on the basis of interim report under S.173, Cr.P.C. which must be submitted as per mandatory requirement of proviso to subsection (1) of S. 173, Cr.P.C.---If the commencement of the trial is to be postponed, then the Court must record reasons in writing.
Rehan Versus State
2009 SCMR 181
Supreme-Court

- SS. 156,173 , 170 & 169-Police Order (22 of 2002), Art.18(6)---Police Rules, 1934---Investigation---Scope--- Term “investigation” has not been defined by Pakistan Penal Code, ‘1860’ and Criminal Procedure Code, 1898---Combined examination of the Criminal ‘Procedure Code, 1898, Police Order, 2002 and Police Rules, 1934, however, makes it manifest that investigation consists of spot inspection, collection of evidence, ascertainment of facts in the, light of collected evidence and attending circumstances of the case and apprehension of accused provided the collected evidence is sufficient to connect him with the charge---In case the investigator comes to the conclusion that the evidence is sufficient, he is required to prepare final report under S.173 read with S. 170, Cr.P.C., and if he is of the opinion that the evidence is deficient, then cancellation report is drawn up, in terms of S. 173 read with S. 169, Cr. P.C.
Irshad Muhammad Versus State
2009 P Cr L J 1458
Lahore-High-Court-Lahore

- In the present case while examining the report under S.173, Cr.P.C., the Magistrate came to the conclusion that the case did not warrant its disposal in ‘C-class’---Investigating Officer had simply non-suited the complainant on the ground that the witnesses of the complainant were interested witnesses, but Investigating Officer was not competent to express such opinion in support of disposal of case in ‘C-class’; it was the prerogative of the court to determine as to whether the witnesses were interested witness or not---Magistrate was bound to take appropriate legal action against the Investigating Officer for his default in non-compliance of the direction
Hazaro Versus State
2009 YLR 2464
Karachi High Court, Sindh

- Investigating Officer had recommended the disposal of the case in ‘B-class’---Judicial Magistrate however, rejected the recommendation and directed the Investigating Officer to file challan within one month---Validity---Where report of Investigating Officer was in positive, a proper challan on the proforma within the meaning of clause (b) of subsection (1) of S.173, Cr.P.C. was to be filed---However, in cases where the opinion of the Investigating Officer was in negative, the Investigating Officer normally would file the report giving details of investigation and the reason for reaching the conclusion---Report of Investigating officer seeking disposal of the case under ‘B-class’ reflected that it had not been filed in the Proforma prescribed within the meaning of S.173, Cr.P.C.---Magistrate, in circumstances, was well within his right to direct Investigating Officer to file challan---No case for interference having been made out, application was dismissed.
Muhammad Hassan Versus State
2009 YLR 1479
Karachi High Court, Sindh.

- S.173--- Submission of challan---Investigating Officer under law had to submit a report/summary under S.173, Cr.P.C. within a particular time to the concerned Magistrate, who had to scrutinize the matter on the basis of material submitted before him by the Investigating Officer and to pass an appropriate order and not to act as a Post Office.
Matahir Shah Versus State
2009 MLD 156
Karachi High Court, Sindh

- Trial Court taking cognizance’ after the challan was put in the court under S. 173, Cr.P.C., could take cognizance of any offence disclosed by the material available on the record of the investigation, even though police had not applied the relevant penal provisions---Charge could also be framed in respect of an offence disclosed by the record---If any section of the relevant law was omitted from the charge, the court had the powers to rectify its mistake---
Haleem Versus ------------
2008 PLD 1
Peshawar-High-Court-NWFP

- Ex-Officio Justice of Peace could not make any observation with regard to the nature of offence or direct addition or deletion of a penal provision as same exclusively fell within the domain of Investigating Officer before the challan was submitted; and thereafter the Trial Court which was fully competent to add any offence, if made out from the F.I.R. tendered in terms of S. 173, Cr.P.C. and other material available on the record at the time of framing of the charge---Parties also had the right to address arguments at the time of framing of charge in support of their contentions.
Messrs Shamim Bibi
Versus
Additional Sessions Judge, Lahore
2008 YLR 2017
Lahore High Court, Lahore.

- SS.489-F, 504 & 506(2)---Criminal Procedure Code (V of 1898), S.173---Magistrate while disagreeing with the summary report submitted by the Investigating Officer with the recommendation for disposal of the case under “B” Class, had directed the Investigating Officer to submit the charge sheet under S.173 Cr.P.C. before the Court having jurisdiction---Validity---Accused admittedly had issued the cheque for the amount of Rs.197,000/- in the name of the complainant, which was subsequently dishonoured---Accused had himself instructed the Manager of the Bank concerned to stop payment of the said cheque through a letter, as the payment had already been made to the complainant in cash---Accused took a contradictory stand subsequently when he wrote a letter to complainant acknowledging that the amount of Rs.197,000/- was still outstanding and he requested the complainant to get the payment of the said cheque from the Bank---

- Bank informed the accused by means of a letter that the payment of the said cheque to complainant was still stopped as per instruction of the accused and the complainant once again was put at disadvantage---Said contradictory stand taken by the accused while dealing with the complainant had, prima facie, made out a case under S.489-F, P.P.C.---Magistrate under S.173, Cr.P.C. while taking cognizance of the case was competent to apply his judicious mind to the summary report and then to pass the order---Impugned order revealed that it appeared from the police papers that the investigating team had disposed of the case under ‘B’ (false) class on account of statements of the defence witnesses---Record, however, showed that the accused had given the cheque, which was bounced for want of arrangement, as was also clear from the Bank record---Accused had not denied his signatures on the cheque issued to the complainant and such prima facie evidence could not be brushed aside---Impugned order did not suffer form any illegality---Petition was dismissed accordingly.
Syed Hassan Raza Versus Deedar Hussain Shah
2008 PLD 305
Karachi High Court, Sindh.

- S. 173 Cr.P.C. was not binding on the court and it was for the court to decide, whether sufficient material was available before it to join or not some accused to the case, whose name had been placed in column No. 2 of the challan---Before summoning an accused, whose name appeared in column No. 2 to face the trial, it was not requirement of law that, the Trial Court should first record evidence, but the court could directly summon him to stand trial---If consequent to the police report an accused had been discharged under S. 63 Cr.P.C., even in that case it would not mean that he could not be summoned by the court to stand the trial.
Ramshi Versus State
2008 YLR 1078
Karachi-High-Court-Sindh

- Additional Sessions Judge by issuing the said direction had transgressed his jurisdiction, as it was not open to him to have directed the challan to be submitted under a particular provision of law---If the requisite penal provision was not invoked by the police or the investigation was not conducted on proper lines, Additional Sessions Judge could have asked Investigating Officer to reinvestigate the case and submit his report under S.173, Cr.P.C.

Muhammad Iqbal   Versus   State
2007 MLD 995
Lahore-High-Court-Lahore

-   Judicial Officer (Magistrate) had not independently acted and had failed to exercise his discretion in a lawful manner---Observation of Judicial Officer while disposing of a case, must be self-explanatory, it must contain reasons justifying his conclusion---Disposal of case in slipshod manner, simply stating that he had gone through the entire record and found that no such incident had happened, was not sufficient; he must give cogent reason after discussing material brought before him and the circumstances which came to his knowledge during course of trial to reach such conclusion---No doubt order of cancellation of F.I.R. under S.173, Cr.P.C., was administrative order, but even then while exercising his jurisdiction under said section, concerned Judicial Officer was required to express himself giving impression that while doing so he was performing function as a court.
Muhammad Daiem Shattari    Versus   State
2007 YLR 2038
Karachi -High-Court-Sindh

- Investigating Officer during the course of investigation disbelieved the version of complainant and disposed of the case in B-class, but proceedings were initiated on the basis of the challan submitted on the direction of Magistrate, which was the abuse of the process of Court---Impugned order being beyond the scope of S.173, Cr.P.C., was set aside and further proceedings on the basis of said challan were also quashed.
Peer Ghulam Dastagir Versus State
2007 YLR 930
Karachi -High-Court-Sindh

- Challan of case, though was completed and signed after four days of occurrence, but was not put in Court---Mere signing of complete Challan Form was not observance of provisions of S. 173, Cr.P.C. as regarded submission of interim or complete challan.
Israruddin Versus State
2006 MLD 143
Peshawar-High-Court-NWFP

- Opinion of police and medical report---Evidentiary value---Petitioner had contended that he was found innocent by Investigating Agency and that per the post-mortem examination report, deceased/daughter of complainant met natural death suddenly and that she was not subjected to any violence by the petitioner.

