Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Official Citation: 2026 LHC 2859
Court / Jurisdiction: Lahore High Court (Honorable Mr. Justice Muhammad Amjad Rafiq)
Parties: SYED MUHAMMAD ZAHID MUNAWAR vs THE STATE ETC.
Ruling Summary: This decision was rendered by the Lahore High Court (Honorable Mr. Justice Muhammad Amjad Rafiq), officially reported as 2026 LHC 2859. In this matter between SYED MUHAMMAD ZAHID MUNAWAR and THE STATE ETC., the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Lahore High Court (Honorable Mr. Justice Muhammad Amjad Rafiq) DECISION DATE: 02-04-2026 TAGLINE: On the basis of report under section 174 of Cr.P.C., FIR cannot be registered in different penal provision contrary to complainant's narrative. Role of Prosecutor and Court for alternate charging under sections 302 & 322 PPC. CASE DETAILS: Crl. Misc.-Pre-arrest Bail-Under Section 498 Cr.PC 531-B-26 ============================================================ Form No.HCJD/C-121 ORDER SHEET LAHORE HIGH COURT, BAHAWALPUR BENCH, BAHAWALPUR
JUDICIAL DEPARTMENT
Crl. Misc. No.531-B of 2026
Syed Muhammad Zahid Munawar Vs. The State, etc.
S.No. of order/ Proceedings Date of order/ Proceedings Order with signature of Judge, and that of parties of counsel, where necessary.
02.04.2026. Mr. Imran Aziz Khan Channar, Advocate with the petitioner. Hafiza Mehnaz Nadeem Abbasi, Advocate /Amicus curiae. Mr. Shahid Fareed, Assistant District Public Prosecutor with Umar Hayat, Muhammad Javaid and Muhammad Akhtar, Inspectors. Mr. Nadeem Iqbal Khakwani, District Public Prosecutor and Hafiz Muhammad Azhar Ali, Assistant District Public Prosecutor, Bahawalpur. Mr. Muhammad Bashir Bhatti, Advocate for the complainant.
Through this petition, the petitioner seeks pre - arrest bail in case FIR No. 565 dated 02.10.2025 registered under section 322 PPC at Police Station Qaimpur, District Bahawalpur. 2. A criminal process initiated through one year’s delayed FIR for murder of Muhammad Asad son of the complainant, was intended to be used for arrest of the petitioner which forced him to file the present petition for pre-arrest bail. 3. Prosecution case was based on indirect information collected through conversation bet ween the petitioner and his co-accused Nadeem Shah, heard by the witnesses of FIR namely Zahid Shah and Saqlain Shah when present at hotel situated in a place known as Talhar.
Crl. Misc. No.531-B of 2026 2 Complainant was also not sure about the murder of the deceased until the medical report received to the effect that death of his son was a culpable homicide, and then he started searching for actual culprits. Few days before the lodging of FIR he learnt about cited conversation and commission of murder by Nadeem Shah by a sharp- edged weapon in connivance with the petitioner and one Mehwish Bibi. 4. Though primarily proceedings under section 174 of Cr.P.C., were initiated but later FIR was registered for qatl-bis-sabab under section 322 PPC while ignoring the claim of complainant for qatl-i-amd of his son which facilitated the petitioner to seek pre -arrest bail on the grounds that no sentence of imprisonment is provided for such offence, and custody of the petitioner is not required for the purpose of investigation. Learned ADPP while in dialogue with learned counsel for the complainant customized the facts for applicability of section 302 PPC; however, police officer in attendance expressed his intention to arrest the petitioner in offence under section 322 PPC. 5. On 10.03.2026, DSP Bakhat Nasar was directed to explain the reasons as to why FIR was registered under section 322 PPC when information furnished by the complainant clearly disclosed commission of qatl -i-amd; he replied that earlier through proceedings under section 174 of Cr.P.C., it came to light that accused persons were demolishing their wall, when due to falling of an iron object deceased received a sharp-edged injury, thus being accidental injury it attracts an offence under section 322 PPC. However, he could not ju stify that such course if permissible under the law, first requires the police through the regime of Cr.P.C., to register the FIR under
