Through this Constitutional petition, .The petitioner has sought the action of respondent No. 1 regarding recommencing of investigation after submission of challan and filing of complaint cognizance of which has already been taken by the learned Additional Sessions Judge, Faisalabad, be declared mala fide, illegal, without lawful authority and of no legal effect.
2. Brief facts resulting in the present writ petition are that an unfortunate incident took place on 20- 5-1994 at about 6.00 p.m. Whereby one Muhammad Akram was murdered. The matter was reported to Police Station Thikriwala by the father of the deceased. Consequently a criminal case was registered at the aforesaid police station on the same day under section 302/148/149, P.P.C.
Vide F.I.R. No.209 dated 20-5-1994. Before submission of the challan a large number of police officers investigated the case. It appears from the copy of the challan and other documents placed on the petition that police submitted an incomplete challan before the Illaqa Magistrate who after perusing the case transmitted the same to Sessions Judge, Faisalabad, for trial. The challan was signed by the S.H.O. On 22-8-1994. By virtue thereof 2 accused persons namely Qamar Zaman and Sarfraz alias Kaku were directly challaned while remaining 7 accused persons were declared innocent and were got discharged: On receipt of the challan, learned Sessions Judge, Faisalabad, entrusted the same to the Court of Mr. Saif-ur-Rehman Khan, Additional Sessions Judge, Faisalabad, for disposal in accordance with law. After about one year of the registration of the case, S.H.O. Police Station Thikriwala (respondent No.1) again commenced investigation of the case. Feeling aggrieved, the petitioner has filed the petition in hand.
3. Learned counsel for the petitioner has submitted that although there is no bar to reinvestigate a criminal case registered by the police, but the superior Courts have many a times disapproved the practice of successive investigations lingering on for an indefinite period especially after submission of challan report; that respondent No. l (S. H. O.) has no lawful authority to recommence the investigation of the case when a Judicial Officer i.e. Civil Judge 1st Class/Magistrate Section 30, has submitted his report under section 202, Cr.P.C. In the trial Court; that there should be a limit to investigations and as the case has already been investigated by a large number of police officers there seems no useful purpose is going to be served by recommencement of investigation by respondent No. 1. Reliance is placed on 1986 SCMR 1934 'Riaz Hussain and others v. The State', PLD 1988 Lahore 666 'Syed Waqar Hussain Shah v. The State', and 1992 PCr.LJ. 1 'Sajjad and 3 others v.
The State'.
4. Learned counsel for the respondent No.3 and learned Additional Advocate-General, have submitted that there is no statutory prohibition in the Code of Criminal Procedure for the police authorities to embark on a fresh investigation of the case even after the submission of complete challan while in the case in hand the police has only submitted an incomplete challan in the Court for trial; that the police can recommence investigation at any stage of the trial on the availability of fresh material and evidence.
