PLJ 2010 Lahore 371

Present: Ijaz Ahmad Chaudhry, J.

Mian MUHAMMAD ASIF--Petitioner

versus

SSP OPERATION, LAHORE and 2 others--Respondents

W.P. No. 21442 of 2009, decided on 10.12.2009.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 173--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Re-investigation was challenged--Petitioner was declared innocent and report u/S. 173, Cr.P.C. had been submitted in the Court--Challan was submitted against the law by SHO and without making efforts for collecting any evidence cannot be made basis for stoppage of re-investigation--Validity--Investigation can be re-conducted in peculiar facts and circumstances of the case and mere submission of report in order to save the skin of the petitioner cannot be made basis for stoppage of the investigation--Held: Police opinion not binding on the Courts and the police is competent to reinvestigate the matter even after the discharge of the accused by magistrate, if some new evidence is brought on the record to prima facie cannot the accused with alleged offence. [P. 375] A

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 173 & 249-A--Constitutional petition--Re-investigation--Police cannot be stopped from re-investigation--Petitioner was placed in Column No. 2 and the Court had not summoned him but it seems that he had moved application u/S. 249-A, Cr.P.C. in order to further cement his innocence which opinion has been obtained through fraud--Held: Magistrate is restrained from passing any order on the application moved by petitioner u/S. 249-A, Cr.P.C. till the matter in reinvestigated and fresh final report u/S. 173, Cr.P.C. is submitted as the police cannot be stopped from reinvestigation of the matter, but however, the final verdict has to be passed by the Courts after evaluating the evidence adduced it during trial--Petition was dismissed. [P. 375] B

Mr. Irfan Ahmad Khan, Advocate for Petitioner.

Malik Fida Hussain, Advocate for Respondents.

Mr. Waqas Qadeer Dar, AAG.

Date of hearing: 10.12.2009.

Order

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Mian Muhammad Asif petitioner has challenged re-investigation in case FIR No. 1379/2008 after submission of report under Section 173, Cr.P.C. as illegal and unlawful.

2. Briefly the facts are that the petitioner was involved in case FIR No. 1379 of 2008, dated 9.10.2008, registered under Sections 420/ 467/468/471/193 PPC at Police Station Lower Mall, Lahore on the application of Haji Sheikh Muhammad Tahir.

3. The learned counsel for the petitioner contends that he was declared innocent and report under Section 173, Cr.P.C. was submitted in the Court but now re-investigation has been started. Relies upon PLJ 2004 Lahore 1293. It is further contended that the petitioner is facing trial and the prosecution can produce evidence in its possession. It is next contended that challan was not signed by the SHO and report under Section 173, Cr.P.C. has to be signed by the concerned SHO, got no value and is illegal and unlawful. Learned counsel for the petitioner has placed on record copy of the order sheet according to which the petitioner has not been summoned and he is not facing trial, but only complainant has been summoned by the learned trial Court. It is also contended that report under Section 173, Cr.P.C. has been forwarded by the District Attorney; that the respondent has not moved any application for change of the investigation.

4. It is contended by the learned counsel for the respondent that property which was owned by the Central Government was worth of Rs. 26 to 30 lacs; that record of Sub-Registrar District Lahore was burnt in the year 1998 and the petitioner has committed forgery by inserting khasra number of the property which was actually in the name of the Central Government and in the said sale-deed the petitioner has committed the forgery; that an application was moved by the petitioner to SSP; that record of Lahore High Court was perused; that inquiry has been conducted on 28.1.2009 and it was brought to the notice of SP Headquarter by the ex-I.O. that challan has been submitted with mala fide and by concealing the fact of earlier I.O. namely Tayyab Ashraf, Inspector, who submitted report without joining the Revenue Authorities and other necessary parties in the said investigation. Relies upon PLD 2008 Lahore 488, to contend that after submission of report under Section 173, Cr.P.C. re-investigation can be conducted. Also relies upon PLD 2009 Lahore 101. and 2006 SCMR 373.

