A case has been registered against the petitioner as well as Muhammad Salim, Saifullah and Ziaullah under section 302/34, P. P. C. At Police Station Sadar . Khanpur on 9-12-1974. The complainant Hashmat A.I, brother of the deceased Muhammad Shah, has alleged in the F.
1. R. That on 8-17-1974 he along with his deceased brother as well as Muhammad Sadiq, Muhamma d Riaz and Ghulam Rasul was present in his lands and was getting a Truck loaded of sugarcane to be transported to the Sugar Mills when at about 11-00 p.m. All the accused persons, mentioned above, armed with '12 bore guns attacked. Saifullah is alleged to have fired hitting the deceased at his back. Muhammad Saleem and Ziaullah are also alleged to have fired at the deceased. The allegation against the petitioner as well as Muhammad Arshad, his co-accused , is that they conspired with the other accused persons for the murder of the deceased.
2. According to the petitioner , Muhammad Saleem accused, after the lodging of the F.
1. R, submitted an application to the D. I.G.. Bahawalpur Range complaining that innocent persons had been implicated in the case on account of political and personal enmity . It was also alleged in, the application that the local S. H. O. Was inimical to him, as he had reported against him for abuse of powers and position during the floods of 1973. The S. P.
Accordingly was directed by the D. I: G: to ensure that the investigation was carried out In a fair and impartial manner . Similar application was moved by him on 11-12-1974 before the Commissioner as well requesting for judicial inquiry in the matter . Mohammad Salim submitted yet another application , on 12-12-1974 with the same prayer .
3. According to tie petitioner , since the accused persons were apprehensive that justice will not be done to them during the investigation by the local police, therefore they approached the higher authorities and consequently the Federal Interior Ministry directed the I. G. Police, Punjab on 7-2-1975 that the investigation of the case be transferred to the Crimes Branch. Lahore. The I.-G. Police in compliance with that direction entrusted the investigation to Ghulam Dastgir Khan, Insp6ctor , Crimes Branch. It is alleged that in spite of that no such investigation was carried out by the Crimes Agency . The accused party ultimatel y approached the Punjab Chief Minister , who directed, by his order dated 27.5-1975, that investigation should be made by the Crimes Branch. It is admitted that the said application was made by Muhammad Salim accused.
4. The direction as given by the Punjab Chief Minister was conveyed the Additional 1.-G.. The I. G. Being absent from Lahore, to the Crimes Branch on 28-5-1975. In compliance with that direction respondent No. 2, Ghulam Dastgir Khan undertook the investigation. According to the petitioner , respondent No. 2 visited the area alongwith other Police Officers and recorded the statements of many other persons produced by the accused party . It is, however , not denied by the learned counsel for the petitioner that the complainant party did not participate in that inquiry , which as such Liver one-sided. Respondent No. 2 who appeared in the Court admitted this fact in reply to a Court question and stated that since the complainant party did not join the investigation, theref6re, the same is incomplete and accordingly no conclusion has boon arrived at. It is admitted by the petitioner that the local police meanwhile submitted an "interim" challan in the Court against the accused persons.
5. It is significant to notice that the Crimes Branch war directed by the I-G. To take up the investigation side his letter dated 27-3-1975. This order was, however , withdrawn by the I: G. On 11-4-1975 on the ground that since challan of the case had been submitted in the Court, therefore, it was not proper to embark upon fresh investigation.
6. After the Punjab Chief Minister had directed fresh investigation to be conducted by the Crimes Branch, the complainant party approached the Prime Minister of Pakistan and made representation against the said order . Tile matter was referred to the I.-G., Punjab 'to ensure justice, who again expressed his opinion on 25-6-1975, that since the case had gone to the Court, therefore, it was not desirable to hold fresh inquiry . The said order of respondent No. 1. I. G. Police is subject-matter of the present petition, its validity having been challenged.
