IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
C.PNo.S-921 of 2014
Date of Hearing : 28.10.2015
Mr. Syed Sardar Ali Shah Jillahi advocate alongwith petitioner.
Mr. Ubedullah K. Ghoto advocate alongwith respondent No.7.
Mr. Agha Ather Hussain A.A.G.
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ORDER
SHAHNAWAZ TARIQ,J:-Through captioned constitution petition, petitioner Wali Muhammad has invoked Constitutional jurisdiction of this Court under Article 199 of Constitution of Islamic Republic of Pakistan, 1973, with the following prayer:-
a) To direct the respondents No.2 & 3 for re-investigation of FIRs No.78 of 2013, 122 of 2013 and 210 of 2013, lodged at P.S Ghotki, through any honest and impartial police officer of another District except Ghotki District.
b) To transfer the above cases from the Courts of II Additional District Judge, Ghotki and Civil Judge and Judicial Magistrate, Ghotki to another District, and provide protection to the petitioner against respondents No.7 to 9.
2. Concise facts mentioned in instant petition are that respondent No.7 is brother of the wife of petitioner and petitioner demanded share of his wife several times from respondent No.7 but he ignored the same with ulterior motives and issued threats for dire consequences. On 18.04.2103, nephew of respondent No.7 namely Adbul Qadir was murdered in day light in the mid of city, while on the day of incident, petitioner was at Agha Khan Hospital, Karachi due to his illness and was arrest from Karachi. It is further averred that petitioner was granted bail by the trial Court on the plea of alibi. Subsequently, petitioner was also involved in a case u/s 24 of Sindh Arms Act and another F.I.Rwas register u/s 506/2, 337-H(ii), 417, 418, 419, PPC, hence instant petitioner.
3. Learned counsel for petitioner contended that petitioner is innocent and has been falsely implicated by the respondent No.7 in Crime No.78 of 2013, under Section 302, PPC; that petitioner moved applications to various authorities and Human Rights Cell of honourable Supreme Court of Pakistan,vide its letter dated 17.03.2014,has directed the petitioner to avail legal remedy under the law; that petitioner demanded share of his wife in the landed propertyfrom respondent No.7, upon which he has been implicated falsely; that petitioner was acquitted in case vide F.I.R No.122 of 2013, u/s 24 of Sindh Arms Act, 2013,by the trial Court vide Judgment dated 03.06.2015; that F.I.R No.210 of 2013 was lodged by one Ali Gohar, who is nephew of respondent No.7, under Section506/2, 337-H(ii), 147, 148, 149, PPC; that there is no legal embargo for re-investigation of crime even after submission of Challan. Learned counsel has relied on the case of Raja Khurshid Ahmed v. Muhammad Bilal and others(2014 SCMR 474).
4. While controverting the above submissions, learned counsel for respondent No.7 has contended that petitioner is nominated in F.I.R with specific role, whereby two persons were murdered; that charge has also been framed against accused and PWs are attending the trial Court regularly,hence petition is not maintainable under the law. Learned counsel has relied on the case of Muhammad Yousaf & another v. Province of Sindh & others (SBLR 2015 Sindh 831), Rao Muhammad Shakir v. Province of Sindh and 6 others (PLD 2015 Sindh 213), Qari Muhammad Rafique v. Additional Inspector-General of Police, Punjab and others (2014 SCMR 1499), Muhammad Yousaf Kharl and another v. Province of Sindh and 6 others (2015 P.Cr.L.J 1212), Muhammad Ashfaq v. Additional InspectorGeneral of Police, Punjab and 3 others (2013 P.Cr.L.J 920), Haq Nawaz and others v. Superintendent of Police and others (1999 P.Cr.L.J 1144) and Riaz Hussain and others v. The State (1986 SCMR 1934).
5. Learned AAG supported the arguments advanced by learned counsel for respondent No.7 and contended that matter was properly investigated and Challan has been submitted before the competent Court and during investigation, petitioner did not move any application against Investigation Officer.
