F ACCUSED IS ACQUITTED IN THE MAIN CASE, OFF-SHOOT CASE SHELL ALSO BE ACQUITTED

F ACCUSED IS ACQUITTED IN THE MAIN CASE, OFF-SHOOT CASE SHELL ALSO BE ACQUITTED
Balochistan High Court
Muhammad Hashim Khan Kakar, J
Fida Hussain VS The State
Criminal Appeal No. 38 of 2011
16th November, 2011
Reported As [2012 P Cr. L J 226
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. -Appellant, Fida Hussain son of Muhammad Umar, has assailed the judgment dated 30th June, 2011, passed by the Sessions Judge, Kalat at Mastung, whereby he was convicted and sentenced under section 13(e) of the Pakistan Arms Ordinance, 1965 to suffer three (3) years' R.I. With a fine of Rs.20,000 (rupees twenty thousand only) in default whereof to further undergo SI for six (6) months, with the benefit of section 382-B of the Cr.P.C.
2. On 1st January, 2011, complainant, Naib Tehsildar, Ghulam Haider, lodged an F.I.R. No.3 of 2011, under section 13(e) of the Pakistan Arms Ordinance, 1965 against the appellant at Levies Thana, Khad Koocha, with the allegations that in pursuance of F.I.R. No.1 of 2011, under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, he. Along with the other police officials reached the area of Guro, on the pointation of foot-tracker, when they reached near a house, suddenly; armed persons opened fires upon levies party, which was retaliated. When the firing was stopped, the appellant was arrested and during the course of his personal search, an unlicensed Kalashnikov along with a magazine and three live cartridges, was recovered from his possession.
3. The prosecution, to establish its case against accused Fida Hussain, examined three witnesses. P.W. I Abdullah, Hawaldar Levies, produced recovery memos Exh.P/1-A, Exh.P/1-B and Articles/P-2 and 3, P.W.2 Taj Muhammad, Levies Sepoy, produced seizure memo Exh.P/2-A and P.W.3 Ghulam Haider, Naib Tehsildar is Investigating Officer of the case, who produced the challan Exh.P/3-C. Then the prosecution closed its side.
4. The accused was examined under section 342 of the Cr.P.C., wherein he once again denied the allegations however, he neither recorded his statement on oath, nor produced any evidence in defence. After finding the case against the appellant to have been proved beyond reasonable doubt, the trial Court convicted and sentenced him, as mentioned and detailed above, hence the present appeal before this Court.
5. I have heard Mr. Abdul Ghani Mushwani, learned counsel for the appellant and Mr. Abdul Kareem Malghani, Assistant Prosecutor-General.
6. The main contention of Mr. Abdul Ghani Mushwani, Advocate, is that initially the accused was arrested in Crime No.1 of 2011, under section 17(3) of the Offences Against. Property (Enforcement of Hudood) Ordinance, 1979 and Crime No.2 of 2011, under sections 324 and 353 of the P.P.C., registered at Levies Thana Khad Koocha, in which he was acquitted of the charge. He further argued that, admittedly, the village is a thickly-populated area, but none of the private persons was associated to act as mushir. He next contended that the complainant Ghulam Haider is not only the complainant in the instant case, but has also conducted the investigation, which has caused serious prejudice to the appellant, especially when there was an allegation of encounter. He argued that the accused has already been acquitted in the main cases and this is an offshoot of Crime Nos.1 and 2 of 2011.
7. On the contrary, learned Assistant Prosecutor-General, supported the prosecution case and contended that the trial Court, after proper appraisal of evidence, rightly found the appellant, guilty of the offence.
8. After having gone through the prosecution case, I have arrived at a confident conclusion that the prosecution, indeed, had failed to prove its case against the appellant beyond reasonable doubts. In this context, I noticed that the appellant has been acquitted in Crimes No.1 of 2011 and 2 of 2011 and this is an off-shoot of the above cited crimes, as such, the appellant is entitled to be acquitted in the instant case, which is an off-shoot of the said cases. I have also noticed that Ghulam Haider was not only complainant, but was also Investigating Officer in the said cases and the trial Court had disbelieved his evidence in both the cases, but, surprisingly, convicted and sentenced the appellant in the instant case on the basis of same evidence.
9. Mr. Abdul Ghani Mushwani, Advocate, submitted that the F.I.R. Figured the allegations of encounter with police party and all the matters were investigated by Naib Tehsildar, Ghulam Haider, who lodged the F.I.Rs., prepared the recovery memos, site plan and recorded the statements of witnesses, which is not warranted under the law. There is force in the said contention of learned counsel, as in the case of allegation of police encounter, the case should not be investigated by an official, who took part in the encounter, and in such state of affairs, investigation of the case should be carried out by an independent agency in order to save the citizens from unfairness/injustice of police. By holding this view, I am fortified from the case of "Ch. Muhammad Yaqoob v. The State" reported in 1992 SCMR 1983, relevant portion whereof is as under:
