ABDULLAH BALOCH, J.---This common judgment disposes of C.P.No,176 filed by the petitioners (accused)
Naqeebullah and Fateh Muhammad C.M.A. No,1207 of 2019 filed by the applicant/intervener Hayat Khan, while C.P.No,428 of 2019 has been filed by the petitioner (complainant) Amir Butt. Since both the petitions along with application under Order I, rule 10 C.P.C., pertains to the same subject matter arising out of FIR No,54 of 2018 of Police Station Zarghoon Abad Quetta, thus the same are being decided through this common judgement.
2. The facts of the C.P. No, 176 of 2019 filed by the petitioners (accused) Naqeebullah son of Haji Naseeb Ullah and Fateh Muhammad son of Moulvi Muhammad Anwar , are that the complaina nt/respondent No,5 (Amir Butt) lodged FIR No,54 of 2018 on 25th May 2018 at Police Station Zarghoon Abad Quetta under Sections 337-AD, 34 P.P.C., stating therein that sometimes earlier he had sold out his vehicle in the Motor Showroom of the petitioners and over the said vehicle there was a dispute. However , on the day of occurrence i,e, 10th May 2018 he was called by the petitioners in the Showroom and after harsh discussion, both the petitioners assaulted him, thus FIR was lodged. It is further averred that on completion of investigation, they were challaned before the learned Judicial Magistrate-XII Quetta ("the trial Court "), after indictment and denial, the prosecution produced and examined the complainant namely Amir Butt as PW-1. According to the petitioners, the complainant whilst recording his statement in the trial Court has made certain dishonest improvements and contradictions, in order to fill-up such lacunas filed an application before the trial Court for framing of additional Charge under Sections 406, 417, 420, 424, 504, 34 P.P.C. apart from the already framed charge under Sections 337-AD, 34 P.P.C. However , after hearing arguments, the trial Court rejected the said application, but the complainant instead of assailing the rejection order before the higher Forum has joined hands with the police authorities and filed a supplementary statement by narrating a story with regard to fraud allegedly committed with him by the petitioners and the Police Department conducted re-investigation in the matter and offences under Sections 406, 417, 420, 424, 504 P.P.C. were inserted in the FIR, as evident from the order dated 11th December 2018 passed by PDSP . On the basis whereof one of the petitioner namely Muhammad Aslam was arrested, while the petitioners Nos. 1 and 2 have succeeded in obtaining pre-arrest bail in the newly inserted offences. However , subsequently the petitioner No,3 was also released on bail.
Initially , the petitioners Nos. 1 and 2 have preferred the instant petition before this Court, but subsequently vide order dated 22nd March 2019 made on application under Order I, Rule 10 C.P.C. read with Section 61-A Cr.P.C., Muhammad Aslam was arrayed in the petition as petitioner No,3. Anyhow , in the petition, the petitioners have sought the following reliefs: "It is, therefore, respectfully prayed that this honorable court may kindly be pleased to gash [quash] the case FIR No. 54/2018 and the order of the re-investigation passed by the respondents in the interest of justice. It is further prayed that the order of additional offences may also be set aside and offences added may be deleted.
Any other relief which this honorable court deem fit and appropriate in the circumstance may also be granted in the interest of justice and equity ."
3. Facts of C.M.A. No,1207 of 2019 filed by the applicant/ intervener Muhammad Hayat in the C.P. No,176 of 2019 under Order 1 Rule 10 read with Section 151 C.P.C. are that he is lawful owner/purchaser and last possessor of vehicle bearing registration No,AHJ-353 Engine No,ISZ0971241, Chassis No,S CP-10-0378985 and the said vehicle was purchased by him from the Showroom of petitioner No,2 (Fateh Khan Showroom) and after payment of sale consideration amount, the possession of vehicle along with original file and number , but the said vehicle was taken into possession by the Investigating Authorities. Thus, he filed an application before the trial Court for release of the said vehicle on Superdari. In compliance of directions, the Investigating Agency submitted verification report, besides no one has contested the application, but despite such facts the trial Court has declined to pass any proper order on the applications of the applicant, hence the intervener has filed the instant application under Order I, Rule 10, C.P .C. before this Court for arraying him as necessary party in the proceedings.
