Saturday, 6 February 2016

Judgment on Re-investigation

PLJ 2015 Karachi 190 (DB)
Present: Muhammad Ali Mazhar and Naimatullah Phulpoto, JJ.
versus
PROVINCE OF SINDH through the Chief Secretary, Sindh, Karachi and others--Respondents
C.P. No. D-5158 of 2014, decided on 24.11.2014.
----Ss. 169, 170 & 173--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Reinvestigation-Essential for re-investigation after submission of challan--No power to C.M. to issue direction for reinvestigation--Police cannot adjudicate guilt or innocence of offender--Question of--Whether person is guilt or not rests with Court of law and not with police--Fair and impartial investigation--Jurisdiction and authority to pass order for reinvestigation--Validity--If reinvestigation is made to obtain a fresh opinion regarding guilt or innocence of accused then such reinvestigation would be in consequential FIR cannot be cancelled nor the accused can be discharged--Guilt or innocence of the accused can only be determined by the Court.       [Pp. 195 & 196] A
----S. 18(6)--Constitution of Pakistan, 1973, Art. 199--Reinvestigation--Change of investigation--Recommendations of board--Validity--Investigation would not be changed except after due deliberations and recommendation by a board headed by an officer not below the rank of SSP.                 [P. 197] B
----Change of investigation--Final order for changing of investigation--Second change of investigation may only be allowed with the approval of the provincial police officer, or the capital city police officer.  [P. 197] C
----Essential--Reinvestigation would be ordered denovo in routine--Validity--Reinvestigation cannot be used as a tool to save, protect or favour any influential person under the garb or outfit of reinvestigation.       [P. 198] D
----Defect in investigation or challan--Non-allowance of reinvestigation--Validity--It is also well-known that the benefit of any defective or technical flaw in the investigation may go to the accused person where all accused will be afforded ample opportunity to defend the indictment--Non-allowance of reinvestigation does not mean the deprivation of the right of fair trial of the accused persons.                              [P. 198] E
----Victim of reinvestigation--Deteriorate criminal administration of justice--Validity--Exercise of jurisdiction of passing orders for reinvestigation would not be taken so casually, callously and or offhandedly at the whims or aspiration.  [P. 198] F
Mr. Faisal Siddiqui, Advocate for Petitioners.
Mr. Abdul Razak, Advocate for Respondents Nos. 5 & 6.
Mr. Mustafa Mahesar, AAG.
Mr. Shahzado Saleem, APG.
Mr. Mazhar Hussain Alvi, ADIGP (Legal) Karachi.
S.I. (Legal) Tariq Jawed Bhatti and I.O. Inspector Muhammad Mubeen, P.S. Darakhshan, Karachi.
Date of hearing: 30.10.2014.
Order
Muhammad Ali Mazhar, J.--This constitutional petition is brought to challenge the impugned order dated 10.9.2014 issued by AIGP/Operation for and on behalf of Inspector General, Sindh Police whereby a committee was constituted for the re-investigation of Crime No. 235/2014, lodged at P.S.Darakhshan South Zone, Karachi under Sections 302, 324 and 34, PPC read with Section 7 of Anti-Terrorism Act, 1997.
2.  The brief facts of the case as narrated in the memo of petition are that the brother of Petitioner No. 1 and son of Petitioner No. 2 was murdered by Respondent No. 5 and his police guards on 8.5.2014. The Petitioner No. 1 lodged the FIR No. 235/2014 at P.S. Darakshan, Karachi on same date against Respondent No. 5 and others. Pursuant to the FIR, the I.O. submitted the charge-sheet No. 181/2014 on 11.6.2014 in the trial Court which was accepted on 16.6.2014. The Respondent No. 5 moved an application in the trial Court under Section 7 of Juvenile Justice System Ordinance, 2000 and vide order dated 30.6.2014 the Respondent No. 5 was declared juvenile and his case was separated for trial. He moved one more application under Section 23 of Anti-Terrorism Act, 1997 for the transfer of the case to the ordinary Court for trial, which was dismissed vide order dated 2.9.2014. Before submission of the charge-sheet the Petitioner No. 2 filed a Constitutional Petition No. 2667/2014 in this Court which was disposed of vide order dated 21.5.2014 with the following directions:
“After hearing all the learned counsel for the respective parties, Mr.Ali Sher Jakhrani DIG Police (Legal), Karachi makes a categorical statement before this Court that the investigation of the incident would be carried out in a very transparent, impartial and legal manner and it would be a test case for the Police Department and the Inspector General of Police will ensure that the Investigating Officer of the case is not influenced from anyone including the father of the alleged assailant. This statement satisfies the learned counsel for the petitioner, who seeks disposal of this petition in the above terms. Order accordingly. This petition stands disposed of in the above terms.”
