2002 P Cr (PLP)

During the course of investigation, S.H.O. Naudero Police Station arrested all six persons. Thereafter, on the application of complainant investigation was transferred to D. S. P. /S. D. P. O. Kamber by the S.S.P. Larkana who entrusted the investigation to S.H.O. Kamber. Since the police custody remand of accused was being expired, therefore,, S.H.O. Kamber submitted interim challan under section 344, Cr.P.C. against six persons in the Court of Civil Judge and F.C.M. Ratodero which was treated as final challan vide order, dated 2‑5‑2001. During the course of further investigation accused Zawar Gahno and Muhammad Nawaz Mangnejo were arrested on 28‑5‑2001 by the Kamber Police and crime guns with cartridges were secured from them which were unlicensed as such separate cases under section 13‑D of Arms Ordinance against accused were registered. During the course of interrogation arrested accused disclosed names of other accused persons to be Saddruddin Shah, Karamat Shah and Mumtaz Ali Domki. On 29‑5‑2001 subsequent challan against arrested accused Zawar Gahno and Muhammad Nawaz showing accused Sadruddin Shah, Karamat Shah and Mumtaz Ali Domki was submitted in the Court of Civil Judge and F.C.M. Ratodero but the same was returned to the Kamber Police vide order, dated 14‑6‑2001. Again on 19‑6‑2001 subsequent final challan against above-named accused was submitted in the same Court but learned Civil Judge rejected and returned the same to Kamber Police vide order dated 19‑6‑2001. I have heard the learned counsel for applicant as well as learned Assistant Advocate‑General Mr. Ali Nawaz Ghanghro, Advocate was appointed as amicus curiae vide order, dated 17‑8‑2001 and he also made his submission. It is contended by counsel for applicant has erred to go through the subsequent evidence collected by the Investigating Officer during the course of further investigation. The learned Courts below have not appreciated the contents of sections 173 and 190(b), Cr.P.C. The police is not debarred from conducting further investigation of the case after submitting challan of the case and that there is no provision of law to reject or return the charge‑sheet/challan of the case. Learned counsel for respondents has supported the orders passed by two Courts below. In support of his contentions learned counsel for applicant has relied on the following case‑law; (i) Suleman v. Fateh Naseeb and others 1995 PCr.LJ 1543; (ii) Hasil Baluch v. Deputy Inspector‑General .of Police, Crime, Karachi 1983 PCr.LJ 2357; Muhammad Akbar v. The State 1972 SCMR 335 and Mrs. Ghanwa Bhutto v. Government of Sindh PLD 1997 Kar.

119. In the first case it has been held as under:‑‑ "Considering the case from all angles I am of the view that there is no statutory prohibition or bar in the Code of Criminal Procedure for the police to the investigation, by the police nor any bar can be imposed upon the police to investigate a case as many time as they choose even has ample power to withdraw the challan and submit a fresh challan." In the case of Hasil Baluch it has been observed as follows:‑‑ "The conjoint reading of these provisions can leave one in no doubt whatsoever that the Criminal Procedure Code does not forbid a second investigation into the same case. On the moral plane a second investigation by police cannot be hit down because in most cases it would be undertaken only for the purpose of finding the truth or seeking available evidence which for some reasons was not available at the previous stage. " In the case of Muhammad Akbar v. The State the Honourable Supreme Court has observed as under: "Even on the first report alleged to have been submitted under section 173, Cr.P.C. the Magistrate could, irrespective of the opinion of the Investigating Officer to the contrary take cognizance if upon the materials before him he found that a prima facie case was made out against the accused persons. After all the police is not the final arbiter of a complaint lodged with it. It is the Court that finally determine upon the police report whether it should take cognizance or not in accordance with provisions of section 190(I)(b) of the Code of Criminal Procedure." In the case of Mrs. Ghanwa Bhutto a Division Bench of this Court has held as under:‑‑ "Reference to the case‑law, therefore, indicates that there is no hard and fast rule that a second F.I.R. cannot be registered in respect of a different version given by an aggrieved party of the same occurrence. If information is subsequently given to a Police Officer, which discloses a different offence, also cognizable by the police, then unless it is a mere amplification of the first version, it must be recorded by the police. Therefore, direction to the police to record a second F.I.R would depend upon the circumstances of, each case. If true facts in respect of an occurrence are not reflected by the first F.I.R, then refusal to record a genuine version of the same occurrence would not be justified." It is evident from the reading of sections 173 and 190(b), Cr.P.C. that there is no legal bar upon the police from conducting further investigation after submission of challan. The facts that come on record has further justified the submission of challan purely as certain points have come to light after submission of the initial challan which necessitated the implication of certain accused in the offence. By no remote possibility they would be construed as guilty of the offence. The only reasons at this stage would be for an investigation to be conducted as there is a likelihood that they would also be associated with the incident. I would not like to dilate upon the merits of the case as the main thrust of the arguments of the learned counsel was to challenge the act of the trial Court and the Appellate Court in returning the supplementary challan. The learned counsel for the applicant has rightfully insisted that such an act was not justified. Indeed the trial Court or for that matter Appellate Courts are tried to endeavour that decisions should be on merits and to meet those ends if further evidence is necessary or it comes to light that other persons can be implicated who were originally not implicated then they should not be debarred from doing it. At the most if the names had not appeared in the F.I.R. and if the Court felt then they should have given the benefit and concession of bail. For the foregoing reasons, I would accept this revision and direct the trial Court to accept the supplementary challan on record and to proceed with the case accordingly. N.H.Q./N‑86/K Revision petition accepted.