7. It has been contended by the learned counsel for the petitioner that police is empowered to embark upon fresh inquiry irrespective of the fact that challan has been submitted in the Court, as acco rding to the provision contained in section 173, Cr. P. C. The Investigation Staff is obliged to' complete the inquiry entrusted to it, which cannot otherwise be stopped under the law. It has been further submitted that since fresh inquiry was directed to be made by the Chief Minister , therefore, respon dent No. 1, the I.G ,had no jurisdiction to stop it, he being under his supervision. The learned counsel' has next contended that the inquiry has been stopped at a time when final report was likely to be submitted by respondent No. 2.
It may be mentioned here that respondent No. 2 has admitted that the fresh inqui ry entrusted to him could not be completed in the absence of the complainant party , who was not co-operating with him.
8. Sh. Nasim Hassan. Advocate, learned counsel for the complainant party has on the contrary , argued that since one of the accused, namely Muhammad Salim, has not so far surrendered before the, police in spite of the cancellation of his bail by the Supreme Court, therefore, he had no right under the law to move the higher police authorities or even the Chief Minister . Punjab, for making fresh investigation in the case. The learned counsel has submitted that no order can be passed and no act can be done in aid of a person who Is fugitive from justice.
Reliance in this respect has been placed by him upon Chann Shah v. The Crown (PLD1956FC43). The petitioner in that case before the Federal Court was convicted for murder and sentenced to death by order of the Lahore High Court passed upon him in appeal filed by the Provincial Government against his acquittal by the Sessions Judge.
He was on bail pending appeal against Ws acquittal, but did not surrender himself before the authorities concerned even after he was convicted by the High Court and sentenced to death. He presented a petition for special leave to appeal before the Federal Court through his counsel without surrendering himself to the police. It was hold that the Court would not act in aid of a person who was fugitive from justice, as it was an essential condition of the administration of justice that the person so condemned should submit to the due process of justice.
9. It has also been contended by the learned counsel for the complainant that if at all further investigation was to be made it could be directed by the competent Police Of ficer and not by the Chief Minister , as in the present case.
10. I am afraid, the contention raised by the learned counsel for the complaina nt party that since Muhammad Salim, one of the accused, has not surre ndered himself to the police, therefore, his application for holding fresh inquiry was not competent, as he had no right under the law to move in that respect being a fugitive from justice has no force. His bail was cancelled by the Supreme Court by its. Order dated 22-7-1975 while he presented his application to the Chief Minister on 25-5-1975 and to various higher police authorities in the month of December 1971. At the time when he submitted his applications to the Police authorities he had not been arrested and at the time when he submitted his application to the Chief Minister he was on bail. Therefore, the said applications cannot be deemed to be incompetent. Further , the present petition has been filed by Muhammad Khan, one of the accused, and not by Muhammad Salim. This being the position the contention of the learned counsel for the complainant is hereby repelled.
11. The nest question which arises for consideration is as to whether the Interior Ministry of Pakistan or the Chief Minister of Punjab could, under the law, direct that further investigation may be entrusted to the Crimes Branch. 1n order to appreciate this aspect of the case the relevant provision as contained in section 173, Cr. P. C. Is reproduced below : "(1) Every investigation under this Chapter shall be completed without unnecessary delay , and, as soon as it a completed, the of ficer in charge of the police station---
(a) forward to a Magistrate empowered to take cognizance of the offence on a police-report, a report in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused, if arrested, has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and
(b) communicate, in such manner as may be prescribed by tie Provincial Government, the action taken by him to the person, if any , by whom the Information relating to the commission of the of fence was first given;
(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, dad he may, pending orders of the Magistrate, direct the of ficer in charge of the police station to make further investigation;
(3) whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit;
(a) at copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to furnish it free of cost."
There is no doubt with regard to the proposition of law that further investigation can be undertaken by the police even after having submitted the final report under section 173 and the same position obtains irrespective of the fact whether cognizance has or has not been taken by an overt judicial act and whethe r the evidence has commenced after the cognizance of the case has been taken. There is no provision in the Criminal Procedure Code which prevent the police from embarking upon further investigation. It is also true that such an investigation does not and cannot be allowed to stand in the way of the trial. Reliance in this respect can be placed upon Muhammad Abdullah aged another v. The State (1975 P Cr. L J 438), Muhammad Tayyab Shah v. Syes Fiaz Hussain and 2 others (1975 P Cr. L J 120), Noor Dad and others v. Tie State (1974PCr .LJ231), Muhammad Akbar v. The State (1972SCMR335), Noor Nabi Agha v. The State (PLD 1972 Kar. 292), Muhammad Akbar v. The State (1972 P Cr.