3.  It is also a matter of record that the Respondent No. 5 filed a Criminal Misc. Application No. 211/2014 in this Court with the grievance that the I.O. has concealed vital piece of evidence so he prayed for reinvestigation of the case. However, on 12.9.2014 the Criminal misc. was dismissed as withdrawn.
4.  The learned counsel for the petitioners argued that the impugned order does not reflect any convincing reason as to why re-investigation is essential after submission of report under Section 173 Cr.P.C in the trial Court. The Respondent No. 5 though filed a criminal misc. application for reinvestigation, but it was withdrawn unconditionally. The challan has already been submitted and the matter is fixed for framing of charge. The impugned order has been issued to subvert and trigger interference in the fair trial with an obvious reason that the Respondent No. 5 is son of an influential police officer of Sindh Police. He further argued that the impugned order is without jurisdiction, illegal and has no legal effect. He also referred to the parawise comments filed on behalf of Respondent No. 3 (Inspector General of PoliceSindh) in which it is clearly stated that the Respondent No. 5 has moved an application to the Chief Minister Sindh in which he requested for reinvestigation of the matter and in compliance of the order of the Chief Minister, a team has been constituted for reinvestigation vide impugned order. Learned counsel for the petitioners further argued that the Chief Minister has no powers under the Sindh Government Rules of Business or otherwise to issue any directions to the I.G. Police for reinvestigation of any matter and on this notch also the impugned order is liable to be set-aside. According to the Entry No. 14 of Schedule-I of the Sindh Government Rules of Business, 1986, the Secretariat Department of Police is Home Department while its head is the I.G. of Police. Learned counsel for the petitioners relied upon the case of RiazHussain v. State, reported in 1986 SCMR 1934 in which the apex Court held that the System of re-investigation in criminal cases is a recent innovation which is always taken up at the instance of influential people and favorable reports obtained. This in no way assists Courts in coming to a correct conclusion. It rather creates more complications to the Court administering justice. In the case of Muhammad Nasir Cheema v. Mazhar Javaid reported in PLD 2007 S.C. 31, the apex Court held that no power vested with any Court, including High Court to override the legal command and to direct Station House Officer either not to submit investigation report (challan) or to submit the report in a particular manner i.e. against only such persons as the Court desired or only with respect to such offences as the Court wished. It was further held that the report under Section 173, Cr.P.C., had already reached to the trial Court where the trial has already commenced and changing the investigation or ordering further investigation in the matter thereafter was an exercise unsustainable in law.
5.  Mr.Abdul Razak, learned counsel for the Respondent Nos. 5 & 6 argued that the Respondent No. 5 has been falsely implicated in the case. The investigation was not properly carried out by the I.O. The alleged crime was committed inside the bungalow while the accused received firearm injuries at his back side while he was sitting at the driving seat of his vehicle parked outside the main gate. Challan does not carry particulars of inquest report of the deceased Suleman Lashari and P.C. ZaheerAhmed Rind. The investigation conducted by the I.O. was mala fide and dishonest. According to post mortem report one S.M.G. bullet was recovered from the body of deceased Suleman Lashari, while in the FSL report one steel core of crime bullet was shown. The Respondent No. 5 arrived at the main gate of bungalow of the complainant and immediately his vehicle was ambushed and on his vehicle “Vigo” various bullets were fired from upper and back side resultantly the accused had received bullet injuries and P.S. Zaheer Ahmed Rind had died. He further argued that criminal misc. application was not dismissed on merits but the I.G. Police had passed an order for re-investigation on 10.9.2014, therefore, the application was withdrawn on 12.9.2014. It was further contended that the I.O. has concealed material piece of evidence therefore, the re-investigation in this case is a fundamental right of the accused in terms of Article 10-A of the Constitution. It was further contended that while accepting the challan, the learned trial Court did not apply its mind properly. He referred to the case of Bahadur Khan v. Muhammad Azam, reported in 2006 SCMR 373 in which the hon’ble Supreme Court held that no legal bar exists for reinvestigation of a criminal case even after submission of final report under Section 173,Cr.P.C. Police can 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 an offence on which the accused had been tried and the case was finally decided up to the level of the High Court or Supreme Court.