5. I have heard the arguments advanced by both the sides and have gone through the record carefully. Vide earlier order dated 11-7-1995 passed in the instant petition Saqib Ghumman, S.I., was directed to obtain legal opinion from the Legal Branch to know the effect of filing of subsequent challan in this case when the cognizance has already been taken by the trial Court concerned. On 11-12-1995, Deputy Inspector-General of Police, Faisalabad, was asked to submit comprehensive report with regard to the stage and result of investigation which is available on the file. According to the report of D.I.G., Faisalabad, investigation of the case was initially carried out by Muhammad Nasir, S.-I., which was subsequently finalized by Mr. Umer Farooq Bhatti, D.S.P./S.D.P.O. City, Faisalabad. The DSP found 7 accused persons innocent and 2 persons namely Qamar Zaman and Sarfraz alias Kaku guilty of the murder. Accordingly challan under section 173, Cr.P.C. Was prepared against the aforesaid two persons and sent to Court for trial. Thereafter investigation was entrusted to the Range Crime, Faisalabad. Muhammad Idrees, Inspector, Range Crime, Faisalabad, conducted the investigation and declared the remaining two accused persons namely Qamar Zaman and Sarfraz alias Kaku as innocent. The Investigating Officer concluded that both these accused were not armed with fire-arms, however, Sarfraz alias Kaku snatched a pistol from Akhtar, a police constable and made three fires in the air. Mehmood, Pervaiz, Naeem, Bashir, Anwar, Saleem, Manzoor, Matloob and Maqbool, who belonged to the complainant party resorted to firing and Muhammad Akram (deceased) was hit and killed by them. As for the submission of subsequent challan, he mentioned in his report that he sought legal opinion from DSP (Legal) in this respect on the direction of this Court. The D.S.P. (Legal) has opined that no doubt the superior Courts had discouraged the investigation agency from submitting 2nd challan but on the other hand Hon'ble Supreme Court and High Courts have time and again held that there is no bar to initiate fresh investigation and submit report to the Court under section 173, Cr.P.C. About the stage of investigation, the DIG has submitted that the investigation of the case is complete and as the proceedings have been stayed by this Court vide order dated 13-7-1995, therefore, no further action could be initiated in the matter in accordance with the conclusion of the investigation.
6. Another fact of the case which needs mention here is that the complainant of the case F.I.R.
No.209, dated 20-5-1994 (father of the deceased) has also filed complaint in the Court of Illaqa Magistrate against all the 9 respondents including 7 respondents who were deleted from the police challan. Complaint was sent up by the Illaqa Magistrate to the Court of learned Sessions Judge, Faisalabad, who entrusted the same to Additional Sessions Judge, Faisalabad, for its disposal.
Learned Additional Sessions Judge after recording statement of the complainant directed Mr. Muhammad Alamgir Khan, Civil Judge 1st Class/Magistrate Section 30, Faisalabad, to hold an enquiry regarding the complaint and submit his report. Learned Civil Judge 1st Class/Magistrate Section 30, Faisalabad, conducted the enquiry and after recording the statements of witnesses, had submitted his enquiry report under section 202, Cr.P.C. To the trial Court for prosecution under section 302/148/149, P.P.C.
7. The main grievance of the petitioner is that the reinvestigation of the case is motivated for declaring the accused persons as innocent and to thwart the process of justice. The question arises whether the police authorities are empowered to initiate re-investigation in respect of the same crime for which they have already filed report under section 173, Cr.P.C. Learned Additional Advocate-General has drawn my attention to the provisions of sections 158 and 173(2) which reads as follows:---- "158. Reports under section 157 how submitted. ---(1) Every report sent to a Magistrate under section 157 shall, if the Provincial Government so directs be submitted through such superior officers of police as the Provincial Government, by general or special order appoints in that behalf.
(2) Such superior officer may give such instructions to the officer-in--charge of the police station as he thinks fit, and shall, after recording such instructions on such report, transmit the same without delay to the Magistrate.
173. Resort of Police Officer.--(2) 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 order so directs, be submitted through that officer, and he may pending the orders of the Magistrate, direct the officer-incharge of the police station to make further investigation. "
The mere reading of these provisions leave no doubt whatsoever that Criminal Procedure Code does not debar the police authorities to launch reinvestigations.
8. With utmost respect to the case-law referred to by the learned counsel for the petitioner, principally I agree that there should be some end to the successive investigations but in some cases fresh investigation even after submission of final challan/report is very much necessary and needed intensively so that the defects and flaws in first investigation may be detected, and also that real culprits should not escape and the innocent should not be challaned, but the same should not be made under the influence of the parties rather it should be on the availability of fresh material/facts and better evidence which were not available at the previous stage in order to safer administration of justice. Even otherwise, in the case in hand, the police has filed only an incomplete challan and the complete challan is, still to be filed. The points regarding successive investigations and submission of final/2nd challan, have come up for consideration before the superior Courts and I would like to make reference to some of those cases.
