Order Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

C. P. No. D – 1202 of 2019

Before :

Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Mobeen Lakho

Date of hearing : 19.09.2019.

Mr. Anwar Ali Lodhi, Advocate for petitioners.

Mr. Mehboob Ali Wassan, Assistant Advocate General Sindh.

O R D E R

ABDUL MOBEEN LAKHO, J. – Through the instant Constitutional Petition, petitioners Abdul Jabbar and Muhkam alias Mako have prayed for the following reliefs:

“ (a) To direct the Respondents No.2 to 4 to appoint any Police Officer like Inspector Ghulam Ali Jumani or Abdul Qudoos Kalwar, who may conduct fair and impartial investigation in respect of FIR bearing Crime No.163/2019, U/S 302 & 34 PPC, lodged by the Respondent No.8 with Police Station A-Section Ghotki, and after completion of investigation the same report be furnished before this Honourable Court then this Honourable Court may graciously be pleased to pass an appropriate order.

(b) To grant any other relief, which this Honourable deems fit and proper in circumstances of the case.

(c) To award the cost of this Petition. ”

2. Notices were issued against the respondents, AAG as well as complainant.

3. Brief facts of the prosecution case are that complainant Muhammad Aslam lodged an FIR on 09.07.2019 at P.S A-Section, Ghotki alleging therein that petitioners / accused persons have committed murder of his wife namely Mst. Zaheeran.

4. After usual investigation, report under Section 173, Cr.P.C was submitted against accused Muhkamuddin alias Muhkam alias Mako son of Izat and Abdul Jabbar son of Israr for offences under Sections 302, 34, PPC.

5. Learned counsel for the petitioners mainly contended for re‑investigation of the case. It is further contended that re-investigation may be ordered through honest police officers like Inspector Ghulam Ali Jumani or Abdul Qudoos Kalwar. Lastly, argued that petitioners / accused have been challaned falsely by Investigation Officer in this case.

6. Mr. Mehboob Ali Wassan, Assistant Advocate General Sindh argued that after usual investigation, challan has been submitted against the petitioners / accused and trial Court has already taken the cognizance. It is further submitted that re-investigation without showing any mala fide on the part of the Investigation Officer is not permissible under the law. In support of his contentions, he has relied upon the cases reported as Bahadur Khan v. Muhammad and 2 others (2006 SCMR 373) and Muhammad Nasir Cheema v. Mazhar Javaid and others (PLD 2007 Supreme Court 31).

7. We have carefully heard the learned counsel for the parties and perused the relevant record.

8. In order to appreciate the contentions of learned counsel for the parties Section 173, Cr.P.C is reproduced as under:

173. Report of police-officer. (1) Every investigation under this Chapter shall be completed, without unnecessary delay, and, as soon as it is completed, the officer incharge of the police-station shall, [through the public prosecutor].

(a) forward to a Magistrate empowered to take cognizance of the offence on a police-report a report, in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond and, if so, whether with or without sureties, and

(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.

[Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under section 154, the officer incharge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the court decides that the trial should not so commence.

(2) Where a superior officer of police has been appointed under section 158, the report shall, in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may pending the orders of the Magistrate, direct the officer incharge of the police-station to make further investigation.

(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

(4) A copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial:

Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to furnish it free of cost.

[(5) Where the officer incharge of a police-station forwards a report under sub-section (1), he shall along with the report produce the witnesses in the case, except the public servants, and the Magistrate shall bind such witnesses for appearance before him or some other court on the date fixed for trial.]

