' AQEEL AHMED ABBASI, J.---Through instant .Petition, the petitioner, who is the complainant in FIR No 272/2015 registered under sections 420/406/506/34, P.P.C. At P.S. Gulshan-e-Iqbal, Karachi, against nine (09) accused persons nominated therein, has impugned the order dated 10.06.2015, issued by the respondent No.1 i.e. Additional Inspector General of Police, Karachi Range, for transfer of investigation in the above FIR to SSP, Investigation-I, South Zone, Karachi Range, on the ground that once the challan has been submitted after investigation before the competent Court of jurisdiction who has taken cognizance of the matter, reinvestigation of a crime cannot be made.
2. Briefly the facts as stated in the instant petition are that the petitioner lodged above FIR at P.S. Gulshan-e-Iqbal, Karachi, on 05.05.2015 on the allegation that in the year 2007 he had booked eleven (11) flats being Nos.605, 203, A-209, 1009, 304, 1004, A-902, 707, 708, 709 and 103 by executing sale agreement in a project known as Fatima Ali Towers, Scheme No.33, Karachi, as per petitioner, such project is owned by (1) Ramzan Ali son of Sadaruddin (2) Muhammad Yousuf (3) Asif Jiwani
(4) Zainab Jawed Jiwani (5) Siraj (6) Zohra Jiwani (7) Asif Yousuf (8) Noor Jehan Ramzan and (9)
Hina Ramzan, who according to petitioner, are owners/partners/associates in respect of aforesaid project, whereas, the petitioner had paid an amount of Rs.25.7 Million vide cheques/pay orders, however, such flats, which were booked in the name of the petitioner were cancelled and sold to other persons, where after, petitioner got registered aforesaid FIR under sections 420/406/506/34, P.P.C., pursuant to which investigation of the case was conducted, challan was submitted before the concerned Magistrate on 03.06.2015 and cognizance of the matter was taken and thereafter non-bailable warrants were issued against the accused persons named in the charge sheet.
3. Learned counsel for the petitioner has submitted that during pendency of the trial, after submission of the challan and cognizance having been taken by the concerned Magistrate, the respondent No.1 at the instance of accused persons nominated therein was not authorized to issue impugned order for transfer of investigation or re-investigation of the aforesaid FIR, as according to learned counsel for the petitioner, such authority is not vested in the Police after repeal of Police Order, 2002 pursuant to 18th amendment in the Constitution. It is further contended by the learned counsel for the petitioner that the concept of reinvestigation in criminal proceedings at the behest of influential person in order to favour them is disapproved by the Courts through various judgments, whereas, the guilt of an accused in a crime can be determined by the competent Court of jurisdiction and not by the investigating agency through reinvestigation process. It has been prayed that the impugned order passed by the Addl. I.G. Of Police, may be declared as illegal and of no legal effect, and the learned trial Court may be directed to proceed with the matter as earlier challan submitted before the Court in the instant matter. In support of his contention, learned counsel for the petitioner has placed reliance in the following eases:-
(i) Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31.
(ii) Zeeshan Mustafa Lashari and another v. Province of Sindh through the Chief Secretary, Sindh, Karachi and others PLJ 2015 Karachi 190 (DB).
(iii) Muhammad Ramzan v. Muhammad All and others PLJ 2015 Karachi 199.
(iv) Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373
(v) Aziz Ahmad v. Provincial Police Officer (I.G.P), Punjab Lahore and 6 others PLD 2005 Lahore 185.
(vi) Muhammad Ashfaq v. Additional Inspector General of Police (Investigation) Punjab, Lahore and 3 others 2013 PCr.LJ 920.
(vii) Riaz Hussain and others v. The State 1986 SCMR 1934 (viii)Muhammad Arif v. The Inspector General of Police, Punjab, Lahore etc. 2000 YLR 1960
(ix) Haq Nawaz and others v. Superintendent of Police and others 1999 PCr.LJ 1144.