- That Magistrate, while passing impugned order, neither had applied mind consciously nor properly appreciated discharge report which fully supported the case of petitioner; and that no useful purpose would be served by directing police for submission of challan as despite hectic efforts Investigating Agency had failed to collect evidence connecting petitioner with commission of alleged murder of deceased---Validity---Police opinion was not binding on the Court and medical repot could also not be considered as conclusive piece of evidence without recording as well as other prosecution evidence---Since prosecution witnesses in their statements under S. 161, Cr.P.C. had involved petitioner and medical evidence was also yet to be scanned after recording statement of doctor who conducted post-mortem examination of deceased, it could not, in circumstances, be held that Magistrate, while passing impugned order, had committed any illegality or irregularity by disagreeing with the discharge report and directing Police to submit challan in terms of S. 173, Cr.P.C, even otherwise, High Court, while sitting in constitutional jurisdiction, seldom interfered in such-like cases.
Nazar Hussain Versus State
2006 YLR 631
Lahore-High-Court-Lahore

-   Whenever a matter would come to the court for taking cognizance, the Court would take cognizance of the whole of the matter and not only against accused sent for trial---If Trial Court was satisfied about the involvement of petitioner, then it was within cognizance/jurisdiction of the Trial Court to summon him as well to face trial irrespective of the fact that he was not shown as accused in the report under S. 173,Cr.P.C.
-   Direction of trial court to the Agency for submission of a supplementary challan against petitioner and his co-accused, was not justifiable.
-   If the Trial Court was satisfied that sufficient material was on record to proceed against, petitioner, trial court, after taking cognizance of the matter upon the report already submitted by Agency, could summon petitioner to face trial.
-   Impugned order to the extent of direction to the Authority for submission of supplementary report against petitioner, was set aside, with that modification in the impugned order, constitutional petition was disposed of.
Gahna Khan   Versus   State
2006 MLD 1492
Lahore-High-Court-Lahore

-   If the Investigating Officer was found not to have properly investigated the matter and to have submitted the report under the influence of accused, Magistrate could disagree with the same, but his such order of disagreement should have reflected reasons therefore.
-   Impugned order passed by the Magistrate whereby he had called the parties, accused, complainant and his witnesses, amounted to taking cognizance of the mater without assigning any reason for disagreeing with the report of the Investigating officer.
Dawood Khan Versus   Ahsan-Ur-Rehman
2006 MLD 663
Karachi-High-Court-Sindh

SECTION 173 & 344 CR.P.C.

-   Accused was in jail for the last over eight months---Not a single witness had so far been examined.
-   Formalities of SS. 173 and 344, Cr.P.C. had not been complied with and challan against the accused had not been submitted within the stipulated period, resulting in grave miscarriage of justice---Material on file did not make out any offence against the accused.
-   Charge having been framed by Trial Court was no bar in the way of quashment of proceedings.
-   F.I.Rs were quashed.

Muhammad Aslam (Amir Aslam)
Versus
District Police Officer, Rawalpindi
2009 SCMR 141
Supreme-Court

SECTIONS 179 & 182

- Ss. 179 & 182---Muslim Family Laws Ordinance (VIII of 1961), S.6(5)---Constitution of Pakistan (1973), Art. 185(3)---Territorial Jurisdiction---Leave to Appeal---High Court’s judgment that the Court at Lahore had the jurisdiction to try the complaint having been based on S.179, Cr.P.C. was unexceptionable---Both the Courts at Hyderabad and Lahore having jurisdiction to try the matter in view of S.182, Cr.P.C. leave to appeal was refused in circumstances. [P.1902]
Basharat Iqbal Versus The State and another
1993 SCMR 1901
[Supreme Court of Pakistan]
Present: Muhammad Afzal Zullah, C J. And Muhammad Azal Lone, J

SECTION 188 CR.P.C.

- Extra-territorial jurisdiction---expression “found”, as used in S.188,Cr.P.C---Connotation---Quashing of proceedings---Offence was committed in a foreign country and private complaint was filed in criminal court in Pakistan, in which Trial Court issued process against the accused who was a resident of foreign country---Accused raised the plea that after commission of offence, he never arrived/brought in Pakistan, therefore, Trial Court had no jurisdiction in the matter---Validity---Expression “found” used in S. 188, Cr.P.C. meant that a person was physically and actually present at any place in Pakistan or had voluntarily appeared before a Court in Pakistan or appeared in answer to the summons or he was brought before the Court under arrest---Presence of accused anywhere in Pakistan and procurement of his attendance before trial court in Pakistan had not been shown, therefore, Courts in Pakistan taking cognizance of the offence under S. 190(1), Cr.P.C. upon receiving a complaint had no jurisdiction to deal with the accused---High Court in exercise of revisional jurisdiction quashed the proceedings against the accused being without jurisdiction---Revision was allowed accordingly.
Sultan Riaz Khan Versus The State and another
PLD 2007 Karachi 91
Before Muhammad Mujeebullah Siddiqui, J

SECTIONS 190, 193 & 202 CR.P.C.

(a) Criminal Procedure Code (V of 1898)-
-   Sc. 193 (1), 190 (3) & 202 (1) – Private complaint-Court of session has no original jurisdiction to try a criminal case-Private complaint is to be filed with Magistrate who sends same to Court of Session under S. 190 (3), Cr.P.C. if Magistrate find that same was to be exclusively triable by a Court of Session-Sessions Judge, thereafter only may reject complaint or summon accused and proceed with trial.-[Complaint]. [P.1374]A
Plaint, filing of - Procedure for trial illustrated.-[Complaint].
-   A private complaint was filed under sections 6, 11 and 16 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 in the Court of the Sessions Judge which was entrusted to the Additional Sessions Judge who forwarded it to the Magistrate, for inquiry under section 202, Cr.P.C. The Additional Sessions Judge had recorded statement of the complainant as required by the proviso to section 202 (1), Cr.P.C. The Magistrate after holding inquiry sent his report and the complaint to the Additional Sessions Judge, who summoned the petitioners as accused. Petitioners filed application under section 265-K, Cr.P.C. for quashment of proceedings and acquittal of the petitioners which was rejected by the Additional Sessions Judge, who held that it had jurisdiction in the matter. Petitioners have challenged both the aforementioned orders under section 561-A.
-   Held, the Private complaint should have been returned by the Sessions Judge and the complainant should have presented it to the Magistrate concerned who after taking cognizance under section 190(1), Cr.P.C. should have sent it to the Sessions Judge for trial. According to the procedure all complaints have to be filed before the Magistrate who takes cognizance under section 190 (1), Cr.P.C.
Muhammad Saeed And Others
Versus
The State And Others
1984 P Cr. L J 1373 [Lahore]
Before Kamal Mustafa Bokhari, J

SECTION 190 CR.P.C.

-   S. 190(1)(b)---Cognizance of offences by Magistrate---Magistrate under S.190(1) clause (b), Cr. P.C. takes cognizance of an offence upon report made by police officer under S.173, Cr.P.C., which may be positive or negative.
Manzoor Akbar Turk
Versus
Raja Ashiq Hussain
2008 MLD 728
Lahore-High-Court-Lahore

-   S. 190---Powers of Magistrates of First Class---All Magistrates of the First Class, were empowered to take cognizance of any offence---Under S.190(2) Cr.P.C., a Magistrate doing so of an offence triable exclusively by a Court of Session, would, without recording any evidence, send the case to such court for trial---Term “taking cognizance” had been judicially interpreted in its broad and literal sense to mean “taking notice of an offence”.
Ghulam Sarwar   Versus   State
2008 YLR 704
Karachi-High –Court-Sindh

- Notwithstanding the recommendations of the Investigating Officer regarding cancellation of case, it could decline to cancel the case and to proceed as provided under S. 190, Cr.P.C. and summon accused to face trial---Magistrate or the court had not to agree with the police report blindly and pass the order of discharge of accused in a whimsical and arbitrary manner---Order on such report was an administrative one---When a Magistrate would concur or refuse to agree with such police report his order though administrative in nature, but would have to be passed in a judicial fashion.
Naveed Hussain Versus Rashid Iqbal
2007 P Cr L J 1710
Shariat Court, Azad Kashmir

SECTION 190 & 173 CR.P.C.

- SS.173 & 190---Penal Code (XLV of 1860), S. 324---Purpose of examination of report under S.173 Cr.P.C.---For the purpose of examination of report under S.173, Cr.P.C., office of Judicial Magistrate, would be considered in two different categories, one as judicial officer and other as administrative officer---While functioning on administrative side, he would discharge his duties as persona designata and not as a court, and while discharging his duties as a persona designata, though he was required to examine the material placed before him, but was not bound to explain each and every aspect of case and give its reason for acceptance and rejection---Offence under S. 324, P.P.C. was exclusively triable by the court of Session---After receiving the report under S. 173, Cr.P.C., Magistrate was therefore required to forward the same to the Court of Session as provided under S. 190, Cr.P.C. without recording evidence.
Bader Maqbool Versus State
2008 MLD 1676
Karachi-High-Court-Sindh

- Accused sought quashing of F.I.R. from High Court under its constitutional jurisdiction---High Court disposed of the petition with a direction to Station House Officer, to file final report only against one accused and under only one offence---Validity---Only provision relating to the subject which was available in Criminal Procedure Code. 1898 was S. 173. which commanded expeditious conclusion of investigations and further ordained that on conclusion of every investigation, the concerned Station House Officer would submit a report of the result thereof in the prescribed manner to Magistrate competent to take cognizance under S.190, Cr.P.C---No power vested with any Court, including High Court to override the legal command and to direct Station House Officer either not to submit investigation report (challan) or to submit the report in a particular manner.
Muhammad Nasir Cheema Versus Mazhar Javaid
2007 PLD 31
Supreme-Court

Mushtaq Hussain Bokhari Versus The State
1991 S C M R 2136
Supreme Court

SECTION 193, 403, 173

- Accused were declared innocent during investigation but Trial Court summoned to face trial – The principle of double jeopardy not attracted in this case.
Sher Muhammad Unhar V. State
PLD 2012 S.C. 179

SECTION 204

- If a person appears before the Court pursuant to a process u/s 204 Cr.P.C in a non-bailable offence, court cannot release him merely on filing of surety bonds rather he can be released after giving bail.
Muhammad Iqbal Vs. Addl. Sessions Judge
PLD 2012 Lah. 33
Ref: 2010 SCMR 611.