"14. It is in the evidence that immediately after the incident, police officials who took part in the encounter, as is alleged by defence. Were rewarded and promoted even before the final order was passed under section 173, Cr. P. C. By the Magistrate. This state of affairs shows that if police claims encounter then the matter is not subjected to scrutiny by any Court of law but is investigated in a formal manner by the police themselves and order is obtained under section 173, Cr.P.C. For cancellation of the case. There is no warrant of law or legal justification for police encounter. It is apparent that undue advantage is taken of the situation for the reason that no F.I.Rs. Are filed or allowed to be filed by the relatives of the deceased against police officers. Under such circumstances, police feels absolutely secure that of their action which is proclaimed as police encounter, no judicial scrutiny can be made by a Court of law, hence immediately after the incident, such police officials who took part in the killing are rewarded and promoted, which provides as a seal of approval and legal sanctity on the killing even if it is calculated, pre-planned and intentionally done. This gives the police a free licence to kill any person they want and then manipulate a story of encounter and no further questions can be asked by any Court. It is a sorry state of law and it is high time that Legislature should amend the law in such a way as to make police answerable before a Court of law to satisfy the Court that encounter was genuine and attack was opened on police party by aggressors first, who have been killed.
15. Under the law, after registration, if plea of private defence is taken, then such plea is to be considered by the Sessions Court or its equivalent in juxtaposition with prosecution case and then it is left open to the trial Court to accept that plea or not. As against that if plea is taken of encounter with police, then the Court does not get an opportunity to consider the plea in the same manner and at par with case between private persons in which F.I.R. Is registered, for reasons already stated above. Of course, remedy of filing direct complaint in the Court is available but that is not pressed into service for the reasons that relatives of deceased in such circumstances feel afraid of reprisal or revenge of police and their pressure tactics. In such circumstances, it would be better to amend the law in such a way that such cases of police encounters be allowed to be investigated by independent agencies and presented in the Court of law at the level of Sessions Court for examination and consideration of such plea strictly according to law."
10. Moreover, the mandatory provisions of section 103 of the Cr.P.C. Have also been violated, particularly when according to the own showing of the prosecution witnesses, many people gathered at the site, but the Investigating Officer did not bother to or make efforts to cite anyone of them as witness in order to testify the recovery of arms and ammunitions from the possession of the appellant. On the other hand, the perusal of the record reveals that the complainant and mushirs have given stereotype evidence in all the cases. Even the F.I.Rs. In all three cases being Crime No.1 of 2011, Crime No.2 of 2011 and Crime No.3 of 2011 and mushir names of recovery in all three cases are stereotype and identical. The requirements of section 103 of the Cr.P.C, which is not a decoration piece, could only be ignored in such a situation, if the prosecution furnished a satisfactory explanation for non-association of the private witnesses from the public with the alleged recovery. In the case in hand, no such explanation is available on the record as to why the witnesses from the public were not associated with the alleged recovery. Therefore, in the absence of above evidence, including the report of Forensic Science Laboratory, the conviction and sentence awarded to the appellant by the trial Court is not justifiable.
The cumulative effect of all above factors resulted into recording of acquittal of the appellant, which I had done by setting aside the impugned judgment and the conviction vide short order dated 13th November, 2011 and these are the reasons thereof.
(2)
Sindh High Court
Irfan Saadat Khan, J
Muhammad Azeem Alias Dodo VS The State
Criminal Jail Appeal No. S-83 of 2009
12th August, 2011
Reported As [2012 P Cr. L J 1
JUDGMENT
IRFAN SAADAT KHAN, J. The appellant was tried and convicted vide judgment dated 31-8-2009, passed by the learned Sessions Judge, Jacobabad, in Sessions Case No.838 of 2008, in F.I.R bearing Crime No.77 of 2008 of Police Station Mouladad under section 13(e) of Pakistan Arms Ordinance, 1965 and sentenced to suffer rigorous imprisonment of three years. Benefit of section 382-B, Cr.P.C. Was extended in his favour.
2. In the nutshell, it is the case of the prosecution that the appellant/accused while in custody of Mouladad Police led SIP Aijaz A.I Farooqui to the recovery of an unlicensed Kalashnikov allegedly used by him in the commission of crime viz., murder from dense bushes at the path of Jattak Wah (minor canal), situated at Naudhan diversion, with magazine in presence of private mashirs, namely, Khadim Hussain and Hamza A.I, both by case Katohar.
3. From the perusal of the record it appears that the Kalashnikov allegedly recovered on the pointation of the appellant/accused was not sealed on the spot. The appellant was arrested on 7-10-2008 and he led to the recovery of the said Kalashnikov after seven days of his arrest i.e., on 14-10-2008. The Kalashnikov allegedly recovered on the pointation of the appellant was dispatched for the Ballistic Expert opinion on 22-10-2008, but was received in the said Division on 16-3-2009 i.e., after about five months of the said dispatch, for which there is no explanation on the record. Copy of daily diary, under which the police along with the appellant allegedly went to the place of recovery has also not been produced. Mashir Hamz A.I is related to the complainant of main murder case. In the case of Arif Khan v. The State 1998 PCr.LJ 1287, it was observed by a Division Bench of this Court that if the recovery memo did not show that the weapons were sealed at the spot, the case becomes doubtful. Furthermore, the appellant has been acquitted in the main murder case while extending him benefit of doubt. In such circumstances, I am of the considered view that the prosecution has failed to prove the present charge against the appellant. The appeal is, therefore, allowed, the impugned judgment passed by the learned trial Court is set aside and the appellant is acquitted of the charge. He is directed to be released forthwith if not required in any other case