4. The C.P. No,428 of 2019 has been filed by the petitioner (complainant) Amir Butt, whereby he is also claiming the ownership and the last possession of the vehicle in question and further added a tracker installed in his earlier vehicle was shifted/inserted in the vehicle in question, which shows his last possession. Anyhow , he filed an application under Section 516-A Cr.P.C. before the trial Court for release of vehicle in his favour , but the said application was rejected, vide order dated 11th February 2019 and such order was maintained by the learned Additional Sessions Judge-IV Quetta, thus he filed the instant petition with the prayer to allow the application under Section 516-A, Cr .P.C. and in consequence thereof the vehicle in question be released in his favour .
5. Record reflects that after filing above petitions, parawise comments and counter affidavits were filed and arguments of the learned counsel for parties were heard in detail and the case record was perused with the valuable assistance. Perusal of record reveals that initially the complainant Amir Butt lodged the FIR No,54 of 2018 at Police Station Zarghoon Abad Quetta, under Sections 337-AD/34 P.P.C. with the allegations of assaulting the complainant by the accused Naqeebullah and Fateh Muhammad. Hence, after filing challan in the trial Court, the trial was commenced and the complainan t of the case was also examined, he made dishonest improvement, but all of sudden the complainant filed an application for framing of additional charge under Sections 406, 417, 420, 424, 504 and 109 P.P.C. to cover the lacunas left by him at the time of lodging FIR. However , the facts and circumstances of the case show that the said offences are not attracting, thus the learned trial Court had rightly rejected the said application. Hence, under peculiar circumstances of the case the complainant instead of assailing the rejection order of the trial Court befor e the Higher Forum, has approached the Investigating Agency by filing a supplementary statement and requested for insertion of above referred offences under sections 406, 417, 420, 424, 504 and 109 P.P.C. The Investigating Agency ignoring the legal position of the case that not only the challan has been submitted to the trial Court, but also the trial Court has examined the complainant of the case, hence at this belated stage direction for the insertion of above additional offences in the FIR were un-warranting and uncalled for. In our view the exercise so carried out by the Investigating Agency is not sustainable in the eyes of law. Even otherwise, said offences are absolutely not attracting in the case in hand, when otherwise the FIR was solely lodged with the allegations of assaulting the complainant and it does not contain the details of any fraud allegedly committed by the accused persons with the complainant of the case, thus the exercise so carried out by the Investigating Agency on the basis of supplementary statement is uncalled for. It has remained the consistent view of the Superior Courts of the coun try that a supplementary statement made by a complainant before the Investigating Officer regarding the same occurrence is neither admissible as evidence, nor the same can be equated with the FIR or read as its part. The supplementary statement is always considered a fragile type of evidence and on the basis of same the nature of entire case cannot be changed, as such kind of supplementary statements are filed after consultation and deliberations.
6. However , as far as the prayers of the complainant and interveners for handing over the possession of the vehicle on Superdari are concerned, suffice to observe here that the dispute arose over the vehicle in question, which was taken into possession by the Investigating Agency as case property . Besides, there are divergent claimants of the said vehicle. It would be appropriate to direct the trial Court to dispose of the applications of Superdari in accordance with law .
For the above reasons, the C.P. No, 176 of 2019 file by the petitioners (accused ) is partly allowed and only the proceedings carried out by the Investigating Agency with regard to reinvestigation and insertions of additional offences under Sections 406, 417, 420, 424, 504 and 109, P.P.C., are hereby quashed. The trial Court is directed to conclude the trial to the extent of allegations under Sections 337-AD, 34 P.P.C. However, orders passed by the trial Court on the application under Section 516-A Cr.P.C. filed by the parties are set-aside with direction that the applications filed by the complainant Amir Butt as well as the application filed by the applicants/interveners before the trial Court for release of vehicle deem to be pending and the trial Court is further redirected to decide the fate of applications in accordance with law .
The petitions are disposed of in the above terms.