L J 328), Falak Sher and another v. The State (PLD 1967 SC 425), Ata Muhammad v. I -G. West Pakistan, Lahore ( PLD 1965 Lah. 734 ) and Alam Din v . The State (PLD 1973 Lah. 304).
12. In the present case, the police file shows, as also admitted by the petitioner , that Muhammad Salim accused first applied to the Interior Ministry of Pakistan for further investigation to be made by the Crimes Branch. This request of him was acceded to as shown by a letter addressed to the Inspector-G eneral of Police, Punjab by the Deputy Secretary/Private Secretary to the Minister of Interior &.State. Dated 7-2-1 975. It appears that probably no such action, as required, was taken by the police authorities. Another application was made by said Muhammad Salim to the Chief '.Minister of Punjab on 25, 5-1975, who passed the following order: "As desired by the Interior Ministry , the case may be assigned to the Crimes Branch please:'
This order was passed on 27-5-1975 and the case was sent to the Inspector General of police for compliance. As mentioned above, the respondent No. 1, Inspector-General of Police, has been of the opinion that since challan had been submitted to the Court, therefore, no further investigation was required.
'The main question is as to whether Interior Minister of Pakistan or the Chief Minister of Punjab could make any direction for further investigation under the relevant provision of law as reproduced above and that too without applying any mind to the facts of the case. The police file, at least, does not show their orders having been passed after due application of their minds to the facts of the case. The Chief Minister of the Punjab directed the I.-G. To entrust the investigation to the Crimes Branch since it was so desired by the Interi or Ministry . So far as the Interior Minister of Pakistan Is concerned, only a direction is said to have been issued by him that the investigation should be entrusted to the Crimes Branch. It means that even if they are competent to make any direction for .Further investigation the same cannot be sustained in law as it was given without applying their mind.
13. The only relevant provision in regard to further investigation is contained in section 173(2), Cr..P. C. Which provides that -where a superior officer .Of police appointed under section 158. Cr. P. C. Through whom the report is to be submitted by the Investigation Officer may, pending the orders of the Magistrate, direct the Officer-in-Charge of the Police Station to make further inves tigation. .Section 158 further provides for the appointment of such higher police officer who can give such direction to the officer in charge of the Police Station as he thinks fit and who is to transmit the report, submitted by the incharge of the Police Station, to the Magistra te. Section 551 further provides that police officers superior in rank to an officer in charge of Police Station may exercise the same powers throughout the local area to which they are appointed as may be exercised by such officer within the limits of his station; meaning thereby that the offices in charge of Police Station or any officer superior in rank to him may embark upon further Investigation of a case, if circumstances so warrant, in order to obviate the omissions in the light of new facts, if brought . To their notice. There -is no provision, whatsoever , in the Code of Criminal Procedure which empowers any minister to make any direction for further investigation or to interfere with the investigation being conducted by a Police Officer. In the absence of any statutory provision authorising any minister to make any such direction further investigation embarked upon by respondent No. 2 under the orders of the Chief Minister of Punjab cannot be held to be competent and as such question of making any direction to him by this Court to complete that investigation and submit his report to the Court in respect thereof does not arise.
14. It has been contended by the learne d counsel for the petitioner , while relying upon section 3 of the Pakistan Police Act that since superintendence of the police throughout the province vests in the Provincial Government, therefore, the Chief Executive, head of the Provincial Government, can make such a direction.