9. The question which arises for consideration is whether petitioners / accused require further investigation or request has been made for re‑investigation of the crime. When it is said that re-investigation of the crime is required, it means that investigation of the crime will commence afresh wiping out the investigation which had been made before filing of final report. On the other hand, further investigation can only mean that investigation will commence from the stage, at which it was stopped before filing of the report and collection of additional material is made in connection with allegation regarding commission of the offence. Further investigation or re-investigation of crime in which final report under Section 173, Cr.P.C, has been filed cannot be ordered in the absence of any fresh material collected by S.H.O/I.O. There may be cases in which, further material may come to light subsequent to the filing of the final report. Then it is open to investigating agency further investigate the crime. Further investigation is continuation of the earlier investigation and not a fresh investigation or re‑investigation will wipe out the earlier investigation altogether. It may be observed that notwithstanding the filing of the final charge sheet, a police officer can investigate and lay further charge sheet if he gets information. Even after cognizance of the offence had been taken, further investigation by the police is possible when circumstances which necessitate further investigation come to the notice of the investigating agency, it is the duty of the investigating agency to further investigate the case and submit report to the Court. If report given is about further investigation that is sought to be conducted, then it is purely a matter between the Court and the investigating agency and accused have no right to interfere.

10. If the investigation is launched in bad faith out of personal motives either to hurt the accused or to benefit oneself or in colourable exercise of powers not authorized by the law under which the action is taken or action taken in fraud of the law then it comes within the scope of mala fide. The fraud of the law or colourable exercise of powers amounts to abuse of the process of law. The investigation can be corrected and necessary orders can be passed if the aggrieved party alleges and proves one or other of the following conditions:

(1) investigation initiated beyond the jurisdiction of Investigating Agencies;

(2) investigation initiated with mala fide intention;

(i) in bad faith out of personal motives either to hurt the person against whom the action is taken or to benefit oneself.

(ii) in colourable exercise of powers;

(iii) not authorized by the law under which the action is taken;

(iv) action taken in fraud of the law; and

(v) abuse of the process of law.

Petitioner does not show that any of the above-mentioned facts were alleged and proved. Therefore, this Court under the constitutional jurisdiction has also no jurisdiction to interfere with the investigation. Reliance is placed upon the case of Ghulam Sarwar Zardari v. Piyar Ali alias Piyaro and another (2010 SCMR 624).

11. In view of the above discussion, we have come to the conclusion that re-investigation of the case / crime without apparent mala fide on the part of the Investigation Officer is not permissible under the law, when Court has already taken the cognizance of the offence. Re-investigation and successive investigations in criminal cases have been disapproved by the Hon'ble Supreme Court while observing that in most of the cases re‑investigation is ordered at the instance of the influential persons for getting favourable reports. Reliance is placed upon the judgment of Bahadur Khan v. Muhammad Azam and 2 others (2006 SCMR 373). Relevant portion is reproduced as under:

“ 9. The contentions ……………

………………………………

This Court in the case of Riaz Hussain and another v. The State while, 1986 SCMR 1934 seizen of the case relating to criminal appeal has held that the system of reinvestigation in criminal cases is a recent innovation which is always taken up at the instance of influential people and favourable reports obtained which in no way assist the Courts in coming to a correct conclusion, had created more complications to the Court administering the justice, therefore, expressed its disapproval of this system altogether and; successive investigation of the case, as rightly observed by the learned High Court that it only retards the administration of justice instead of providing any assistance thereto. The instant case is a classical example of the same in which even after decision of the criminal appeals by the High Court and after lapse of a considerable period of time the second challan for trial of the offence under the above mentioned sections of P.P.C. was submitted in the trial Court become functus officio long before which directly took cognizance of the offence not permissible within the meaning of section 190, Cr.P.C. and proceeded with the trial of the case after framing charge and finally convicted respondent Muhammad Azam and acquitted respondent Abdullah Khan on the charge. The learned High Court in our considered view correctly on considerations of the entire facts and circumstances of the case and the law by means of judgment impugned in these petitions and the case-law on subject, set aside the conviction of respondent Muhammad Azam and dismissed the criminal revision and criminal acquittal appeal preferred against the acquittal of respondent Abdullah Khan which is unexceptionable. ” (Underlining is ours)

12. In view of the above, submission made by learned counsel for petitioners / accused for re-investigation of the case, which is pending before Court of competent jurisdictions, is without any legal force; the same is dismissed. These are the reasons of our short order announced by us on 19^th September 2019.

J U D G E

Abdul Basit