MUHAMMAD KHAN Versus INSPECTOR-GENERAL, POLICE PUNJAB

1. MUSHTAQ HUSSAIN, ACTG. C. J.‑Muhammad Khan appellant and others are accused of having committed a murder in respect of which F.1. R. No. 311 was registered at Police Station, Saddar, Khanpur on 9‑12‑1974. It is claimed that the F.

1. R. was lodged with inordinate delay, 9 hours after the occurrence had taken place. It was alleged that the implication of the appellant and his co‑accused was due to political rivalry and that they were victims of the influence of two local MPAs. They consequently applied to the D. I. G., Babawalpur etc. for having the case investigated by an Agency other than the local police.

2. The 1. G. transferred the case to the Crimes Branch on 27‑3‑1975 but later withdrew this order on 11‑4‑1975 as an interim cnallan was already submitted on 18‑3‑1975. The appellant moved the Chief Minister who recommended the investigation of the case by the Crimes Branch wherefor the Additional Inspector General assigned it to the S. P. Crimes on 28‑5‑1975, who in turn passed the case on to Ghulam Dastgir Khan Inspector of the same Establishment.

3. The complainants were not sitting quiet and moved the Chief Minister praying that further investigation be stopped but this had no effect on him.

4. Meanwhile the 1. G. had returned and on 28‑6‑1975 withdrew the ,investigation from the Crimes Branch.

5. The appellant felt aggrieved and filed W. P. No. 1736/75 in this Court, which was disposed of on 27‑5‑1975 by holding that an investigation .of a criminal case could continue even after submission of a challan to the Court. He, however, declined to issue a direction for the continuance of the investigation. Hence this appeal.

6. Section 154 of the Code of Criminal Procedure provides for giving: information relating to the commission * of a cognizable offence to an Officer Incharge of a Police Station. It requires that officer to reduce it to writing himself or under his direction, to read it over to the informant, to obtain his signatures and to enter the substance thereof in a book to be kept by him in a form prescribed by the Provincial Government.

7. Section 156 deals with investigation into such cases and empowers. an officer incharge of a Police Station to commence investigation without having obtained prior permission from a Magistrate. Subsection (3) em powers a Magistrate who has been invested with powers under section 190 of the Code to order such an investigation.

8. Section 157 requires a Police Officer who has received information. as aforesaid to send a report of the same to a competent Magistrate and either to investigate the case himself or to depute one of his Officers not below a particular rank to proceed to the spot, to investigate the fact& and circumstances of the case including discovery and arrest of the offender. The subsequent sections confer various powers on a Police Officer to enable him to effectively investigate the case.

9. Section 169 provides that when it appears to a Police Officer mentioned therein that there is no sufficient evidence of reasonable grounds or suspicion to justify the forwarding of the accused to a Magiatrate he shall release the accused on furnishing a bond.

10. Section 170 provides the procedure in cases where the result arrived at by the Police Officer is converse of that mentioned in the preceding section 169. Under section 170 if the Police Officer finds sufficient evidence or reasonable grounds as aforesaid the Police Officer is required to forward the accused in custody to a Magistrate or if he is bailed out to take security for his appearance before a Magistrate.

11. Section 173 enjoins upon a Police Officer to complete the investigation without unnecessary delay and immediately thereafter send a Peport to the Magistrate concerned a report in the prescribed form. Subsection (2) lays down that if a superior Officer has been appointed by the Government under section 158 the report shall then be submitted through him. That officer is further empowered to direct the Officer sending the report to make further investigation.

12. This then is the process prescribed by the Code of Criminal Procedure for investigation of cases by the police. There is no inhibition contained therein on the powers of the competent offcers of the Investigating Agency to continue to investigate the case even after a report has bee sent to the Magistrate. It can, however, be inferred from section 173(2 that wherever an Offcer under section 158 has been appointed by the Provincial Government the Offcer Incharge of the Police Station afte submitting a report under section 173 can be directed by him to fusthe investigate the case. There is, however, no prohibitory provision stoppin the Police Offcer Incharge of a Police Station from investigating the case more than once.

13. Learned counsel for the appellant admitted that section 173 of the Code of Criminal Procedure speaks of and envisages only one report, which is to be sent to the Court after completion of the investigation and that. the same has been submitted. He, however, asserted that the report, which had been so far submitted was under rule 25.56 of the Police Rules only, which is known as an incomplete charge‑sheet or challan. He further submitted that the investigation could continue so long as no final report was submitted under rule 25.57.

14. This submission is based on an incorrect appreciation of the Poll Rules. Rule 25.57 deals with cases in which the police is unsuccessful after taking all the measures in its power and it considers it advisabl to suspend the investigation. Rule 25.56 is applicable only to cases wher an Investigating Officer requires authority to detain an accused perso beyond the limits prescribed in section 61. It is not necessary that thi may be so in every case, and, therefore, an incomplete cballan required by rule 25.56 may not be submitted in a large number of cases. Where such an incomplete challan has not been submitted a complete one shall be submitted at the very out set and shall form the final report required by section 173 of the Code of Criminal Procedure.