I am afraid, this contention has no force in law. The superintendence vesting in the Provincial Government is only in regard to the administration of the Police Department; it does not mean that the Provincial Government can interfere with the duties and functions of the police officers assigned, to them under the Code of Criminal Procedure. For that purpose necessary machinery has been sot up under the law and over and above its head no such interference can be made by the Provincial Government. As in the care of Chief Settlement Commissioner , he was appointed under section 9 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 by she Central Government and all the Settlement Commissioners, Additional Settlement Commissioners. Deputy Settlement Commissioners and Assistan t Settlement Commissioners appointed by the Government v ere to perform their duties and discharge their functions assigned to them by or under the Act under the general superintendence and control of the Chief Settlement Commissioner . The Chief Settlement Commissioner previously , under the unamended Act, used to enjoy ail the powers of revision under section 20(2) of the Act as well as powers of review under section 21 . After the deletion of the said provisions of law empowering him to revise or review any order was debarred from passing any order on the judicial side irrespective of the fact that superintendence and control of the entire Settlement Organization vested in him. Similarly , in the present case since statutory provisions of the Code do not empower the Provincial or the Federal Government to interfere with the investigation being conducted by a police officer under the Code, therefore, such interference cannot be made.
In this view of the matter the orders passed by' the Interior Minister of Pakistan and Chief Minister of Punjab being without jurisdiction, respondent No. 2 cannot embark upon any fresh investigation in compliance with them and as such the necessary relief claimed by the petitioner in this regard cannot M granted to him.
Even' otherwise practice of transferring investigation from one officerto another by different orders of superior police officers also cannot be deemed to be conducive to the administration of justice It is established principle of law that Investigation by a police officer by itself cannot be a proof of guilt or innocence of the accused. His report cannot be deemed to be legal evidence nor any reliance can be placed upon it by any Court. It is the Court to decide on the basis of the evidence produced by the parties as to whether guilt or Innocence of the accused is established.) Such practice also gives rise to corruption and invariably in such circumstances parties to the case try to win over? The witnesses by, fair or foul means. There is no doubt that some time circumstances of a particular case do warrant further investigation or transfer of investigation from one officer to another , but such discretion by a .Competent police of ficer should be exercised with all due care an full application of his mind.
14. It is, however , clear that even at this stage if the competent police officer decides to make fresh investigation in the case, he can do so arid can submit his report in this behalf to the Court which will 4dmit the same as an additional evidence under the provision of section 540, Cr. P. C. However , it will be entirely is the discretion of the trial Court to pass nay necessary order in this behalf, as held in Alam Din's case, referred to above.
15. It has been contended that since an incomplete' challan has been submitted In the Court, therefore, the case pending before the trial Court cannot proceed unless a complete challan is submitted.
I am afraid, this contention has no, force. When sufficient evidence is found by the police against an accused person then report in this behalf is submitted by the police to the trial Court. There is no provision in the Code which ran show that such report can be termed as interim or incomplete challan. Probably this practice is followed them days with a purpose that the Court may not proceed with the case pending in the investigation. It is, however , not warranted by law as bold in Noor Dad v. The State (1974 P Cr. L 1231). It has been held in that case that there is no warrant, whatsoever , for the practice, which is now prevalent, of tending up a charge-sheet described as interim challan to satisfy the mere form of the law taking it for granted that investig ation will continue and the case not allowed to proceed. The correct position is that this charge-sheet is one upon which cognizance can and must be taken. It has been further held that it is trite, of coarse, that despite this the police may continue its investigation as there is nothing in the Criminal Procedure Code which prevents from doing so and the fact of the cognizance having been taken does not stand in the way of further investigation. It has also been observed that it is equally true, however , that such an investigation does not and cannot be allowed to stand in the way of the trial. If the case does not proceed after cognizance it can only be as a result of -the order of adjournment granted by the Magistrate under section 344, Cr. P. C. Which is as much a judicial order as any order that a Magistrate can pass. It has been further held that only if proper grounds are shown to' a Magistrate justifying such a course, then he may grant an adjournment; otherwise clearly be should proceed with the case: It is not for the investigating authority or a prosecution agency to take it for granted that upon an interim charge-sheet having been produced the forms of law have been satisfied and they are then at leisure to proceed with the case when they please.
I am in respectful agreement with the principle of law laid down ' the case referred to above and, therefore, hold that if a challan, in whatever manner , has been submitted to the Court then the Court can proceed with the same and if the police after further investigation in the case submits another report the same may be admitted as additional evidence by the Court according to law:
16. For the aforesaid reasons there is no force in the writ petition which is hereby dismissed without any order as to cots. 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.