IN NON-COMPOUNDABLE OFFENCES IF COMPROMISE ARRIVED ....PROCEEDING QUASHED

IN NON-COMPOUNDABLE OFFENCES IF COMPROMISE ARRIVED .....................PROCEEDING QUASHED
Lahore High Court
M. Bilal Khan, J
Neelofar Hayat VS Station House Officer And 3 Others
Writ Petition No.15452 of 2004
20th October, 2004
Reported As [2006 YLR 757]
JUDGMENT
M. BILAL KHAN, J. -The petitioner seeks quashing of F.I.R. No.318, dated 28-8-2004, registered at Police Station, Jauharabad, District Khushab for offences under sections 419/420/ 463/468/ 471 read with section 109, P.P.C.
2. The allegations in the F.I.R. Were that Syed Zubair Hussain and Shahid Hussain, co-accused of the petitioner, had shown a residential plot to the complainant with the connivance of Ijaz Hussain co-accused, who had shown himself as a Property Dealer, and had claimed that they were the owners thereof, as a result of which they had received an amount of Rs.3,50,000 from her. Later on, it transpired that the actual owner of the said plot was one Qadir Shah, who was also in possession of the same. It was stated that as such they had committed fraud and forgery and had executed a bogus sale-deed with a view to depriving the complainant of Rs.3,50,000. Insofar as the petitioner was concerned, the allegation against her was that she being wife of Syed Zubair Hussain had abetted the crime.
4. (sic) Although the offences charged with are not compoundable, yet, it has been observed that both the parties are highly educated and according to the complainant the incident had taken place on account of some misunderstanding. The complainant, who is personally present in Court, states that she has been duly compensated and her money has been returned to her. As such, continuation of the proceedings now after compromise having taken place, will only add to the miseries of the parties and will further embitter their relationship. The petitioner and her co-accused, namely, Syed Zubair Hussain and Shahid Hussain, who are present in the Court, in the connected bail petition bearing Criminal Miscellaneous No.6997-B of 2004, which is also incidentally fixed for today, have assured the complainant that the matter has come to an end and they will not resort to any sort of litigation either civil or criminal. Similarly, the complainant has also assured that insofar as she is concerned, the matter is all over and she will not further raise any dispute of any kind against the accused persons.
5. The learned State counsel also submitted that although the offences charged with are not compoundable, yet in view of the compromise, he would not seriously oppose the quashing of the F.I.R. He relied on the case of Ghulam A.I v. The State and another 1997 SCMR 1411.
6. Resultantly, this petition is allowed and F.I.R. No.318, dated 28-8-2004, registered at Police Station, Jauharabad, District Khushab for offences under sections 419/420/463/468/471 read with section 109, Y.P.C. Is hereby quashed. There will be no order as to cost