15. In cases, however, where action under rule 25.56 has been found t be necessary, once the investigation is completed and an accused person is sent for trial, according to rule 27.1 the charge‑sheet prepared under form 25.56(1) shall form the final report required by section 173 of the Code of Criminal Procedure. The assumption that a separate complete challan has to be submitted after an incomplete one has been submitted is, therefore, not correct.

16. It was held in Atta Muhammad v. Inspector‑General of Police, West Pakistan,.Lahore and others ( P L D 1965 Lah. 734 ) that :

17. "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 iu 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, as alleged in this case, namely; the corrupt behaviour of the police offcers concerned . To say that the same police offcers 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 frailities 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 inquiry 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. .

18. There is no bar to the investigation by the police after the submis sion of a final report under section 173.

19. He had also his mind set on the complaint, with an amount of hesitation as to the competency of the police to file a second report on the basis of a second investigation. Since we are of the view that adequate alternative remedies are open to the petitioner, the one to which he has already resorted, i.e., the complaint filed by him, and the second, viz., the subsequent police report which the police can certainly file in the case if it is so disposed as a result of its sub sequent investigation, we are constrained to dismiss this writ petition which we hereby do."

20. Similarly in Alam Din v. The State ( P L D 1973 Lah. 304 ) it was held that :

21. ". . (3) 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 o 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 the further investiga tion 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 cognisance 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."

22. In these circumstances we have no hesitation in holding that the power of the Police to investigate a case even after submission of a challan ,.is not absent.

23. The next question that arises is whether it is a right vesting in a person interested in the investigation of a case, which can be enforced through .a writ petition,

24. It was held in the State of Pakistan v. Mehrajud Din ( P L D 1959 S C (Pak.) 147 )

25. "The writ or order of mandamus is a direction issued to any natural person, corporation or inferior Court within the jurisdiction requir ing them to do some specific thing therein particularised, and waich appertains to their offce or duty. Its object usually is to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon offcers when there is no other adequate and specific legal remedy and without which there would be a failure of justice. A mandamus could not confer a new authority and is neither a law nor a source of law. The person claiming a mandamus, in order to be entitled to receive it must at least have a clear legal right to the performance by the respondent of the particular duty sought to be enforced and in the case of a public officer the duty must be one which is clearly defined, imposed or enjoined by law as a duty resulting from the office. A right founded purely on private contract, however clear it might be, is not enforceable by mandamus. These statements regarding the nature of the writ of mandamus have been borrowed from a valuable monograph on the subject, entitled "Extraordinary Legal Remedies" by Ferris. (Thomas Law Book Company, U. S.). In Halsbury's Laws of England (Volume 11, Third Edition), the following statements of the relevant law are found. If public officials or a public body fail to perform any public duty with which they have been charged, an order of mandamus will lie to compel them to carry it out. In accordance with this principle a mandamus will issue to Government officials in their capacity as public offcers exercising public duties which affect the rights of private persons. Such a mandamus might even issue to the Lords of the Treasury in their capacity as public officers invested by statute with public duties affecting the rights of private persons. An applicant for a mandamus must show that he has a legal right to the performance of a legal duty by the party against whom a mandamus is sought. The prosecutor must be clothed with a clear legal and equitable right to something which is properly the subject of a writ, as a legal right by virtue of an Act of Parliament. The order is only granted to compel the performance of a duty of a public nature."

26. While there is no doubt that there is no bar to further investigation o a case by the police as has been pointed out above, there is no legal right vesting in a party to a case to insist upon such a re‑investigation. 1f it were otherwise a recalcitrant person accused of an offence may never i allow a report under section 173 of the Code of Criminal Procedure to be filed by the Police with a competent Court and go on asking for investiga tion on one ground or the other with impunity and thus set at naught the entire concept of criminal proceedings.

27. The illuminating judgment in Julius v. Bishop of Oxford ( (1880) 5 A C 214 ) may be adverted to in this regard :

28. "They confer a faculty or power, and they do not of themselves do more than confer a faculty or power, but there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the persons for whose benefit the power is to be exercised, it may couple the power with a duty, and to make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so. These words being, according to their natural meaning, permissive or enabling words only, it lies upon those, who contend that an obligation exists to exercise this power to show in the circumstances of the case something which, according to the principles I have mentioned, creates this obligation."

29. No such obligation to re‑investigate a case after the police has completed the investigation once can be spelt out of the provisions of the Code of Criminal Procedure nor has any other source for the aforesaid obligation been pointed out to us during the course of arguments.

30. We have, therefore, no option but to dismiss this appeal, which we hereby do but in the circumstances of the‑/ case would leave the parties to, bear their own costs. s. A. H. Appeal dismissed