6. Heard arguments advanced by learned counsel for the parties supported with the case law and examined the material available on record thoroughly.
7. Indeed, name of petitioner is mentioned in F.I.R No.78 of 2013 with specific role of instigation to other co-accused, whereby two persons were murdered at the spot. The alleged incident occurred in bright day on main road and there was no ambiguity regarding identification of accused persons as they are otherwise close relatives to each other. It is well settled principle of law that in each crime, there are two versions i.e. one version is of the defence that accused is innocent and he has been falsely implicated, and second version is of the prosecution that accused is a real culprit, who has committed the alleged offence, therefore, such factual controversy only can be resolved by the trial Court after recording evidence of witnesses.Consequently, instead of issuance of order for re-investigation at the belated stage, parties may be afforded adequate opportunity to adduce their evidence during the trial.
8. In case of Qari Mohammad Rafique v. Additional Inspector General of Punjab and others (Supra), the Honourable Supreme Court has observed that investigation was transferred at the stage when Challan had already been submitted in Court, and charge had been framed and trial had commenced.Order for transfer of investigation at such a belated stage would not be sustainable in the eyes of law.
In case of Raja Khurshed Ahmed v. Mohammad Bilal Ahmed & others(Supra),the Honourable Supreme Court has conclusively observed that apprehension of the complainant was misconceived as trial Court could proceed with the trial on the basis of the report already submitted under Section 173 Cr.P.C. A Court of law is no bound by Ipsi Dixit of Police authorities, and rather should formulate its own independent views irrespective of investigation whether or not to charge the accused with a particular crime.
In case of Riaz Hussain & other v. The State (supra), the Honourable Supreme Court has held that the system of reinvestigation in criminal cases is a recent innovation which is always taken up as at the instance of influential persons and favourable reports obtained. This in no way assists Courts in coming to a correct conclusion, it rather creates more complications to the Court administrating justice.
In the case of Muhammad Nasir Cheemav. Mazhar Javaid and others (PLD 2007 SC 31), the Honourable Supreme Court has held that investigation report (Challan) had already been reached trial Court, where trial had already commenced, changing of investigation or ordering further investigation in the matter thereafter was an exercise unsustainable in law.
9. After conclusion of investigation, Challan was submitted before the Court on 06.05.2013 and during investigation of the crime, petitioner did not made any complaint for the unfair and partial attitude of Investigating Officer nor leveled any allegations that Investigating Officerdid not consider the evidence produced by him or wrongly recorded the statements of witnesses under section 161 Cr.P.C. nor pointed out any serious flaw in investigation. Admittedly, trial has been commenced after framing of charge against the petitioner and other co-accused and PWs are regularly attending the trial Court. Thedivergentstance taken in instant petition by the petitioner that he has been implicated falsely on the demand of share of his wife from respondent No.7, could not be considered at this stage as petitioner neither agitated such ground before the Investigating Officernor any complaint was made to any competent forum.Conversely, during investigation, petitionerhad produced a weapon before the police. In order to thresh out the truth, recording of evidence of witnesses is essential. The plea of re-investigation at this belated stage is amounting to frustrate the trial. It is well settled that the process of repeated investigations cannot be allowed as a matter of routine and it is obligatory for the Court to consider each case in purview of its own peculiar perspective and re-investigation may not be permitted in every case.Petitioner has failed to place any tangible material for issuance of any order for re-investigation as case was already properly investigated which is reflected from the conduct of petitioner that during investigation, he did not move any complaint against the Investigating officer. Even otherwise,re-investigation without any justification cannot be ordered on the mere wish and whim of accused, which will definitely cause serious prejudice to the merits of the case. Petitioner may place his defence pleabefore the trial Court by producing defence witnesses or documentary proof to contradict the allegations leveled by the prosecution.
9. For the facts, circumstances and identical case law referred supra, instant petition stands dismissed being devoid of any legal substance.
JUDGE
Akber.