6.  The learned AAG argued that Chief Minister has only passed the order that the reinvestigation may be conducted. He further argued that nothing has been placed on the record by the Respondent Nos. 5 and 6 to show that on what basis the reinvestigation was required to be carried out while the learned APG opposed the order of the reinvestigation on the premise that the Chief Minister has no power to order any reinvestigation and the AIG who issued the reinvestigation order has completely failed to mention any reason in which the reinvestigation is required in this case. The I.O. Muhammad Mubeen stated that the entire investigation was carried out independently and honestly. The identification parade was conducted by the Judicial Magistrate. The eyewitness identified the accused. Empties were also recovered from the place of incident and FSL examination was also conducted. One bullet of SMG was recovered from the dead body of Suleman Lashari while one bullet was passed through his body. No application was made for reinvestigation to the I.O. The challan has already been submitted and the matter is fixed for framing of charge.
7.  Heard the arguments. All the learned counsel for the parties had mutually agreed the disposal of this petition at katcha peshi stage and they argued their case extensively. The crux of Section 169, 170 and 173, Cr.P.C. is that the I.O. has to submit the final report with regard to the result of his investigation for taking cognizance or passing order under Section 173. The police cannot adjudicate the guilt or innocence of the offender because it is not their duty to decide which party is wrong or right. The investigation is required to be completed without unnecessary delay or impediment and as soon as it is complete the challan is required to be submitted not later than 14 days. Ultimate decision as to whether a person is guilty or not rests with the Court of law and not with the police. Since the Petitioner No. 2 had an apprehension that a fair and impartial investigation would not be conducted due to influence of Respondent No. 6 therefore, he filed C.P. No. D-2667/2014 in this Court which was disposed of in view of the statement of AIG Police (Legal) who assured that the investigation would be carried out in a transparent, impartial and legal manner. On the other hand, the Respondent No. 5 had filed Criminal Misc. Application for the reinvestigation of the Crime No. 235/2014, however, his criminal misc. application was withdrawn on 12.9.2014. The Respondent No. 5 written a letter to the Chief Minister Sindh on 15.8.2014 requesting reinvestigation of the case by an honest, reputable and intelligent joint investigation team headed by senior officer of the department. The AIGP (Legal) submitted comments on behalf of I.G. Police and also attached a copy of letter dated 25.8.2014 communicated by Deputy Secretary, Chief Minister's Secretariat, Sindh Karachi to the I.G. Police with the direction of the Chief Minister which is reproduced as under:--
“May be re-investigated through some
independent Senior Officer
Sd/-
23-08-2014
Chief Minister, Sindh
8.  While the Respondent No. 4 in his comments stated that the I.G. Police Sindh has jurisdiction and authority under law to pass the order for reinvestigation of a matter in order to reach just and correct conclusion. On the contrary, in the comments filed on behalf of I.G. it is stated that the order for reinvestigation was made to comply with the order of the Chief Minister Sindh, so that fair trial in view of Article 10-A of the Constitution of Pakistan, 1973 may be made. Nothing is transpiring from the impugned order or the comments to demonstrate us whether reinvestigation is required by the police department to unearth the truth because earlier investigation was found defective and not good enough due to visible and seeming lapses on the part of Investigating Officer. We are also fortified by the dictum laid down by the hon’bleSupreme Court in the cases of Riaz Hussain & Muhammad Nasir Cheema (supra) that the system of reinvestigation is a recent innovation which is always taken up at instance of influential people and favorable reports are obtained. This in no way assists Courts in coming to a correct conclusion. Where the trial has already commenced, changing the investigation or ordering further investigation is an exercise unsustainable in law.
9.  Nothing is reflecting to us from the impugned order to decipher that while ordering reinvestigation any independent mind was applied to decide whether the reinvestigation is necessary or not? Whether the I.O. in the earlier investigation ignored or failed to collect material piece of evidence. The trend of directing fresh investigation after submission of challan and taking cognizance is neither warranted nor approved. If reinvestigation is made to obtain a fresh opinion regarding guilt or innocence of accused then such reinvestigation would be in consequential because the FIR cannot be cancelled nor the accused can be discharged after taking cognizance of the case by the trial Court and the question of guilt or innocence of the accused can only be determined by the Court alone and none else.