5. Learned AAG also supports the arguments of the learned counsel for the respondents.

6. I have heard the learned counsel for the parties and also gone through the documents attached with the writ petition. In brief allegation against the petitioner is that in order to grab property of crore of rupees situated at Multan Road, Chubergi, Lahore the petitioner has added khasra number of the said property in the sale-deed and has deprived the government from the property of huge amount. It is also mentioned in the FIR itself that Mian Muhammad petitioner on 13.7.1998 on the direction issued by this Court in W.P. No. 13903/98 submitted his affidavit with photocopy of the sale-deed in which khasra number of the property situated at Chuburgi was property of the Central Government. As such documentary evidence was prima facie available against the petitioner about the allegations, but when the record of the city Sub-Registrar was burnt in the year 1998 he had added these khasra number and thus usurped the said property whereupon case has been registered on 9.10.2008. However, according to the report submitted under Section 173, Cr.P.C. the petitioner was found innocent on the ground that no evidence has been collected and the Investigating Officer also made statement in favour of the petitioner at the time of bail before arrest. It appears that the investigation had been conducted without consulting the record of the Lahore High Court, Lahore in which same sale-deed was filed by the petitioner in the above-said writ petition wherein khasra numbers were included, but those were subsequently included in the name of the petitioner. The report submitted under Section 173, Cr.P.C. on the face of it did not contain signatures of the SHO of the Police Station Lower Mall, Lahore and under the Police Rules it is mandatory that the said report under Section 173, Cr.P.C. shall have to be signed by the SHO concerned. So Tayyab Ashraf, Inspector prima facie was in league with the petitioner, who has not investigated the case properly and declared the petitioner innocent in a clandestine manner. In such circumstances, on an application moved by the complainant for the transfer of the investigation, the SSP (investigation) entrusted the investigation to SP Headquarters who visited the office of Deputy Registrar (JudI) of this Court and perused the earlier sale-deed in which same khasra numbers were found present which have been subsequently added by the petitioner. In such circumstances, challan which has been submitted against the law by the SHO and without making efforts for collecting any evidence cannot be made basis for stoppage of the reinvestigation in the present case. The case law cited by the learned counsel for the petitioner is distinguishable from the case of the present case. On the other hand, learned counsel for the respondent has rightly relied upon 2004 SCMR 373, according to which the reinvestigation and submission of the subsequent challan in the Court is not barred and the relevant portion is reproduced as under:-

"Reinvestigation and submission of subsequent challan in the Court--Extent and scope--No legal bar exists for reinvestigation of a criminal case even after submission of final report under S. 173, Cr.P.C--Police can carry out the fresh investigation and submit its report to the Court, but this would not mean that in a case in which earlier after completion of investigation challan was submitted for trial of an offence, on which the accused had been tried and the case was finally decided upto the level of the High Court or the Supreme Court, subsequent challan would be entertained which is submitted as the result of reinvestigation or further investigation of the case by the police on the happening of a subsequent incident and that the Court would proceed with the trial of the case in the normal course oblivious of the facts of the case decided earlier by such Court."

Similarly, in PLD 2009 Lahore 101, it has been held as under:--

"xxx Reinvestigation generally, obviously cannot be appreciated. Successive investigation obviously because of cumbersome procedure involved generally, does not sound appreciable to the common man. The general impression that successive reinvestigation is under pressure of general impression that successive reinvestigation is under pressure of the influential persons is in a way to a danger to the society also. This has not only effected the moral fiber but has also brought about very dangerous effects on the general out look of the people at large. Influence, be it in any form is used by all the parties concerned in such matters to get favourable reports and the reinvestigation is one of its major methods. One may agree that investigation which is defective or incomplete, may in itself be because of some influence at the early stage of the proceedings. In such circumstances, reinvestigation in fact becomes necessary. However, if the earlier investigation is transparent, without any fault, independent and does not suffer from any illegality or irregularity and is complete in all respects, reinvestigation should not be allowed."

7. In the present case it can safely be held after the perusal of the report under Section 173, Cr.P.C. that Tayyab Ashraf Inspector had failed to perform his duty as Investigating Officer of the above-said case and second investigation was necessary, which has been conducted and the petitioner when was declared innocent by the police there was no reason for submission of report under Section 173, Cr.P.C. in which the petitioner was placed in Column No. 2. All this karwai seems to be done to save the skin of the petitioner and cannot be upheld by this Court while accepting this writ petition. Investigation can be re-conducted in the peculiar facts and circumstances of the present case and mere submission of report in order to save the skin of the petitioner cannot be made basis for stoppage of the investigation in the present case. Even otherwise, it is settled law that the police opinion not binding on the Courts and the police is competent to reinvestigate the matter even after the discharge of the accused by the learned Magistrate, if some new evidence is brought on the record to prima facie connect the said accused with the alleged offence. It is also claimed by the learned counsel for the petitioner that he has filed application under Section 249-A, Cr.P.C. it is strange that the petitioner was placed in Column No. 2 and the Court has not summoned him, but it seems that he has moved application under Section 249-A, Cr.P.C. in order to further cement his innocence which opinion has been obtained through fraud while in league with the previous Investigating Officer.

8. Learned Magistrate is restrained from passing any order on the application moved by the petitioner under Section 249-A, Cr.P.C. till the matter is reinvestigated and fresh final report under Section 173, Cr.P.C. is submitted as the police cannot be stopped from reinvestigation of the matter, but however, the final verdict has to be passed by the Courts after evaluating the evidence adduced before it during the trial. This writ petition having no merit is dismissed.

(R.A.) Petition dismissed.