SECTION 227 CR.P.C.

- Charge once framed, would not become rigid or irrevocable; it could be altered or changed under S. 227, Cr.P.C., if it was so warranted by the circumstances.
Muhammad Ashraf Versus State
2008 PLD 578
Lahore-High-Court-Lahore
SECTION 249-A & 265-K CR.P.C.

- Acquittal---Quashing of proceedings---Sections 249-A & 265-K/Cr.P.C. empowered the Courts to acquit accused at any stage of the case---Section 561-A, Cr.P.C. was to be invoked after or without recourse to provisions of Ss.249-A & 265-K, Cr.P.C. as the case could permit---Authority to acquit accused at any stage of the case for permitting the abuse of the proves of court; and to secure the ends of justice, fell within the ambit of inherent powers vested in High Court to quash the criminal proceedings for the promotion of justice.
Zia Zakaria
Versus
Ist Additional Sessions Judge Thatta
2011 MLD 406
Karachi-High-Court-Sindh

Section 345(2) Cr.P.C.

- Pleas of prosecution that unless the absconders appear before the Court offence could not be compounded was not correct – application of absconders could not be disallowed. All were acquitted U/S 345 (6) Cr.P.C.
Manzoor Ahmed Vs. 2nd Addl. Sessions Judge.
PLD 2012 Sindh 35 (D.B)
Ss. 345 Cr.P.C.
Penal Code Ss. 302, 310
Constitution Art. 212(3)

- Civil servant acquitted from murder charge by paying Diyat – Service terminated due to absence being in detention and also the plea that payment of Diyat was equated with conviction – Held – offence was lawfully compromised. Such acquittal of civil servant could not be takne as his disqualification, coming in the way of his reinstatement.
Director General I.B. Vs. Muhammad Javed
2012 SCMR 165

SECTION 369 CR.P.C.

- Criminal Procedure Code (Cr.P.C)—S. 369–Judgment–Review-Magistrate reviewing his earlier judgment thereby reversing conviction of accused into acquittal on ground that he meant to acquittal on ground that he meant to acquit accused but mentioned his name as one of convicts due to oversight-Nothing on record or in earlier judgment showing intention on part of Magistrate to acquit accused but on contrary trend of judgment showing accused equally guilty along with co-accused - Magistrate, held, exceeded his powers in writing an unreasoned judgment of acquittal in favour of accused – Judgments once signed and announced cannot be reviewed except for correction of clerical errors – Questions of judicial determination arising after delivery of judgments – Must be left for higher courts.
Ghulam Raza Versus State
1974 P CR L J 95
Lahore-High-Court-Lahore

SECTION 382-B CR.P.C.

- Consideration of period of detention while awarding sentence to accused and giving benefit of S.382-B, Cr.P.C.---inherent jurisdiction of High Court---Scope---Petitioner had prayed for grant of benefit of S.382-B, Cr.P.C. contending that it was mandatory upon the Trial Court to consider the question of grant or otherwise of the benefit of S.382-B, Cr.P.C., but same had not been done in the case of the petitioner---Validity---High Court had inherent jurisdiction to extend the benefit of the provisions of S.382-B, Cr.P.C. to a convict---Petition filed by the petitioner was allowed and he was extended the benefit of S.382-B, Cr.P.C.---Period of detention of accused as under-trial would be counted towards his sentence.
Yasin alias Bhutto Versus The State.
2010 MLD 998
Lahore High Court, Lahore

SECTION 395 & 412 CR.P.C.

- Ss.395 & 412---Qanun-e-Shahadat (10 of 1984), Art, 22---Punjab Criminal Prosecution Service (Constitution, Functions and powers) Act (III of 2006), Ss. 10 & 12---Dacoity and dishonestly receiving property stolen in the commission of dacoity---Identification Parade---Procedure of arrangements---Guidelines by High Court---procedure for making arrangements for identification parade easier was prescribed by High Court for circulation to Prosecutor General, Advocate-General, Additional Inspector general of Police (Investigation) and all the Sessions Judges of the Province, who shall pursue the same and circulate it to al concerned and subordinate courts and offices for appropriate legal action and observance.
Walayat Versus State
2008 PLD 470
Lahore-High-Court-Lahore

Sect. 403 of Cr.P.C
Article 13 of the Constitution

- Same Offence/ Double Jeopardy
Difference in elements to be proved in two instances would not make them same offence. Charges before Accountability Court were under Ss. 9(a) & 10(a) of NAB Ord. which related to fraudulent misappropriation, dishonest/corrupt practices or obtaining any benefit willfully which he could not obtain lawfully – Offence under the Companies Ordinance, 1984 related to violation & non-compliance of statutory requirements in respect of books of accounts, keeping true and fair contents of balance sheet and making false statement – So essential ingredients in both cases were quite different. Appellant could be prosecuted under Companies Ordinance, 1984 and same would not amount to double jeopardy in terms of Art. 13 of the Constitution & Sect. 403 of Cr.P.C.

Muhammad Nadeem Anwar Vs. Securities & Exchange Commission
PLD 2012 Peshawar 15.

Ss. 410 & 417(2-A).

- Principles of appeal against acquittal were different from the ones against conviction Presumption of innocence of accused was double in case of acquittal. Principles on question of setting aside acquittal enumerated in 2009 SCMR 946.

Rab Nawaz Vs. Abdul Rahman
PLD 2012 Peshawar 32.

Sec 491 read with sec.12 &25 of Guardian & Wards act 1890

- Jurisdiction of criminal courts u/s 491 Cr.P.C is not ousted on account of provisions of section 12 , 25 of guardian and wards Act, criminal courts have jurisdiction where custody has been illegally removed from lawful custody.
PLD 1995 SC 633
1988 SCMR 1891
PLD 1969 SC 187

SEC. 561-A

- Criminal cannot review to orders – however any order passed without jurisdiction could be recalled or varied under inherent powers.
PLD 1995 SC 633
PLD 1970 SC335

- S.489-F---Quashing of proceedings---Challan in the case was submitted against al the persons named in the F.I.R.---Two accused persons/Petitioners moved application for their discharge, but the Trial Court refused to discharge them despite the fact; that in report under S. 173, Cr.P.C., both petitioners were placed in column No.2 with the remarks that they were innocent---Complainant had specifically alleged that cheque in question was issued by person other than the petitioners---High Court, on petition under S. 561-A, Cr.P.C., had come to the conclusion that case against petitioners could not proceed on the basis of record and directed the Trial Court not to proceed against them with direction that case against petitioners would be regarded having been cancelled.
Muhammad Younis Versus State
2006 P CR L J 994
Lahore-High-Court-Lahore

SECTION 9 & 561-A CR.P.C.

-   Protective/enabling bail is nowhere defined or provided in Criminal Procedure Code, 1898.
-   It is an injunctive order in exercise of inherent powers by High court, which is being termed as protective or enabling bail---Court of session does not have inherent powers under S.561-A, Cr.P.C. and being creation of S.9 Cr.P.C., Sessions Judge or Additional Sessions Judge are competent to grant post-arrest bail in cases pertaining to their sessions division---Court of Session is not vested with inherent powers to pass restraining order/enabling bail in cases pertaining to another sessions division.
Naseer Ahmed   Versus       State
2009 PCrLJ 1430
Lahore-High-Court-Lahore

SECTION 491 & 561-A CR.P.C.

-   Ss.491 & 561-A---Habeas Corpus Petition---Maintainability---Custody of minors---Cases pertaining to custody of children should not be decided on technicalities---Where petition under S.491, Cr.P.C is not found to be competent due to absence of element of illegal custody by the father of his own child, High Court can also pass an appropriate order in exercise of its inherent jurisdiction.
Natasha Rashid   Versus   Rashid Zar
2010 PLD 119
Karachi-High-Court-Sindh

SECTION 497 CR.P.C.

- S. 497(2)---Penal Code (XLV of 1860), SS. 302/201/148/149---Bail, grant of---Further inquiry--- Accused persons though were nominated in the F.I.R., but no direct evidence was available on record regarding murder of the deceased---Though murder of a human being had been committed, but there was no reason, especially in the absence of any direct evidence to connect accused persons with the alleged crime---None amongst accused persons had been attributed specific role---During the investigation two accused persons were found innocent and placed in column No. 2 in the report submitted under S. 173, Cr. P.C., while another one was placed in column No.3---Such facts had made case against accused persons one of further inquiry entitling accused for grant of bail.
Shah Nawaz Versus State
2009 YLR 2300
Lahore-High-Court-Lahore

- Only one firearm injury suffered by deceased had not been specifically attributed to any one of said six accused person---Complainant and prosecution witnesses made a vague and general allegation that six accused person, including accused resorted to firing in the darkness of night as a result of which the deceased suffered one fire shot, which proved fatal; in other words six accused persons including accused had been lodged judicial lock-up for having caused one injury to the deceased---Trial Court did not take into consideration the mode and manner of the incident set up in the F.I.R.---Accused was extremely old man---Senior Medical Officer, Jail Hospital found accused patient of “Parkinsonism” and his whole body was shivering uncontrollably and as a result the iron handcuff injured his wrist joint---Section 497, first proviso Cr.P.C. had clearly laid down that any sick or infirm person, accused of an offence punishable with death or imprisonment for 10 years, could be released on bail.
Mansabdar Versus State
2009 MLD 641
Lahore-High-Court-Lahore

