' The petitioner under section 561-A, Cr.P.C. Sought setting aside the order, dated 3-2-1994 passed by the learned Additional Sessions Judge, Kasur while exercising the jurisdiction under section 265- K, Cr.P.C. Deleted the added offence under section 17(6)79 and remanded the case to the Illaqa Magistrate for trial. The petitioner, later on prayed that the petition under section 561-A, Cr.P.C. Be allowed to be converted into revision petition as the impugned order, dated 3-2-1994 passed under section 265-K, Cr.P.C. By the Additional Sessions Judge could be challenged under section 439 of the Cr.P.C.; which was allowed and converted into the present petition vide order, dated 11- 10-1994 by the learned Judge Mr. Justice Mian Nazir Akhtar.
2. Briefly, facts of the case are that case F.I.R. No, 210/87, dated 12-8-1987 Police Station Raiwind District Kasur was registered against the respondents Nos.1 to 23 under sections 440, 447, 452, 336, 148, 149, P.P.C. And 14(6)79 and later on 17(6)79 offence was added.
3. The petitioner being aggrieved and dissatisfied with the investigation, filed Writ Petition No,3585 of 1987 in which direction was given to Crime Branch for honest and impartial investigation vide order, dated 29-10-1988.
4. That during investigation of the case accused respondents were acquitted by the Illaqa Magistrate under section 249-A, Cr.P.C. On 14-9-1988. The petitioner assailed acquittal order passed by the learned Illaqa Magistrate by filing a Writ Petition No,594 of 1989 in which the petitioner was advised to file revision petition against the acquittal order, hence on 3-2-1.990 the learned Additional Sessions Judge, Kasur in revision petition ordered further recording of evidence.
The petitioner filed another Writ Petition No,1614 of 1990 for obtaining fresh order from the High Court for investigation as previously directed in Writ Petition No,3585 of 1987 on 29-10-1988. On 12-3-1990 Writ Petition No,1614 of 1990 a direction was issued to the Crimes Branch for completion of investigation within two months. In compliance to the order in Writ Petition No,3585 of 1987 and Writ Petition No,1614 of 1990 D.S.P. Crimes Branch investigated the matter and submitted the challan under sections 440, 447, 336, 452, 149, 354, P.P.C. And further added the offence under section 17(6)79 instead of section 14(6)79. The investigation conducted by the said D.S.P. Was also confirmed by the Inspector-General of Police, Punjab.
5. The challan was referred to the learned Additional Sessions Judge, Kasur but after some time respondents Nos.1 to 23 filed Writ Petition No,3584 of 1990 for quashment of the investigation conducted by the D.S.P., Crimes Branch whereas the same respondents filed another Writ Petition No,3585 of 1990 for quashing of remand order passed by the learned Additional Sessions Judge vide his order, dated 3-2-1990. On 17-11-1990 in the said writ petitions the remand order passed by the learned Additional Sessions Judge was upheld.
6. After the dismissal of the above-mentioned writ petitions challan under the amended section 17(6)79 alongwith remaining section was submitted in the Court of learned Additional Sessions Judge, Kasur who took the cognizance of the supplementary challan. The respondents again filed Criminal Miscellaneous No,114/Q of 1992 for the quashment of supplementary challan which was disposed of on 25-7-1992 as withdrawn with the permission to file application under section 265-K, Cr.P.C. Before the learned Additional Sessions Judge, Kasur.
7. The respondents thereafter filed an application under section 265-K, Cr.P.C. Which was accepted and offence under section 17(6)79 was deleted and the case was remanded to the Illaqa Magistrate, hence this petition.
8. I have heard the arguments of learned counsel of both the sides at length and have gone through the record with their able assistance.