Crl. Misc. No.531-B of 2026 3 section 302 PPC and then by investigative opinion it could be flipped with other offence. On failing to respond, he soug ht time to return with a reasonable explanation and opinion in this regard. 6. On 31.03.2026, he appeared and instead of explaining the matter, tabled before this Court a legal opinion of an ADPP, Bahawalpur, duly endorsed by District Public Prosecuto r, Bahawalpur. According to him, Prosecution Office did not allow him to further embark on the matter. It was sheer violation of his last date’s undertaking and direction of this Court. He however, while tendering written apology admitted that he had not i ntimated the DPP Office about the fact of pending proceedings before this Court with respect to matter in question. 7. In the legal opinion, DPP office though conceded that FIR should have been registered under section 302 PPC yet instead of furnishi ng a sound legal opinion on the subject dispensed with a vague and evasive response with ultimate conclusion that challan has been sent to the learned trial court; therefore, matter cannot be dilated upon any further. Such opinion also did not help the DSP to answer the query of this Court. Therefore, Mr. Shahid Fareed learned ADPP was directed to develop contact with DPP and concerned ADPP for their appearance before the Court to explain why they have intermeddled into the affairs of this Court while givin g the opinion uncalled for. 8. Today, ADPP attempted to justify that he had not given any opinion which could rule out the applicability of section 302 PPC in this case. However, District Public Prosecutor informed the Court that trial prosecutor ha s already sent his case review report under section 9(7) of
Crl. Misc. No.531-B of 2026 4 The Punjab Criminal Prosecution Service (Constit ution, Functions and Powers) Act, 2006 (“the CPS Act”) by recommending the trial of case under section 322 PPC with the opinion if at a later stage material on record pushes the charging under section 302 PPC, an application under section 347 of Cr.P.C. shall be moved before the Court of Magistrate for trial of case by Court of Sessions. 9. Heard; record perused. 10. Adverting to the contentions supra, multiple legal questions appeared to be responded through relevant legal provisions in order to remedy the defect usually left by the police and prosecution to burden the trial court to steer the process at its own. Following situations require clarification; i. When would proceedings under section 174 of Cr.P.C., be observed;
ii. Can Police register the FIR under different penal provision contra to narrative of the complainant;
iii. Can a prosecutor direct alteration of penal provision when re ceived copy of FIR under section 12 of the CPS Act;
iv. Can a prosecutor change the jurisdiction of a Court?
v. Once the report under section 173 of Cr.P.C., is submitted before the Court, can a prosecutor submit another case review report under sect ion 9(7) of the CPS Act.
11. To meet with above questions, Hafiza Mehnaz Nadeem Abassi, Advocate appointed as amicus curiae and Mr. Shahid Fareed, learned ADPP was also directed
Crl. Misc. No.531-B of 2026 5 to rendered valuable assistance to this Court with relevant provisions of applicable law. Mr. Shahid Fareed ADPP provided relevant material to address above questions while Hafiza Mehnaz Nadeem Abassi, Advocate referred a five Members’ Bench of Peshawar High Court passed in Writ Petitions No. 5504 -P/2025 and 5560 -P of 2025, tit led “Asif Ullah Advocate & Shabbir Hussain Gigyani Versus Government of KPK and others & The DG Prosecution KPK and others ” dealing with functions of prosecutors. 12. To begin with, let’s see the scope of section 174 of the Cr.P.C., which is reproduced for reference; 174. Police to inquire and report on suicide, etc.__ (1) The officer in charge of a police -station or some other police - officer specially empowered by the Provincial Government in that behalf, on receiving information that a person:
(a) has committed suicide, or
(b) has been killed by another, or by an animal, or by machinery, or by an accident, or
(c) has died under circumstances raising a reasonable suspicion that some other person has committed an offence,
shall immediately give intimation thereof to the nearest Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the Provincial Government, shall proceed to the place where the body of such deceased person is, and there, in the presence of tw o or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or
Crl. Misc. No.531-B of 2026 6 instrument (if any), such marks appear to have been inflicted. (2) The report shall be signed by such police-officer and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the concerned Magistrate. (3) When there is any doubt regarding the cause of death, or when for any other reason the police -officer considers it expedient so to do, he shall, subject to such rules as the Provincial Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the Provincial Government, if the state of the weather and the distance admit of its being so forwarded without risk of such p utrefaction on the road as would render such examination useless. (4) * * * * * *] (5) The Magistrates of the first class are empowered to hold inquests.]