- S. 497---Penal Code (XLV of 1860), SS. 302/324/147/149---Bail, refusal of---Accused had allegedly killed two persons, father and son, by firing---Post-mortem reports, of the deceased had supported the causing of fire-arm injuries---Contention that during investigation only two accused were found guilty of firing on the deceased persons had no force, because according to the report under S. 173, Cr.P.C., another accused had, raised “Lalkara” telling others not to let the deceased go alive and still another accused was present at the place of occurrence armed with a gun---Presence of other accused persons at the spot armed with lethal weapons also was not denied and was established by eyewitnesses---Accused, prima facie, had waylaid, chased and killed the deceased and being members of unlawful assembly were not entitled to concession of bail---Bail was declined to accused in circumstances.
Muhammad Rafique Versus State
2008 P Cr L J 351
Shariat-Court-Azad-Kashmir

- Accused was not named in F.I.R., but his name had surfaced in the case for the first time through a supplementary statement made by the complainant after six days of the alleged occurrence-Complainant had implicated accused exclusively on the basis of an extra-judicial confession allegedly made jointly by two accused before the complainant---Said joint extra-judicial confession was devoid of any evidentiary value---Complainant, in the F.I.R., had specifically nominated three culprits, in supplementary statement made by him, he exonerated said nominated culprits and instead introduced five others including accused as the culprits---

- No stolen article had been recovered from the possession of accused during investigation in the case---Although a pistol had been recovered from the custody of accused, during the investigation, but prima facie, nothing was available on the record of investigation to connect said pistol with the alleged offence---Investigation of the case had already been completed and the report under S. 173, Cr.P.C. had been submitted by the police and it had expressly been recorded in the report that accused had never entered the house where alleged occurrence had taken place and throughout the said occurrence; accused kept on standing out in the street---Case against accused, calling for further inquiry into his guilt within the purview of subsection (2) of S. 497, Cr.P.C., he was admitted to bail, in circumstances.
Muhammad Yousaf Versus State
2008 P Cr L J 1762
Lahore-High-Court-Lahore

- S. 497---Penal Code (XLV of 1860), SS. 302/324/337-A (i), (ii), (vi)/ L(1), (2)/148/149---Bail, grant of---Son of complainant, according to F.I.R., had been injured by co-accused and in the mid of incident accused had raised “Lalkara” upon which co-accused gave injuries to the injured prosecution witness---Accused had not caused any injury either to the deceased or to the injured witness---Whether the accused had shared common intention with co-accused was a question of further inquiry---Incident had taken place at the spur of the moment--- Submission of report under S. 173, Cr.P.C. was not a bar to the grant of bail to the accused at any stage of the case.
Shahid Hussain Versus State
2007 YLR 1179
Lahore-High-Court-Lahore

- According to F.I.R. itself accused, was empty handed at that time---Accused had not caused any injury to any person during alleged occurrence and only role attributed to him in the F.I.R. was that of catching hold of deceased and facilitating his co-accused to fire at deceased which allegation prima facie appeared to be unbelievable.

- Investigation of the case had already been finalized and report under S.173, Cr.P.C. had been submitted according to which investigating agency had found that accused was not present at the scene of the crime at relevant time and that he had arrived at the spot after the main incident was already over, he was admitted to bail.
Muhammad Saleem Versus State
2007 YLR 1030
Lahore-High-Court-Lahore

- S.497---Penal Code (XLV of 1860), SS.302, 324, 148 & 149---Bail, refusal of---Case of one deceased and one injured, who had received fire-arm injuries on the vital part of her body, which injuries were attributed to accused---Injured person supporting the prosecution case had made statement against accused---Contention of accused that he had been declared innocent, was totally wrong---Counsel for accused had himself produced copy of challan/report under section 173, Cr.P.C. wherein name of accused had been placed in Column No.3, while his co-accused had been placed in Column No.2 being proclaimed offenders and had been shown in red ink---No merit having been found in the petition, same was dismissed.
Ghulam Rasool Versus State
2007 P Cr L J 1751
Lahore-High-Court-Lahore

-   Injury on person of injured had been declared as falling within the purview of S. 336, P.P.C. only on the basis of damages of one nerve and not due to the loss of “Salahiat” of ear---Whether S. 336, P.P.C. was made out or not, was the question of further inquiry---Other injury attributed to respondent/ accused fell within purview of S. 337-F(iii), P.P.C. which was punishable with three years’ imprisonment.
-   Application for cancellation of bail, having no merit, was dismissed.
Muhammad Akbar       Versus   Muhammad Akhtar
2006 YLR 3123
Lahore-High-Court-Lahore

- No specific manner/procedure for filing of petition for cancellation of bail had been prescribed either in control of Narcotic Substances Act, 1997 or in Criminal Procedure Code, 1898---Section 487 (5), Cr.P.C., had conferred unrestricted powers on High Court and on the Court of Session in case of a person released by itself or by any other Court for his arrest for committing to custody---Powers of cancellation of bail under S.497(5), Cr.P.C could in no manner, be restricted to any specific class of persons because such intention of Legislature did not flow from those provisions---Petition for cancellation of bail being continuation of proceedings of grant of bail, could be followed by the Prosecutor who appeared in bail matters, on the basis of authority conferred on him---Section 47 of Control of Narcotic Substances Act, 1997 had made Code of Criminal Procedure, 1898 applicable.
State Versus Malik Amir
2005 YLR 1411
Lahore-High-Court-Lahore

SECTION 497(2)

- Bail cannot be refused only due to alleged abscondence – abscondence is a factor relevant only to propriety.
Qamar alias Mitho V. The State.
PLD 2012 S.C. 222.

SECTION 498 CR.P.C.

- S. 498---Penal Code (XLV of 1860), SS. 337-A(i)(ii) & 337-F(v)/34---Pre-arrest bail, confirmation of---Only one injury fell under S. 337-A(ii), P.P.C., which was attributed to co-accused and other injuries in the case fell under SS.337-A(i) & 337-F(i), P.P.C., which were bailable---Even otherwise, accused had joined the investigation and report under S. 173, Cr.P.C. had been submitted before the Trial Court and no useful purpose would be served by sending accused to jail---Ad interim pre-arrest bail already granted to accused was confirmed, in circumstances.
Tariq Sajjad alias Tahir alias Tahli
Versus
State
2008 MLD 332
Lahore-High-Court-Lahore

-   S.498---offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), Ss.5(6), 10 & 12---Ad interim pre-arrest bail, confirmation of---Jurisdiction of High Court.
-   Claim in respect of ouster of power of High Court concerning any matter or subject available to it under Codes of Civil or Criminal Procedure, could not be lightly accepted, unless there was a clear, definite and positive provisions ousting the jurisdiction---Express words or clear intendment or necessary implication were required to take away the jurisdiction of a High court or any other superior court.
Abdul Rasheed   Versus       The State
2003 PLD 682
Karachi-High-Court-Sindh

SECTION 561-A CR.P.C.

- Provisions of S. 561-A, Cr.P.C had saved/protected inherent jurisdiction of High Court to pass any order to secure the ends of justice and prevent the abuse of process of the court.
M. Naeem
Versus
The State through Prosecutor General, Province of Sindh..
2010 P Cr. L J 1039
Karachi High Court, Sindh

- S. 561-A---inherent jurisdiction under S. 561-A, Cr.P.C.---Scope---Proceedings under section 561-A, Cr.P.C. do not provide any additional or alternate remedy and High Court cannot assume the function of Trial Court; however, in appropriate cases, in order to avoid the abuse of process of Court, High Court in exercise of its power under section 561-A, Cr.P.C. can quash the proceedings.
Dr. Muhammad Naseem Versus State
2009 YLR 252
Karachi-High-Court-Sindh

-   S.561-A---Quashing of order---inherent jurisdiction of High Court-Scope.
-   Purpose of invoking provisions of S.561-A, Cr.P.C. was mainly to prevent abuse of process of court; and to secure the ends of justice.
Khuda Bux      Versus   The State
2010 P MLD 864
Karachi High Court, Sindh

- High Court possessed inherent powers under S.561-A, Cr.P.C., but said provisions were not meant for the purpose of thwarting the criminal proceedings pending in the lower courts and the High Court, ordinarily, would not interfere at intermediate stage of criminal proceedings in a subordinate Court---In certain cases wherein apparently a miscarriage of justice had occurred and there was no probability of any kind of conviction and that apparently the continuation of the proceedings amounted to abuse of process of law, the High Court; in order to prevent the abuse of process of Court, must interfere and if the prosecution, on the face of it, was illegal, the proceedings in such cases could be rightly quashed.
Muhammad Ali Versus Muhammad Aslam.
2002 MLD 726
Karachi High Court, Sindh

- Quashing of order or proceedings---Jurisdiction of High Court---Scope and nature---High Court, in exercise of its power under S.561-A, Cr.P.C. normally would refrain from interfering in normal course of trial or subordinate courts, particularly where evidence had not been recorded---Inherent jurisdiction of High Court could not be invoked merely because accused considered allegations leveled against them to be false---Jurisdiction under S.561-A, Cr.P.C. was not additional or alternate but such powers were to be exercised sparingly to correct errors of law in exceptional cases.
Abdul Hussain Versus Muhammad Shabbir.
2000 YLR 1603
Karachi High Court, Sindh

