IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

LARKANA

Constt. Petition No. D- 349 of 2023.

Before:

Mr. Justice Amjad Ali Sahito.

Mr. Justice Khadim Hussain Soomro.

Petitioner: Muhammad Yaseen Soomro,

Through Mr. Safdar Ali Ghouri, Advocate.

Respondents: SHO Dokri and others, through Mr. Munawar Ali Abbasi, Asstt. A.G. and

Mr. Ali Anwar Kandhro, Addl. Prosecutor General.

Date of Hearing: 02.08.2023.

Date of Decision: 02.08.2023.

O R D E R

Amjad Ali Sahito, J-. On 30.8.2022 Senior Superintendent of Police, Larkana received a letter from the office of SSP, Operation CTD, Sindh Karachi, informing him that during the course of the investigation/ interrogation, the accused namely Dilbar Ali Dero and Mumtaz Ali have confessed before the J.I.T that they are involved in Crime No.15 of 2020, for the offences punishable under Sections 302, 337-H (2) & 34 P.P.C., registered at Police Station Dokri. Such a JIT report is also available on record. Thereafter, the S.S.P Larkana directed the Investigation Officer to proceed as per law and submit such compliance report but the I.O failed to proceed with the matter as such complainant filed instant petition seeking directions that respondents No.1/ SHO P.S Dokri to arrest both the accused Dilbar Ali and Mumtaz Ali and interrogate both of them in aforesaid F.I.R and sent them for trial.

2. The notices were issued to respondents. On the last date of hearing viz. 12.7.2023, SIP, Liaquat Ali SHO Police Station Dokri was present and stated that compliance with the letter dated 30.8.2022 issued by the SSP, Larkana would be made in letter and spirit. After receiving such a letter, the I.O. approached to the concerned Jail Superintendent, for obtaining custody of the accused persons, but he refused to hand over their custody on the ground that they have been confined on the Orders of Administrative Judge, Anti Terrorism Court, Karachi. The I.O. approached to the Administrative Judge, Anti Terrorism Court, Karachi, by moving an application with the request that the custody of the accused persons may be handed over to him for interrogation. The learned Administrative Judge Anti-Terrorism Courts Karachi Division passed the order on such application by extending no objection for interrogation and arrest of the accused Mumtaz Ali Soomro, whereas the learned trial Judge i.e. Anti-Terrorism Court No.XVI Karachi also extended no objection for interrogation of other accused, namely, Dilbar Ali Dero. Such orders are placed on record by SHO P.S Dokri with his report dated 02.8.2023. However, the custody of both the accused persons was not handed over to the I.O of the case.

3. Today, Inspector Ali Asghar SHO, P.S Dokri has put his appearance and filed compliance report, which is taken on the record. He stated that, despite his attempts, the Jail Superintendent Central Prison refused to hand over the custody of accused persons. However, the SHO failed to reply whether the I.O of the case has recorded the statements of accused persons under section 161 Cr.P.C. in jail, for which he requested time to again approach to the Superintendent Central Prison for interrogation of the accused persons named above.

4. At this juncture learned counsel for the petitioner submits that the I.O has submitted a report under section 173 Cr.P.C. against accused persons who have confessed before JIT but the said report was declined by the learned Magistrate. We have perused the order dated 31.07.2023 passed by the Learned Magistrate wherein he has interpreted the order passed by the division bench of this Court and wrongly assumed that no direction of the arrest of the accused or filing the subsequent report was passed. Further, the learned Magistrate passed the order that the supplementary report has been filed after the conclusion of the trial of the accused Takeel Ahmed. Both the accused Dilbar Ali Dero and Mumtaz Ali Soomro were not nominated in F.I.R, nor in the final report under section 173 Cr.P.C. However in the end of the order the learned Magistrate by relying upon the case of Muhammad Bilal and others (2014 SCMR 474) disapproved/ declined report submitted by the I.O of the case. “reinvestigation cannot be allowed when a criminal case has been finally disposed of by a trial court. So also, the element of false implication at this delayed stage cannot be ruled out.”

