MRS. SYEDA TAHIRA SAFDAR, J.---The order dated 28th November 2014 of Additional Sessions Judge, Chaman was questioned by the petitioner Akhtar Muhammad, while contending that the law was misappreciated, and the jurisdiction though available, but not assumed. It was ignored that the case of the prosecution was destroyed due to the incompetency of the Investigating Officer. Further, the investigation was not properly carried out, neither the stolen truck was recovered, nor the nominated accused persons were arrested despite pointation. In addition the matter was reported in time, but the FIR was lodged with a delay of one month without any reason.
This was due to the fact that there Was exercise of undue influence, and pressure on part of the nominated persons. Further, the identification parade held for identification of the arrested persons was deliberately held contrary to the required procedure by the Tehsildar Killa Abdullah, the Investigating Officer, with an intent to benefit the nominated persons. The acts on part of the Investigating Officer described his mala fides. It was prayed that the investigation of the case pursuant to FIR No, 36 of 2014, Levies Thana Killa Abdullah be transferred from the Tehsildar Killa Abdullah to the crimes Branch for re-investigation of the matter, and arrest of the nominated persons.
2. The learned counsel for the petitioner repeated the stance taken in the petition, only added that the Additional Sessions Judge, Killa Abdullah at Chaman while exercising the powers as Ex-officio justice of the Peace misunderstood the applicability of the Criminal Procedure Code (Cr.P.C.) in the cases registered by the Levies for the offences committed in the area identified as B-area, and the law i.e, the Balochistan Levies Act, 2010 (Act 2010) was misapplied. It was further stated that the charge had already been framed for the offence under Section 17(3) The Offences Against Property (Enforcement of Hadood) Ordinance, 1979, and the complainant recorded his statement.
3. The learned Deputy Prosecutor General was of the view that there was no illegality on the part of the Ex-officio Justice of the Peace, and no grounds were available for transfer of the investigation from the Levies to the Crimes Branch.
4. The order dated 28th November 2014 of the Additional Sessions Judge, Killa Abdullah at Chaman in his capacity as Ex-officio Justice of the Peace, the request for transfer of the investigation was declined. Section 10 of the Balochistan Levies Act, 2010 was pressed and thereby the decision was arrived that: "Without adopting the above-mentioned procedure the investigation cannot be transferred from one Investigation Officer to another investigation officer. Rather to invoke the jurisdiction of this court the applicant has to first concern (-) with the Deputy Commissioner Killa Abdullah and Director General Levies Balochistan. The applicant remained failed to adopt the proper procedure and in the light of above mentioned provision the application also lose its legal grounds.
Moreover, it is settled principle when, there is a special law prevails then the general law is not applicable. In order to transfer the investigation from one officer to another officer, special law in the form of Balochistan Levies Act, 2010 prevails, without considering the same the provision of section 22-A, Cr.P.C. Cannot be exercised straightaway. "
5. In the case in hand the relief of transfer of investigation was declined at the strength of Section 10 of the Act, 2010. Though a special procedure provided in the referred Section for change of the investigation from one Investigating Officer to another as contained in subsection (5) of the section 10, Act, 2010. This Provision in fact place no bar on exercise of the powers available to an Ex- Officio Justice of the Peace, while entertaining an application under section 22 A, Cr.P.C. This provision i.e, section 10 of the Act, 2010 itself spelt applicability of the Code of Criminal Procedure on the investigation held by the Levies Force in the described area. The procedure provided in the Code of Criminal Procedure is to be adopted by the Investigating Officers as described by section 9 of the Act 2010.
6. In the case in hand serious allegations of mala fides, and exercise of influence and pressure were leveled against the Tehsildar Killa Abdullah, and the nominated persons respectively. The facts collected from the papers in the case file that the matter was reported without any loss of time on 15th September 2014 with specific nomination, followed by a subsequent report submitted on 19th September 2014 with the same contents. The copy of FIR annexed with the petition disclosed that the report was entered into prescribed Performa with the stamp and signatures of the Tehsildar Killa Abdullah. The date noted on the FIR and under the proceedings, described to be held by the Levies on receipt of report, was 19th September 2014, but in column No, 1 of the pro forma the date noted as 15th October 2014. The contents of the FIR failed to address the variation in the dates. No extracts of the identification parade held annexed with the petition, only a supplementary statement of the complainant dated 1st November 2014 available in the case file, probably prepared on identification of two of the accused Amanullah and Abdul Samad by the petitioner.
