SABIT ULLAH KHAN, J:- The present judgment pertains to adjudication of the instant petition and connected W.P. No. 299-M/2024 titled 'Said Fareen Vs. The State through Additional Advocate General & others' and W.P. No. 456-M/2024 titled `Zaheer Abbas & another vs. The State through Additional Advocate General & others," all three petitions arise from common factual matrix impugning the tertiary orders of the learned trial Court.
2. Succinctly, the factual background necessitating the filing of the present petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is that subsequent to the General Elections of 2024 for National Assembly Seat NA-11, District Shangla, candidates including Said Farid and Sadar Rahman, who contested as independents affiliated with Pakistan Tehreek-e-Insaaf (PTI) were unsuccessful. Engineer Amir Mugam was declared the returned candidate by the returning officer. Following the declaration of the results, PTI affiliates staged a protest at the office of District Returning Officer. This led to a violent confrontation at Alpuri Chowk culminating in the attack on the local police station by armed protestors. The incident involved taking police officials hostage, torching a police van and official vehicle, and caused the death of one individual, with multiple others, including a Deputy Superintendent of Police (DSP) injured. FIR No.48 dated 09.02.2024 as registered under a litany of penal provision including sections 302/ 324/ 353/ 341/ 436/ 427/ 189/ 147/ 148/ 149 and 500 PPC and section 7 of the Anti-Terrorism Act, 1997. The petitioner, Said Fareen moved an application to the Regional Police Officer, Malakand Division for registration of counter FIR against local officials and administrative authorities. Upon non-action, the petitioner invoked section 22 (A) Cr.P.C before the Ex-Officio Justice of Peace who directed the registration of cross version and to complete the investigation u/s 173 Cr.P.C. The trial Court, however, on 01.10.2024 discharged the respondents and annulled the cross version report due to lack of credible evidence.
Aggrieved, the petitioner filed the instant W.P No.1109- M/2024 seeking to set aside the impugned order dated 01.10.2024 and to direct a full-fledged trial of the cross version.
3. In the connected W.P No.456-M/2024, it was prayed that statements u/s 164 Cr.P.0 of certain witnesses be recorded. The learned trial Court partially accepted the application but declined the request for two witnesses on account of their status as accused in FIR No.48 ibid.
4. While in Writ Petition No. 299-M/2024, the petitioner Said Fareen has sought for the transfer of the investigation of FIR No. 48 dated 09.02.2024 from District Shangla to any other District within Khyber Pakhtunkhwa. The basis of his request is the petitioner's assertion that he has no expectation of impartial investigation from local police.
5. Arguments were heard. Record was perused.
6. The core grievance of the petitioner in the present petition is the impugned order dated 01.10.2024, through which his cross-version report, initiated pursuant his application under Section 22-A Cr:P.C., was not acted upon effectively. The petitioner now seeks setting aside of the said impugned order and prays for initiation of a full-fledged trial based on the investigation conducted by the prosecution. The prosecution, after completion of the investigation in to the allegations levelled by the petitioner against respondents No. 3 to 18 submitted a complete challan under section 173 Cr.P.C. to the trial Court. This was accompanied by the recommendation that due to a lack of substantial and corroborative evidence against the respondents No. 3 to 18, the said report was duly endorsed and signed by the Superintendent of Police, District Public Prosecutor and investigation officer all of whom suggested cancellation of the petitioner's cross version report due to lack of sufficient evidence.
7. Perusal of the final report submitted by the prosecution reveals that the petitioner, despite repeated notices, did not appear before the Investigating Officer either for spot identification or for recording his statement u/s 161 Cr.P.C in relation to the allegations made in his application under Section 22-A Cr.P.C. He has also failed to appear before, Joint Investigation Team (HT) in a timely manner. When he finally did, neither produced any evidence in support of allegations nor could he respond satisfactorily to the JIT's queries.
Furthermore, the statements of the injured and relatives of the deceased initially affirming the petitioner's claims under Section 22-A Cr.P.C., were later amended. These witnesses requested the Court to withdraw the names of Engineer Amir Muqam and Dr. Ibad ur Rahman, thus, introducing ambiguity and inconsistency in the petitioner's version. The report further clarified that the respondent Bakht Zahir Khan (Inspector) was present at the police station Bisham at the relevant time, respondent Kiramat Khan (ASI) was on duty at Tehsil Puran; and Ihsan Ullah (HC/LHC) posted at Pindyar Check Post of Police Station Bisham. The statements of private individuals recorded under Section 161 Cr.P.C. have been placed on record. These statements confirm that those involves in the firing during protest were private individuals and not police officials. The final report also notes that protest led by petitioner involved armed private gunman. Notably, one of them Khair-ul- Abrar has seven FIRs registered against him in District Mardan between 2013-2022. The statement dated 17.02.2024 of Zeeshan Mehmood son of Minhaj (a taxi driver), has been recorded and filed.
He deposed that he did not witness any police official firing during the protest nor did he attribute his leg injury to the police.
All these elements lend support to the prosecution's stance during the investigation does not sufficiently connect the accused with the commission of the alleged offence in the cross-version report.
