WARIS KHAN vs DEPUTY SUPERINTENDENT CUSTOM, MARDAN and another

This petition under section 561-A, Cr.P.C. Has been filed by Waris Khan, petitioner, having aggrieved of the order, dated 1-10-1999, whereby the learned Special Judge (Central) Customs, Taxation and Anti-Smuggling, N.-W.F.P., Peshawar while convicting the accused charged vide F.I.R. No,72, dated 15-10-1997 under sections 16, 156(1)(8)(89)(9)(90) 157, 178 read with section 2(s) of the Customs Act, 1969 of Police Station, Investigation and Prosecution Branch, Peshawar, observed and directed the prosecution Branch of Customs to reinvestigate the case against the petitioner who appeared to be the main accused according to the evidence led at the trial.

2. On 15-10-1997 Abdul Malik and Jamil were arrested by the staff of Customs Mobile Squad, Mardan on Harichand Road for smuggling of cloth of foreign origin in Truck No,PRM-8260 driven by Abdul Malik and accompanied by Jamil, cleaner. During the course of investigation, the above arrested accused disclosed the. Name of petitioner Waris Khan to be the owner of seized cloth and the truck wherefrom the cloth was recovered. While convicting the aforesaid two accused, the learned trial Court observed that Waris Khan petitioner was the real culprit in the case and thus, directed the prosecution to conduct reinvestigation and submit challan against him. Annoyed with the said order, the petitioner has filed the present petition.

3. For the purpose of convenience, the relevant portion of the judgment is reproduced as under:-- ' "In these circumstances, copy of the judgment be sent to Collector Customs, Peshawar, with the direction to ask his subordinate to conduct the investigation fairly, honestly and thoroughly so that no person should be escaped from the clutches of law. Moreover, since the main accused in this case is Waris Khan, therefore, the prosecution is directed to complete the investigation in this respect and submit challan against Waris Khan."

4. Mr. Khalid Khan, the learned counsel for the petitioner, assailing the impugned portion of the judgment argued that the learned Special Judge Customs has no jurisdiction to make an order for fresh investigation, for, it is the job of the prosecution to reinvestigate the case if it so desired. It is also argued that the direction is also against the law, in that, once the challan is submitted, trial concluded and order passed, the reinvestigation cannot be made after announcement of the order. Whereas the learned counsel for the respondent submitted that where the prosecution has not conducted the investigation fairly and impartially, the Court had the powers to make such order.

5. We could not lay our hands on any provisions of law under which the Court is empowered to direct the reinvestigation of the case. Section 351, Cr.P.C., no doubt, provides that if in a case against the accused person, the Court finds from evidence that some persons, other than the accused, have committed the offence which the Court can take cognizance of, the Court may join such person in the proceedings and proceed against him only if that person happens to be attending the Court. There is no such provision in the Criminal Procedure Code to authorise the trial Court to order for reinvestigation or call a person to join in the proceedings after trial of the accused is concluded.

6. It may be worth-mentioning that in Indian jurisdiction section 351, Cr.P.C. Has been recast in the form of section 319 which empowers the Court to proceed against any person, other than the accused, if there is some evidence to show that the person has committed an offence of which the Court can take cognizance. Such person can be summoned as a co-accused before the Court. In other words, this newly recast section 319, Cr.P.C. Of the Indian jurisdiction gives discretion to the Court to proceed against a person who is not an accused at the trial if it appears from the circumstances of the case, that such person, other than the accused, is involved in the crime but in our jurisdiction, no such powers are available to the trial Court to make direction to the prosecution to conduct investigation afresh against C person who appears, from the evidence, to be connected with the offence. The august Supreme Court of India in the case of Girish Yadav and others, appellants v. State of Madhya Pradesh, respondent AIR 1996 SC 3098 while dispelling the contention of the learned counsel for the appellants had observed that though the police had not submitted charge-sheet against certain persons but there was enough powers with the Court to exercise its jurisdiction under section 319, Cr.P.C. To proceed against them if subsequently, on recording of evidence, it was found out that they were reasonably connected and there was sufficient involvement of such persons in the commission of offence.

7. This makes it clear that necessity of such amendment was felt by the Indian Legislature as there was no specific provision in the old Code for the trial Court to direct a person to be brought up and face the trial against whom there is ample evidence showing his involvement in the crime.

8. Needless to mention that the Court, where it appears that the prosecution has not conducted the investigation honestly and fairly, can always make remarks or direct the initiation of disciplinary action against those who had lacked in the performance of their duties. It is, however, settled that the police has not only the authority to reinvestigate the case as many times as they choose but has also the powers to withdraw the challan and submit fresh challan.

9. With the above discussion, I see force in this petition which is hereby allowed and the para., reproduced above, is directed to be quashed from the order, dated 1-10-1999. 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.