The death of a person in above referred three circumstances requires t he Officer Incharge of Pol ice Station to send immediate intimation to the Magistrate to hold inquest, of course to determine the cause of death. The above dictates of law detach the inquest proceedings from a normal course of registration of FIR and then ensued investigation, despi te the fact the circumstances of killing by another person are also included in section 174 of Cr.P.C., which makes it a special provision for special circumstances. That is the reason such process is supervised by the Magistrate concerned who otherwise cannot intervene into investigation which is the mandate of an authorized police officer. However, Police is not authorized to hold inquest as directed by sub -section (5) of section 174 above, except to collect necessary information like noting of injuries, collection of
Crl. Misc. No.531-B of 2026 7 information or got conducting postmortem examination of the deceased person, and by doing so police is in fact investigating the matter (as the above section mentions), which shows that even before registration of FI R, investigation by police officer is permissible under this section. Officer Incharge of police station for said purpose being authorized under section 175 of Cr.P.C., by order in writing can summon two or more persons for associating into the investigation, and any other person who appears to be acquainted with the facts of the case. Every person so summoned shall be bound to attend and to answer truly all questions other than questions the answers to which would have a tendency to expose him to a crimina l charge, or to a penalty or forfeiture. Answering truly all question also makes section 175 distinguishable to section 161 of Cr.P.C. which does not use the word ‘truly”. After that Officer Incharge of Police Station shall prepare a report about apparent cause of death of person d uly signed by said persons so summoned as required by sub -section (2) of section 174 above and send it to the concerned Magistrate so empowered who on receiving information from police may hold an inquiry into the cause of death either instead of, or in ad dition to, the investigation held by the police officer. 13. Thus, where death is result of suicide or killing by an animal, or by machinery, or by an accident, police shall conclude the proceedings without registration of FIR and forward the report to the Magistrate for holding inquest or otherwise, but where death is due to killing by another, then to comprehend the situation for inquiry under section 174 of Cr.P.C., and to avoid the duplicity of proceedings in a case, it is necessary to explain that if the death of deceased has been witnessed by someone,
Crl. Misc. No.531-B of 2026 8 who narrates the facts leading to death of the deceased, then of course depending upon the nature of death, suicidal, homicidal or accidental , it shall be investigated by the police officer within the permissible regime of law depending on the offence being cognizable or non - cognizable, either through registration of FIR or entry of Rupt in police station daily diary; but if no one claims to have witnessed the occurrence , a nd identification of person died is also under question with suspected cause of death then police shall go for proceedings under section 174 of Cr.P.C. It is also fortified through Rule 25.31 of Police Rules 1934 ; relevant part is reproduced as under; 25.31. Inquests. - - (1) An officer in charge of police station shall, upon receipt of information of the sudden or unnatural death of any person, when the body of such person is within the local jurisdiction of his police station, immediately send information to the nearest magistrate authorized to hold inquests and shall proceed to the place where the body is and hold an investigation in the manner prescribed by Section 174, Code of Criminal Procedure. When the Sub - Inspector-in-charge of the Police Station through illness or absence f rom the station house, is himself unable to carry out the investigation, he shall at the first convenient opportunity proceed to the place where the body of the deceased person was found, and shall personally verify the results of the investigation.
(2) In cases where the body is not found, or has been buried, there can be no investigation under Section 174, Code of Criminal Procedure.
In such cases, if there are reasonable grounds for suspicion that a cognizable offence has been committed, the police shall register a case and commence investigation.
