2021 P Cr.

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

20. The question as to whether the Magistrates should also follow

Ch. Muhammad Anwar Samma's principle while considering the
request of the police for remand under section 167, Cr.P.C. is, however,
problematic. One set of authorities argue that the Magistrate is
competent to direct addition or deletion of an offence from the FIR4
while the other set thinks that he cannot because such a direction
amounts to interference in the investigation which is prohibited.
According to them, this power can only be exercised by the trial court
when it indicts the accused5. The situation in the Indian jurisdiction is
equally confounding. In Chhatrapal Singh v. State of U.P. [2003 (2)
A.A.R. 56A (HC)] a Single Bench of the Allahabad High Court held that a
Magistrate exceeds his jurisdiction when he makes an observation at
remand stage that a particular section is attracted. On the other hand,
in Sanaul Haque v. State of U.P. and another (2008 Cri.LJ 1998), another
judge of the same High Court, and in Munni v. State of Haryana and
another [2013 (8) R.C.R. (Criminal) 3011], the Punjab and Haryana High
Court approved the Magistrate's action.
21. In our jurisdiction, in my opinion, the controversy can be
resolved on the basis of the view of the Full Bench in Khizer Hayat's
case, supra, wherein their Lordships unanimously held:
"It goes without saying that the overall incharge of a criminal case is
the Area Magistrate who, even during the progress of an
investigation, gets many opportunities to go through the record
of investigation conducted by the police and in an appropriate
case and at an appropriate stage he can require the investigating
officer to consider addition or deletion of any penal provision.
Be that as it may, after submission of a report under section 173,
Cr.P.C./Challan the Magistrate taking cognizance of the offence or
the trial court taking cognizance of the case can take cognizance
of any offence disclosed by the material available on the record
of investigation even if the police have not invoked the relevant
penal provision. Even at the time of framing of the charge a trial
Court can frame a charge in respect of an offence disclosed by
the record even if the same finds no mention in the report
submitted under section 173, Cr.P.C./Challan. With so many
 opportunities being available with the Magistrate and the trial
Court regarding rectification of a mistake, deliberate or
otherwise, committed by the police in this connection it would
be unwise for an ex-officio Justice of the Peace to interfere with
such a matter at an inappropriate and premature stage."
(emphasis added)
22. The Division Bench case Abdul Sattar v. Amir Muhammad Khan
and others (PLD 2007 Lahore 444) is, however, more instructive.
Relevant excerpt therefrom is reproduced hereunder:
"6. After hearing the arguments of both the sides and going through
the record, we have observed that while deciding the question of
grant of physical remand, Judge Anti-Terrorism Court II, Multan,
had directed the Investigating Officer to delete section 7 of Anti-
Terrorism Act, 1997, while acting as Duty Judge. The Duty Judge
enjoys the same powers as the incumbent Judge enjoys. While
deciding the question of grant of remand, the concerned court is
not expected to act blindly and such orders are expected to be
passed with due application of judicial mind. Impugned order
cannot be set aside simply on the ground that the same was
passed by the Duly Judge."
(emphasis added)
23. Under the law of precedents the above dicta would prevail. In
the result, it must be held that at the time of remand the Magistrate
can very well direct the Investigating Officer to add, delete or
substitute an offence mentioned in the FIR if the circumstances
warrant. However, he cannot ask the SHO to submit report under
section 173, Cr.P.C. in a particular manner, i.e. against the persons he
desires or in respect of such offences that he wishes.
24. For what has been discussed above the impugned order dated
21.5.2020 is upheld and this petition is dismissed.
KMA/M-120/L Petition dismissed.
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