- Quashing of F.I.R.---Disputed question of facts could not be gone into by High Court while exercising its extraordinary Constitutional jurisdiction---If an offence had, prima facie, been committed, the same should be inquired into and tried by Trial Court---inherent jurisdiction of High Court was not an alternative or additional jurisdiction.
Sh. Naveedur Rehman Versus The State.
2010 P Cr. L J 1340
Lahore High Court, Lahore

- Criminal Procedure Code (Cr.P.C) ---S. 561-A---Inherent powers of High Court---High Court in appropriate case can exercise jurisdiction under S.561-A, Cr.P.C. as the powers of High Court are co-extensive with powers of Trial Courts under Ss. 265-K or 249-A, Cr.P.C.
Muhammad Nawaz Versus State
1994 MLD 1102
Karachi-High-Court-Sindh

- Constitution of Pakistan 1973----Art. 199---Criminal Procedure Code (V of 1898), Ss. 561-A & 156---Constitutional jurisdiction and inherent powers of High Court---Interference with investigation and re-investigation---Superior Courts cannot control investigations and re-investigations, but are empowered to strike down any order of re-investigation if the same is based on mala fides or is ulteriorly motivated---Court cannot stop the investigation and cannot strike down an order of re-investigation merely on the ground that previously a police officer has finalized the investigation.
Ghulam Abbas Shah
Versus
D.I.G of Police, Rawalpindi Range, Rawalpindi.
2001 YLR 186
Lahore High Court, Lahore

- S. 561-A---Inherent powers of High Court---Scope---Prima facie case---Effect---Inherent jurisdiction is not an alternative or additional jurisdiction---Such is only in the interest of justice to redress grievances for which no other procedure is available---Power given by S.561-A, Cr.P.C. cannot be so utilized as to interrupt or divert ordinary course of criminal procedure as laid down in procedural statute---criminal cases should proceed before courts concerned in accordance with normal law---If prima facie case is made out, the proper course is that the same be tried---Mere claim of innocence by accused can never be considered sufficient to justify such departure because if the same was permitted then every accused person would opt to stifle prosecution and to have his guilt or innocence determined under S.561-A, Cr.P.C.
Muhammad Channah
Versus
Province of Sindh through Home Secretary.
2011 P Cr. L J 952
Karachi High Court, Singh

- S.561-A---inherent powers of High Court---inherent jurisdiction of High Court under S.561-A, Cr.P.C. is not of an alternate or additional character and is to be invoked rarely only in the interest of justice for seeking redress of grievances, in the absence of any other procedure---Section 561-A, Cr.P.C. should not be availed to obstruct or to divert the ordinary course of criminal procedure.
Muhammad Ghufran Versus The State
2010 P Cr. L J 351
Karachi High Court, Sindh

- S. 561-A---inherent jurisdiction of High Court, exercise of---Exercise under S.561-A, Cr.P.C. has to be made sparingly and rarely in most appropriate cases in order to save a party from harassment and abuse of the process of the court---Nevertheless, jurisdiction of High Court under S.561-A, Cr.P.C. is very wide and indefinable, but the same has to be exercised subject to limitations imposed by law and it cannot by pass the express provisions of the Criminal Procedure Code, 1898.
Ghafoor Aslam Versus State
2009 P Cr L J 1108
Lahore-High-Court-Lahore

- Inherent jurisdiction of High court, exercise of---No invariable rule of law exists for the exercise of jurisdiction under S. 561-A, Cr.P.C---It depends on the facts of each case whether to allow the proceedings to continue or to nip the same in the bud.
Ghafoor Aslam Versus State
2009 P Cr L J 1108
Lahore-High-Court-Lahore

- Art. 199---Criminal Procedure Code (V of 1898), S.561-A---Quashing of F.I.R.---Practice and procedure---High Court is always reluctant in quashing the F.I.R. in exercise of constitutional jurisdiction and inherent powers, but at the same time it is high time for taking effective legal steps to keep the government functionaries, departments, institutions and agencies within their allotted sphere.
Rashid Mirza Versus Regional Director
2009 MLD 25
Lahore-High-Court-Lahore.

- When on the face of it no case was made out against the accused, or there was lack of jurisdiction or when there was sheer abuse of the process of law, High Court under its inherent powers under S. 561-A, Cr.P.C. could quash the F.I.R. or even proceedings for that matter---Impugned F.I.R was based on mala fides and ulterior motives and the same being not sustainable was quashed accordingly.
Nizar Ali Fazwani Versus Pak Golf Leasing Company Ltd.
2009 CLD 237
Karachi-High-Court-Sindh

- Ss.561-A, 63 & 169---inherent jurisdiction---Scope---Court can rectify the injustice done in the case, when the, order was a result of mala fides on the part of the police in getting the accused discharged by Magistrate.
Tariq Habib Versus State
2009 YLR 1364
Karachi-High-Court-Sindh

- SS. 419, 420,468 & 471- Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal procedure Code (V of 1898), SS. 63,195(1)(c), 435, 439 & 561-A---Constitution of Pakistan (1973), Art, 185 (3)---Inherent jurisdiction of High Court, exercise of---Discharge of accused---Exercise of discretion by Magistrate---Principles---Accused were discharged by Magistrate under S. 63 Cr.P.C. on the ground that alleged forged document was also subject-matter of civil suit pending before civil court and no complaint was filed by the court concerned---Order passed by Magistrate was maintained by Lower Appellate Court but High Court in exercise of Powers under S.561-A, Cr.P.C. set aside the discharge order---Validity---Magistrate concerned had discretion to pass order under S. 63 Cr.P.C. to discharge accused persons---
- Such discretion must be exercised by the concerned Magistrate justly and fairly; in case discharge order was passed by Magistrate mechanically without application of his independent mind to the facts of case, blindfolded acceptance of a recommendation of police in that regard, perversity of reasoning and adoption of a procedure which offended against letter and spirit of law, relating to discharge, then High Court had ample jurisdiction to interfere and set aside such order under S. 561-A, Cr.P.C.---Magistrate while concurring with a police report submitted under S.173, Cr.P.C. did not act as criminal Court subordinate to the Court of Session and High Court---Such order of Magistrate could not be set aside, revised or modified under the provisions of SS.435 and 439, Cr.P.C. but it was amenable to inherent jurisdiction of High Court under S. 561-A, Cr.P.C. provided the order amounted to abuse of process of Court---Magistrate could effectively grant release to a person who was arrested or detained without sufficient cause---High Court was vested with authority under S.561-A. Cr.P.C. to exercise such power to secure ends of justice, suppress patent mischief if non-interference with the order would perpetuate injustice, in case the Magistrate concerned had passed the order without judicial application of mind---Supreme Court did not find any infirmity or illegality in the Judgment passed by High Court---Leave to appeal was refused.
Hidayatullah and others
Versus
The State through Advocate-General, N.W.F.P.
Peshawar High Court, Peshawar
2006 SCMR 1920
Supreme-Court

- Criminal Procedure Code (Cr.P.C)---S.561-A---Inherent jurisdiction of High Court---Concept elucidated. Power under section 561-A, Cr.P.C is not mean to stifle the prosecution but it is intended to prevent the abuse of the process of court. For quashing proceeding at the initial stage before framing the charge and recording the evidence the Court has to consider the allegations made against the accused on their face value and if a prima facie case is made out the Court can refuse the quashment. The High Court under section 561-A, Cr.P.C cannot assume the role of trial Court and evaluate/assess the evidence which is yet to come. It is the function of the trial Court. High court cannot embark upon such an exercise to determine the guilt or innocence of a person by way of a detailed enquiry. The accused may have a good defence but they have to pass the test of cross-examination and the appreciation of defence evidence is also the duty of the trial Court in the light of the statutory provisions and the dictums laid down by the superior courts. The jurisdiction under section 561-A, Cr.P.C. is an extraordinary one and powers vested in the High Court are to be exercised sparingly and not generally or as a matter of routine.
Gulam Mustafa Versus State
1999 YLR 1616
Karachi-High-Court-Sindh

- Application for sending the case to the Court of Magistrate under Section 30, Cr.P.C. having been dismissed by the Additional Sessions Judge, the accused had filed petition under S.561-A, Cr.P.C. which had been converted by the High Court into a revision--Courts below had failed to appreciate the fact that S.31 P.P.C. which deals with cases relating to Qatl-e-Khata, was an independent offence and had no nexus with S.302, P.P.C. which deals with cases relating to Qatl-e-Amd.
Shaukat Hussain Versus The State.
2002 P Cr. L J 432
Lahore High Court, Lahore.

