Through this Constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has challenged the second investigation by the police after the submission of challan.
2. The brief facts of the case are that the petitioner is a complainant in case F.I.R. No,151 of 1999 dated 21-11-1999 registered under sections 302 and 452/34 P.P.C. With Police Station Mini, District Sargodha against Javaid Iqbal and Muhammad Azam. The allegations against the accused are that Javaid Iqbal raised a Lalkara and said to Muhammad Azam to fire at Muhammad Yousaf, Muhammad Azam fired at Muhammad Yousaf which hit him and later on he died in the hospital.
The local police after thorough investigation submitted the challan in the Court of learned Magistrate on 20-12-1999 and on two dates the accused were summoned and they appeared but after three months after the submission of the challan D.I.-G., Sargodha vide order dated 22-3- 2000 directed the re-investigation of the case by respondent No,4, A.S.P., Bhalwal who on the same evidence and on the basis of same witnesses came to a different conclusion and found Javaid Iqbal to be innocent and directed to submit supplementary challan against Muhammad Azam accused under section 322, P.P.C. Instead of 302, P.P.C.
3. Learned counsel for the petitioner concedes that re-investigation can be conducted by the police even after the submission of the challan. He contended that the case in hand in the absence of any fresh material cannot be re-investigated. The finding arrived at by respondent No,4 is illegal and unlawful and re-investigation was not possible. He has relied upon judgments reported as Riaz Hussain and others v. The State 1986 SCMR 1934; Muhammad Arif v. I.G.-P., Punjab, Lahore and 3 others 2000 YLR 1960; Muhammad Younas and others v. I.-G. Police and others 1999 PCr.LJ 163; Sami Ullah and another v. The State 1999 PCr.LJ 1113; Muhammad Alam and another v. Additional Secretary to Government of N.-W.F.P. And 4 others PLD 1987 SC 103; Abdul Aziz v. S.P. (CIA) Sargodha and others PLD 1997 Lah. 24; Muhammad Yousaf v. The State 2000 SCMR 453 and Muhammad Younas v. S.H.O., Ghalib Market, Lahore and others 1997 MLD 2063.
4. I have heard learned counsel for the petitioner and perused the case law cited by him. The first authority relied upon by him is Riaz Hussain's case (supra). In this case the facts are different. The accused was convicted under section 302, P.P.C. And during the hearing of appeal the points raised about the successive investigations in which practice was depreciated by the 'Hon'ble Supreme Court of Pakistan but it has not been declared that any successive investigation after the submission of challan could be illegal and without lawful authority. Hence the. Facts of the case are quite different and are not applicable to the case of the petitioner. Similarly the second authority cited by the learned counsel is 'PLD 1997 Lah. 24' (supra), in which the facts and circumstances are quite different. In the reported case re-investigation was being conducted after the submission of the challan but this Court depreciated the successive investigations and directed that the power to re-investigate should not be mechanically exercised but investigation could be transferred after careful application of mind only to advance the cause of justice but in the present case S.P. CIA, Sargodha who was re-investigating the case was directed to proceed in accordance with and to ensure that none of the parties feels aggrieved and cause of justice should be promoted. The facts of this case are different and re-investigation ordered through S.P., CIA was allowed. Hence the facts of the case are different and the judgment does not help counsel for the petitioner. But it is otherwise that the re-investigation was allowed to continue with certain guidelines. The third case cited by the learned counsel for the petitioner is '1997 MLD 2063' in which the challan was submitted under section 302, P.P.C. Against the accused. However, subsequently in a clandestine manner without there being any change at all in the evidence, the Investigation Agency submitted a supplementary challan before the Judicial Magistrate under section 322, P.P.C. And latter took cognizance of the same by framing a charge under section 322, P.P.C. In this case it was held:-- "In the present case supplementary challan was submitted in a mechanical manner; the best course for the trial Magistrate was to send the original challan coupled with the supplementary challan before the Sessions Judge who shall of course have proceeded in the matter in accordance with law. If this practice of supplementary challan without there being any change in the evidence is not arrested then the Judicial proceedings would be dependent upon whimsical decision of the Investigating Officer."
