2000 PLP 1869 (YLR)

A case under section 10(4)/ 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 stands registered against the petitioner vide F.I.R. No. 108 of 2000, dated 1-3-2000 at Police Station Sarai Alamgir, District Gujrat. According to the F.I.R., which was lodged by father of the victim Mst. Shabana, Yar Muhammad Fazal, Muhammad Sabir and Shabir Ahmad were named as accused and during investigation by the local police all the above-named accused were found guilty. Thereafter the investigation was conducted by D.S.P. Circle Sarai Alamgir, who verified the investigation conducted by the local police. Another investigation was conducted by Muhammad Tufail Sherazi, S.-I. and ultimately D.S.P., C.I.A. Shamim-ul-Hassan in his investigation also found the accused guilty. The report under section 173, Cr.P.C. eras prepared on 26-3-2000 and the challan was submitted and the accused were sent for trial before Judge Special Court constituted under Anti-Terrorist Act, 1997.

2. The grievance voiced through this Constitutional petition is that the investigation has not been conducted in an impartial and honest manner as the accused named in the F.I.R. were not afforded any opportunity to produce their defence. The Investigating agency refused to record statements of respectable of the village, in most arbitrary manner, who appeared before them and thus it only collected evidence according to the version narrated in the F.I.R. Alongwith this petition photo copies of 19 affidavits have been attached.

3. I have heard the learned counsel for petitioners as well as learned Additional Advocate-General. The complete challan has been submitted before the Special Judge, Gujranwala and the case is fixed for evidence on 14-6-2000. In case Riaz Hussain and others v. The State (1986 SCMR 1934) it was held as under:

"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 C6urts in coming to a correct conclusion it rather creates more complications to the Court administering justice. We, ,therefore, disapprove this system altogether. " In another case Muhammad Khan etc. v. Inspector-General Police, Punjab etc. (PLD 1976 Lahore 574) it was held as under:-- "Where there is no doubt that there is no bar to further investigation of a case by the police, there is no legal right vesting in a party to a case to insist upon such a re-investigation. If it were otherwise a recalcitrant person accused of an offence may never allow a report under section 173 of the Court and go on asking for re-investigation on one ground or the other with impunity and thus, set at naught the entire concept of criminal proceedings." In case Syed Waqar Hussain Shah v. The State (PLD 1988 Lahore 666) it was observed as under

After filing incomplete or complete challan in Court police on one pretext or other and sometime for reasons only known to police start investigating the cases registered at police stations, and record findings of innocence of accused, without mentioning the names of persons on whose evidence said opinion is based in challan. Thus, Court is unable to find whether opinion of police was based on sound material or not. This makes whole exercise of further investigation after filing complete challan meaningless. It also makes prosecution case doubtful which results in acquittal of accused even in serious cases. Court is not bound by police opinion. It has to decide each case on merits on 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 not advance and rather retards course of justice." The learned counsel for petitioner in support of his argument has referred Muhammad Anwar v. Muhammad Younas Butt, Inspector/S.H.O. (PLD 1997 Lahore 15) to contend that the Constitutional powers of High Court to intervene in the investigation of a cognizable case by the police where the statutory authority is shown to have been abused or there is failure to exercise statutory power or its mala fide is brought to the notice of the Court and the intervention or judicial scrutiny cannot be refused for the reason and the sole criteria should be in mind for doing even-handed justice amongst the parties. The learned counsel has also relied on Anwar Ahmad Khan v. The State and another (1996 SCMR 24). The authority referred by the learned counsel for petitioners are not applicable to the facts and circumstances of the present case as in the above-cited authority the investigation was in progress and was not finalized, whereas in the present case the challan has been submitted and the case is fixed for evidence before the trial Court. The affidavits attached by the petitioner are of no help to the petitioner as it is well-settled that affidavits have no evidentiary value. The accused would be at liberty to produce their defence before the trial Court but at this stage re-investigation of the case would not serve any purpose because the case has already been investigated more than thrice.

4. In view of what has been discussed above, this petition has no merit and the same is dismissed. N.H.Q./M-219/L Petition dismissed.