9. The question arising out of the writ petition is whether the police is authorised to re-investigate the case after submission of challan and whether the learned Additional Sessions Judge was justified in deleting the offence under section 17(6)79 without recording the evidence, of the petitioner. It was held in case Atta Muhammad v. Inspector-General of Police, West Pakistan, Lahore and others PLD 1965 (W.P.) Lah. 734 that there is no statutory prohibition or bar in the Criminal Procedure Code for the police to the investigation by the police after the submission of final report under section 173, Cr.P.C., nor is the police not competent to file, if it is so disposed, a second report as a result of its subsequent investigation into the case. Similarly, it was held in case Raghunath Sharma and others v. The State AIR 1963 Pat. 268:-- "The Superintendent of Police, who is an officer superior in rank to the Officer incharge of the police station,, has the authority to direct the submission of a charge-sheet when the officer incharge of the Police Station had already submitted the final report under section 173, Cr.P.C.; and a Magistrate is competent- to take cognizance of an offence on the basis of such a charge-sheet. There is no bar to the investigation by the police after the submission of a final report under section 173, Cr.P.C."
10. Considering the case from all angles, I am of the view that there is no statutory prohibition or bar in the Code of Criminal Procedure for the police to the investigation by the police nor any bar can be imposed upon the police to investigate a case as many times as they choose even has ample power to withdraw the challan and submit a fresh challan. It was held by their Lordships in case Muhammad Akbar v. The State and another 1972 SCM R 335 as under:-- "That there is nothing in the Cone of Criminal Procedure to prevent the Investigating Officer from submitting a subsequent report in supersession of his earlier one, either on his own initiative or on the direction of the superior Police Officer."
11. It is pertinent to observe that once police submits report under section 173, Cr.P.C., a Court has no jurisdiction to cancel it on its own instance but has to proceed with the case, to issue process, hold inquiry or trial, as the case may be as it was held in case Murid Hussain v. The State and another 1993 M LD C 2402 FSC. In case Muhammad Ashraf Khan Tareen v. The State 1995 PCr.LJ 313 the learned Judges after discussing the issue at length observed that "any defect, irregularity or even illegality in the investigation would not vitiate the trial unless it is shown to have prejudiced the accused in any manner and similarly no objection regarding any flaw in the investigation or trial can prevail at appellate or revisional stage unless it is proved to have brought about a miscarriage of justice or occasioned a failure of justice.
12. As for the first point raised by the learned counsel is well-settled by the Supreme Court of Pakistan in case Aftab Ahmad v. Hassan Arshad and 10 others PLD 1987 SC 13 wherein it has been held that' the law on the first point raised by the learned counsel is settled. The first case coming to our notice in which the previous law was also discussed is Muhammad Niwaz v. The Crown 48 Cr.LJ 774 wherein a Division Bench of the Lahore High Court held that the number of investigations into a crime by a Police Officer is not limited by law and when one has been completed, another may be begun on further information received. And this was also possible even after the submission of the challan report, when the Court has already taken cognizance of the case. Supreme Court also in Muhammad Akbar v. The State and another 1972 SCMR 33 held that there is nothing in the Code of Criminal Procedure to prevent the Investigating Officer from submitting a subsequent report in supersession of his earlier one either on his own initiative or on the direction of the superior Police Officer'.
13. So far as the second issue is concerned as held in case Murid Hussain v. The State and another 1993 M LD 2402 FSC a Court has no power to delete offence but is bound to proceed in accordance with law by initiating proceedings of the case as there is no incriminating material and P.Ws. Had not appeared and made their depositions before the Court. Unless and until the P.Ws. Appear and make their statements before the Court and a full-fledged trial is conducted and on the basis of such evidence the Court could delete the section or convict a person or discharge him.
14. In the present case in hand, there is sufficient evidence on the record as after the investigation the section was added and the Court itself cannot delete it. I am of the opinion that the police is competent to re-investigate the case and to submit challan. The learned Additional Sessions Judge has erred in deleting the offence under section 17(6)79 and remanding the case for trial; consequently the petition is accepted and the learned Additional Sessions Judge, Kasur is directed to proceed with the case in accordance with law.