4. Conversely, learned counsel representing the accused persons nominated in the aforesaid FIR, has vehemently opposed the maintainability of instant petition and has controverted the above submissions made by the learned counsel for the petitioner. It has been contended by the learned counsel for the respondent that from perusal of the contents of the FIR and the offence alleged therein, it is evident that the accused persons, who are all respectable citizens and close relatives belonging to same family, including women folk, have been falsely implicated in the aforesaid FIR in order to humiliate and blackmail them, whereas, the grievance expressed otherwise, refers to a purely civil dispute between the complainant and the accused persons. Learned counsel has submitted that petitioner has deliberately with mala fide intention has not impleaded the accused persons as a party in the instant petition so that the actual facts may not be brought on record before this Court. It is further contended by the learned counsel that the aforesaid FIR is liable to be quashed at the very initial stage as the innocent persons of same family including women are falsely being dragged into a criminal case in order to create humiliation and harassment & further to blackmail them. Per learned counsel, all the accused persons have obtained bail before arrest from the. Court of learned Sessions Judge, East, Karachi, whereafter, an application for reinvestigation of the aforesaid crime was made before the Addl. I.G. Of Police, Karachi Range, who after examining the material vide letter dated 10.06.2015 has merely order for transfer of the case for further investigation of the aforesaid FIR to SSP, Investigation-I, Zone-1, Karachi Range. Per learned counsel, reinvestigation of a matter can be made at any stage of proceedings before the final judgment by the competent Court of jurisdiction, particularly, when an aggrieved party alleges false implication, mala fides on the part of complainant or connivance by the Police and abuse of the process of law. Learned counsel for the respondent submits that the case law relied upon by the learned counsel for the petitioner is not relevant to the facts of the instant case as in the instant case nine (09) members of the same family including women have been falsely implicated by the complainant with connivance of the police in an admittedly civil dispute, whereas, the mala fide on the part of the complainant and police is evident from the record.
Learned counsel has further submitted that while registering an FIR, the concerned police official has to examine that as to whether the allegations of the complainant are as such, which a man of prudent mind may believe to give rise to a cognizable offence, whereas, if no cognizable offence is made out then such matter may not be taken cognizance by registering an FIR and dragging the innocent persons nominated therein into false and frivolous criminal proceedings. Learned counsel for the respondent has also referred to provision of section 173(2), Cr.P.C., which according to learned counsel for respondent, provides that a superior officer of Police has the authority to direct the Office Incharge of Police Station to make further investigation. Learned counsel further submitted that reinvestigation into a matter in appropriate cases is neither prohibited by law nor it prejudice the case of any party either complainant or accused as such report is not binding upon the concerned Court, who has the authority either to accept the final report or to discard it and decide the matter in accordance with law on the basis of material and evidence available on record. Per learned counsel, in the instant case, no adverse order has been passed by the competent Court of jurisdiction, therefore, the grievance of the petitioner is otherwise premature. In support of his contention, learned counsel for the respondent has placed reliance in the following cases:-
(i) Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373
(ii) Muhammad Ajmal Khan and 15 others v. The State through Advocate General and another 2003 YLR 701.
(iii) Mirdad Khan v. Zahir Shah and 3 others 2000 PCr.LJ 1739.
(iv) Muhammad Ashfaq v. Amir Zaman and others 2004 SCMR 1924.
5. Learned APG has supported the arguments of learned counsel for accused persons, and controverted the submissions made by the learned counsel for the petitioner and submitted that the reinvestigation into a matter can be made at any stage before conclusion of the trial and announcement of judgment. It is further contended that further investigation or reinvestigation under peculiar facts and circumstances of each case can be made on the grounds of mala fide or exerting influence by the complainant or accused party, as the case may be, whereas, in the instant case, neither any allegation of mala fide on the part of the accused persons or their attempt to either influence or interfere with the investigation process has been made by the petitioner. On the contrary, it appears that nine (09) members of the same family including women folk have been implicated in the aforesaid crime at a belated stage, which prima facie refers to a civil dispute between the parties. Learned APG has submitted that instant petition is misconceived, which may be dismissed.
