' SYED MUHAMMAD FAROOQ SHAH, J.---By invoking the extra-ordinary jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has averred that further investigation cannot be carried out after the FIR No, 602 of 2012, under Sections 420, 406, 34, P.P.C., registered with Police Station Aziz Bhatti, was disposed of as 'C' class by the learned Judicial Magistrate, vide order dated 19-9-2012.
2. Relevant facts leading to the case in hand are that one Muhammad Taufeeq Razzaq and Muhammad Javed Dandia are distributors of medicines and running their business in the name and style of "City International Distributors". In the year 2009, the petitioner joined them as working partner having share as 33.33% and established the business in the name and style as "CITY MARKETING SERVICES". Some dispute had arisen in between the petitioner and the aforementioned persons, which was settled on 1-9-2012, whereby it was agreed that after final audit by the chartered accountant, both parties will agree on balance sheet. Subsequently, aforementioned person namely Muhammad Taufeeq lodged FIR against the petitioner, therein misappropriation of four vehicles was alleged. The case was investigated and the final report submitted under Section 173, Cr.P.C. Was approved in 'C' class. Perusal of record transpires that said Muhammad Taufeeq Razzak had filed Criminal Miscellaneous Application before this Court and by order dated 24-12- 2012, the learned single Judge of this Court directed the Investigating Officer to conduct the reinvestigating in a transparent manner and submit the report before this Court. By subsequent order dated 23-2-2013, the investigation report submitted by the I.O. Was taken on the record, copy whereof has also been provided to the Counsel for the applicant and in view of such investigation report, learned Counsel did not press the Criminal Miscellaneous Application, which was dismissed with direction to the Investigating Officer to dispose of the matter in accordance with law. From perusal of record it appears that the Investigating Officer has filed an application for enlargement of time before the concerned Magistrate, to submit the reinvestigation report in detail. He was accorded seven days time by the learned Magistrate, vide order dated 6-3-2013, thereafter, the instant petition has been filed. It is an admitted position that both orders dated 24-12-2012 and 23- 3-2013 passed by the learned Single Judge of this Court have not been challenged, those have attained finality.
3. We have considered the arguments advanced by both sides and carefully perused the case-law cited at the bar.
4. Mr. Sheikh Javed Mir, learned counsel for the petitioner contended that after proper investigation, the report submitted under section 173, Cr.P.C., suggesting the disposal of crime in cancelled 'C' class was duly approved by the concerned Magistrate. Learned counsel submitted that the complainant filed Criminal Miscellaneous Application No, 264/2012 before this Court against the order dated 29-9-2012, passed by XIXth Civil Judge and Judicial Magistrate, Karachi (East) arising out of FIR No, 602/2012, with prayer to pass the order for quashment of the above order, with direction to reconsider the case in view of the provision of section 173(ii), Cr.P.C. And to set aside the order whereby re-investigation was directed. It is submitted that this Court directed the investigating officer to conduct the re-investigation in a transparent manner and submit the report. Per counsel, learned Judicial Magistrate was not justified in granting extension for investigation and the action taken by him is ab initio void and of no legal effect. According to his view the order of learned Magistrate cancelling the crime is still intact and therefore, subsequent investigation cannot be initiated. Learned counsel, however, has admitted that this Court by disposing of Criminal Miscellaneous Application No, 264/2012, directed the investigating Officer to dispose of the matter in accordance with law and that the Investigating Officer had submitted the reinvestigation report in view of order passed by this Court on the said Cr,M.A. Learned counsel placed his reliance on the cases of Ghulam Sarwar Zardari v. Piyar All alias Pyaro (2010 SCM R 624) and Talib Hussain and another v. Muhammad Aslam and another (1997 PCr.LJ 56).
5. We have no reason to disagree with the contention of learned counsel for the petitioner that further investigation cannot be conducted unless the order passed on charge sheet submitted under section 173, Cr.P.C. Whereby the case was cancelled in 'C' class, is set aside, however, peculiar facts and circumstances of the case in hand reveals that specific directions were passed by this Court in Criminal Miscellaneous Application No, 264 of 2012, to the Investigating Officer to proceed with the case in accordance with law, which order is still intact and had already achieved finality, therefore, the submissions advanced by learned counsel are uncalled for. The ruling in the case of Ghulam Sarwar Zardari's case (2010 SCM R 624) is not applicable in the circumstances of the present case as the reinvestigation report has been submitted by the Investigating Officer on directions of this Court.
6. Conversely, Mr. Zafar Ahmed Khan, learned A.P.G duly assisted by learned counsel for the respondents has also submitted that since the earlier Criminal Miscellaneous Application No, 264/2012 preferred against the order dated 29-9-2012, was disposed of with direction to the , Investigating Officer to conduct the reinvestigation in a transparent manner and submit the report before this Court and by subsequent order dated 23-2-2013, on submission of reinvestigation report, the Investigating Officer was directed to dispose of the matter in accordance with law. It is submitted that the petitioner had committed the fraud of Rs,2,07,08,889 in the funds and stock of the company and the petitioner exceeded from his job and misappropriated the funds of the company and did not approach this Court with clean hands as there is no cogent material available on record which shows that the complainant launched improper motive to harass the accused/petitioner, more particularly, in reinvestigation report, auditors were recommended to be appointed to ascertain the allegations. It is submitted that the relief claimed through the instant petition is not tenable in law.