- Criminal Procedure Code (Cr.P.C) ---S, 151---Criminal Procedure Code (V of 1898), S.561-A---Inherent jurisdiction of High Court—Application for quashing of plaint under S. 151, C.P.C. pending adjudication---Maintainability---Juxtaposed examination of S.151, C.P.C and S.561-A, Cr.P.C---Courts are equipped with necessary enabling powers to pass orders to do acts which are necessary to do substantial justice between the parties, within the framework of reason, good conscience and fairness---Necessary elements for exercise of such power enumerated---High Court, in exercise of its authority under S.151,C.P.C. cannot entertain any application to quash a plaint/appeal which is before either the court of trial or the court of appeal---Power of High Court under S.151, C.P.C. is not coextensive with the power of the court below and can be exercised only where the lis is pending before High Court---courts of trial, courts of appeal and revisional courts are invested with powers by specific provision of Cr.P.C to do the said job---Principles---High Court in view of S.561-A. Cr.P.C. is not subject to limitation and is empowered to recall or alter its order if some mandatory provisions of law have been violated---[Irshad Ahmad v. Muhammad Jamil PLD 1994 Lah. 583 dissented from.
Sajjad Amjad Versus Abdul Hameed
1998 PLD 474
Lahore-High-Court-Lahore

- Prima facie it appeared that entire material collected by the Investigating Officer, was considered by the Magistrate and then passed the order on merits and discussed all merits and demands of the case---Validity---Powers of High Court under S.561-A, Cr.P.C. were to be used not in each and every case, but rarely in appropriate cases and there must be a material on the basis of which orders passed by the courts below be set aside---When two courts below came to the conclusion that no fruitful result would be achieved, if matter proceeded, no interference was required---Magistrate was not to fill the lacuna left by the Investigating Officer and to act as Investigating Officer of the case or to be a party, but he had only to scrutinize the matter on available material and it would depend upon him to agree or disagree with police report---Counsel for applicant had failed to show any illegality which amounted to an abuse of the process of law---Orders passed by the two courts below were proper, legal and in accordance with law and no illegality or material irregularity was committed by the courts below.
Matahir Shah Versus State
2009 MLD 156
Karachi High Court, Sindh.

SECTIONS 561-A, 439-A & 439 CR.P.C.

- Criminal Procedure Code (Cr.P.C)---Ss. 561-A; 439-A & 439---Inherent power of High Court---Effect on other courts---High Court, no doubt, has inherent powers-under S. 561-A, Cr.P.C. to interfere with any order or proceedings in the interest of justice or where miscarriage of justice has been caused or where such an interference has been necessitated to meet the ends of justice, but vesting of such general power in the High Court cannot be said to have the effect of depriving other courts of the powers conferred on them by or under the Code of Criminal Procedure.
Tariq Versus State
1994 P CR L J 2297
Lahore-High-Court-Lahore

SECTIONS 561-A & 435 CR.P.C.

- Criminal Procedure Code (Cr.P.C)---Ss. 561-A & 435-Inherent powers of High Court, exercise of---Provisions of S.561-A, Cr.P.C. cannot be pressed into service to agitate against concurrent findings of two competent courts below arrived at after appraisal of evidence.
Shah Jahan Alamgir Shahanshah, Advocate
Versus
Muhammad Sharif
1989 PCRLJ 374
Karachi-High-Court-Sindh
SECTIONS 561-A & 397 CR.P.C.

- Ss.561-A & 397---inherent jurisdiction of High court---According to the specific provisions of S.397, Cr.P.C. it is the prerogative of the Trial Court or the Appellate Court to pass a direction for the sentences to run concurrently or not---High Court, therefore, cannot pass such a direction on a petition filed under S. 561-A, Cr.P.C.
Gulzar Ahmad
Versus
Superintendent District Jail, Faisalabad
2009 MLD 1068
Lahore-High-Court-Lahore

SECTION 561-A CR.P.C.

- S.561-A---Constitutional jurisdiction and inherent powers of High Court---Scope---High Court, in exercise of constitutional jurisdiction and inherent powers, was supposed to take effective steps to safeguard legal rights of the people and the system.
Lal Khan
Versus
Station House Officer, Police Station Kotwali, Jhang.
2010 P Cr. L J 182
Lahore High Court, Lahore

PLEA OF ALIBI

- When accused admits that he was not present at the place of occurrence by taking the plea of alibi then he cannot claim right of private defence, as it is self destructive---Plea of right of private defence can be taken by a person who admits the act charged against him but pleads an excuse---If a person states that he did not do the act at all, it is difficult to see how at the same time the question of right of private defence would arise---Such fact by itself is sufficient to discard the plea of right of private defence.
Mushtaq Hussain Versus State
2011 SCMR 45
Supreme Court

- Qatl-e-Amd and attempt to commit Qatl-e-Amd---Bail, refusal of---Alleged plea of alibi of accused was a question to be determined by the Trial Court---Such plea of alibi was required to be proved through exhaustive, cogent and reliable evidence; and not merely on the basis of statements of few persons recorded under S.161, Cr.P.C. by the Police---On the basis of available record, accused was reasonably connected with the commission of the offence, which carried a capital punishment and fell under the prohibitory clause of S.497, Cr.P.C.---Bail was refused.
Sami Ullah Versus Mst. Kalsoom Bibi
2011 P Cr. L J 550
Peshawar High Court, NWFP

Qatl-e-Amd and attempt to commit Qatl-e-Amd---Bail, grant of---Further inquiry---Four accused were male members of the same family, wherein one was stated to be present in the Military Unit on the date of occurrence; and he had been placed in column No.2 of the challan---Accused though were charged for an offence carrying capital punishment falling under the restrictive part of sub-section (I) of S.497, Cr.P.C., but the court had to make a tentative assessment of the prosecution case; and the plea of defence at bail stage for arriving at a conclusion as to whether reasonable grounds existed to hold that accused were reasonably connected with commission of offence---Plea of alibi raised by one of accused persons was found correct and his name was placed in column No.2 of the challan, which made the case of accused one the case of further inquiry---Accused were allowed bail, in circumstances.
Naimat Ullah Versus State
2011 MLD 935
Peshawar High Court, NWFP.

- Presence of accused with the deceased at the place of occurrence was established---Accused tried to destroy the evidence of the case by raising false plea of alibi through concocted and tampered entry in the register of the Hotel wherein he claimed to have stayed on the date of occurrence---Conduct of the accused remained dubious; instead of registering the F.I.R., he fled the scene and tried to create false story of alibi which suggested his involvement in the case.
Sarmad Mehmood Ahmad Versus State
2011 YLR 439
Lahore High Court, Lahore

-   Truth or otherwise of the plea of alibi taken by accused would be considered and decided by the Trial Court after recording the evidence of the parties.
Naeem Shamshed   Versus   State
2011 YLR 833
Karachi High Court, Sindh.

-   Statement of alleged victim made under S.164, Cr.P.C., was not in consonance with the statement of complainant---Record prima facie showed that the victim girl was expelled from the school due to her absence---Even enrolment of one of accused, was also cancelled in the school---No independent eye-witnesses were available as to the attendance of said accused or the victim in school on the day when victim was allegedly forcibly taken by accused---No specific role had been assigned to accused who on the date of occurrence had appeared in ward test at the university---Truth or otherwise of the plea of alibi taken by accused persons would be considered and decided by the Trial Court after recording of evidence.
Miss. Nayab       Versus       State
2011 YLR 789
Karachi High Court, Sindh

- S.497---Question of joint firing in the wake of alibi in favour of co-accused was of no help to the accused at bail stage as the same would be decided at trial.
Shahbaz Versus State
2011 P. Cr. L. J 338
Karachi High Court, Sindh.

- None of the grounds valid for grant of bail in a case falling under the prohibitory clause of S.497, Cr.P.C., was available to accused---Accused had not raised the plea of alibi at the time of moving his bail before arrest application, meaning thereby that he had no such defence at that time---Even otherwise, accused had relied upon the evidence of a large number of witnesses in support of his plea of alibi, which could not be evaluated at present stage and would be assessed at the trial---Impugned order of High Court did not suffer from any illegality or irregularity---Bail was declined to accused and leave to appeal was refused in circumstances.
Shoukat Ilahi Versus Javed Iqbal
2010 SCMR 966
Supreme Court

- Trial Court had believed the defence evidence in respect of plea of alibi taken by co-accused, who produced five witnesses in support of his plea---According to said co-accused on the day of occurrence he was arrested by the Police and a case was registered against him---Since said acquitted co-accused was serving in Irrigation Department, Investigating Officer also got verified his departure on the fateful day from the office by procuring the attendance register of co-accused, who was shown absent---Trial Court had believed the defence evidence and statement of accused recorded under S.340(2), Cr.P.C. on the ground that nothing had been brought out in cross-examination to make that evidence unreliable---Trial Court also taken into consideration the opinion of Forensic Science Laboratory---Evidence against acquitted accused was not sufficient for his involvement in the offence---When an accused was acquitted of the charges, he enjoyed double presumption of innocence in his favour and the Appellate Court was required to be careful while considering appeal against acquittal---Appeal against acquittal was dismissed.
Roman Ali Versus State
2010 YLR 1531
Peshawar High Court, NWFP

- Plea of alibi raised by accused person could not be considered at the bail stage because the investigation of the case was in progress and the authenticity of the same could well be ascertained by the Trial Court.
Sher Zada Versus Roshan Zari
2010 YLR 1464
Peshawar High Court, NWFP

-   Submissions of counsel for accused like plea of alibi and contradiction in the medical and other evidence, were related to the trial and deeply touched the merits of the case which could not be taken into consideration at bail stage, because it would amount to deep appreciation of evidence which was not permissible under the law.
Nawab Khan   Versus       State
2010 P. Cr. L. J 1463
Peshawar High Court, NWFP

-   Attempt to commit qatl-e-amd---Quashing of F.I.R.---Plea of alibi raised by the petitioner could not be taken into consideration at the present stage and it could be adjudicated upon during trial and so was the opinion of Investigating Officer.
Abdur Rashid   Versus   State
2010 P. Cr. L J 1452
Peshawar High Court, NWFP

-   Qatl-e-amd---Bail, refusal of---Contentions raised on behalf of accused, were such which could be agitated and scanned at trial stage and not at bail stage, because if same were discussed and decided, same would amount to deeper appreciation of evidence, which was not permissible---Such discussion would also cause expression of opinion before trial, which was not viewed with appreciation.
-   Plea of alibi raised during arguments could be relevant, but that too could be weighed after complete evidence was recorded.
Rehman Ullah   Versus   State
2010 P.Cr.L.J 1319
Peshawar High Court, NWFP

