This order will dispose of Criminal Miscellaneous No. 442-Q/72 (Muhammad Tayyab Shah v. Syed Fiaz Hussain and others) and Cr. Misc. No. 66-Q/73 (Muhammad Hussain v. The State). Both the petitions are under section 561-A, Cr. P. C. And seek quashment of the proceedings resulting in the filing of a challan against Muhammad Hussain petitioner.
2. The brief facts of this case are that on the night of 2nd and 3rd of July 1971, an occurrence took place in which Zahid Hussain was assaulted. He died on way to the hospital. A report of the occurrence was lodged by Muhammad Tayyab Shah on 3-7-1971 at 9 a.m. In which Syed Fiaz Hussain and Abdur Rashid were named as accused persons. 7 he eye-witnesses to the occurrence were also named in the first information report. The police after investigation in the case submitted the challan in Court on 13-9-1971 and these two respondents are facing an enquiry which may lead to their commitment to the Court of Session. The grievance of the petitioners arose because months later a re-investigation of the case was undertaken which ultimately led to the filing of a second challan on 16-11-1971 in which apart from the two respondents already facing the trial Muhammad Hussain was cited as an accused person.
3. The petitioners challenge the filing of the second challan against Muhammad Hussain on the following grounds:---
(1) The investigating agency has no power left after submitting a com--plete challan under section 173, Cr. P. C. To re-investigate the case and to submit a fresh challan.
(2) There has been no order of a superior police officer directing re--investigation of the case.
(3) The further investigation of the case and filing of the challan was mala fide.
4. So far as the petitioner Muhammad Tayyab Shah is concerned; it has been pointed out by the learned counsel fur the State as well as for the respondents that as a complainant he could have no grievance against the filing of the supplementary challan for he has no locus standi to do so.
This objection though forceful is a technicality in this case, because Muhammad Hussain, the affected accused, has also filed a petition on the same ground and whether the complainant bas such right or not, merits of the grievance advanced by him have to be gone into.
5. The learned counsel for the petitioners have drawn attention to subsection (2) of section 173, Cr.
P. C. In order to limit the powers of the police to investigate a matter in which challan has been submitted in Court. It provides:-- "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 orders 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."
The provisions of subsection (2) of section 173, Cr. P. C. Are not attracted to this case because the re-investigation of the case or its further investiga--petition has not taken place at the direction or instance of a superior officer of police through whom under the directions of the provincial Government the challan was required to be submitted to the Court. It has, it appears, taken either at the instance of the investigating officer himself or his superior in the hierarchy of police establishment all of whom enjoy individually the power of a Station House Officer.
6. This question has been dealt with at great length in two decisions. The first is Ata Muhammad v.
I.-G. Police (PLD 1965 Lah. 734) where after considering earlier decisions on the subject the following observations were made :-- "We are in respectful agreement with the view as expressed in the decisions cited above on the point, particularly as we feel that there is not only no statutory bar in the Code of Criminal Procedure for the police to carry out fruitful investigations in a crime as many times as the circumstances of the case may leaf to, but also because a denial of this power to the police may in some cases cause frightful harm to the cause of justice, and fairplay for the public which the police is supposed to serve and which must always be the first and foremost target of police investigations."
The same question was again considered at greater length in Criminal Miscellaneous No. 174/70 (Alaf Din v. The State) where the following conclusions were recorded:--- "The police is not debarred from making further investigation after having submitted the final report under section 173 of the Criminal Procedure Code and the same position obtains irrespective a of whether cognizance has or has not been taken by an overt judicial act and whether the recording of evidence has or has not commenced after the taking of cognizance. It should, however, be added that if cognizance had not been taken before the result of the further investigation becomes available then the entire evidence can be presented before the Court as if it were a part of the final report under section 173 of the Code. If on the other hand cognizance has been taken then it is entirely in the discretion of the Court to admit additional evidence under the provisions of section 540 of the Code."
This fully answers the first objection raised by the petitioners. The power to investigate further or; to put in a second challan is not lost merely, because a final report under section 173, Cr. P. C. Has been submitted.
7. The learned counsel for the complainant tried to distinguish these decisions firstly by reference to the decided cases which have been considered in this judgment and then by pointing out that the provisions of section 173, Cr. P. C. Have to be differently interpreted if it is an enquiry conducted under Chapter XVIII of the Criminal Procedure Code as distinguished from a trial. The submission of a challan is a stage which precedes the enquiry or the trial. The power under section 173, Cr. P. C. Is not dependent on the procedure to be followed i.e. Of an enquiry provided in Chapter XVIII or of trial. There is nothing in the scheme of the Act to extend the distinction of enquiry and trial even to the report that the police is required to submit under section 173, Cr. P. C. Therefore this argument cannot be advanced successfully on the facts of the case.
8. As regards the absence of a direction of the superior officer to re-investigate the case, the decided cases already referred to above, do note make it necessary nor does it appear to be necessary under section 173, Cr.P.C. That for a re-investigation or further investigation of the crime a direction must come from the superior officer and the police officer himself cannot do it. This objection is therefore not tenable for the investigating officer could investigate the case if he otherwise has the jurisdiction without the direction from the superior officer.
9. The ground of mala fide is primarily a question of fact. At a stage when the enquiry is in progress the question of mala fide need not be gone into, because the accused petitioners will have sufficient opportunity at the time of enquiry or trial to demonstrate it and to secure adequate relief against such an action. It cannot form the basis of quashment of the proceedings at this stage.
10. In the result both the petitions for quashment fail and ate dismissed.