7. There is no cavil with the proposition that in compliance with the order of this Court, the investigation was entrusted to the I.O. By this Court with specific direction to reinvestigate the case, who submitted reinvestigation report which shows that the Assistant Vice President, Regional Collectorate Manager stated that the Vehicle No, ASQ-703, ANK-4124 and AVK-125 are leased with Meezan Bank in the name of M/s City International and their monthly installments are being paid by the City International and that the said vehicles were handed over to the petitioner Mr. Muhammad Naeem, National Sales Manager of City Marketing with authority letter for his official/personal purpose and letters have also been issued to the concerned bank branches regarding the details of the amount in Account No,0104, which has been received, while the detail of Account No, 4299 of Meezan Bank is still awaited. He has further submitted that on 1st September, 2012, an agreement was made between both parties who opined that both parties were agreed on balance sheet developed by the chartered accountant. It was proposed that any chartered accountant may be appointed for audit and preparation of balance sheet. Re-investigation report is available at page No,
49. The only legal point, which requires determination is that as to whether after accepting the report in cancelled 'C' class, the concerned Magistrate can entertain the reinvestigation report, keeping in view the direction of this Court, in Criminal Miscellaneous Application No, 264/2014.
8. To reach at the just conclusion of point in determination, we have gone through the case-law as laid down by the Hon'ble Apex Court. The cases of Bahadur Khan's case (2006 SCM R 373), Muhammad Nasir Cheema v. Mazhar Javed (PLD 2007 SC 31), Zeeshan alias Shani v. The State (2012 SCMR 420), Muhammad Yousuf v. The State (2000 SCM R 453) PLD 2010 SC 1109 and Ghulam Sarwar Zardari v. Piyar. Ali alias Pyaro (2010 SCM R 624) are relevant to the context.
9. In Bahardur Khan's case, the Apex Court held that 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 has been submitted for trial of an offence, on which the accused had been tried and the case was finally decided up to the level of High Court or the Supreme Court, subsequent challan would be entertained, which is submitted as the result of reinvestigation or further investigation of the case by the police, on the happening of a subsequent incident and that the Court would proceed with the trial of the case. In the normal course oblivious of the facts of the case decided earlier by such Court.
10. In the case of M. Yousuf v. The State (2000 SCM R 453), in paragraph 7, it is held that there is no legal bar of investigation of the case even after the submission of final report under section 173, Cr.P.C., the police may carry out fresh investigation and submit its report to the Court. In such context, the relevant portion from a judgment delivered in the case of Atta Muhammad v. Inspector General of Police (PLD 1965 W.P. Lahore 735) is being reproduced herein below wherein it has been held that:-- "The Magistrate himself does not have the legal powers to direct a further investigation by the police after he himself has taken cognizance of the case and has himself launched an inquiry or trial but there is no bar on the police to pursue its own investigation and submits their results to the Court to found the guilt or innocence of the accused persons before it becomes too late".
11 Investigation initiated with mala fide intention was elaborately discussed in the case of the Federation of Pakistan v. Saeed Ahmed Khan and others (PLD 1974 SC 151), wherein it is observed that 'Mala fides' have to be alleged in the particularity and a mere assertion of a general malice cannot be sufficient. In the case of M.S. v.Satfullah Khan Niazi (1982 SCM R 17), law laid down by the Apex Court is that it is not possible either for High Court or Supreme Court to start a parallel inquiry into the matter at such stage when the case already submitted to the trial Court, all relevant evidence yet to be examined. In the case of Shehnaz Begum v. Hon'ble Judges of High Court Sindh and Balochistan reported as (PLD 1971 Supreme Court page 677) and in the case of Wahid Muhammad v. Hag Nawaz (PLD 1971 SC 717)(sic), it was observed that during the course of investigation, police has complete domain over the case in a cognizable offence.
12. In the light of aforementioned dicta as laid down by the Apex Court, we may draw the conclusion that after the submission and acceptance of first and final report, the police may conduct the fresh investigation of the case, if the first investigation is found unsatisfactory with sound and plausible reasons, to say that the same police officer or his superior cannot revive the investigation already done, the additional discovery in shape of evidence and on conclusion of investigation into the crime by the Police officer another investigation may be begun by the police on further information, received. Record transpires that undeniably and undisputedly on submission of charge sheet, no specific prejudice caused to the petitioner, such as that the result of investigation is arbitrary, capricious, whimsical or dishonest and that B the investigation agency has not conducted the investigation in a manner to bring the truth on the surface to save the innocent person from the agony of trial and if at all, the investigation can only be intervened to save fundamental and legal rights of the parties or, where mala fide and excess of jurisdiction is available. In the instant case, the petitioner did not succeed to demonstrate before us that the investigation was neither transparent nor independent and suffers from any illegality or irregularity or the investigation is being conducted with mala fide or without jurisdiction. Even otherwise, the perusal of record shows that this court under section 561-A, Cr.P.C. Directed the police to investigate and discover the truth or otherwise.
13. Keeping in view the facts and circumstances of the case in hand and in view of law as laid down by the apex Court, we reached at the irresistible conclusion that undisputedly, the final report was approved as 'C' class and in Subsequent Criminal Miscellaneous Application under Section 561-A, Cr.P.C. Filed before this Court, specific directions were solicited to the investigating officer to conduct the reinvestigation and to submit the report of reinvestigation and after submission of his reinvestigation report, the Criminal Miscellaneous Application No, 264/2012 was disposed of with direction to the Investigating Officer to submit the report in accordance with law. In compliance with the direction of this Court, Investigating Officer has put his appearance before the concerned Magistrate and had sought a week for submission of reinvestigation report, which order is impugned through the present petition. Neither the fresh investigation has been submitted by the Investigating Officer nor he has completed the same on direction of this court, therefore, the instant petition not sustainable in law, is hereby dismissed, with no order as to costs.
14. By our short order dated 9-9-2014, we have dismissed the captioned petition and above are the reasons for the same.