9. Learned Additional Advocate-General has invited my attention to a case titled "Atta Muhammad v. Inspector-General of Police" reported in PLD 1965 Lah. 734, wherein it was held that: "There is no statutory prohibition in the Code of Criminal Procedure for the police not to embark on a fresh investigation of the case after the conclusion of the first and the submission of the final report whatever the defects in the first investigation or the flaws in the final report given in the wake of it, that might subsequently be detected. The first investigation may be utterly unsatisfactory for many reasons. It may be due to non-availability of the evidence, or the successful induction of false evidence during the investigation, or the reason may be, the corrupt behaviour of the police officer concerned. To say that the same police officers or their superiors on receipt of further information or on the availability of better evidence cannot revive the investigation already done, leading to a contrary or a varied result, would virtually amount to putting a seal on human errors and frailties once committed, whether by design or by inadvertence, with no opportunity to make amends, although it be possible to do so. The police, as an agency of the State, should be as much interested as any other agency concerned in the administration of justice, to find out the truth in respect of a crime and lay the whole facts bare for determination by the competent Tribunals as honestly and correctly as possible. The statutory functions of the police and the Courts in this respect are complementary to each other and do not overlap. The fact that the previous investigation had yielded certain results should not act as a hurdle or a deterrent for the police in reaching the truth if additional facts and additional circumstances brought to light help in its discovery. The Magistrate himself does not have the legal powers to direct a further investigation by the police after he himself has taken cognizance of the case and has himself launched an enquiry or trial; but there is no bar for the police to pursue its own investigations and submit their results to the Court to find the guilt or innocence of the accused persons before it becomes too late. There is no bar to the investigation by the police after the submission of a final report under section 173 of the Criminal Procedure Code, 1898, 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."
10. Similarly in another case titled Alam Din v. The State' reported in PLD 1973 Lahore 304, it was held that: "The police is not debarred from making further investigation after having submitted the final report under section 173 of the Cr.P.C. And the same position obtains irrespective of the fact 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 has not been taken before the result of 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 it is entirely in the discretion of the Court to admit additional evidence under the provisions of section 540 of the Code."
11. Apart from the above two judgments I am fortified in my view by five authorities, namely, Muhammad Khan and others v. Inspector General, Police, Punjab etc.' reported in PLD 1976 Lahore 574, (2) 'Sultan Mahmood and 2 others v. Khawaja Muhammad Tufail, Superintendent of Police and 3 others' reported in PLD 1976 Lahore 1731, (3) 'Muhammad Akbar v. The State reported in 1972 SCMR 335, (4) 'Ghulam Rasool Mir v. Azad Government of the State of Jammu & Kashmir' reported in 1983 PCr.LJ 298, (5) 'Hasil Balouch v. Deputy Inspector-General (Police) Crimies, Karachi' reported in 1983 PCr.LJ 2357.
12. It is also taken into notice that writ petition in hand was instituted on 4-7-1995 five months after the completion of investigation and subsequent challan under section 173, Cr.P.C. Is complete for submission in the Court. No doubt that holding of successive investigations are deprecated by the superior Courts with the intent to avoid undue lingering on the case but how a subsequent challan which almost is complete for submission in the Court of competed jurisdiction can be withheld or brushed aside, even otherwise submission of subsequent challan is not debarred under the provisions of the Criminal Procedure Code, however, as per the provision of section 540, Cr.P.C., it is entirely the discretion of the Court to admit additional evidence if the cognizance of the case submitted to it by the police has already been taken. Moreover, the complainant of the challan has also availed of the alternative remedy by way of filing complaint which is pending adjudication in the Trial Court after conducting inquiry under section 202, Cr.P.C. Furthermore, the petitioner (Muhammad Naseem) has absolutely no locus standi to file the instant petition because he is neither the complainant of challan case or private complaint nor his name is cited as witness or accused in any of the above cases. As such, he does not fall under the category of 'Aggrieved Person' as envisaged under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
12-A.For what has been discussed above, I find no force and merits in the writ petition, as such, the same is dismissed in limine.