The statements of the witnesses were recorded and seizure memos were prepared on 15th October 2014. Nothing available on the record to justify the proceedings held with a delay of nearly one month.
7. Thus to sought out the truth the initial Police Report, and the subsequent one were called from the trial court. In compliance the Police Reports were received along with copies of the seizure memos. Prepared, the charge, and the statements of the witnesses, three in numbers, till date appeared before the trial court. The perusal of the initial Police Report (challan) reveals that the reason for lodging of the FIR on 15th October 2014, despite the fact that the report was with the date 19th September 2014, was not addressed, nor any explanation was given to the effect. Further, the challan also not described conducting of the identification parade on arrest of the accused Amanullah and Abdul Samad, nor described preparation of the required Form. In addition the perusal of the Police Report, reveals that six persons were named and shown to be on bail. Charge was also against the persons, six in numbers, namely Ali Muhammad, Sadam, A manullah, Abdul Samad, Musa Jan and Ghulam Jan. The FIR contained name of a person Khan son of Raz Muhammad specifically nominated, but the Police Reports were silent to the extent. Neither he
(Khan) was shown to be in custody or on bail, even his name not appeared in column No, 2 of the Police Report (Challan). These facts placed a mark on the investigation carried out by the Tehsildar Killa Abdullah. An adverse inference could be drawn on basis thereof.
8. The narrated facts spelt the discrepancies on part of the Investigating Officer, and the allegations leveled against him could be believed. The petitioner is before this court for re- investigation of the matter, despite the facts Police Reports had already been submitted and trial was on its way as on framing of the charge, three witnesses appeared and recorded their statements. Thus the only question dealt with in the instant petition whether an order could be made to direct reinvestigation of a case already before a trial court. Though there is no bar on investigation and reinvestigation of a case, if a need arises. The Honorable Supreme Court in judgment in case Muhammad Yousaf v. State, reported in SCMR 2000 page 453 held that: "However, we may add that since there is no legal bar on the reinvestigation 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."
The principle determined in the case Atta Muhammad v. Inspector General Police (West Pakistan)
Lahore and others, reported in PLD 1965 (WP) Lahore 734 was referred and relied by their Lordships, wherein it was held: "... There is no statutory prohibition in the Code of Criminal Procedure for the police not to embark on a fresh investigation of the case after the conclusion of the first and the submission of the final report whatever the defects in the first investigation or the flaws in the final report given in the wake of it, that might, subsequently be detected. The first investigation may be utterly unsatisfactory for many reasons. It may be due to non-availability of the evidence, or the successful induction of false evidence during the investigation or the reason may be, as alleged in this case, namely; the corrupt behaviour of the police officers, concerned. To say that the same police officers or their superiors on receipt of further information or the availability of better evidence cannot revive the investigation already done, leading to a contrary or a varied result, would virtually amount to putting a seal on human errors and frailties once committed, whether be design or by inadvertence with no opportunity to make amends, although it be possible to do so. The police, as any agency of the State, should be as much interested as any other agency concerned in the administration of justice, to find out the truth in respect of a crime and lay the whole facts bare for determination by the competent Tribunals as honestly and correctly as possible. The statutory functions of the police and the Courts in this respect are complementary to each other and do not overlap. The fact that the previous investigation had yielded certain results should not act as a hurdle or a deterrent for the police in reaching the truth if additional facts and additional circumstances brought to light help in its discovery. 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 for the police to pursue its own investigations and submit their results to the Court to find the guilt or innocence of the accused persons before it becomes too late."
9. In view of the stated facts and the principles as laid down by the Honorable Supreme Court there could be an order for re-investigation with change of Investigating Officer by an order of the Ex- officio Justice of the Peace in exercise of powers under section 22-A, Cr.P.C. It is also due to the fact that an Ex-officio Justice of the Peace is not equated to a judicial officer who has taken the cognizance of an offence, thus debarred to order for re-investigation.
10. In view of the above discussion the investigation of the case pursuant to FIR No, 36 of 2014, Levies Station Killa Abdullah is transferred from the Tehsildar Killa Abdullah to the Crimes Branch with the direction to re-investigate the matter, and submit Police Report before the trial court within the stipulated period of fourteen days. Further, till submission of the Police Report (challan) before the trial court, further proceeding would not be advisable; therefore, the trial court is directed not to proceed with the matter till receipt of the Police Report (Challan). If the Report is not submitted within the stipulated period the matter may be informed without any loss of time to this court for an appropriate order, while the trial court proceed with the matter on the Police Report already before it.
The petition stands disposed of in the above terms.