2009 PLP 1362 (YLR)

ZIA-UD-DIN KHATTAK, J.

Muzammal, a baby-boy was kidnapped on 1-10-2005. On the report of his mother Mst. Shamim Bibi/respondent No.4 a case vide F.I.R. No.728 under section 363 P.P.C.' was registered on 4-10-2005 in Police Station City Haripur; in that she charged one unknown lady for the kidnapping of her child and stated that she could identify the culprit. Subsequently, she in her supplementary statement and her husband Noor Elahi/respondent No.5 in his statement under section 161, Cr.P.C. charged Mst. Shahnaz Bibi alias Shaheen Gull Rani Bibi for the crime. During investigation of the case, the complainant/respondent No.4 identified Mst. Shahnaz Bibi before a judicial Magistrate in regular identification parade held on 6-2-2006 and on completion of investigation challaned to the Court of judicial Magistrate, Ist Class No. III, Haripur, where she was formally indicted for the offence, but on 19-6-2006 the complainant/ respondent No.4 exonerated her of the charge on the ground of compromise whereupon the trial Magistrate vide order dated 17-7-2006 acquitted the said accused under section 249-A, Cr.P.C.

2. Five months thereafter i.e. on 11-12-2006, the complainant/respondent No.4 gave statement, under section 164, Cr.P.C. This time, she charged Mst. Rozina Rehman petitioner No.1 for kidnapping her child while her husband Lajbar/petitioner No.2 for abetment, which prompted the local police to embark upon to re-investigate the case. They submitted an application for DNA test of petitioner No.2 but due to his death on 14-3-2008, the request could not be materialized. The legality of the afore-referred re-investigation of the case by the local police is impugned through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

3. The learned counsel for the petitioner on the strength of authority of the Apex Court reported in 2006 SCMR 373 contended that the local police is not competent to re-investigate the case, or to arrest the petitioner in a case which has already been decided by the Court of competent jurisdiction resulting in acquittal of the accused; that no permission from any Court is obtained regarding re-investigation and, thus, the same is bad in law and liable to be quashed. Conversely, learned counsel for the respondents Nos.4 and 5 supported the impugned action and submitted that the police is all competent under the law to re-investigate the case and submit a second report under section 173, Cr.P.C. for trial of the petitioner.

4. We have heard learned counsel for the parties and perused the record.

5. In the instant case, the local police after investigation challaned Mst. Shahnaz Bibi, who was tried and acquitted by JMIC -III, Haripur vide order dated 17-7-2006 under section 249-A, Cr.P.C., despite the identification parade where the said accused was properly picked up by the complainant/respondent No.4. After the acquittal of the accused there was nothing left in the said case/ F.I.R. to be again re-investigated or tried in the Court of law. The police if felt expedient to re-investigate the case, the right course was that before acquittal order of the accused dated 17-6-2006 they should have dropped the prosecution and sought permission of the Court, to re-open the case. Regrettably, the police did not meet any of the aforesaid requirements. No doubt, while the police report / challan under section 173, Cr.P.C. is subjudice before a competent Court, there is no 'bar to re-investigate the case and submit a second report under section 173, Cr.P.C. but the matter becomes totally different when a police report being a final report under section 173, Cr.P.C. is submitted and the Court after trial acquit the accused.

6. In this view of the matter, we hold that after acquittal of Mst. Shahnaz Bibi despite identification parade there was nothing left in the case to be reinvestigated by the police which otherwise amounted to misuse of process of law and the same is not sustainable. Consequently, this writ petition is allowed and proceedings relating to re-investigation of case F.I.R. No.728/ 2005 Police Station City Haripur being illegal are hereby quashed. H.B.T./75/P Proceedings quashed.