Raja Fayya z Ahmed, J.--These Criminal Petitions Nos, 44Q/2003 & 45-Q/03 for leave to appeal have been filed against the consolidated judgment dated 16.6.2003 for the learned Division Bench of the High Court of Balochistan, Quetta, therefore, we propose to dispose of both the Criminal Petitions by this common judgment.
2. In Criminal Petition No, 44-Q/03 acquittal of Respondent No, 1, Muhammad Azam has been questioned, resulted on acceptance of his Criminal Appeal No, 59/99 convicted by the learned Additional Sessions Judge-V, Quetta under Section 212 PPC, whereas; in Criminal Petition No, 45- Q/03 the above said judgment of the High Court of Blochistan, Quetta, has been assailed whereby the Criminal Acquittal Appeal No, 67/99 filed by the petitioner was dismissed and the order of the acquittal of Respondent No, 2, Abdullah Khan, was maintained.
3. The precise relevant facts of the case are that on 25.2.1990 Dilawar Khan nephew of petitions Bahadur Khan, while driving a Datsun pickup alleged to have collided/struck with Muhammad Raza son of Respondent No, 1 Abdullah Khan (the then Risaldar Major, Levies, Quetta) in Crl. P. 45-Q/03 and the brother of respondent Muhammad Azam in Crl. P. 44-Q/03. As a result of the above incident Muhammad Raza succumbed to injuries. It has been stated that extensive efforts were made by the petitioner to settle the issue by entering inter comprise in respect of the above said incident which persistently failed and an impression was gathered that the deceased Muhammad Raza son of Abdullah Khan did not meet with an accident but was done to death deliberately by Dilawar Khan on the pretext of road accident.
4. Later on within a period of four months of the above mentioned incident Dilawar Khan student of 9th class after attending his class in the Sandeman High School, Quetta was on his way to the shop while turning towards the lane from Mansafi Road was allegedly subjected to firing by Muhammad Akram and Muhammad Essa with pistol/revolver after alighting from the vehicle parked near to the Mansafi Road. On receiving fire arm injuries Dilawar Khan fell down on the spot and after that Muhammad. Alam and Mir Hassan each alleged to have fired one shot on the person of Dilawar Khan, whereupon all nominated accused persons made good their escape in the vehicle. It has been alleged in the report made by the petitioner Bahadur Khan that he and Mir Mubarik reached close to the injured and found him having succumbed to the injuries, on which they chased the accused persons in their vehicle but failed; so he alongwith Mir Mubarik returned to the spot and in the meantime police also reached to the place of Wardat. The dead body of the deceased was shifted to the hospital for autopsy by the police. It has been stated in the report that at about 11 a.m. the petitioner alongwith Mir Mubark in his vehicle left to fetch his nephew Dilawar Khan from school and when they reached to Mansafi Road, saw Dilawar Khan having took the turn towards their shops, so he asked Haji Mubarik to pick him and in the mean time the above narrated incident took place. The motive in the report was disclosed to be that on 25.2.1990 dilawar Khan while driving the pickup hit Muhammad Raza who succumbed to injuries but Abdullah Khan, Risaldar Major, Levies, Quetta took it as the intentional murder of his son and to avenge the same, his nephew Dilawar Khan has been murdered by means of firing made by the nominated accused persons. On the report of the petitioner case Crime No, 102/90 was registered with Police Station, City, Quetta at 11.30 a.m on the above said date under Section 302/34 PPC.
5. Co-accused Muhammad Akram initially could not be arrested and during this period, investigation of the case under FIR No, 102/90 was transferred to the Crime Branch. On 15.8.1990 during the course of Picketing Nakabandi a Pajero vehicle on its way to Kili Shabak from Kach Road being driven by respondent Muhammad Azam in Crl. P.44-Q/03 was stopped in which the wanted co-accused Muhammad Akram was also found present occupying the rear seat, and from the vehicle two Kalashnikoves alongwith several magazines were taken into possession. Accordingly, co accused Muhammad Akram was apprehended and arrested against whom a case under Section 13(e) of the Pakistan Arms Ordinance, 1965, hereinafter referred to as the 'Ordinance' under FIR No, 26/90 was registered with the Crime Branch, Police Station, Quetta whereas; respondent Muhammad Azam was not proceeded against and was allowed to go. The murder case relating to FIR No, 102/90 was tried by the learned Sessions Judge (Ad-hoc), Quetta, in which Muhammad Arif was also arrayed as one of the accused person (nephew of Abdullah Khan and a Levies employee) as he-surrendered himself to police and claimed to be responsible for committing the murder of Dilawar Khan with a TT pistol produced by him while surrendering. The learned trial Court vide judgment dated 28.10.1993 convicted accused Muhammad Arif under Section 302(b) PPC and sentenced him to death penalty while co-accused Muhammad Akram and Mir Hassan were acquitted, on the charge. After that, Crl. Acquittal Appeal No, 13/93 was filed by the State and Crl.
