GHULAM RASOOL MIR Versus AZAD GOVERNMENT OF THE STATE OF J & K

1. This writ petition has been filed, seeking quashment of investigation proceedings in a criminal case, on the ground that investigation has not been carried out according to law, against some of the non‑petitioners while no investigation has been made against some of the non‑petitioners who were named as accused in the F. I. R. A prayer has also been made for issuance of a writ of mandamus to the non‑petitioners Nos. 1 to 3 to get the aforesaid case reinvestigated according to law and to file proper challan in the Court of competent jurisdiction.

2. The brief facts resulting in the present writ petition are that a criminal case under sections 4/5 of the Islamic Penal Laws Act of 1974 was registered at Police Station Muzaffarabad city on 22nd June, 1982 at about 1‑30 p m. on the basis of F. I. R. lodged by one Sarfaraz Mir. According to the F. I. R. complainant Sarfaraz Mir, was informed on 22nd June, 1982 at about 9 p. m. by one Shaukat son of Ghulam Nabi that Zafar Iqbal and Tariq Iqbal, two brothers had been murdered on the said date at about 8‑30 p. m. The motive for murder as stated in the F. I. R. is that on 20th June, 1982, non‑petitioners Irfan Ashraf and Arshad Durrani gave beating to one Gulzar Mir which subsequently, gave rise to the various incidents detailed in the F. I. R. and consequently, Javed Durrani and others non‑petitioners became inimical towards the deceased and, thus they had a hand in the murder of above‑mentioned two brothers. The F. I. R. is silent about the actual incident.

3. The learned counsel for the petitioner, Dr. Abdul Basat has raised the following points to substantiate his contention that this was a fit case in which extraordinary constitutional jurisdiction should be exercised for quashment of the police investigation :‑

(i) That two challans vide Nos. 246 and 247 have been filed in the trial Court, whereas only one complete challan is visualized under law and that there is no provision in the Cr. P. C. for filing an incomplete challan;

(ii) that persons named in the F. I. R. having hand in the murder, especially non‑petitioners Nos. 4 to 9, have not been mentioned in column 2 of the challan, which means that no investigation has been made in respect of these accused persons and no information was given to the informant and no report was submitted as required under proviso to section 157 of the Cr. P. C.;

(iii) that no reason has been assigned for not charging the accused persons under section 34 of the A. P. C.;

(iv) that the case was registered under sections 4/5 of the `Taziraati' Act but the challans have been submitted under section 302 of the A. P. C., which is violative of provisions contained in sections 24 and 26 of the said Act ; and

(v) that the documents i.e. the post‑mortem report etc, etc., have not been filed alongwith the said challans as is required under rule 27 1 (3) of the Police Rules of 1934.

4. Apart from the above‑said points, although some other acts and omissions, by the investigating officer, have been also challenged in the memorandum of writ petition but those were not raised during the course of arguments, perhaps because, the said points relate to the question of fact, needing thorough investigation and cannot be agitated in the writ jurisdiction. Therefore, 1 need not recount the said points here.

5. Before dealing with the points raised in their chronological order, it may be observed here that it stands admitted in para. 17 of the memorandum of writ petition and the fact was also admitted during the course of arguments that case is being reinvestigated by a group of senior police officers and, according to the learned counsel for the petitioner, the present writ petition was being filed only to `clear the deck' by the quashment of the previous investigation.

6. Coming to the points referred to above, it may be pointed out that it was vehemently argued by the learned counsel for the petitioner that two challans submitted in the present case cannot be regarded as incomplete challans because, according to the learned counsel, there is no provision in Cr. P. C. or in Police Rules visualizing an `incomplete' challan. He has argued that expression `incomplete challan visualized in rule 25.56 of the Police Rules, relates only to the stage of period of fifteen days under section 167 of the Cr. P. C. and if the challan is not presented during the said period, only a complete challan, under section 173 of the Cr. P. C. can be filed.