Crl. Misc. No.531-B of 2026 9 The above rules states that if on receiving information about death of deceased in above circumstances, police if reaches the place of occurrence and found that body has been remov ed or buried, then no proc eedings under section 174 of Cr.P.C shall be conducted. However, Police can register an FIR if suspects commission of a cognizable offence and then investigation shall follow, that of course include search of dead body or disinterment of corps with the hel p of a Magistrate, and then preparation of injury statement and conducting of postmortem examination of dead body. 14. In this case, father of Asad deceased from day one was struggling for registration of FIR for qatl -i-amd o f his son but neither poli ce nor Justice of the peace hear d him for the purpose rather both remained wrangling with the fact that proceedings under section 174 of Cr.P.C., conducting on the death of Asad made it an accidental death. However, when his application was ultimately entertained by the police, they devise d a clever idea to register it under section 322 of PPC which ingredients were squarely missing in the application of the complainant. Though police during investigation can arrive at different co nclusion to switch the cha rging under another penal provision, but cannot anticipate it. Therefore, it is held that contra to narrative of complainant, FIR cannot be registered in another penal provision, yet police during investigation can propose the alternate penal provision dep ending upon the changed circumstance. 15. Registration of FIR in different penal provision, contra to narrative of complainant, was a defect which was not monitored by the concerned Prosecution Office despite having received c opy of FIR under section 1 2 of
Crl. Misc. No.531-B of 2026 10 the CPS Act. The wisdom behind transmission of copy of FIR to DPP office was overlooked by the District Public Prosecutor and the concerned prosecutor who could simply advise the police to insert section 302 PPC in FIR and then investigate the matter. Later, on receiving incomplete/interim report under section 173 of Cr.P.C., while scrutinizing it under section 7(5) of the CPS Act concerned prosecutor can check compliance of such direction or return the report back to police t o remedy such defect, beca use non-applicability of proper offence is also a defect as held by this Court in a case reported as “AZIZULLAH KHAN Versus S.H.O. POLICE STATION SADDAR, MIANWALI & 4 others ” (2013 P Cr. L J 1411), but to the surprise of this court, the concerned prosecutor who scrutinized the report under section 173 of Cr.P.C., instead of recommending for above correction, proceeded to forward the Challan/Police report in section 322 PPC to the Court of Magistrate for trial. It was a sheer miscon duct, because by doing so he has changed the jurisdiction of Court, which opposes the ruling of this Court passed in a case reported as “FAYYAZ AHMAD and another Versus THE STATE and others” (2008 P Cr. L. J 805) that says that by their opinion whatsoever about applicability of off ence, prosecutor cannot change the jurisdiction of the Court but to submit his opinion before the same court. 16. When a prosecutor forms his opinion that offence is triable by such and such court, he is required to see the contents of FIR. If section 302 PPC is attracted from the contents of FIR, he shall forward the case to the Court of Sessions for trial in every circumstance with his opinion for applicability of section 302 PPC or not, or relying upon police opinion that during investigation sectio n 322 PPC is attracted , because he cannot direct the police to
Crl. Misc. No.531-B of 2026 11 alter its findings which is prohibited under para 4.18 of the Code of Conduct for prosecutors which is as under; 4.18 A prosecutor must never direct the police to alte r evidence. A prosecutor m ay not direct the Police to alter a finding although the Police may do so if as a result of the clarifications sought they find differently. (Emphasis Supplied)
It is then the Court of Sessions which shall charge the offender alternatively with sections 302 and 322 PPC because it is not clear until the evidence is recorded that which offence in fact was committed. Section 236 also supports this idea, though allowed charging under any one of the offences, which is as under; 236. Where it is doubtful what offence has been committed. If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in t he alternative with having committed some one of the said offences.
Thus, if the court does not charge the offender alternatively, even then it is competent to convict the offender for the offence which is made out from the evidence, though he had not formally been charged as mentioned in section 237 of the Cr.P.C. If after the conclusion of trial, the court is still in a fix to decide what several offences the offender is liable the n it shall adopt the procedure mentions in section 72 of the PPC, which is as under; 72. Punishment of person guilty of one of several offences, the judgment stating that it is doubtful of which. In all cases in which judgment is given that a person is gui lty of one of several offences specified in the judgment, but that it is doubtful of which of these offences he is guilty, the offender shall
Crl. Misc. No.531-B of 2026 12 be punished for the offence for which the lowest punishment is provided if the same punishment is not provided for all.
