MUHAMMAD ASHFAQ Versus AMIR ZAMAN and others

TASSADUQ HUSSAIN JILANI, J.------- The petitioner is complainant in the case registered vide F.I.R. No.88 dated 8-9-2003 under sections 302/324/148/147/149/337-F(i), F(ii), F(iv), F(v), F(vi), 337-L(i), 337-A(i) read with section109, P.P.C. Police Station Kotli Sattian. The final report under section 173, Cr.P.C. had already been submitted when the accused through Writ Petition No. 1377 of 2004 sought a direction to the concerned Police Officer to submit the report before the trial Court, with regard to re-investigation. The petition was dismissed vide order, dated 2-6-2004 with the observations as under:--

"It lays in the domain of learned trial Court to permit the petitioners or otherwise to produce evidence the Investigating Officer who conducted re-investigation. The petitioners, if so advised, may apply to the learned trial Court seized of the matter for placing on record report of re-investigation, who shall decide the same on its own merit.

(7) Resultantly, this petition having no merit is dismissed in limine."

This order was assailed by the respondents Nos. 1 and 2 in I. C. A. No. 131 of 2004, which was disposed of with a direction to respondent No.3 (Naseer Ahmad Awan, D.S.P. Kotli Sattian), to submit report under section 173, Cr.P.C. strictly in accordance with law without any further loss of time. Leave to appeal against the afore-referred order is sought through this petition.

2. Learned counsel for the petitioner submitted that the final report under section 173, Cr.P.C. had already been submitted by the police before the Court concerned, that the accused filed a Constitutional petition seeking a direction that the report in the second investigation should also be submitted in the Court but the same was dismissed and a Division Bench of the High Court granted the relief to the accused/ respondent without hearing the petitioner/complainant. He added that police had no power to re-investigate a case cognizance of which had already been taken pursuant to submission of first report under section 173, Cr.P.C. In support of the submissions made learned counsel relied on 1986 SCMR 1934. 1999 SCMR 2203 and PLD 2002 SC 590.

3. We have gone through the impugned order and have considered the submissions made. There is nothing in the Criminal Procedure Code, which debars the police to re-investigate a case to unearth the truth. The law stands settled by this Court long ago, which had been reiterated in Aftab Ahmad v. Hassan Arshad and 10 others PLD 1987 SC 13 wherein at page 15 it has been held as under:--

"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. This Court also in Muhammad Akbar v. The State and another 1972 SCMR 335, 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 initiative or on the direction of the superior Police Officer. There are other cases also. See Noor Nabi Agha v. The State PLD 1972 Kar. 292, Muhammad Hayat v. The Chief Settlement and Rehabilitation Commissioner and another PLD 1970 Lah. 679, Alam Din v. The State PLD 1973 Lah. 304---i.n this case also previous case-law was discussed and reliance was placed on very weighty observations in this behalf made in Atta Muhammad v. Inspector-General of Police, West Pakistan, Lahore and others PLD 1965 (W.P.) Lah. 734, no reason has been advanced for us to differ with these observations Muhammad Khan and others v. Inspector-General, Police Punjab, etc. PLD 1976 Lah. 574 and Muhammad Khan v. Inspector-General of Police, Punjab, Civil Secretariat, Lahore and 2 others PLD 1978 Lah. 731. Previous law was again discussed in the last mentioned case."

A Bench of Supreme Court Azad Jammu and Kashmir has also followed the aforesaid view in Mirdad Khan v. Zahir Shah and 3 others 2000 PCr.LJ 1739 wherein at page 1774 it was observed as follows:--

"

14. From the survey of the above referred case-law it becomes abundantly clear that there is no bar to the re-investigation of a case by the police even if they had submitted an earlier report under section 173, Cr.P.C. disclosing the fact to the Magistrate that no cognizance offence is made out against the accused. The police is fully competent to re-investigate and to submit a challan on the basis of subsequent investigation."

The question of re-investigation has now been regulated for the first time by promulgation of Police Order 2002. However, there is no allegation that re-investigation was carried out in violation of the afore-referred law.

4. The apprehension of the petitioner/complainant that his case is likely to be prejudiced by submission of report on re investigation is misconceived. Firstly because the Court concerned can proceed with the trial on the basis of the report already submitted under section 173, Cr.P.C. and secondly .it is not bound by the opinion given in the said report or expressed in the report being submitted pursuant to re-investigation. It is always the judicial consideration of the material collected by Police which weighs with the Court while issuing process.

In the afore-referred circumstances we do not find any merit in this petition and not minded to grant leave to appeal. The petition is dismissed.

M.H./M-148/S Petition dismissed.