Abscondance

Abscondance
2012 PLD 222 SC
Right of bail could not be refused to accused merely on account of his alleged abscondance which is a factor relevant only to propriety.
2009 PLD 53 SC
Abscondance of accused--Impact---Mere absconsion of accused is not conclusive proof of guilt of an accused person; it is only a suspicious circumstance against an accused that he was found guilty of the offence which
2010 MLD 1320
Relevance and corroborative value of abscondence cannot be denied on any interpretation of law applicable to it---Strength or weakness, sufficiency or otherwise of abscondence, can be a matter of debate in a given
2007 YLR 228
Regarding abscondence of co-accused, it was fact that no' proceedings under Ss.87/88, Cr.P.C. had been initiated against him---Co-accused was behind the bars since his arrest---Even otherwise, refusal of bail on the
2007 MLD 275
Mere abscondence of accused which was not proved to judicial satisfaction, would not be enough to warrant conviction, as the factum of abscondence would be a corroboratory piece of evidence and not substantive

guide lines of rape cases

New Guidelines for the Authorities
concerned in matters of Investigation and
Prosecution of all Rape matters in Pakistan by SUPREME COURT OF PAKISTAN
(2013 SCMR 203)
Iftikhar Muhammad Chaudhry, C.J.,
Jawwad S. Khawaja and Khilji Arif
Hussain, JJ.
The august Supreme Court of Pakistan has laid
down new guidelines for the authorities
concerned in matters of investigation and
prosecution of all rape matters in Pakistan (at
pp. 218-219):
(a) Every Police Station that receives rape
complaints should involve reputable civil
society organizations for the purpose of
legal aid and counselling. A list of such
organization may be provided by bodies
such as the Nation Commission on the
Status of Women. Each police Station to
maintain a register of such organization of
rape, the Investigating Officer (I.O.)/ Station
House Officer (S.H.O.) should inform such
organizations at the earliest.
(b) Administration of DNA tests and
preservation of DNA evidence should be
made mandatory in rape cases.
(c) As soon as the victim is composed, her
statement should be recorded under
section 164, Code of Criminal procedure,
1898, preferably by a female Magistrate.
(d) Trials for rape should be conducted in
camera and after regular court hours.
(e) During a rape trial, screens or other
arrangements should be made so that the
victims and vulnerable witnesses do not
have to face the accused persons.
(f) Evidence of rape victims should be
recorded, in appropriate cases, through
video conferencing so that the victims,
particularly juvenile victims, do not need to
be present in court.

Re-Investigation could not be debarred after submission of Challan

Re-Investigation could not be debarred after submission of Challan

PLJ 2011 Lahore 545
[Rawalpindi Bench Rawalpindi]

Present: Hassan Raza Pasha, J.

MEER DAD--Petitioner

versus

INSPECTOR GENERAL POLICE--Respondent

W.P. No. 1406 of 2010, heard on 23.4.2010.