- Investigating Officer in the case had recorded statements of six persons who stated that on relevant date accused was not present at place of occurrence as he on said date had gone to another place in connection with Fateha of father of his relative---Investigating Officer in circumstances had believed the statements, recorded under S.161, Cr.P.C. regarding the plea of alibi taken by accused---Investigating Officer could not release an accused on the basis of statements recorded under S.161, Cr.P.C. or under S.164, Cr.P.C., unless such statements were proved to be true by the court of competent jurisdiction---Plea of alibi was required to be proved through exhaustive evidence and not merely on the statements of few persons recorded under S.161, Cr.P.C.---Investigating Officer had acted upon the statements recorded under S.161, Cr.P.C. which was yet to be proved at trial stage and it had no evidentiary value.
Mameez Khan Versus State
2010 P Cr. L J 1137
Peshawar High Court, NWFP

- Whether surrender of accused to the process of law unlike his absconding co-accused, his plea of alibi and absence of any empty from the spot of occurrence, were compatible with his innocence or guilt, were the questions requiring further inquiry---Accused was admitted to bail in circumstances.
Asmatullah Khan Versus State
2010 P. Cr. L. J 83
Peshawar High Court, NWFP

- Accused was nominated in the F.I.R. with a specific role, but according to his plea of alibi he was performing his duty on the day of occurrence in an Army operation---Said plea stood verified by the Investigating Officer and even a discharge report was submitted, which was not agreed to by the Magistrate---Earlier bail petition of accused had been dismissed as having not been pressed with a direction to trial Court to conclude the trial within two months---Trial could not be concluded within the specified period as complainant had filed a private complaint and no proceedings were taken in the State case---Said facts had made the case of accused that of further inquiry within the ambit of S.497(2), Cr.P.C.---Trial in State case had not so far commenced---Bail was allowed to accused in circumstances.
Said Badshah Versus State
2010 MLD 1553
Lahore High Court, Lahore.

- Bail, grant of---Further inquiry---Accused had from the very initial stage taken the plea of alibi which was thoroughly investigated by the Investigating Officer who had found accused innocent and released him under S.169, Cr.P.C.---Such release of accused though subsequently was set aside by the High Court in the quashing petition, but accused was not debarred from moving a fresh application under S.497, Cr.P.C.---Statements of independent witness recorded under S.161, Cr.P.C. and S.164, Cr.P.C. had brought the case of accused within purview of further inquiry---Plea of alibi raised by accused and investigated by the Investigating Agency could not be brushed aside outrightly, while considering the prayer of bail of accused.
Muhammad Jabbar Versus Shah Daraz Khan
2009 P. Cr. L. J 370
Peshawar High Court, NWFP

- Accused was nominated in the F.I.R. with specific role, but from the findings of Investigating Officer with regard to plea of alibi taken by accused, it was established beyond any shadow of doubt that accused was very much present at his native city where he had his own business and at the time of occurrence he was not present at the place of occurrence, but was conducting his regular business at said place of his business---Accused was also declared innocent in police findings.

- Ad-interim pre-arrest bail already granted to accused, was confirmed, in circumstances.
Sh. Muhammad Gulzar Versus State
2009 P. Cr. L J 163
Lahore High Court, Lahore

- Accused was declared innocent during investigation and his name was placed in Column No.2 of the challan, as his plea of alibi was accepted on the basis of admissible evidence; number of witnesses appearing before the Investigating Officer who were present along with the accused in the mosque to offer prayer at the time of alleged occurrence---Bail was granted to accused.
Rehmatullah Butt Versus State
2009 P Cr. L J 104
Lahore High Court, Lahore

- Defence version was neither plausible nor believable as both accused in support of their plea of alibi, did not depose on oath in the court---Adverse inference though in ordinary course, could not be drawn against accused for not recording his statement on oath as provided under S.340(2), Cr.P.C., but in view of specific plea of alibi taken by accused, burden had shifted to them to prove such plea, but accused were not ready to support such plea by their own statements---Effect---Prosecution had successfully proved that accused persons had committed murder of both deceased---Deceased were murdered on account of alleged “Siakari” (Zina) and accused found both deceased in objectionable position---Accused, in circumstances were rightly found guilty under S.302(c), P.P.C., instead of S.302(b), P.P.C.
Daleel Khan Versus Sessions Judge, Kalat Division
2008 MLD 1663
Quetta High Court, Balochistan

- S.302(c)---Plea of alibi ---Failure of accused to record statement on Oath---Accused persons in support of their plea of alibi did not enter into witness box to depose on oath---Though in ordinary course, no adverse inference could be drawn against an accused for not recording his statement on oath as provided under S.340(2), Cr.P.C., but in view of specific plea of alibi taken by accused persons in the case, burden was shifted to them to prove such plea, but they were not ready to support such plea by their own statements.
Daleel Khan Versus Sessions Judge, Kalat Division
2008 MLD 1663
Quetta High Court, Balochistan

- When the plea of alibi was raised at the earlier possible stage of the occurrence and same was duly supported by some materials brought on record, it could be taken into account even at bail stage---In the present case both accused persons had raised the pleas of alibi at the earliest possible opportunity which were enquired into by the Investigating officer supported by statements of independent witnesses and documentary evidence and after due verification found both of them to be innocent---All facts when taken together and assessed tentatively, had made the case of accused person as one of further inquiry and took it out of the embargo contained in S.497, Cr.P.C. entitling them to the concession of bail---Accused were admitted to bail, in circumstances.
Shakil Khan Versus State
2008 YLR 2520
Peshawar-High Court, NWFP

- Plea of alibi of accused was not believable because affidavit in that respect was not supported by any other proof---Plea of alibi raised by co-accused, was also doubtful as no document was on record to prove that at the specific time of occurrence, he was on duty as claimed by him---Bail application of accused was dismissed, in circumstances
Muhammad Khan versus State
2008 PLD 45
Peshawar-High Court, NWFP

- Evidence on record had established that at the time of commission of offence accused was 71 years old---Son of accused and certain other residents of Illaqa had produced affidavits to the effect that at time of occurrence, accused was present with them in the mosque offering Zohar prayer; in that they had tried to make out a case for alibi which could not be considered at bail stage, especially when accused had not taken said plea of alibi before the lower courts or before High Court in the grounds of bail application.
Wazir Khan Versus State
2008 PLD 42
Peshawar High Court, NWFP

- Plea of alibi taken by accused that he was admitted in Hospital and remained under treatment, was not acceptable because that was an after-thought as said plea of alibi was not taken by accused during investigation---Trial Court had rightly rejected plea of alibi of accused.
Shah Nawaz Versus State
2008 YLR 2449
Lahore High Court, Lahore

- Accused although had been found innocent during investigation on his plea of alibi , yet he did not prove the said plea before the Trial Court---Conviction of accused was maintained in circumstances.
Rehmat Ali Versus State
2008 YLR 1361
Lahore High Court, Lahore

- First version of accused was before the police that at the relevant time he was present on the duty and he produced documentary evidence and witnesses in support of his such plea of alibi, where after he was found innocent during the course of investigation and was placed in Column No.2 of the challan---Accused, in circumstances, had made out a prima facie case falling under sub-section (2) to S.497, Cr.P.C and was entitled to the concession of bail---Accused was admitted to bail, in circumstances.
Muhammad Zamir Versus State
2008 YLR 714
Lahore High Court, Lahore

- Plea of alibi taken by accused that they had gone to Iran and were not present in the country on the day of occurrence, was not raised by them before the Investigating Officer and was raised at the trial after taking legal advice from an expert---Accused had failed to prove the said specific plea by adducing cogent and convincing evidence which they were obliged to do under the law, and they could not blame the prosecution for having failed to prove that fact---Defence evidence produced by accused in support of their plea of alibi did not inspire confidence---Photographs produced by accused had no evidentiary value and the hotel bill produced by them was also of no significance as the same could very easily be maneuvered---Accused could not produce the embarkation card which was an authentic source of information regarding passenger’s immigration---Report of Forensic Science Laboratory had revealed that the photographs on the passports had been changed---Accused, thus, had failed to prove the plea of alibi .
Kashif Saddique Versus State
2008 P Cr L J 1039
Lahore High Court, Lahore

- Plea of alibi as advanced by defence witness being oral in nature and unsupported by any other source did not hold any water---Said evidence was useless and no reliance could be placed upon the same.
Khadim Hussain alias Khawar Versus State
2008 MLD 771
Lahore High Court, Lahore

- Plea for bail was the plea of alibi---Accused had contended that on the date of incident he was admitted to hospital where he was under treatment---Police recorded the statement of doctor concerned who confirmed that accused was under his treatment on the day of occurrence---Plea of alibi coupled with delay in lodging F.I.R and recording the statements of prosecution witnesses, had created reasonable doubt about the involvement of accused---Case of further inquiry into the guilt of accused had been made out.
Muhammad Bachal alias Bachal Chandio
Versus
State
2008 YLR 1733
Karachi High Court, Sindh

