The facts leading to the filing of this revision are that a case under section 302/307/148/149, P.P.C.
Was registered against the petitioners and two others with Police Station Nankana Sahib, District Sheikhupura on 27-7-1987. The allegation against the petitioners and his co-accused was that they waylaid one Faqir Hussain, father of Muhammad Afzal the first informant, near his sugarcane field.
The petitioners were alleged to have been armed with fire-arm and they caused the death of said Faqir Hussain.
The case was initially investigated by the local police which submitted incomplete challan against the petitioners. Thereafter, an application was moved by the petitioners for transfer of the investigation which was entrusted to Muhammad Asghar Cheema, A.1-G./D.S.P., Lahore Range, who examined some witnesses and found the petitioners innocent. Then the case was also investigated by Muhammad Aslam Khan, D.S.P. Nankana Sahib who also examined number of witnesses and came to the conclusion that the petitioners were innocent.
Muhammad Afzaal, the first informant in the case, feeling aggrieved of the order of discharge, moved a revision petition and at the same time tiled a private complaint against the petitioners wherein he had specifically taken the plea of mala fides on the part of the police. The complaint was entrusted to a Magistrate of Section 30 for enquiry under section 202, Cr.P.C. The said Magistrate recorded the evidence of the complainant. During the pendency of the inquiry before the Magistrate one of the accused in the said case moved an application praying that the police officer who had declared him innocent may be examined at that stage. The said application was rejected by the learned trial Court on the ground that under section 202, Cr.P.C. It was not incumbent upon the Court to hear the accused. The present revision has been filed calling in question the said order.
2. It is contended by learned counsel for the petitioners that the petitioners were held innocent and got discharged by the police, therefore, a right had accrued to them; hence, when a private complaint was filed they should have been allowed to associate and bring on record their part of the story. Contends that had the Inquiry Magistrate recorded the statement of the Investigating Officer, he would never have given the opinion that prima facie, case against the petitioners was made out. Relies upon Muhammad Ibrahim and others v. Qudruttullah Ruddy and others PLD 1986 Lah. 256. The contentions have been opposed by learned counsel for the State as well as by the learned counsel for the complainant. It was contended by them that the judgment cited by learned counsel for the petitioners was not applicable to the facts of the case because the complaint was sent under section 202, Cr. P.C., for inquiry and not under subsection (2) of section 202, Cr. P.C.
Contends that had the learned Inquiry Magistrate allowed the application of the petitioners by recording the statement of the I.O., the case of the complainant would have been prejudiced seriously because the complainant had alleged mala fides on the part of the investigating agency.
3. I have heard the learned counsel for the parties and perused the record. The petitioners in the present application pray that the order of the learned Sessions Judge dated 28-7-1987 be set aside and the case be remanded for investigation under subsection (2) of section 202, Cr. P.C. Learned counsel submitted that had the case been entrusted to the Inquiry Magistrate under section 202(2)
Cr. P.C., then it was incumbent upon him to record the statements of all the witnesses the accused side wanted to produce. If this assertion is accepted then the petitioners cannot take exception to the order impugned because it is conceded by them that the complaint was not entrusted under subsection (2) of section 202, Cr.P.C., but was entrusted to the Inquiry Magistrate only under section 202, Cr.P.C. I have gone through the complaint wherein mala fides of the police and the Investigating Agency siding with the petitioners is specifically alleged. In such circumstances, if the petition was allowed, then it would frustrate the very object for which the complaint had been filed.
The complainant was not satisfied with the police investigation that is why a complaint was filed to have the case enquired into by an independent authority. I have gone through the judgment cited by learned counsel for the petitioners and fully rely upon the observation made therein to the effect that where the accused belong to the police force or the offence had been committed in connivance with any member of the police force, then an order for investigation should not be made. In the present case, though the offence was not alleged to have been committed in connivance with the police, yet there was a definite allegation against the police that they for ulterior motive were siding with the petitioners. Therefore, the case cited by learned counsel for the petitioners would not be applicable to the facts of the present case. The Inquiry Magistrate had given his finding with regard to the involvement of the petitioners. The case has already been fixed for trial by the learned Additional Sessions Judge. In these circumstances, it will be a futile exercise if the case is remanded to the Magistrate for fresh inquiry. The petitioners would be at liberty to produce any number of witnesses in their defence or call the police witnesses who had investigated the case even as Court witnesses.
4. For what has been discussed above, I find no force in the petition which is accordingly dismissed.
S.A./M-1392/5 Petition dismissed revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.