8. Having cognizance of the developments pertaining to the cross-version report, it is noted that the petitioner despite having impugned the order dated 01.10.2024 and having sought a plenary trial has conspicuously failed to controvert the saliant aspects highlighted therein. In particular, the, petitioner has not addressed the fact that the police personnel were shown to be deployed at the disparate location at the relevant time of the incident; nor has the petitioner adequately explained the allegations of non-cooperation with the investigating officer in connection with inquiry into the cross-version report. Additionally, no plausible rationale has been tendered for subsequent alteration in the injured persons and legal heirs of the deceased recorded u/s 164 Cr.P.C.
Furthermore, the petitioner has abstained from furnishing affidavits of those individuals who allegedly intended to depose in his support but were purportedly precluded from doing so by the prosecution. Such omission weakens the evidentiary substratum of the prosecution's assertions.
9. Upon perusal of the forgoing circumstances, it becomes manifest that cross-version report in relation to FIR No.48 dated 09.02.2024 lacks cogent, convincing, and credible evidence to displace or cast aspersions upon the narrative encapsulated in said FIR, which was registered against the petitioner and his co-accused. The cross version instead appears to be post-facto fabrication, ostensibly concocted with ulterior motive of crating counter-narrative to absolve the petitioner of liability rather than emerging from any genuine or independent evidentiary basis. It is trite law that the investigative process must remain sacrosanct, immune from manipulation or strategic fabrication. A mere registration of cross case, absent substantive corroboration, cannot be permitted to undermine duly investigated and substantiated allegations. Moreover, the cancelation of petitioner's cross version report does not deprive him of remedy. Section 200 Cr.P.C affords a viable recourse through the filing of a private complaint if the petitioner is indeed aggrieved by the order dated 01.10.2024 and possesses credible material, he may approach the competent Court of law for redress. In view of the absence of plausible evidence and the petitioner's conduct, no interference with the impugned order is warranted. The petitioner, instead of re-litigating identical grounds under the garb of a cross version, ought to avail himself of remedy delineated by law.
10. With regard to the petitioner's contention in connected W.P No.299-M of 2024, it is observed that he had preferred an application before the D.I.G, Malakand Division seeking transfer of investigation from police station Alpuri to another jurisdiction within the Division. In response, a Regional Review Board comprising the senior officers, was constituted. The petitioner, however, failed to satisfy the Board regarding the legitimacy or factual basis for such transfer. It is pertinent to note that the final investigation report indicates the petitioner remained silent in the face of specific queries raised by the Board. He neither rebutted nor clarified the same, thereby forfeiting an opportunity to challenge the investigation's neutrality. The petitioner's silence, especially in the presence of his legal counsel, undermines the credibility of his allegations and reflects a lack of due diligence.. In absence of any compelling evidence of bias; mala fide, procedural irregularity or miscarriage of justice, mere dissatisfaction of petitioner does not justify a transfer of investigation. Transfer from one jurisdiction to another must be founded on substantial grounds and cannot rest on conjuncture or speculative accusations.
11. Additionally, the directions issued by the learned Ex-Officio Justice of Peace to the prosecution does not endow the prosecution with unbridled authority to prosecute the respondents, without assessing the circumstantial evidence and corroborative evidence. Such directions do not absolve the petitioner of his burden to substantiate the allegations with credible material.. It was incumbent upon the petitioner to controvert each limb of the prosecution case in FIR No.48 dated 09.2.2024 through reliable and independent witnesses, rather than relying on the testimony of persons who later retracted. His own witnesses whose statements were recorded u/s. 164 Cr.P.C subsequently resiled and denied involvement of respondents No. 18 and 19, thereby significantly undermining the cross version. This divergence led to the collapse of alternate narrative propounded by the petitioner and reflects adversely upon the veracity of the same.
12. With reference to the grievance articulated in W.P. No. 456-M/2024 challenging the order dated 15.03.2024 passed by the learned Judge, ATC-II, Malakand Division, it is observed that the said order permitted recording of statement u/s 164. Cr.P.C of the injured and legal heirs of deceased while declining a similar request of the accused person. The judicial reasoning is legally sustainable, as section 164 Cr.P.C is primarily intended to facilitate the recording of statements or confessions by witnesses and victims before Magistrate, thereby ensuring their evidentiary value. Insofar as the accused is concerned, the provision applies only when the accused voluntarily desires to make a confessional statement in strict compliance with safeguards prescribed by law. The primary procedural safeguards and statutory remedies available to accused during investigation are provided u/s 161 Cr.P.C, which governs statements made to the police and u/s 342 Cr.P.C, which empowers the Court to examine the accused during trial to explain circumstances appearing against him in evidence. This legal framework has been consistently upheld by the superior judiciary. Despite repeated opportunities, the petitioner failed to record his statement. u/s 161 Cr.P.C thus reflecting non-cooperation with the investigation agency.. Even at the state of trial, the petitioner retains the right u/s 340 (2) Cr.P.C to adduce evidence in his defence, including producing witnesses and recording his own sworn statement, therefore, the petitioner is not remediless.
13. Learned counsel for the petitioner has not been able to make out a case for consideration of the prayers in these petitions being misconceived.
14. Thus, for the reasons discussed above, instant petition as well as the connected petitions, being bereft of any merits, are hereby dismissed.