Revision No, 2/93 against the acquittal of Muhammad Akram and Mir Hassan was filed by the petitioner in the High Court of Balochistan, Quetta, whereas; convict Muhammad Arif filed Crl. A. No, 163/93 against his conviction and sentence. The learned Division Bench of the High Court accepted Crl. A. No,' 163/93 of convict Muhammad Arif and acquitted him of the charge vide judgment dated 28.10.1993 whereas; Crl. Acquittal Appeal of the State and Crl. Revisional filed by the petitioner were accepted by converting acquittal of accused Muhammad Akram and Mir Hassan into their conviction under Section 302(b)/34/PPC and each sentenced to life imprisonment and fine of Rs, 25,000/- each by means of the above mentioned common judgment passed in the Crl. Appeal, Crl.
Acquittal Appeal and the Criminal Revision. The matter eventually, came up' before this Court through Crl. A. Nos, 338/93 and 10-Q to 13-Q/94 and vide judgment dated 11.10.1995 passed by this Court conviction and, sentence of accused Mir Hassan was set aside whereas; the conviction and sentence awarded to accused Muhammad Akram was upheld.
6. The case registered under. Section 13(e) of the Ordinance, (FIR No, 26/90) against accused Muhammad Akram was cancelled before submission of challan on receipt of letter of the Deputy Commissioner, Quetta verifying that the recovered arms and ammunition were issued to Muhammad Akram, Defedar Levies and Sepoy Muhammad Aslam. Subsequently, the 'petitioner filed Application No, 12/93 in the High Court of Balochistan, Quetta. The learned High Court vide judgment dated 1.9.1994 remanded the case under Section 13(e) of the Ordinance, to the trial Court for disposal in accordance with law. The memo of Criminal Petition No, 44- Q/03, paragraph 9 shows that Muhammad Akram has filed Crl. Petition for leave to appeal against the above said judgment of the High Court and,leave has been granted by this Court.
7. In the murder case of Dilawar Khan registered with Police Station, City, Quetta under FIR No, 102/90, which attained finality upto level of this Court mentioned above, the challan Bearing No, 26- B/90 dated 17.7.1995 under Sections 212/120-B/34 PPC was filed in the trial Court, which decided the murder case. Eventually, the subsequent case initiated through the above mentioned challan was decided by the learned Additional Sessions Judge-V, Quetta whereby respondent Muhammad Azam in Cr. P. 44-Q/03 was convicted under Section 212 PPC and sentenced to suffer one year R.I; and co-accused Abdullah Khan (respondent in Crl. P. No, 45-Q/03) was acquitted on the charge vide judgment dated 24.3.1999. In FIR No, 26/90, it has been alleged that accused Muhammad Azam, who was driving the vehicle from which the unlicensed arms ammunition were recovered was fully aware that his brother Muhammad Akram has been wanted in the murder case and is a proclaimed offender but he- deliberately harboured the said accused and also intentionally involved himself in the criminal conspiracy, whereas; accused Abdullah Khan who at the relevant time was posted as Risaldar Major, Levies, Quetta was well aware of the fact that his son Muhammad Akram is an absconder accused but he did not inform to the police and facilitated his son and nephew in the absconsion to whom even arms and ammunition was provided, which act on the part of the accused Muhammad Azam and Abdullah Khan amounts to the commission of the offence under Sections 212/120-B PPC,
8. Syed Ahmad Mohiuddin Qathi, the learned AOR, for the petitioner vehemently submitted that the facts constituting the offence under Sections 212 & 120B/34 PPC for the first time emerged and came to lime light during investigation of the case under FIR No, 26/90 having nexuses with the earlier murder case of Dilawar Khan registered with Police Station City, Quetta under FIR No, 112/90, consequently; on completion of investigation challan Bearing. No, 26-B/90 in continuation of the challan earlier filed in the murder case was submitted in the trial Court which decided the murder case. Thus according to the learned AOR appropriately and in accordance with law the subsequent challan was submitted for trial of the offence against the respondents Muhammad Azam and Abdullah Khan as the Police had in the given facts and circumstances of the case not been estopped to reinvestigate or to further investigate about the latent aspects of the case as a result of the event