7. The first point which needs determination is as to whether an incomplete challan can be filed even after period of fifteen days, stipulated under section 167 of the Cr. P. C. Under rule 25.56 (3) of the Police Rules, it has been clearly mentioned that such an incomplete challan can filed even after the. period of fifteen days provided under section 167 of the Cr. P. C. Section 170 of the Cr. P. C. read with rule 25.56 (3) of the A Police Rules leaves no doubt that if the investigation is not completed within the stipulated period of fifteen days, an incomplete challan can definitely be filed, as has been done in the instant case. I find support in my view from a case reported as Wazir v. State (P L D 1962 Lah. 405) wherein it has been held by Full Bench of the Lahore High Court that in case of an incomplete challan, although the Magistrate can start trial but if he keeps awaiting until another report comes in, he clearly does not take cognizance of an offence and a second report can be submitted showing that no offence has been com mitted and that case might be cancelled. The learned counsel has refer red to a case reported as Muhammad Khan v. Inspector‑General of Police, Punjab (P L D 1976 Lah. 574) and has argued that where an incomplete challan has been filed under rule 25.56 of the Police Rules and has been comple tion of the investigation of a case when an accused‑person is sent up for trial according to Rule 27.1 of the Police Rules, the charge‑sheet prepared on Form 25.56 (1) shall form the final report required by section 173 of the Cr. P. C. and that a separate challan need not be submitted. After closely perusing the aforesaid authority, I am of the view that it has not be laid down in the said case that an incomplete challan, under rule 25.56 (3) cannot be submitted after a period of fifteen days, stipulated under section 167 of the Cr. P. C. All that the aforesaid authority says is that initial incomplete challan shall form part of final report or to other words, final challan under section 173 of the Cr. P. C. Another case cited by the learned counsel for the petitioner was Zafar Sarwar v. State (1) wherein it has been held that there is no provision in the Cr. P. C. for submission of an incomplete report under section 173 of the Cr. P. C. The authority is distinguishable on a short ground, as already been pointed out that in the instant case, no final report, under section 173 of the Cr. P. C. has been submitted as yet and that two incomplete challans cannot be termed as final reports under section 173 of the Cr. P. C. So far as the question of filing of more than one incom plete reports or challans is concerned, that is also not violative of any provision of law. I am fortified in my view by two authorities, namely, Aria Muhammad v. Inspector‑General of Police, West Pakistan (2) and 1975 P Cr. L J 120. Even otherwise, the case is not only being reinvesti gated but a final report is still awaited and I see no reason as to how the prosecution case is going to suffer by filing of two incomplete challans on the basis of first investigation, especially so, when the trial Court is B competent to cancel the previous reports on the presentation of the report, as has been held by Full Bench of the Lahore High Court referred to above.

8. Coming to the point with regard to the non‑mentioning of the names of the accused‑persons in column 2 of the challan, it may be observed that mere levelling of accusation against a person in the F. I. R. does not make C him accused‑person within the meaning of the Cr. P. C. until and unless some evidence implicating such person in the commission of offence is available. I am supported in my view by a case reported as F. B. Ali v. State (3) wherein it has been held that mere mentioning the name of accused‑person in the F. I. R. does not make him accused within the meaning of the Cr. P. C. Even if it is assumed for the sake of argument that it is otherwise, and the persons named in the F. I. R. are accused within the meaning of the Cr. P. C. or within the meaning of the Police Rules, and that there was evidence against the non‑petitioners which implicates them in the commission of offence, the non‑mentioning of their names in incomplete challan, would not justify the inference that this was done with a mala fide intention so as to sheild the non‑petitioners and to facilitate their escape from justice.. Because, until and unless, the investiga tion is completed and a final conclusion is drawn, the Investigating Officer may not be in a position to decide as to which of the accused‑persons are to be mentioned in column 2 of the challan, in view of the quantum of evidence available against each of them. I am of the view that the non‑mentioning of the names of some of the non‑petitioners in column of the challan Form, at the most is an irregularity which would not affect the investigation or trial on merits. The fate of the criminal case depends upon the evidence available in support of accusation levelled against an accused and minor irregularities, if any, committed in investi gation, which do not affect the merits of the case, are immaterial Supposing, an accused person is not sent up for trial, nor his name is mentioned in column of challan form the trial Court can still summon such an accused to face the trial, provided there is satisfactory evidence against such accused which implicates him in the commission of the offence.

9. The argument that as the names of the non‑petitioners Nos. 4 to 9, have not been mentioned in the column 2 of the challan and no information has been communicated. to the complainant and no report has been submitted, as provided under proviso to section 157 of the Cr. P. C., is violative of law and was indicative of mala fide, is also without any force. Because, proviso to section 157 of the Cr. P. C. requires the compliance of the directions contained therein, only if the Investigating Officer finds that there are no sufficient grounds for entering on investigation under E Section 157 (1) of the Cr. P. C. The Police Officer has to investigate the facts and circumstances of the case. The powers of an Investigating Officer are not confined to investigate the case only in relation to a set of persons named in the F. I. R. as accused persons. The facts of the case are to be investigated, of course, including the allegations levelled against the persons named in the F. I. R. The investigation of the case would imply that it was investigated in totality, including the accusation with reference to the particular persons named in the F. I. R. Directions contained in proviso to section 157 of the Cr. P. C. are to be complied with only if the Police Officer declines to investigate the case, at all. It is obvious that this eventuality does not exist in the present case. The presumption is that circumstances of the case were investigated including the allegations levelled against the non‑petitioners Nos. 4 to 9.