5. It is suffice to say that the names of the unknown accused person were not shown in the report (challan) on the ground that they were unknown, that’s why the learned trial Court has not kept the file on dormant. The case of the petitioner is/ was that four unknown accused persons committed the murder of one Imamuddin in the presence of the witnesses. After registration of the FIR investigation was conducted and one accused Takeel Ahmed was shown in police custody and three unknown accused were shown as absconders. After full fledge trial the accused Takeel Ahmed was acquitted by the learned trial Court vide judgment dated 24.08.2020. At a later stage, the petitioner/ complainant came to know that both the accused person had confessed before the JIT that they are also involved in the murder of one Imamuddin and wrote a letter to S.S.P Larkana and informed him that the accused had confessed about the murder of Imamuddin. Now the question before us is only “Whether the police have power to further investigate/ re-investigate the matter against the accused person who had been shown absconders in the offence/ crime and subsequently arrested”.

6. The Hon’ble Supreme Court while dealing with like nature case i.e. case of Bahadur Khan versus Muhammad Azam and 2 others (2006 SCMR 373), has held that:

“It is well-settled proposition of the law as also held consistently in the reported judgments of this Court and those cited by the learned Advocate-on-Record, in view of the provision of section 173, Cr.P.C. that no legal bar existed for reinvestigation of a criminal case even after submission of final report under section 173, Cr.P.C. and the police could 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 the offence for any offence on which an accused/accused persons have been tried and the case finally decided upto the level of the High Court and by this Court, as the case may be, to entertain the subsequent challan submitted as the result of reinvestigation/ further investigation of the case by the police on the happening of a subsequent incident and to proceed with the trial of the case in the normal course oblivious of the facts of the case decided earlier by such Court, and; the facts and circumstances including incriminating material necessitated submission of the subsequent challan in the case already having been decided and attained finality. In the instant case admittedly, the learned trial Court has not attended to the above mentioned aspects and the facts apparent from contents of the subsequent challan referred to above nor even cared to take notice of the fact that the same was submitted after final disposal of the case by the High Court even, as well as; that in continuation of the earlier challan (as also evident from the consecutive serial number of the challan) submitted in the murder case that stood finally decided, mentioned above and; it was not the challan submitted independently for trial of a distinct offence before the Magistrate competent to take cognizance of the offence within the meaning of section 190(l)(b), Cr.P.C. nor was sent for trial to the Sessions Court as envisaged by subsection (2) of section 190, Cr.P.C.”

7. In the instant case, we are not opening the case against Takeel Muhammad son of Naik Muhammad Khooharo, who has been acquitted by the learned trial Court. But other accused persons who have been unknown in the FIR and subsequent report was submitted by the I.O. of the case showing them as absconders. At a later stage, progress was made before the J.I.T, wherein both the accused persons confessed before that they are also involved in the murder of Imamuddin/ present crime. It is a settled principle of law that no offence shall go unchecked and no accused shall be free squad. Further police is also competent to carry out multiple investigations even after the submission of the challan in Court. Re-investigation by police cannot be stopped in the manner particular case if the police is able to discover and lay its hand on some material which could connect the accused with the commission of the offence. No legal bar exists on re-investigation/ further investigation of the case even after submission of the report. In the instant case the accused person has confessed before the J.I.T now it is the duty of the police officer to interrogate the accused and shift the grain from a chef, as the complainant claimed that he can identify the accused persons if seen again. Since both the accused persons were not tried, nor ended in their acquittal but they remained fugitive from the law for so many years.

8. In view of the above, the order dated 31.07.2023 passed by the learned Judicial Magistrate-II Dokri is set-aside. The I.O. of the case is directed to conduct a further investigation based on the report submitted by the J.I.T. so also the identification test parade, if so required, or record the statements of the witnesses/ accused persons in terms of Section 161 Cr.P.C, and after completing the entire investigation, the I.O. to submit report under Section 173 Cr.P.C before the concerned Magistrate, who shall pass an speaking order after going through the material collected by the I.O. in accordance with the law. The I.O. of the case is further directed to complete such exercise within 14 days after receipt of this order. The jail authorities are also directed to cooperate with the investigation officer.

9. The petition stands disposed of in above terms.

Judge

Ansari