' The facts of the case are that a case was registered against the petitioners and two others on 13- 9-1974 under sections 307/34, P.P.C. At the instance of one Muhammad Khan'for allegedly causing arms ,injuries to the complainant. Muhammad Khan, however, died on 15-9-1974 and the offence was changed to that under section 302/34, P.P.C. The investigation was started by Sub-Inspector Khadim Hussain of Police Station Qadirpur, tehsil and district Jhang, on 22-9-1974. Later on, respondent No,3, D.S.P. Headquarters, Jhang investigated the matter and, according to the petitioners, after due inquiry and probe he found them to be innocent. He, therefore, directed the Sub-Inspector to submit report to the Court indicating as such.
2. The challan was submitted in consequence thereof on 11-11-1974 wherein the petitioners were shown to have been found as such and their co-accused guilty on the basis of the investigation conducted by respondent No,3. According to the petitioners the Prosecution Branch raised certain objections to the challan submitted to the Court and desired that if the petitioners were found to be innocent then they should either be discharged or placed in column No,2. It has been contended that respondent No,3 at this submitted a second report, dated 13-12-1974 without holding any further investigation and observed that the first challan/finding was not correct and the petitioners should be treated as guilty and challaned accordingly. On this report the co- accused were let off.
3. The father of petitioner No,2 took up the matter, after the second report was submitted by respondent No,3, with the S.P., Jhang and submitted by respondent No,3 was mala fide, as no genuine reason had been given therein for finding the petitioners to be guilty. The S.P. Directed the case to be re-investigated by the local C.I.A. And entrusted the investigation to respondent No, 2, who concluded his investigation and submitted his report under section 173, Cr.P.C. And found both the petitioners to be innocent. According to his report the other two accused were the real culprits.
His report was submitted to the S.P., Jhang with a prayer that if not otherwise directed than respondent No,2 would submit the challan in the Court on the basis of his report. According to the petitioners, in spite, of the last report having been submitted by respondent No, 2 after due investigation, respondent No, 1, the S.H.O. Police Station Qadirpur, tehsil and district Jhang has not submitted a final challan on the basis thereof to the Court.
4. The learned counsel for the petitioners has relied upon Muhammad Abdullah and another v. The State 1975 P Cr. L J 438, Muhammad Tayyab Shah v. Syed Fiaz Hussain and 2 others 1975 P Cr. L J 120, Noor Dad and others v. The State 1974 P Cr. L J 231, Muhammad Akbar v. The State 1972 SCMR 335, Noor Nabi Agha v. The State PLD 1972 Kar. 292, Muhammad Akbar v. The State 1972 P Cr. L J 328, Falak Sher and another v. The State PLD 1967 SC 425, Ata Muhammad v. I.-G., West Pakistan, Lahore PLD 1965 Lah. 734 and Alam Din v. The State PLD 1973 Lah. 304 in order to show that the police is not debarred from making further investigation after having submitted the final report under section 173, Cr.P.C. And the same position obtains irrespective of the fact whether cognizance has or has not been taken over by judicial act and whether the recording of evidence has or had not commenced after taking of cognizance; and further that if cognizance has not been taken 'before the result of the further investigation becomes available then entire evidence can be presented before the Court if it were a part of the final report under section 173, Cr. P. C. Submitted to the Court.
5. In the present case, as above discussion would show, cognizance was not taken by the Court when the re-investigation was directed to be made by the S.P., Jhang at the instance of father of petitioner No,
2. The report thus submitted on account of re-investigation has to be submitted by respondent No, 1, the S.H.O. Police Station Qadirpur district Jhang in the shape of formal challan under section 173, Cr.P.C. According to law even if cognizance has been taken by the Court on the basis of the first report fresh investigation can be embarked upon by the police, as there is no statutory prohibition in the Code of Criminal Procedure in this regard. However, it will be entirely in the A discretion of the Court to admit the report based upon further investigation, after taking of the cognizance, in the form of additional evidence under section 540, Cr.P.C.
5. The principle of law as discussed above finds favour in all the authorities relied upon by the learned counsel for the petitioners. Respondent No, 1 is, therefore, obliged under the law to submit formal challan in the light of the report submitted by respondent No,
2. He is, therefore, directed to do the needful in this regard.
6. The question however arises at this stage as to what is the significance of such report to be submitted by the police after re-investigation. A police report submitted as such is not a legal evidence as found in Fiaz Hussain etc. v. The State PLJ 1975 Cr. C.
126. The Court under the law cannot rely upon it and it is for the Court t decide the matter on the basis of the evidence produced before it and come to its own conclusion in order to see as to whether any offence is made out or not. It has been rightly observed in the case as referred to above that by transfer of investigation from one officer to anothe an opportunity is afforded to the parties to win over the witnesse which results into vicious circle of corruption. Investigation by a polio officer by itself is not proof of the guilt or innocence of the accused. There is no doubt that possibility cannot be ruled out that first report submitted by a police officer may be false, or even otherwise incorrect for lack of proper evidence. In such a case if a higher police authority directs further investigation then the defects and errors as found in the first report can be removed. The aim of the relevant provisions o law empowering the police to embark upon fresh investigation, as discussed above, can be fulfilled only if the police as an agency of the State takes upon its shoulders for the sake of justice to find out truth in respect of a crime and lays the whole facts of the case before a competent Court for proper adjudication. Otherwise, as stated above, such practice cannot be conducive to the administration of justice. In the circumstances it will be for the learned trial Court to see as t how far and under what circumstances reliance can be placed upon the report of the police made the basis of the challan submitted against the accused persons.
7. For the aforesaid reasons the writ petition is hereby accepted without any order as to costs in the terms stated above.