- Pre-arrest bail, grant of---Mater was subjudice before Judicial Magistrate---On the day of alleged incident, accused was at place ‘K’ where he was attending the proceedings of case in the Court of Judicial Magistrate---Criminal proceedings at place ‘L’ in circumstances, had been motivated to harass and humiliate accused---Question of alibi, however, would be considered by the Trial Court---Sections of P.P.C., mentioned in F.I.R., were bailable in nature except S.506-B, P.P.C.--- Accused, in circumstances, had succeeded in making out a prima facie case that .F.I.R had been manipulated with ulterior motives---Accused in circumstances was entitled to the concession of pre-arrest bail.
Muhammad Farooq Khan
Versus
Province of Sindh
2008 MLD 805
Karachi High Court, Sindh

- Police entry made in the Roznamcha of Police Station, was yet to be produced in the evidence and that was subject to proof by examining the witnesses---Accused appeared to have taken the plea of alibi through said Police entry, which plea had to be examined after producing the evidence at the time of trial---Said points could be properly appreciated after assessing and appreciating the evidence led by the parties---Only tentative assessment of evidence was required to be undertaken at bail stage and the deeper appreciation of evidence was the function of the Trial Court, which could be done at the time of trial---Accused being not entitled to the concession of bail, his bail application was dismissed.
Muhammad Arshad Versus State
2008 MLD 627
Karachi High Court, Sindh

- Appreciation of evidence---Plea of alibi---Burden of proof---Accused raising plea of alibi has to discharge the burden by producing satisfactory, reliable and authenticated evidence that his presence at the place of incident at the relevant time was not possible because of his presence at the relevant time at another place.
Moulvi Taj Muhammad Versus State
2007 P CR L J 1891
Quetta High Court, Balochistan

- Appreciation of evidence---alibi---Accused after issue of search warrants and proclamation getting certificate of his presence in another District from a Government official who had certified his presence before him on the day of occurrence---Conduct of accused, held, indicative of his knowledge of his involvement in the case and an effort to procure evidence for his alibi.
Moulvi Taj Muhammad Versus State
2007 P CR L J 1891
Quetta High Court, Balochistan

- Plea of alibi---Accused to appear in witness box to prove such plea---No adverse, inference, though can be drawn against an accused person for not appearing in witness box in disproof of allegations and charge, but if he had taken a specific plea and burden to prove such plea was upon him, then he should appear in witness-box in support of this such plea.
Moulvi Taj Muhammad Versus State
2007 PCRLJ 1891
Quetta High Court, Balochistan

- Plea of alibi raised by accused during course of investigation found favour with Investigating Officer who chose to place accused in column No.2 of the report under S.173, Cr.P.C.---Ipsi dixit of the police, was not binding on the court---Even otherwise while granting bail in murder cases, courts were generally reluctant to entertain plea of alibi, unless same was absolutely beyond question. Bail petition was dismissed.
Mairaj Versus State
2007 YLR 2081
Lahore High Court, Lahore

- Accused, according to police record, had raised plea of alibi at the very outset which was confirmed during the course of investigation---Accused was declared innocent and his name was placed in Column-2 of the challan. Accused was admitted to bail, in circumstances.
Munawar Hussain Versus State
2007 YLR 404
Lahore High Court, Lahore

- Only allegation against accused was that he caused injuries to prosecution witness---None of said injuries attracted prohibitory clause of S.497(1),Cr.P.C.---Accused had been declared to be innocent during investigation and his plea of alibi that he was on duty in a factory in another city where he was employed, had found favour with the investigating agency--- Report for the discharge had been formulated, but Magistrate refused to agree with said police request.

- Accused was resident of “M” District and nothing was on record to show that he had any social intercourse with complainant party, which was resident of District ‘K’---Ever since he arrest, consistent stand of accused was that he was totally unconnected in the matter and had nothing to do with the incident. Accused was admitted to bail, in circumstances.
Zafar Iqbal Versus State
2007 P. Cr. L. J 555
Lahore High Court, Lahore

- Both the said accused persons had produced their witnesses during the course of investigation in support of their plea of alibi which was verified by the two Investigating Officers, whereby they were declared innocent---Discharge report was prepared and said accused were accordingly discharged by the Judicial Magistrate vide impugned order which was a speaking and legal order---Reasoning had been given by the Magistrate qua discharge of the accused persons---Complainant had got remedy to file a private complaint against those accused who had either been declared innocent or discharged.
Muhammad Arif
Versus
Station House Officer, Police Station Sadar, Sheikhupura
2007 YLR 2946
Lahore High Court, Lahore

-   Pre-arrest bail, pendency of---Deeper appreciation of evidence---Plea of alibi---Role of public prosecutor---Accused sought pre-arrest bail on the plea of alibi, as he was under treatment of two doctors---During the pendency of bail application accused sought summoning of both the doctors---Trial Court allowed the application with the consent of parties but subsequently the order was recalled as one of the two doctors was a prosecution witness---Validity---Deciding application for bail did not call for elaborate sifting of evidence---For the purpose of tentative assessment of evidence in order to satisfy itself about correctness of documents produced by accused, Trial Court could have summoned and perused relevant record, if it was expedient in the circumstances of the case---Trial Court went ahead and proceeded to examine a doctor, who was said to have treated the accused---Impropriety did not stop there but the doctor who was summoned was offered to be cross-examined by both the parties---
-   Such exercise by Trial Court was in excess of tentative assessment of evidence and beyond contemplation of S.497 Cr.P.C.---In entire proceedings, role of prosecutor appeared to have been diminished and was conspicuously invisible---Public Prosecutor under S.493, Cr.P.C. was supposed to appear and plead in all Courts ---Law provided that if any private person instructed a pleader to prosecutor in any Court on his behalf, even then public prosecutor would conduct prosecution and privately engaged pleader would act in Court under his direction---Orders relating to summoning of doctors were passed by Trial Court without seeking meaningful assistance of prosecutor which resulted in passing of two consecutive, uncalled for, improper, perverse and illegal orders, which resulted in unreasonable prolongation of bail application and caused multiplicity of litigation---Orders passed by Trial Court regarding summoning of two doctors was set aside.
Qamar Mukhtiar Khan          Versus   State
2007 P Cr L J 149
Karachi High Court, Sindh.

INHERENT POWERS

- Restraining a Judge from exercising his judicial power and from discharging the obligations cast on him by the Constitution---Effect---Even a temporary interference with the office of the Chief Justice or of a Judge, even when he had not been suspended but in fact appointed to another judicial office, amounted to his “removal from office”---No constitutional, the legal and the legislative frame-work of Pakistan recognize any inherent, ancillary or incidental powers with the competent authority to suspend or to restrain from working, Chief Justice of Pakistan whose tenure in office stood guaranteed by the Constitution---Chief Justice of Pakistan could not be suspended from office or could be restrained from exercising the judicial’ powers appertaining to his office, in exercise of some alleged inherent, ancillary, implied or implicit powers, vesting in the President.
Chief Justice of Pakistan Iftikhar Muhammad Chaudhry
Versus
President of Pakistan through Secretary.
2010 PLD 61
Supreme Court

- Inherent power of High Court---Review---Sanctity of finality is, no doubt, attached to a judgment passed by a criminal Court by virtue of section 369 Cr.P.C., but High Court under its inherent power can review or recall its judgment or order if found to have been passed without jurisdiction, without adjudication on merits, in violation of any law or obtained by playing fraud on the Court.
Habib-ur-Rehman Versus The State.
2010 P Cr. L J 658
Quetta High Court, Balochistan

- Ss.193-A & 194---Review---Scope---No court much less the Tribunal having the special and limited jurisdiction possesses the inherent power to review its order unless this power is expressly granted by the statue.
2010 PTD 1418 Customs,
Federal Excise and Sales Tax Appellate Tribunal

-   In order to enforce law of the land and to enable alleged abductee and her second husband/accused, to lead peaceful matrimonial life of their choice, it was fully justified to exercise constitutional jurisdiction and inherent powers by High Court, in their favour. Such an action by the High Court would not amount to interference in the allotted sphere of investigating agency, prosecution and trial court because the three organs of administration of justice had stepped over their respective authority.
Lal Khan
Versus
Station House Officer, Police Station Kotwali, Jhang.
2010 P Cr. L J 182
Lahore High Court, Lahore

-   High Court keeping in view the facts and circumstances of the case, without going into the technicalities of law, taking into consideration the welfare of the minor, ordered, in exercise of its inherent jurisdiction, that the custody of minor son be handed over to the petitioner/mother who was entitled to retain her custody---Interim custody of the minor son was delivered to the petitioner (mother).
Mst. Sana Parvaiz
    Versus
Muhammad Sajawal Butt
2010 MLD 143
Karachi-High-Court-Sindh

- When the election laws are not providing any remedial steps, the High court has got inherent and constitutional powers to remedy the wrong being done or having been done by the Election Tribunal---High court, therefore, has got power and jurisdiction in such circumstances to invoke its said power to do justice---Principles.
Federation of Pakistan
Versus
Mian Muhammad Nawaz Sharif
2009 PLD 284
Supreme-Court

- Inherent jurisdiction of court, source of---Every court, in absence of any express provision, would be deemed to possess in its very constitution all such powers, which would be necessary to do right and undo a wrong in the course of administration of justice.
Sued Fakhar Imam
Versus
Muhammad Raza Hayat Miraj
2009 CLC 1
Punjab Election Tribunal

-   Where a forum has power to grant the final relief, it has inherent power to grant any interim relief, vice versa, where the forum itself does not have power to grant the final relief, it shall have no power even to grant interim relief.
Muhammad Nawaz
   Versus
Ghulam Mustafa Ansari
2009 PLD 467
Lahore-High-Court-Lahore

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