Police Order, 2002 (22 of 2002)--

----Art. 18(6)--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Recommended for re-investigation--Change of second investigation was approved--Challenge the legality and validity of order--Recommendation of P.S.B were approved by I.G. Police and investigation was entrusted (RIB)--Question of--Whether Police authorities were empowered to initiate re-investigation of the same crime for which they had already filed report u/S. 173, Cr.P.C.--Validity--Under Art. 18(6) of Police Order, the law bestows a power on duly constituted board to recommend for re-investigation and if the Board recommended for re-investigation of the case then even after submission of the challan the re-investigation could not be debarred--Petition was dismissed.         [P. 550] A

Duty of Investigating Officer--

----Administer justice--To collect all the relevant evidence pertaining to allegation levelled regarding the crime in issue so as to dig out the truth enabling and facilitating the Court to administer justice between the parties--Held: An investigating officer is not to render any opinion regarding guilt or innocence of an accused person and statutory provisions contained in Cr.P.C. Police Order and Police Rules, 1934 he is only to collect all the relevant evidence and to submit his report before the magistrate so that magistrate can form their own independent opinion regarding sufficiency or otherwise of the evidence and material order to decide whether to take cognizance of offence or not to summon any person to face a trial.            [P. 550] B

PLD 2002 Lah. 470, rel.

Constitution of Pakistan, 1973--

----Art. 199--Police Order, 2002, Art. 18(6)--Constitutional petition--Change of second investigation--Submission of subsequent challan--Not barred--Discretion of Court to admit additional evidence--Alternative remedy--Validity--Holding of successive investigations were deprecated by the Court with intent to avoid undue lingering on the case--How a subsequent challan which almost was completed for submission in the Court of competent jurisdiction can be withheld or brushed aside--Even submission of subsequent challan was not debarred under the provisions of Cr.P.C.--It was entirely discretion of the Court to admit additional evidence if the cognizable of the case submitted to it by the police has already been taken--Complainant can avail an alternative remedy of filing a private complaint--Petition was dismissed.    [P. 551] C

Raja Rizwan Abbasi, Advocate for Petitioner.

Syed Zafar Ali Shah & Syed Ali Shah Bukhari, Advocates for Respondents.

Mr. Abdul Wahid Babar, AAG for State.

Date of hearing: 23.4.2010.

Judgment

Through this constitutional petition, the petitioner has challenged the legality and validity of order dated 14.1.2010 passed by Inspector-General of Police Punjab, Lahore-Respondent No. 1 whereby "second change of investigation" was approved and investigation of the case was entrusted to Mr. Liaqat Ali Deputy Superintendent of Police, Investigation Branch Punjab.

2.  Brief facts of the case, giving rise to the filing of this petition are that the petitioner got registered F.I.R. No. 140 dated 9.4.2009 under Sections 302, 324, 427, 148, 149 PPC read with Section 7 Anti Terrorism Act at Police Station Murree District Rawalpindi with the allegation that on 9.4.2009 at 5.30 p.m. petitioner along with his brother Arshad, Muhammad Irfan and Rashid Sarwar, a taxi Driver were taking tea at Hotel Express Way situated in the area of Samli Bera and were waiting for Faisal to receive money. Imtiaz Bhola, owner of the hotel was also present there. In the meanwhile, Naseer Mehfooz, Waheed Mehfooz, Bashi Khan along with some other accused person came there on one Parado, one double cabin and two corolla cars. They alighted from the vehicles and started indiscriminate firing with their respective weapons and started demolishing the hotel. When Arshad forbad them not to demolish the hotel. Naseer Mehfooz fired a shot with Kalashnikov which hit him on his mouth who fell down and succumbed to the injuries at the spot. Waheed Mehfooz also fired a shot with Kalashnikov which hit on right wrist of Rashid Sarwar-Driver who fell down. Thereafter the accused while boarding the vehicles left the place of occurrence.