' This case also does not support the contentions of the learned counsel for the petitioner as the subsequent investigation and submission of challan was not declared as illegal and without lawful authority but the order was that the Magistrate is bound to send original challan coupled with the supplementary challan before the Sessions Judge who shall of course proceed in the matter in accordance with law. In the case in hand the challan has already been submitted and the trial has already been commenced. Hence this case also does not support the proposition laid down by the learned counsel for the petitioner. The other case cited by the learned counsel is '1999 PCr.LJ 1113' which is not at all helpful to the petitioner as the report under section 173, Cr.P.C. Was submitted to the I.-G. Police directing the re-investigation entrusted to D.S.P., Crime Branch totally disbelieved the prosecution case. These observations were made by this Court while deciding the bail application -that the case reported was re-investigated and the prosecution case was depreciated. One of the accused has been declared innocent and the other accused has been found guilty and the challan is going to be submitted before the trial Court which has yet to frame the charge. The next case cited by the learned counsel for the petitioner is 1999 PCr.LJ 163. In this case this Court has depreciated the practice of successive investigation and passing re- investigation orders in a mechanical, arbitrary and capricious manner without application of mind and it was held that further investigation subsequent to the filing of complete challan in the Court was unnecessary and uncalled for as the same did not advance but retarded the course of justice.
In this case the impugned order was the withdrawal of order of re-investigation and the writ petition was filed for the re-investigation hence the circumstances of this case are different from the case in hand and the case is not applicable to the facts of the present case. Learned counsel for the petitioner has relied upon 2000 YLR 1960. In this case the accused persons were supported by M.N.A. Of the area and though the case was registered and the accused were found guilty but they were not arrested for a long period of time under the pressure of local M.N.A. This Court directed the police to arrest the accused and after four days of their arrest re-investigation was ordered due to the influence of the M.N.A. And in that investigation the accused were declared innocent by the subsequent investigation. In this case the facts are quite different to the facts of the present case. In the case in hand it has not been mentioned anywhere that the accused party is very influential. The authority relied upon by the learned counsel for the petitioner does not apply to the case in hand. In the reported cases cited by the learned counsel, a number of re- investigations had already been conducted and after the submission of the challan orders were passed for re-investigation in a clandestine manner but in the case in hand only the local police having investigated and submitted the challan in which the charge was yet to be framed, the D.I.-G. Directed the A.S.P. For re-investigation of the case on the complaint of the accused persons. The petitioner joined the investigation, produced his witnesses but the Investigating Officer came to the conclusion different from the earlier Investigating Officer and held that Javaid Iqbal accused is innocent and under the facts and circumstances of the case the ingredients of section 322, P.P.C. Are made out instead of section 302, P.P.C. The petitioner did not challenge the order of re-investigation but opted to join the same and joined it when the verdict came against him, he has filed the instant petition for declaring the result of the investigation as illegal and unlawful and without any legal effect. The petitioner could not avail the two remedies at the same time. Firstly he took a chance while appearing before the Investigating Officer in the second round, and secondly, when the decision came against him he opted to file the writ petition for declaring the order of re-investigation as illegal and unlawful. Respondent No,4/A.S.P. Came to the conclusion that Javaid Iqbal who was not ascribed any active role in the commission of the crime was declared innocent. The finding of the Investigating Officer will not affect the trial as the challan has already been submitted in the Court of Sessions Judge. Supplementary challan of the case will be forwarded by the Magistrate to the learned trial Court. The learned trial Court even after receipt of subsequent challan is not bound to frame the charge under section 322, P.P.C. Which is the result of second investigation, yet the trial Court is empowered to frame charge under section 302, P.P.C. It is the duty of the trial Court to see the evidence which is to be produced coupled with the facts and circumstances of the case before framing the charge. The trial Court is not bound to frame the charge only under the provision which has been applied by the police. Hence materially the submission of subsequent challan does not affect the writ petitioner for the trial which is pending before the learned Additional Sessions Judge.
The case on which a stress has been given by the learned counsel for the petitioner reported in 1997 MLD 2063 does not support the petitioner but support the view taken by this Court in this case that supplementary challan will be submitted before the trial Court and the trial Court of course, will proceed in the matter in accordance with law. An independent and impartial investigation is the right of every accused and the complainant party. It cannot be taken away on the writ jurisdiction which is an extraordinary relief and the accused cannot be deprived of the result of an investigation in which the complainant joined and the result of which came in favour of the accused persons. It will be relevant to point out that no mala fides have been alleged against respondent No,4 in the writ petition. He has performed his duties in a lawful manner after the entrustment of case to him: It is the trial Court to agree with his findings or not. There is no cavil to the proposition that the police can reinvestigate the case even after the submission of the challan.
Even in some cases the superior Courts have directed the police to re-investigate the case and submit the challan even after the submission of the challan. In 2000 SCMR 453 the challan was prepared but it was not being submitted in the trial Court under section 302, P.P.C. The Supreme Court directed the Investigating Agency to complete the re-investigation and submit its report to the trial Court within a period of four months. The trial Court was further directed to wait for the submission of report.
For the reasons discussed above I see no merit in this writ petition which is hereby dismissed in limine.