10. The next point raised by the learned counsel for the petitioner is that accused‑persons have not been charged under section 34 of the A. P. C. and no reason has been assigned for the said omission. Section 34 of A. P. C. deals with vicarious liability where the offence is committed by mere than one person in the furtherance of common intention of all the accused. According to the case of the petitioner, in the first challan, three persons have been named as accused. If section 34 of the A. P. C. is missing in the said challan, it would mean that all of them have been charged as principal offenders. It is well‑settled principle of law that charge, as principal offender, is more aggravated as compared with the charge for a vicarious liability. Therefore, the petitioner cannot be deemed to be an aggrieved person when he says that accused‑persons should have been charged for vicarious liability and not as principal G offenders. Even otherwise, Court is competent to convict and sentence an accused‑person under section 34 of the A. P. C. even though he was charged as principal offender and vice versa. A reference may be made to a case reported as Khuda Bakhsh v. Crown (P L D 1955 F C 378) where accused‑persons were committed under section 302/34 of the P. P. C., but the Sessions Judge amended the charge to one under section 302, P.P.C. The action of the Sessions Judge was upheld by Federal Court of Pakistan. It is for the trial Court to see as to whether application of section 34 of the A. P. C. is attracted in the circumstances of a case and if the facts of the case so warrant, an accused person may be convicted and sentenced under section" 34 of the A. P. C. even though he was not charged under the said section.

11. The next ground of attack was that the case was registered under sections 4/5 of the Islamic Penal Laws Act of 1974 but challans have been filed under section 302 of the A. P. C. IL has been laid down that if during the investigation, it is found that evidence required under section 26 (1) of the said Act, is not available, the case should be challaned in ordinary Court, constituted under the Cr. P. C. The combined reading of the aforesaid sections with the provisions of the Cr. P. C., reveals that it is for the Investigating Officer to see whether the quantum of evidence required by section 26 (1) of the Islamic Penal Laws Act is available in a particular case. The aforesaid provisions of the Islamic Penal Laws Act are to be read with the provisions relating to investigation contained in sections 169, 170 and 173 of the Cr. P. C. Under section 169 of the Cr. P. C., if sufficient proof is not coming forth, the Investigating Officer is empowered to release an accused. The expres sion sufficient proof implies that for judging the sufficiency of proof, the investigating officer is competent to evaluate the evidence The combined effect of the provisions contained in sections 24 and 26 of the Penal Laws Act and sections 169 and 170 of the Cr. P. C. is that even if the number of the witnesses under section 26 (1) of the Islamic Penal Laws Act is available, if the investigating officer is of the view that witness is not telling the truth and thus, the number of the witnesses fall short of number as laid down in section 26 (1) of the Penal Laws Act, he may challan the accused in ordinary Court under ordinary law. It is accepted principle of law that a harmonious construction should be placed on the provisions of different statutes and presumption is always against the contradictions between the provisions of two statutes. It would be an obvious contradiction between section 169 and 170 of the Cr. P. C. on, one hand and sections 24 and 26 of the Islamic Penal Laws Act of 1974 on the other hand if it is held that investigating officer is competent to judge the truth of deposition of a witness under sections 169 and 170 of the Cf. P. C., when the case falls under ordinary law but he is debarred to do so, if the case comes within the ambit of the Islamic Penal Laws Act of 1974. Moreover, this point can be raised before the trial Court and if the Court comes to the conclusion that necessary evidence is available for sending up the accused‑person to a Court of law, constituted under the Islamic Penal Laws Act, it may return the challan for presen tation to the proper Court.

12. So far as the production of post‑mortem report etc., is concerned, the final report under section 173 of the Cr. P C. is still awaited and under rule 27. 1 (3) of the Police Rules, the documents are to be scrutinized at the time of filing of final report, within the meaning of section 173 of the Cr. P. C. If the aforesaid documents are filed along with an incomplete challan, there remains hardly any occasion for prosecution branch to scrutinize the documents as visualized under rule 27.1 (3) of the Police Rules. In A I R 1937 Lah. 411. it was held that even an accused‑person was not entitled to insist the production of documents before the start of trial because, be was not likely to be prejudiced by the late production of the documents.

13. After dealing with the points raised by the learned counsel for the petitioner, I deem it necessary to point out that according to the case of the petitioner himself, the reinvestigation of the case has been entrusted to superior group of police officers. The previous investigation assailed by this writ petition, does not, at all, stand in the way of new investigators to investigate the case according to law, irrespective of the opinion formed by the previous investigator. There is no question of `clearing the deck' as contended by the learned counsel for the petitioner on the simple ground that the previous investigation does not deter the new investigation team to investigate the case according to law. Therefore, the extra ordinary constitutional jurisdiction cannot be exercised to give an infructuous declaration and to issue a needless writ of mandamus. Because, when the case is being already investigated, I see no logic in the argument that a mandamus should be issued that the case should be investigated.

14. In the light of what has been stated above, finding no force in this writ petition, it is hereby dismissed in limine.

15. Petition dismissed.