1. This application has been filed by Hasil Baluch against the Deputy Inspector-General Police, Deputy Commissioner, East and Sub-Divisional Police Officer Central Division, P. S. Ferozabad, Karachi. All the three officers are posted at Karachi. The fourth respondents is one Nasir Mahmood. By the application the petitioner seeks punishment of the four respondents under sections 3 and 5 of the Contempt of Courts Act. I believe that the petitioner seeks punishment of the four respondents under section 4 of the Contempt of Court Act but the mere fact of wrong mention of the section would not by itself defeat the application.
2. The brief facts of the case are that on 1st July, 1982 an -unfortunate incident occurred in which some students were involved. One student is stated to have lost his life and possibly some more were injured. Report was registered at Gulshan-e-Iqbal police station wherein the names of some persons were mentioned. Out of these persons, as a result of the investi--gation, Ahmed Ali and Imtiaz Ahsan were arrested but the remaining persons were treated as absconders.
3. It is stated at the bar that the applications were made before the Court of Session Judge, this Court and the Supreme Court for release of Ahmed Ali and Imtiaz Ahsan on bail. It is stated that the grant of bail has been declined. A final report was submitted before the concerned Court on 9th August, 1982, wherein six persons including Ahmed Ali and Imtiaz Ahsan have been shown as accused.
4. One Tariq who is stated to be student of B. A. (Hops.) in the University of Karachi made an application on 20th October, 1982 to the Deputy Commissioner, East, Karachi. Copies of the same were also sent to the Deputy Martial Law Administrator, the Home Secretary and the Superintendent of Police, Central Division. A copy of this' application has been placed on the record.
5. The substance of this application is that the Investigating Officer had made partial investigation and falsely implicated the innocent persons and such act of the said police officer has created discontent at campus. In the final paragraph of the application he has made the following prayer "Having been thoroughly disgusted. And disappointed to have judi--cious and impartial enquiry I have no alternative but to approach your Honour to direct the local police to register the case on proper lines and either to appoint some Magistrate to conduct the investi--gation under section 159, Cr. P. C. Or to depute some Senior Police Officer to reinvestigate the matter on the basis of independent, fair and trustworthy evidence."
6. It is stated by Mr. Rashid Ahmed that in fact the grievance is that on this application the police has started a fresh investigation into the same facts which were investigated earlier and even a charge-sheet had been submitted in the Court. The learned Advocate's grievance is that the new proceedings are motivated for the purpose of implicating innocent students falsely and to thwart the process of justice.
7. The first question that arises is whether the police has power to start the second investigation in respect of the same crime. My attention has been drawn to the provision of sections 158 and 173 (2) of the Code of Criminal Procedure. These provisions read as follows: "158, Reports under section 157 how submitted.-(1) Every report sent to a Magistrate under section 157 shall, if the Provincial Government so directs, be submitted through such superior officer of police as the Provincial Government, by general or special order appoints in that behalf.
(2) Such superior officer may give such instructions to the officer-in--charge of the police station as he thinks fit, and shall, after recording such instructions on such report, transmit the same without delay to the Magistrate."
8. "173. Report of police officer.-(2) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may pending the orders of the Magistrate, direct the officer-in-charge of the police station to make further investigation."
9. The conjoint reading of these provisions can leave one in no doubt whatsoever that the Criminal Procedure Code does not forbid a second investigation into the same case. On the moral plane a second investiga--tion by police cannot be hit down because in most cases it would be undertaken only for the purpose of finding the truth or seeking available evidence which for some reasons was not available at the previous stage. This point has come up for consideration before the Superior Courts of this country and I would like to make a reference to some cases.Mr. Muhammad Ibrahim Memon has invited my attention to a Division Bench case viz. Alam Din v. The State (PLD 1973 Lah. 304). In the above case the police had started further investigation after submission of the final report under section 173 of the Criminal Procedure Code. Grievance was made on that score. The learned Judges framed a question which reads as follows: "Whether the police is debarred from making further investigation after having submitted the finial report under section 173, Cr. P. C.
