2000 P Cr.

L J 939

[Lahore]

Before Mian Nazir Akhtar and Dr. Munir Ahmad Mughal, JJ

MUHAMMAD ZAMAN---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 12/Q of 1999, heard on 20th December, 1999.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 156 & 173---Penal Code (XLV of 1860), S.302/34--Submission of supplementary challan and re-investigation---Quashing of order---Local Police investigated case registered against accused persons and found accused as real culprits and submitted challan against them---Accused, after submission of challan, filed an application for re-investigation of case by Range Crime---Investigating Officer, in re-investigation found accused innocent and opined that real culprit was a third person who was not named in the F.I.R.---Case was again entrusted to Crime Branch, on application of petitioner, which confirmed investigation originally held by local police in which accused persons were held real culprits---Pre-arrest bail application filed by third person who was subsequently, found culprit, was allowed and the accused persons also filed application for grant of bail---Trial Court during course of hearing of said bail application, passed order directing S.H.O, to submit supplementary challan against said third person which order had been sought to be quashed---After completing investigation challan having already been submitted against accused who originally were found 'real culprits, Trial Court should have proceeded with trial of said accused persons were real culprits---Trial Court had no jurisdiction

to direct S.H.O. to prepare and submit a supplementary challan against said third person when police had already completed investigation wherein it was found that accused persons were real culprits---Trial Court after recording necessary evidence, could advert to question whether said third person be also summoned as an accused or not, but law did not authorise the Trial Court to direct police that supplementary challan be submitted against said third person---Order passed by Trial Court was ordered to be quashed in circumstances.

Syed Waqar Hussain Shah v. The State PLD 1988 Lah. 666 and Riaz Hussain and others v. The State 1986 SCMR 1934 ref.

Muhammad Zafar Chaudhry for Petitioner.

Sardar Badar-e-Munir Alam for the State.

Date of hearing: 20th December, 1999..

JUDGMENT

MIAN NAZIR AKHTAR, J.--- This petition has been filed to challenge order, dated 3-12-1998 passed by the learned Special Judge with a direction to the S.H.O. to submit supplementary challan against Sher -Muhammad, accused.

2. Briefly stated the facts giving rise to this petition are that on a report lodged by the petitioner a .criminal case was registered against Khawaja Umar etc. vide F.I.R. No.35, dated 1-3-1997 for an offence under section 302/34, -Qisas and Diyat Ordinance at Police Station Wanbhanchran, Tehsil and District Mianwali. After investigation the police held that Khawaja Umar and Hakim Khan were the real culprits and submitted challan against them containing report, dated 13-4-1997 under section 173 of the Cr.P.C.; that after submission of the challan the accused persons submitted an application for re-investigation of the case by the Range Crime, Sargodha whereupon the investigation was entrusted to Khalid Bashir, Inspector who held Khawaja Umar and Hakim Ali to be innocent and opined that the offence was committed by Sher Muhammad son of Ata Muhammad who was not named in the F.I.R. that the petitioner made an application

before the I.-G. Police Punjab who- entrusted the investigation to Crimes Branch, Lahore which confirmed the investigation originally held by the local police; that Sher Muhammad filed an application for pre-arrest' bail before the learned Additional Sessions Judge, Mianwali who allowed it vide his order, dated 26-5-1998. Thereafter, Khawaja Umar accused also submitted an application for bail after arrest on 27-10-1998. During the course of hearing of the said petition the trial Court passed an order on 3-12-1998 directing the S.H.O. Police Station Wanbhachran to submit supplementary challan against Sher Muhammad accused. The supplementary challan was submitted in the Court on 14-1-1999 (wrongly mentioned as 14-1-1998 at the end of the report under section 173 of the Cr.P.C.).

3. The petitioner's learned counsel strenuously urged that the trial Court had no jurisdiction to direct the S.H.O. to submit supplementary challan against Sher Muhammad accused; that the re-investigation by the-, Range Crime, Sargodha was mala fide; that the Investigating Officer (Khalid Bashir, Inspector) was intended to help the real culprits and instead involved a third person in the case who was not named in the F.I.R.; that the impugned order is violative of the provisions of section 173 of the Cr.P.C. and submission of supplementary challan after forwarding the complete challan is totally illegal. In this connection, he placed reliance on the judgment in the case of Syed Waqar Hussain Shah v. The State PLD 1988 Lah. 666.