In such situation neither the prosecutor nor the Court of Sessions send the case for trial to the Court of Magistrate, if reached to the conclusion for applicability of section 322 PPC, because without being affected the provision of section 30 of C r.P.C., the offence under section 322 of PPC is also triable by the Court of Sessions as mentioned in the Schedule II of the Cr.P.C. However, situation would be different if an offence under a special law is made out from the material placed before the Court of Sessions, then it can transfer the case to the concerned special Cou rt as held in a case reported as “ALI NAWAZ Versus The STATE and another ” (2024 P Cr. L J 658). 17. If the concerned prosecutor has already forward ed a report under section 173 Cr.P.C. to any court, he is still competent to review his opinion because as per Para 4.11 of the Code of Conduct for Prosecutors, review is a continuing process; it says as under;
4.11 Prosecutors review every case they receive from the police or other investigators. Review is a continuing process and prosecutors must take account of any change in circumstances that occurs as the case develops, including what becomes known of the defence case. Wherever possible, they should talk to the investigator when think ing about changing the charges or declining a prosecution. Prosecutors and investigators work closely together, but the final responsibility for the decision whether to prosecute or not rest with the CPS.
Further evidential test is also a continuing proc ess that can be applied even when a lawful direction has been
Crl. Misc. No.531-B of 2026 13 passed as mentioned in para 5.5 clause (d) of the Code of Conduct for Prosecutors which is as under; When a lawful direction is issued to review the case to determine whether the case still complies with the Full Code Test.
Lawful direction means direction issued by the Government, Prosecutor General, District Public Prosecutor, trial court or superior Courts questioning the applicability of offence or availability of evidence to prosecute the o ffender. Thus, when police had sought opinion from the concerned District Public Prosecutor or concerned prosecutor on this direction of this court, they can simply review the opinion and inform the police for legitimate prosecution of offence under sectio n 302 PPC or 322 PPC, and then can also take notice of wrong committed by them while forwarding the challan/police report to the court of Magistrate by filing another case review report before the Court of Magistrate for forwarding of case to the Court of sessions for trial, which has not been done in this case. 18. The di rections issued by the prosecutors to the police are binding on them as being issued under lawful authority, thus, any violation exposes them to action under Police Order 2002, and likewise any lapse on the part of prosecutors shall be subject to disciplinary action in accordance with law. In this respect the Five members’ Bench of Peshawar High Court in case referred above held as under; 36. Any wilful or ungrounded failure of an Investigating Officer to comply with prosecutorial directions shall be report ed to the competent authority under Section 118 of the KP Police Act, 2017. Likewise, any lapse on the part of prosecutors shall be subject to disciplinary action in accordance with law.
Crl. Misc. No.531-B of 2026 14
73. After the conclusion of the trial, the trial Court in case of acquittal of an accused has to record reasons that as to whether the said acquittal has been made due to the false charge leveled by the complainant or due to the poor and faulty inves tigation conducted by the Investigating Officer or due to the inefficiency of the Prosecutor and in case the acquittal is being made due to the false charge of the complainant, then the trial court has to initiate proceedings against the complainant under Section 476 read with 193 PPC and all other penal provisions, and in case the trial court is of the opinion that the acquittal is being made due to the poor and faulty investigation of the I.O, then it has to proceed against him under section 118 of The KP Police Act, 2017 read with Sections 166 and 167 and 217 of PPC and If the trial court forms the view that the acquittal is attributable to the inefficiency of the prosecutor, it shall recommend proceedings against the prosecutor in accordance with the relevant law.
Section 118 of KPK Police Act 2017 is identical to Article 155 of the Police Order 2002. 19. From the above situation, it spurs out that the prosecutors lack basic knowledge of procedural laws which can be remedied through proper training by their own training department , i.e., Centre for Professional Development of Prosecutors (CPD). Prosecutor General Punjab is directed to issue general guidelines to the prosecutors to meet with such situations and also suggest a training module for them. 20. Coming to the case in hand, petitioner was not nominated in FIR, the only evidence against him was the hearing of conversation by two witnesses through which it was disclosed that co-accused Nadeem Shah committed murder of Asad deceased while presen t petitioner has facilitated him during the occurrence, and all that was done on the wish of…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.