i,e, recovery of arms and ammunition during course of Nakabandi on 15.8.1990 from the vehicle driven by a respondent Muhammad Azam in Crl. P. No, 44-Q/03 for prohibited under the statue from submitting fresh report within the purview of Section 173 Cr.P.C. for trial of the offence but the learned Division Bench of the High Court of Balochistan misconstrued the legal proposition with regard to the reinvestigation in a case hence; submission of challan for trial of the accused for the offences on which they were not tried earlier, passed the impugned judgment which is not tenable on facts and the law. The learned AOR in support of his contentions noted above placed reliance on the reported judgments i,e, (1) Muhammad Akbar v/s The State and another (1972 SCM R. 335) (2) Rehmat Ali and another v/s The State (1976 SCM R 204) and (3) Aftab Ahmad v/s Hussan Arshad and 10 others (PLD 1987 SC 13).
9. The contentions advanced by the learned AOR have been considered in the light of the common judgment of the learned High Court of Balochistan- impugned in these Criminal Petitions which has been gone through carefully and minutely, including provisions of Section 173 Cr.P.C. and the case law cited by the learned counsel for the petitioner. It is well settled proposition of the law as also held consistently in the reported judgments of this Court and those cited by the learned AOR, in view of the provision of Section 173 Cr.P.C. that no legal bar existed for reinvestigation of a criminal case even after submission of final report under Section 173 Cr.P.C. and the police could carry out the fresh investigation and submit its report to the Court but this would not mean that in a case in which earlier, after completion of investigation challan was submitted for trial of the offence for any offence on which an accused/accused persons have been tried and the case finally decided upto the level of the High Court and by this Court, as the case may be, to entertain the subsequent challan submitted as the result of reinvestigation/further investigation of the case by the police on the happening of a subsequent incident and to proceed with the trial of the case in the normal course oblivious of the facts of the case decided earlier by such Court, and; the facts and circumstances including incriminating material necessitated submission of the subsequent challan in the case already having been decided and attained finality. In the instant case admittedly, the learned trial Court has not attended to the above mentioned aspects and the facts apparent from contents of the subsequent challan referred to above nor even cared to take notice of the fact that the same was submitted after final disposal of the case by the High Court even, as well as; that in continuation of the earlier challan as also evident from the consecutive serial number of the challan) submitted in the murder case that stood finally decided, mentioned above and; it was not the challan submitted independently for trial of a distinct offence before the Magistrate competent to take cognizance of the offence within the meaning of Section 190(1)(b)
Cr.P.C. nor was sent for trial to the Sessions Court as envisaged by subsection (2) of Section 190 Cr.P.C.
In the cited case reported in (1972 SCM R 335) it was held in view of the observations of the learned Judge of the High Court that there is nothing in Criminal Procedure Code which debars a police Investigating Officer from submitting a fresh report in supersession of his earlier one; either on his own initiative or on direction of the superior Police Officer. It was further held in view 'of the given facts of the case that even after the first report alleged to have been submitted under Section 173 Cr.P.C. the Magistrate could, irrespective of the opinion of the Investigating Officer to the contrary, take cognizance if upon material produced before him he found a prima facie case was made out against the accused persons. The facts of the instant case are quite distinguishable, as admittedly, the subsequent challan was not submitted in supersession of the earlier report filed under Section 173 Cr.P.C. to the Magistrate rather than; the same was filed as above referred, after the finality of the case upto the level of High Court nor the subsequent challan under Sections 212 & 120-B/34 PPC was submitted before the Magistrate within the purview of Section 190 Cr.P.C.