10.  The learned counsel for the Respondent No. 5 referred to the case of Bahadur Khan (supra) in which the apex Court held that no legal bar exists for reinvestigation of a criminal case even after submission of final report under Section 173, Cr.P.C. Police can carry out the fresh investigation and submit its report to the Court, but in this very judgment the case of Riaz Hussain (supra) was also quoted in which the system of reinvestigation was considered to be a recent innovation taken up at the instance of influential people. In the case of Muhammad Yousaf v. State reported in 2000 SCMR 453, son of the petitioner died in police custody. His death was caused due to torture by police and the petitioner got registered a case against police officials responsible for the offence, but the investigation agency was not submittingchallan in the trial Court under Section 302. The apex Court held that no legal bar exists on reinvestigation of a case even after submission of final report under Section 173, Cr.P.C. and police could carry out fresh investigation and submit its report to the Court. Consequently, the hon'ble Supreme Court directed the investigation agency to complete reinvestigation and submits its report to the trial Court within a period of four wreeks. At this juncture, we would like to quote the case reported in PLD 1965 (W.P) Lahore 734 (Atta Muhammad v. Inspector General of Police, West Pakistan Lahore & others). In which the learned Court 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 may be due to non-availability of the evidence, or the successful induction of false evidence during the investigation or the reason may be, the corrupt behavior of the police officers 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 inadvertence, 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 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 fact 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 has himself launched an inquiry or trial; but there is no bar for the police to pursue its own investigations and submit their results to the Court to find the guilt or innocence of the accused persons before it becomes too late.”
11.  A visit to the precedents quoted above and the law expounded therein unequivocally shows that the reinvestigation may be conducted by the police in peculiar circumstances of the case and this can also be directed by the superior Courts but not at the instance of influential people to obtain favorable reports which may create complications to the Court, while administering justice. One more significant facet which we cannot ignore at this echelon is Section 18 of the Police Order, 2002 which was relevant to the posting of head of investigation in which under sub-section (6) it was provided that investigation shall not be changed except after due deliberations and recommendation 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. The first proviso attached to this section enumerated that final order for the change of investigation shall be passed by the head of investigation in the general police area who shall record reasons for change of such investigation. One more proviso was also attached that the second change of investigation may only be allowed with the approval of the provincial police officer, or the capital city police officer as the case may be. At this point in time, it is necessary to point out that Police Order, 2002 to the extent of its application to the Province of Sindh was repealed on 15.7.2011 by Sindh (Repeal of the Police Order, 2002 and Revival of the Police Act 1861) Act, 2011, which means that from the date of aforesaid repeal, Police Order, 2002 is not applicable to the Province of Sindh.
12.  Notwithstanding the repeal of Police Order, 2002, there is no absolute bar in Cr.P.C. which debars the I.O. from submitting fresh report in supersession of his earlier one either on his own endeavor or on the direction of the superior police officer but there are certain conditions and the limitation which may include the visible defects in the first investigation or flaws in the final report detected subsequently or the first investigation is unsatisfactory for many reasons including non-availability of the evidence or the successful induction of false evidence during the investigation or the corrupt behavior of the police officer. What we find out in this case is neither the I.O. has made any request for the reinvestigation, rather he robustly argued before us that he has completed the entire investigation with utmost care nor anything is available on record to show that the superior officers or the I.O. feel reinvestigation necessary. The reinvestigation may be conducted to unearth the truth where the fairness, rectitude and impartiality demands but it does not mean that after submission of challan; reinvestigation should be ordered denovo in a routine or as a custom without any rational or articulated justification. The reinvestigation cannot be used as a tool to save, protect or favour any influential person under the garb or outfit of reinvestigation. The defect in the investigation or the challan if any can be easily examined by the trial Court and it is also well-known that the benefit of any defective or technical flaw in the investigation may go to the accused person where all the accused will be afforded ample opportunity to defend the indictment so in our view non-allowance of the reinvestigation in this case does not mean the deprivation of the right of fair trial of the accused persons as envisioned under Article 10-A of the Constitution. On the contrary if the trend of applying or directing reinvestigation in every case is promoted or permitted as a fashion without any rational or pressing need then there will be no end to it rather it would amount an invitation to every person to apply for reinvestigation in order to drag and delay the proceedings and being aggrieved with the result of reinvestigation, the other side feeling as a victim of reinvestigation may also move similar applications for another investigation. This marathon will have no end but it will indeed create chaos and deteriorate the criminal administration of justice. So in our view the exercise of jurisdiction of passing orders for reinvestigation should not be taken so casually, callously and or offhandedly at the whims or aspiration but application of impartial and independent mind of the authority concerned is indispensable. Recently, in the case of Raja Khursheed Ahmed v. Muhammad Bilal reported in 2014 SCMR 474 the hon'ble Supreme Court held that for changing of investigation, the head of the investigation in the general police area shall record reasons for the same which means that such

officer is not merely a post office but has to apply his mind in order to reach correct conclusion.
13.  In the wake of above discussion, the petition is admitted to regular hearing and allowed. Consequently, the impugned order dated 10.9.2014 issued for reinvestigation of Crime No. 235/2014 is set aside.
(R.A.)  Petition allowed

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