' SYED SHABBAR RAZA RIZVI, J.---The learned counsel filed this petition whereby he assailed order dated 3-4-2007 delivered by the learned Addl. Sessions Judge against order dated 18-1-2007, passed by the learned Judicial Magistrate. The order of the Magistrate was upheld by the learned Addl. Sessions Judge.
2. Briefly, the facts and controversy in this petition is that challan was submitted before the learned trial Court and during the pendency of trial re-investigation was conducted on order of Inspector- General of Police, Punjab. During the re-investigation addition of section 324, P.P.C. Was recommended. The petitioner party approached the learned trial Court for modification of charge by adding section 324 P.P.C. The said request was declined vide order dated 18-1-2007 by the learned Judicial Magistrate Section 30, Mianwali. The revision was also dismissed by the learned Addl. Sessions Judge, Mianwali by the impugned order on the ground that re-investigation was conducted after, submission of challan and dismissal of earlier revision petition on the same subject. For the convenience the relevant portion is reproduced as under:-- "The first revision petition was dismissed on 18-7-2006 and supplementary challan inserting section 324, P.P.C. Was submitted before the learned trial Court after the dismissal of revision petition. The police had no authority to re-investigate the case when challan had already been submitted before the Court and trial had also commenced."
3. According to the learned counsel for the petitioner, reinvestigation during the pendency of the trial or after submission of challan is not barred by the law. Likewise, according to the learned counsel for the petitioner request for modification of charge can also be made under section 227, Cr.P.C., in the above circumstances. The learned counsel has referred to PLD 2002 SC 590, 2000 PSC (Crl.) 803 and 2003 YLR 701.
4. On the other hand, learned counsel for the respondents has submitted that during the pendency of trial and in the above circumstances where already such application was dismissed by the trial Court as well as by the revisional Court in earlier round, re-investigation could not be allowed.
According to him circumstances in the cases cited by the learned counsel for the petitioner were different. In support of his contention he has eluded to 2003 PCr.LJ. 1032 and PLD 2007 SC 31.
5. I have considered the arguments of the learned counsel for the parties as well as case-law cited by them. In the cases cited by the learned counsel for the petitioner facts and circumstances were different. Moreover, the impugned order was not passed in the second round of refusal of the trail Court to add section 324, P.P.C. Or modification of charge. There is another reason for not agreeing with the learned counsel for the petitioner even if re-investigation is not barred by law and police is allowed to form an opinion about the occurrence. Is opinion of police binding on trial Court? There is plethora of cases on this proposition and, wherein, it has been held that opinion of police is not binding upon the Court; Court is empowered to accept or reject the same. The superior Courts of Pakistan have held on both sides i,e, re-investigation is allowed after submission of challan and it is not allowed, depending upon facts and circumstances of each case. For example in Muhammad Nasir Cheema v. Mazhar Javaid and others (PLD 2007 SC 31) the Court disapproved re- investigation after commencement of the trial. The Honourable Supreme Court of Pakistan held as under:-- "At this stage, the learned Additional Advocate-General informs us that some Additional I.-G. Police had passed some order on 15-7-2006 and had changed the investigation. We are surprised at this order passed by the Addl. I.-G. Police (Investigation Branch), Punjab for more than one reason.
Firstly, because the report under section 173, Cr.P.C. Had already reached the trial Court as noticed above where-the trial had already commenced and changing the investigation or ordering further investigation in the matter thereafter _itvas,,4n exercise unsustainable in law."
' In the above judgment the Honourable Supreme Court if Pakistan has clearly held that order of re- investigation after submission of challan is unsustainable in law. Likewise in a Full Bench judgment of this Court reported as Khizer Hayat and others v. Inspector-General of Police, (Punjab), Lahore and others (PLD 2005 Lahore 470), it was held in para. 25 of the judgment as under:-- "We may add in this context that we cannot appreciate or approve the trend of getting a fresh investigation of a criminal case conducted- after submission of a Challan and taking of cognizance by the trial Court. In the absence of any particular material piece of evidence shown to have been missed out by the Investigating Officer and yet to be collected by the police there can hardly be any occasion for holding a fresh investigation at such a stage. If such fresh investigation is meant only to obtain a fresh opinion of an Investigating Officer regarding guilt or innocence of an accused person then, apart from the reasons mentioned above, such fresh investigation is likely to be legally inconsequential because an F.I.R. Cannot be cancelled or an accused person discharge at such a stage for the reason that after taking of cognizance of the case by a trial Court the question of guilt or innocence of an accused person or the matter of his release can be determined only by the Court and none else."
' It is apparent that as a result of re-investigation conducted on order of Inspector-General of Police, Punjab a fresh opinion has been obtained on basis of which the trial Court and the revisional Court were approached for addition of section 324, P.P.C. In the charge, which is clearly disapproved by the Honourable Supreme Court of Pakistan as well as this Court in the above noted two judgments. As I observed in the preceding paras it is Court to decide the guilt or innocence of an accused person once cognizance is taken by the trial Court and finding of police officer is not binding on the Court. Moreso when a competent Court has already taken cognizance, an Investigating Officer cannot be allowed to take upon himself to declare an accused person innocent or guilty. At the most in such a situation i,e, where the trial is in progress, the Court can be taken into confidence. And if a fresh investigation at all is unavoidable because a material piece of evidence can be collected, which was missed out in the earlier investigation or has surfaced after completion of first investigation. The Investigating Officer may seek permission form the trial Court for re- investigation.
6. In view of the above, this petition is dismissed and order of the learned revisional Court as well as trial Court dated 3-4-2007 and 18-1-2007 are upheld.