The reported judgment i,e, (1976 SCM R 204) has no relevancy to the case in hand. In that case, the accused in the first case was charged for forging a valuable document, false personation by one and false identification by another and no forgery or fabrication of record of Sub-Registrar was alleged, whereas; the subsequent case was registered on the report of the new Sub-Registrar on the allegation of removal of thumb-impression from the Thumb Print Register and substituting bogus thumb-impression in order to save culprits from offence of cheating and forgery and therefore, it was held that the transactions in both the cases were altogether different, not barred under Section 403 Cr.P.C.
The third cited judgment i,e, (PLD 1987 SC 13) relates to the Criminal Petition for Special Leave to Appeal from the judgment of the Lahore High Court, Lahore, declined by this Court in which it was held that subsequent investigation after submission of first report under Section 173 Cr.P.C. to competent Court and there is nothing in Code of Criminal Procedure to prevent the Investigating Officer from submitting his subsequent report in supersession of his earlier one and number of investigations into a crime by Police Officer not limited by law and when one has been completed, another may be commenced on further information received and this is also possible even after submission of the challan, when the Court has already taken cognizance of the case. The facts of the case were that initially, FIR was registered under Sections 307/364/365/452/ 148/149 PPC at the instance of the petitioner and the learned Magistrate on submission of the report under Section 173 Cr.P.C. took cognizance of the case and framed charge under Sections 307/364/365/452/148/149 PPC and thereafter; statement of one of the prosecution witnesses was also recorded. In the meanwhile, the police on the intervention of the higher authorities reinvestigated the case and submitted second report under Section 173 Cr.P.C. for offences under Sections 336/342/148/149 PPC by omitting the more serious offences whereafter, efforts were made by accused to seek bail on the basis of second report from learned lower Court but without any success. The High Court on further application moved by the accused persons took note of the result of the investigation by the police and the fact that the State supported the plea for bail which was granted to the respondents; therefore, the complainant sought for leave to appeal against the judgment of the High Court. This case law as hereinfore noted in no way improves the case of the petitioner for the simple reason that the subsequent challan was not submitted in supersession of the report earlier filed under Section 173 Cr.P.C. in the murder case which already stood decided upto the level of the High Court in which respondent Abdullah Khan and co-accused Muhammad Akram besides the other accused persons were tried on the murder charge although; co-accused Muhammad Akram in the murder case initially remained absconder and was subsequently arrested and tried on the murder charge alongwith the other co-accused yet, no supplementary challan was submitted for the offences under Sections 212/120-B/34 PPC against the respondents in these criminal petitions for hatching criminal conspiracy for the murder of deceased Dilawar Khan and for harbouring co- accused Muhammad Akram. It is pertinent to note that the subsequent challan in murder case against the respondents was submitted directly in the trial Court after lapse of more than five years from the date of decision of the High Court in Criminal Appeal, Criminal Acquittal Appeal and the Criminal Revision Petition preferred against the judgment of the learned trial Court in a murder case.
This Court in the case of Riaz Hussain and another v/s the State while, (1986 SCM R 1934) seizen of the case relating to criminal appeal has held that the system of re-investigation in criminal cases is a recent innovation which is always taken up at the instance of influential people and favourable reports obtained which in no way assist the Courts in coming to a correct conclusion, had created more complications to the Court administering the justice, therefore, expressed its disapproval of this system altogether and; successive investigation of the case, as rightly observed by the learned High Court that it only retards the administration of justice instead of providing any assistance thereto. The instant case is a classical example of the same in which even after decision of the criminal appeals by the High Court and after lapse of a considerable period of time the second challan for trial of the offence under the above mentioned sections of PPC was submitted in the trial Court having become functus officio long before which directly took cognizance of the offence not permissible within the meaning of Section 190 Cr.P.C. and proceeded with the trial of the case after framing charge and finally convicted respondent Muhammad Azam and acquitted respondent Abdullah Khan on the charge. The learned High Court in our considered view correctly on considerations of the entire facts and circumstances of the case and the law by means of judgment impugned in these petitions and the case law on subject, set aside the conviction of respondent Muhammad Azam and dismissed the Criminal Revision and Criminal Acquittal Appeal preferred against the acquittal of respondent Abdullah Khan which is unexceptionable.
10. These Criminal Petitions being devoid of merits are dismissed and leave accordingly is refused.