3.  Learned counsel for the petitioner submitted that after submission of challan before the trial Court the Inspector-General of Police could not transfer the investigation of the case. Learned counsel has argued that superior Courts have many a times disapproved the practice of successive investigation, thus action of Respondent No. 1 being a nullity in the eyes of law is liable to be quashed. Further argued that after Ist change of investigation, the investigation was conducted by the Superintendent of Police and now the investigation was entrusted to the Deputy Superintendent of Police. This fact smacked of mala fide on the part of the police. The act of Respondent No. 1 is nullity in the eyes of law and that the accused party is very much influential and the investigation was transferred to the Deputy Superintendent of Police by giving special task to favour the accused party. Learned counsel further argued that the purpose of the investigation is to collect evidence, which has already been collected and, therefore, no useful purpose would be served by further delaying the matter. In support of his submission, the learned counsel has relied upon Muhammad Nasir Cheema v. Mazhar Javaid and other (PLD 2007 SC 31).

4.  Learned counsel for Respondents No. 5, 6 & 7 as well as learned Assistant Advocate-General, have submitted that there is no statutory bar for the police authorities to embark upon investigation of the case even after submission of complete challan, that the petitioner has only challenged the order dated 14.1.2010 for 2nd change of investigation. He has not challenged the recommendations of the Provincial Sanding Board; that the policehas only to collect evidence far and against of either party and the trial Court will decide regarding the innocence or guilt of the accused; that the police can investigate the matter at any stage of the trial on the availability of fresh material and evidence. They have relied upon Ashiq Ali v. Deputy Inspector-General of Police, Punjab, Lahore and 4 others (2009 PCr.LJ 830), Javaid Iqbal v. Additional Inspector General of Police, Lahore and 4 others (PLD 2008 Lahore 488), Muhammad Naseem v. S.H.O. Police Station Thikriwala, District Faisalabad and 2 others (1997 MLD 1555) and Saddar Din v. Deputy Inspector-General of Police (Investigation), Capital City Police, Lahore and 6 others (PLD 2009 Lahore 585) Muhammad Yousaf v. The State and others (2000 SCMR 453).

5.  I have heard the arguments of learned counsel for the parties and have gone through the record carefully. After registration of the case, the investigation was conducted by the S.H.O. who arrested Muhammad Pervez alias Bashi Khan and challaned to Court whereas Naseer Mehfooz and Waheed Mehfooz accused were declared innocent by the local police. The complainant feeling aggrieved of the investigation carried out by the local police applied to the C.P.O. Rawalpindi for Ist change of investigation and investigation was entrusted to Regional Investigation Branch (RIB) Rawalpindi Region, Rawalpindi. During investigation, conducted by Regional Investigation Branch Rawalpindi, both the accused namely Naseer Mehfooz and Waheed were found guilty. Being dissatisfied with the investigation conducted by Regional Investigation Branch Rawalpindi, an application was moved on behalf of Naseer Mehfooz and Waheed Mehfooz for 2nd change of investigation. Upon the said application a Provincial Standing Board comprising of Deputy Inspector General of Police. Investigating Branch Punjab (Chairman), Senior Superintendent of Police Investigating Branch Punjab (Member) and Deputy, Superintendent of Police Investigating Branch Punjab was constituted under Provisions of Article 18(6) of Police Order, 2002. The Provincial Standing Board recommended the above said case for 2nd change of investigation on the following grounds:--

(i)         As per report of complainant Meer Dad, he along with his brother Arshad Ali, Muhammad Irfan and Taxi Driver Muhammad Arshad were sippling tea at a Tea Stall on main road Murree and waiting for their friend when the accused Muhammad Pervez alias Bashi Khan, Waheed Mehfooz and Nasir Mehfooz along with some other persons came on cars and jeeps, made indiscriminate firing and started demolishing the tea stall. Arshad forbade them to do so on which Nasir Mehfooz fired at Muhammad Arshad killing him at the spot, Waheed Mehfooz fired at Rashid Sarwar injuring him seriously;

(ii)        The local police arrested Muhammad Pervez alias Bashi Khan sent him to judicial lock up and challaned him. The other two accused were declared innocent on the basis of their alibi.