6. We have heard the learned counsel for the parties as well as learned APG and perused the record with their assistance. From careful perusal of the relevant provisions of Cr.P.C. With particular reference to sections 156, 173 read with section 190 and the provision of Chapter XXV of Police Rules, 1934, it has been observed that a Officer Incharge of Police Station is empowered to investigate any cognizable offence, which occurs within the limits of his jurisdiction, whereas, a Police Officer making any investigation (i.e. Investigating Officer) pursuant to registration of FIR under section 154, Cr.P.C. Is required to investigate into the allegations as contained in the FIR in respect of cognizable offence, whereas, necessary assistance i.e. Technical assistance or expert evidence and Medico Legal opinion etc. Can also be obtained by the Investigating Officer, keeping in view the peculiar facts and circumstances of each case. Besides other steps as provided under Chapter XX'V of Police Rules, 1934, recording statement under section 161, Cr.P.C. Of the witnesses, maintaining the diary and preparing the final report under section 173, Cr.P.C. Recommending the case either by disposing of the FIR under "A", "B" or "C" class or submitting the challan by taking cognizance by concerned Magistrate are some necessary steps, which are to be taken by Police in respect of a cognizable offence reported at the concerned Police Station. The report so submitted may be treated as interim report stating therein that result of investigation made until then, whereas, the concerned Court may commence the trial on the basis of such interim report, unless, for reasons to be recorded the Court decides that the trial should not so commence. Similarly, if final report is submitted under section 173, either recommending disposal of the FIR in the aforesaid terms or suggesting trial of an accused by taking cognizance under section 190, Cr.P.C. By the concerned Magistrate, such report is, however, not binding upon the learned Magistrate, who may either agree with such report or may pass appropriate orders for further or reinvestigation of the case in accordance with law. There seems no prohibition either in the Cr.P.C. Or under Police Rules, 1934, whereby, there would have been placed a bar or restriction on further investigation or reinvestigation, of a criminal case in respect of a cognizable offence. In the cases, relied upon by the learned counsel for the petitioner, we are of the humble view that though such practice of reinvestigating matters by the Police after submission of challan before the competent Court at the instance of Chief Minister or any other political influential person has been disapproved, however, only in cases, where such reinvestigation is based on mala fides and has been conducted at the behest of some influential persons either to involve an innocent person into a false case or to give undue benefit to an accused person, who has been charged with a cognizable offence and there is sufficient material and evidence available with the prosecution. In the cited cases, it has been further held that such opinion of the Investigating Officer either in the first report under section 173 or on the subsequent report after further investigation or reinvestigation of the case is not binding on the trial Court, who may pass appropriate order/judgment after examining the entire material and evidence and to decide the case on merits. On the contrary, from perusal of the case law relied upon by the learned counsel for the respondent, particularly, in the case of Bahadur Khan v. Muhammad Azam and 2 others (2006 SCMR 373), the Hon'ble Supreme Court has categorically held as under:- " 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 Advocate-on-Record, 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 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."
' Similar view has been adopted in the other cases as relied upon by the learned counsel for the respondent.
7. In view of hereinabove facts and circumstances of the case and the material placed before us and by respectfully following the above dicta as laid down by the Hon'ble Supreme Court, we are of the opinion that in appropriate cases the superior officer of Police at the request of complainant or accused party can order for further investigation or reinvestigation in a criminal case by some other officer of Police, who can submit report pursuant to such further investigation or reinvestigation along with the material or evidence gathered during such investigation before a competent Court of jurisdiction. However, such report and further investigation or reinvestigation would be treated merely as an opinion of Investigating Officer and shall not be binding upon the concerned Magistrate, who is at liberty to pass appropriate order or judgment on the basis of material and evidence available on record. In view of hereinabove, we do not find any merit in the instant petition, which is accordingly dismissed in the above terms along with listed applications, the learned trial Court is directed to proceed with the matter strictly in accordance with law keeping in view hereinabove guidelines.