(a) before a Court has taken cognizance by an overt judicial act ;
(b) after a Court has taken cognizance but before the recording ct evidence ; and
(c) after the recording of evidence has commenced."
10. After every elaborate discussion and reference to case-law and authority the learned Judges arrived at the conclusion that the police was nm debarred from making further investigation and in paragraph 12 of that judgment at page 310 of the report the learned Judges affirmatively agree with several other judgments from Indo-Pak. Sub-Continent. An earlier judgment of the Lahore High Court in the case of Atta Muhammad v Inspector-General of Police. West Pakistan Lahore and others (PLD 1965 Lab. 734), was affirmed with an expression of respectfulness. Before, I part with this case 1 may make a reference to what is stated by the learned Judges in para. Graph 15 of the judgment as in this paragraph the learned Judges have besides the consideration of questions of law also adverted to the question of moral justification underlying fresh' investigation, if necessary.
11. The learned Judges have expressed as follows: "We find ourselves in respectful agreement with the view taken by the learned judges in the case of Atta Muhammad and the other cases mentioned in the preceding paragraph. While it is, no doubt, desirable that there should be finality in investigation, yet this finality at the investigation stage cannot be allowed to prevail at the expense of truth and Justice unless there is an imperative legal bar in this behalf."
12. In the earlier case of Atta Muhammad v. Inspector-3eneral of Police reported in PLD 1965 Lab. 734 the leading judgment was by a judge of the eminence of Sajjad Ahmad, J. With whom Mr. Justice Muhammad Akram agreed. In this case an earlier decision in the case of Emperor and another reported in AIR 1934 Lab. 611 was dissented throw. At page 739 of the report the learned Judges have stated as follows: "To say that the same police officers or their superiors on receipt of further information or on 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 frailities once committed, whether by design or by inadvertence, with no opportunity to make amends, although it be possible to do so. The Police as an 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 investigation and submit their results to the Court to find the guilt or innocence of the accused persons before it becomes too late."
13. A reference has also been made by the learned Additional Advocate General to a judgment of Mr. Justice Shafi-ur-Rehman in the case of Muhammad Tayyab Shah v. Syed Fayyaz Hussain (1975 P Cr. L J 120). The learned Judge in paragraph 6 of the judgment has clearly stated that the power to investigate further or to put in a second challan is not 1st merely because a final report under section 173, Cr. P. C. Has been submitted. In another judgment by Mr. Justice Zaki-ud-Din P.1; the case of Muhammad Khan v. Inspector-General Police Punjab and two others (PLD 1978 Lab. 731).
14. The learned Judge has in paragraph 14 takes, -e similar view as in the earlier cases. Lastly the Additional Advocate General has reminded me of one judgment which I had delivered in the case of Sh. Abdul Hamid v. The State (1973 P Cr. L J 858). In that case the police had submitted an interim charge-sheet and subsequently a final charge-sheet.
15. In the second charge-sheet names of some more persons were shown accused. An argument was raised that investigation cannot be reopened and more accused persons could not be sent up for trial. This argument was not accepted by me on the same process of reasoning.
16. On the other hand Mr. Rashid has invited my attention to the case of K. H. Ghandhi v. R. N. P. Sinha (AIR 1956 Pat. 320) a case from the indian jurisdiction. This case has entirely different facts and ever; he dictum is not direct. The authorities from our High Courts direct and relevant.
17. I have no difficulty in stating that a second investigation is not prohibited but may very often be such an exercise as is necessary in order to advance the cause of justice. It cannot be said that very second investigation is mala fides but in suitable cases the point regard in such mala fides emerging from established facts and the evidence may be used by the accused at the time of trial.
18. But surely the mere act of second investigation cannot be termed to be contempt of Court or the sole reason that a trial in respect of the same facts is pending the Court.
19. I am of the view that none of the respondents can be said to guilty of contempt of Court and I, therefore, dismiss this appreciation summarily.