P L D 2009 Lahore 135

Before Khurshid Anwar Bhinder, J

RASOOLAN BIBI---Petitioner

Versus

ADDITIONAL SESSION JUDGE and others---Respondents

Writ Petition No.14672 of 2008, decided on 28th October, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Penal Code (XLV of 1860), Ss.324/354/337-A(i)/337-F(i)/337-L(ii)/34---Punjab Criminal Prosecution Service (Constitution,
Functions and Powers) Act (XXIX of 2006), S.9(7)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioner had called in
question order passed by Ex-Officio Justice of Peace, dismissing the petition under Ss.22-A & 22-B, Cr.P.C. filed against order passed by the District
Public Prosecutor concerned deleting S.324, P.P.C. in the case F.I.R. registered under Ss.324/354/337-A(i)/337-F(i)/337-L(ii)/34, P.P.C.---Validity---
Under provisions of S.9(7) of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, District Prosecutor had the
powers to scrutinize the available evidence and applicability of offences against all or any of accused as per facts and circumstances of the case---
Deletion or insertion of any offence fell within the exclusive domain of the District Prosecutor---Question whether the District Prosecutor had rightly
deleted S.324, P.P.C., would be seen by the Trial Court at the time of framing the charge, but petitioner could not assail such an order either under
provisions of Ss.22-A & 22-B, Cr.P.C. or in constitutional jurisdiction of the High Court as it would amount to interfering with the process of
investigation which was not the mandate of law---Ex-Officio Justice of Peace had rightly dismissed the application of the petitioner, in
circumstances.

Ali Ahmad v. The State and another 2001 MLD 1125 rel.

Khalid Nawaz Ghuman, Advocate.

ORDER

KHURSHID ANWAR BHINDER, J.---Through the present constitutional petition, Rasoolan Bibi, petitioner has called in question order dated 8-10-2008
passed by the learned Additional Sessions Judge/Ex-Officio Justice of Peace, Daska dismissing the petition under sections 22-A and 22-B, filed against the
order dated 22-9-2008 passed by the District Public Prosecutor, Sialkot deleting section 324, P.P.C. in case F.I.R. No.78 dated 9-3-2008, registered under
sections 324/354/ 337-A(i)/337-F(i)/337-L(ii)/34, P.P.C. at police station Saddar Daska, District Sialkot.

2. Briefly the facts leading to the filing of this constitutional petition are that husband of the petitioner, namely, Ghlam Rasool got the aforesaid case
registered against respondents Nos. 5 to 7 with the allegations that they along with their accomplices attacked the petitioner and her family when she and her
family members were coming back from their Dera. After investigation, the challan in the aforesaid case was submitted in the prosecution branch where in
the District Public Prosecutor vide order/letter dated 22-9-2008 deleted section 324, P.P.C. and directed the S.H.O. Police Station Saddar Daska to submit
supplementary challan in the trial court through the concerned prosecutor. The petitioner challenged the aforesaid order before the learned Addition Sessions
Judge/Ex-Office Justice of Peace Daska who vide his order dated 8-10-2008, dismissed the same, hence the present constitutional petition.

3. Learned counsel for the petitioner submits that there is no provision in law under which respondent No.4 can issue the direction or order for the deletion of
any provision of law from the F.I.R. and the learned Additional Sessions Judge has erroneously dismissed her application.

4. I have heard the learned counsel for the petitioner and have also perused the available record. Section 9 subsection (7) of the Punjab Criminal Prosecution
Service (Constitution, Functions and Powers) Act, 2006 being relevant is reproduced below:--

"9. Conduct of prosecution.---(1) The Prosecutors shall be responsible for the conduct of prosecution on behalf of the Government.
(2) --------------------------------------------------------------

(3) --------------------------------------------------------------

(4) --------------------------------------------------------------

(5) --------------------------------------------------------------

(6) --------------------------------------------------------------

(7) A Prosecutor may submit to the Court results of his scrutiny in writing as to the available evidence and applicability of offences against all or any
of the accused as per facts and circumstances of the case."

5. From the afore-quoted provision of law it is crystal clear that the prosecutor has the powers to scrutinize the available evidence and applicability of
offences against all or any of the accused as per facts and circumstances of the case, as such, the deletion or insertion of any offence falls within the exclusive
domain of the Prosecutor. The question whether the Prosecutor has rightly deleted section 324, P.P.C. will be seen by the learned trial court at the time of
framing the charge but the petitioner cannot assail such an order under the provisions of sections 22-A and 22-B, Cr.P.C. or the constitutional jurisdiction of
this Court as it amounts to interfering with the process of investigation which is not the mandate of law and the pronouncements of the superior courts. The
learned Additional Sessions Judge/Ex-Officio Justice of Peace has rightly dismissed the application of the petitioner. However, the petitioner can agitate her
grievance, raised by her in this constitutional petition, before the learned trial court at the time of framing of the charge as per the law laid down in the case of
Ali Ahmad v. The State and another 2001 MLD 1125 (Lahore).

6. For what has been discussed above, I find no merit in this constitutional petition which is hereby dismissed in limine.

H.B.T./R-52/L Petition dismissed.