(iii)       During investigation of RIB, the I.O. belied the alibi of two accused, held them guilty, arrested them and sent them to judicial lock up without recovery as the Court declined to remand the accused further.

(iv)       It has been noted that there is difference of opinion between local police and RIB regarding innocence/guilt of two accused.

(v)        There is no solid motive brought on record against the deceased.

(vi)       The owner of tea stall who was witness to the occurrence resiled from his stance.

(vii)      The I.O. also could not trace the accused other than nominated in the F.I.R.

6.  The recommendation of the Provincial Standing Board were approved by the Inspector-General of Police Punjab and the investigation was entrusted to Mr. Liaqat Ali Deputy Superintendent of Police, Investigation Breach Punjab. The main grievance of the petitioner is that the re-investigation of the case is motivated. The pivotal issue in the field is whether the police authorities are empowered to initiate re-investigation in respect of the same crime for which they have already filed report under Section 173 Cr.P.C.

7.  To resolve the present controversy the provisions of Article 18(6) of the Police Order, 2002, is reproduced as under:

"18(6)  Investigation shall not be changed except after due deliberations and recommendations by a Board headed by an officer not below the rank of Senior Superintendent of Police and two Superintendent of Police, one being incharge of the investigation of the concerned district:

Provided that the final order for the change of investigation shall be passed by head of investigation in the general police area who shall record reasons for change of such investigation:

Provided further that the second change or investigation may only be allowed with the approval of the Provincial Police Officer, or the Capital City Police Officer, as the case may be."

8.  Under Article 18(6) of the Police Order, 2002, the law bestows a power on the duly constituted Board to recommend for re-investigation and if the said Board recommends for reinvestigation of the case then even after the submission of the challan the re-investigation cannot be debarred. The job of an Investigating Officer, is thus only to collect all the relevant evidence pertaining to the allegation levelled regarding the crime in issue so as to dig out the truth enabling and facilitating the relevant Court to Administer Justice between the parties. I may clarify here that an Investigating Officer is not to render any opinion regarding guilt or innocence of an accused person and under the relevant statutory provisions contained in the Code of Criminal Procedure, 1898, the Police Order, 2002 and the Police Rules, 1934 he is only to collect all the relevant evidence and to submit his report before the relevant Magistrate so that the Magistrate or the trial Court can from their own independent opinion regarding sufficiency or otherwise of the evidence and material in order to decide whether to take cognizance of the offence or not to summon any person to face a trial. Reliance is placed on Khizar Hayat and others v. Inspector General of Police Lahore and others (PLD 2002 Lahore 470).

9.  Nevertheless, the re-investigation of a case after submission of the challan cannot be debarred. Reliance is paled on "Atta Muhammad v. Inspector General of Police" reported in PLD 1965 Lahore 734, wherein it has been held as under:

"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 in 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 maybe due to non-availability of the evidence, or the successful induction of false evidence during the investigation, or the reason may be, the corrupt behaviour of the police officer concerned. To say that the same police officers 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 frailties once committed whether by design or by inadventence, 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 facts 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 had himself launched an inquiry or trial; but there is no bar for the police to pursue its own investigation and submit their results to the Court to find the guilt or innocence of the accused persons before it becomes too late. There is no bar to the investigation by the police after the submission of a final report under Section 173 of the Criminal Procedure Code, 1898, nor is the police not competent to file, if it is so disposed, a second report as a result of its subsequent investigation into the case."

10.  No doubt that holding of successive investigations are deprecated by the superior Courts with the intent to avoid undue lingering on the case but how subsequent challan which almost is complete for submission in the Court of competent jurisdiction can be withheld or brushed aside, even otherwise submission of subsequent challan is not debarred under the provisions of the Criminal Procedure Code, however, it is entirely the discretion of the Court to admit additional evidence if the cognizance of the case submitted to it by the Police has already been taken. Moreover, in case of any grievance, the complainant can avail an alternative remedy of filing a private complaint.

11.  In view of what has been discused above, I find no merit in this writ petition, which is accordingly dismissed.

(R.A.)  Petition dismissed.