4. The learned State Counsel has not been able to controvert the law point urged by the petitioner's learned counsel.,

5. There is considerable force in the arguments raised by the petitioner's learned counsel. After completing the investigation, challan had already been submitted against Khawaja Umar and Hakim Ali accused. The trial Court should have proceeded with the trial of the .said accused persons in accordance with the law while hearing the bail petition filed by Sher Muhammad (who was made the real accused in the investigation by Khalid Bashir, Inspector) the triad Court had no jurisdiction to direct the S.H.O. to prepare an4 submit a supplementary challan against Sher Muhammad accused. The local police had already completed the investigation and found that the offence was committed by Khawaja Umar and Hakim Ali accused and submitted final report under section 173 of the Cr.P.C. Thereafter, there was hardly sufficient scope for ordering re-investigation of the case and the I.-G., Police, Punjab should not have readily acceded to the request of the accused persons for re-investigation. Anyhow, the order regarding reinvestigation is not under challenge before us, therefore, we do not propose to interfere in the same at this stage. However, we are clear in our minds that while hearing the bail petition filed by Sher Muhammad accused, the trial Court was not competent to pass an order that supplementary challan be submitted against Sher Muhammad. Such an order was bound to prejudice trial of the accused who had already been challaned. In the case of Syed Waqar Hussain Shah (referred to by the petitioner's learned counsel) the practice of further investigation after submission of

complete or incomplete challan by the police was deprecated. The relevant part from the judgment reads as under:--

"Of late it has been observed that after filing incomplete or complete challan in Court the police on one pretext or the other and some time for reasons only known to them start investigating cases registered at police stations, and record findings of innocence of accused, without mentioning the names of the persons on whose evidence the said opinion is based in the challan. Thus, the Court is unable to find whether the opinion of the police was based on sound material or not. This makes the whole exercise of further investigation after filing of complete challan meaningless. It also makes the prosecution case doubtful which results it acquittal of the accused even in serious cases of the nature of one in hand. The Court is not bound by police opinion. It has to decide each case on merits on the basis of evidence recorded during trial. As such subsequent investigation after filing of complete challan is always uncalled for, unnecessary and must be avoided. It in fact does nor advance and rather retards the course of justice."

In the light of the above view, the Court declared the proceedings of filing o? supplementary challan after filing of complete challan and the consequence discharge orders as being wholly illegal and without jurisdiction. The systenm of re-investigation was disapproved by the Honourable Supreme Court of Pakistan in the case of Riaz Hussain and others v. The State 1986 SCMR 1934. The relevant part from the judgment is reproduced below for ready reference:--

"The system of re-investigation in criminal cases is a recent innovation which is always taken up at the instance of influential people and favourable reports obtained. This in no way assists the Courts in coming to a correct conclusion, it rather creates more complications to the Court administering justice. We, therefore, disapprove this system altogether. "

6. In the present case also the feeling is irresistible that the accused persons wielded influence and managed to obtain an order for reinvestigation from the I.-G., Police, Punjab. It was not open to the trial Court to put its seal of approval on an apparently uncalled for act done by the police. The Court should have proceeded with the trial of the accused against whom challan' had been submitted by the police earlier. During the course of the trial the result of re-investigation could have been submitted before the Court by the police .of its own accord and then any party could have taken advantage of the same in any manner permissible under the law. In the absence of any move made by the parties before the Court, the Court could summon the Investigating Officer (Khalid Bashir, Inspector) as a Court-witness and determine its effect on the case before it, in accordance with the law. After recording the necessary evidence the trial Court could advert to

the question whether Sher Muhammad be also summoned as an accused or not. However, the law does not authorize the Court to direct the police that supplementary challan be submitted against the third person.

7. For the foregoing discussion, the petition is accepted and the impugned order, dated 3-12-1998 passed by the trial Court and the consequent submission of supplementary challan, dated 14-1-1999 (wrongly mentioned as 14-1-1998) are declared to be without jurisdiction and a nullity in the eye of law.

H.B.T./M-24/L

Petition accepted.