M. BILAL KHAN, J.- By means of this Constitutional petition, the petitioner challenges the supplementary report under Section 173, Cr.P.C, submitted by S.H.O., Police Station, Saddar, Gujrat in case F.I.R. No. 682, dated 22.11.2000, registered at Police Station, Saddar for offences under Sections 302, 324, 148, 149, P.P.C.
2. In the incident, which is the subject-matter of the said F.I.R., three persons by the name of Mehdi Khan, Muhammad Aslam and Safdar Hussain had lost their lives. The petitioner is a real brother of Mehdi Khan deceased, in the F.I.R., a large number of accused persons had been nominated with specific roles including Muhammad Ansar son of Muhammad Asghar (respondent No. 1), who could not be arrested, remained an absconder and had. Formally been declared a proclaimed offender by the learned Trial Court. After conclusion of the trial, the learned Trial Court convicted Muhammad Asghar, Muhammad Akhtar and Muhammad Akbar under Section 302(b), P.P.C, and awarded them various sentences, whereas with regard to Muhammad Ansar (respondent No. 1), it ordered that on his arrest trial would commence qua him. However, perpetual warrants of arrest issued'against him by the Trial Court had been sent to the District Police Officer and District Coordination Officer, Gujrat for execution. The judgment dated 30.9.2003, whereby convictions had been recorded and sentences awarded, had been challenged by the convicts, namely, Muhammad Asghar and Muhammad Akhtar through Criminal Appeal No. 1778 of 2003, whereas the complainant had also filed a revision petition in this Court.
3. It appears that on the basis of some application moved on behalf of Muhammad Ansar (respondent No. 1), which was presented before the police by one Abdul Ghafoor son of Muhammad Ramzan, re-investigation had commenced on the basis of an order passed by the District Police Officer, Gujrat, during the course of which respondent No. 1 had been declared to be innocent and thereafter the said District Police Officer vide Police Diary No. 67, dated 18.1.2005 had directed S.H.O., Police Station, Saddar, Gujrat (respondent No. 3) to get him discharged from the case-, it is the said opinion and direction dated 18.1.2005 recorded by the District Police Officer, Gujrat (respondent No. 2) and the resultant supplementary report under Section 173, Cr.P.C, on the basis thereof, which have been impugned through this Constitutional petition.
4. It was argued by the learned counsel for the petitioner that the procedure adopted by the District Police Officer (respondent No. 2) is absolutely novel and is totally alien- to the provisions of law; that respondent Not 1 has all along been a proclaimed offender and admittedly perpetual warrants of arrest had been issued against her, as such no proceedings could be commenced on an application of a proclaimed offender or anyone else on his behalf; that the Trial Court had not only taken cognizance of the matter, but had also recorded its findings qua the co-accused of respondent No. 1 by handing down convictions and sentences against them, therefore, there was no occasion for the police to have made any endeavours for the discharge of respondent No. 1. it Was finally argued that the mala fides on the part of the police and their collusion with respondent No. 1 is apparent on the face of the record, in that being fully aware that respondent No. 1 was a fugitive from law, an application on his behalf had not only been entertained but his plea of alibi had also been accepted.
5. Rana Ijaz Ahmad Khan, Advocate proclaimedly representing respondent No. 1 had appeared on 29.3.2006 in this Court claiming that he was representing respondent No. 1. On that occasion, this Court had directed that respondent No. 1 should personally appear in the Court. On 27.4.2006, Rana Ijaz Ahmad Khan, Advocate was- asked to explain as to how he could represent a proclaimed offender. Even today, all that he had to say was that respondent No. 1 is in Germany, where he is hospitalised due to some serious ailment. Since respondent No. 1 continues to be a proclaimed offender, therefore, he has got no right to be heard by this Court. Accordingly, we disallow Rana Ijaz Ahmad Khan, Advocate to make his submissions.
6. The learned Law Officer while arguing that the police are entitled any empowered to investigate a case and submit as many supplementary reports as they wish till such time that the trial is concluded, candidly conceded that the procedure adopted in this case did not have the sanction of law. He, however, submitted that since the impugned supplementary report has already been submitted before the Court, therefore, this Court may not like to interfere in the police investigation and may leave the matter to the discretion of the learned Trial Court.
7. We have heard both the sides at considerable length and have also gone through the record. As already stated elsewhere, there is no denying the fact that respondent No. 1 had formally been declared a proclaimed offender and continues to retain that status even today. The Trial Court had taken cognizance of the matter and had initiated proceedings against him under Section 512, Cr.P.C.. it is an established legal position that a fugitive from law or a proclaimed offender loses some of the normal rights granted by procedural and substantive law. it would be ironical that while a fugitive from law loses his right to approach a Court of law, in that the Court is not to act in aid of a fugitive from justice, the Executive Authorities could be allowed to circumvent or sabotage this legal impediment by entertaining applications made by him or on his behalf. Carrying out multiple investigations or re-investigations are now governed by the express provisions as contained in Police Order, 2002 and the police officers no more enjoy unbridled discretionary powers in this behalf. The power conferred on police officers by the Police Order, 2002 to order re- investigation of cases or transfer of investigation from one police officer to another is, therefore, to be exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment.
Section 24-A of the General Clauses Act, 1897 is absolutely clear and does not admit of any ambiguity. The entertaining of application on his behalf by the District Police Officer (respondent No. 2) and accepting his plea of alibi is not warranted by any provision of law, especially when perpetual warrants of arrest had been issued against him by the learned Trial Court.
8. The procedure initiated by the District Police Officer, 'Gujrat (respondent No. 2) on the basis of application purportedly moved by a brother of respondent No. 1, which finally culminated in rendering an opinion of innocence by accepting his plea of alibi resulting in submission of a supplementary report under Section 173, Cr.P.C, is nothing but a contraption adopted by respondent No. 2 to extend undue favour to a person, who has been audaciously defying' and eluding the process of law. This gimmick on the part of the police amounts to sabotaging judicial proceedings by stealing a march on the Court itself. This illegality cannot be countenanced or allowed to prevail in a recent pronouncement of the Hon'ble Supreme Court of Pakistan in the case of Bahadur Khan v. Muhammad Azam and 2 others (2006 SCM R 373), in an almost identical matter, it was held that no legal bar exists for re-investigation of a criminal case even after submission of final report under Section 173, Cr.P.C, and the police can carry out 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 on which accused persons have been.
Tried and the case finally decided upto the level of the High Court or ,the Supreme Court, the Trial Court would entertain a subsequent challan submitted as a result $f r^-investigation/further investigation of the case by the police.
9. There is no cavil with the proposition .Advanced by the learned Law Officer that multiple investigations can take place in a criminal case, however, as already stated elsewhere this procedure has to be governed by the Police Order, 2002.
10. For what has been discussed above, we by allowing this petition declare that all actions taken on the application of respondent No. 1, which had finally resulted into submission of a supplementary report under Section 173, Cr.P.C., to be without lawful authority and of no legal effect and, therefore, set aside the same. There will be no order as to costs.
11. Before parting with this order, we may add that the observations recorded hereinabove are exclusively meant for disposal of this writ petition and are not designed to influence the trial of respondent No. 1, whenever, the same takes place.