2016 P Cr (PLP)

MRS. SYEDA TAHIRA SAFDAR, ACJ.

The petitioner Muhammad Anwar assailed order dated 13th July, 2015 of Additional Sessions Judge-II, Quetta, contended to be passed in excess of authority and jurisdiction without observing the law, thus liable to be set aside.

2. It was contended that the investigation was not properly conducted by the concerned SHO, while the evidence was not properly collected. Further the confessional statement of the accused was not recorded deliberately with mala fides, despite the fact that the accused confessed his guilt before the police and the witnesses.

3. Learned counsel was heard at length. He mostly repeated the stance taken in the petition. He emphasized that reinvestigation of the case he ordered and fresh Police Report be submitted on completion of the investigation.

4. Brief facts as emerged from the papers available in the case file that an incident of even date was reported on 4th June, 2015 by one Muhammad Anwar (present petitioner). It was reported that the complainant received information about murder of his daughter namely Samina. Consequent thereto FIR No. 80 of 2015 Police Station New Sariab, Quetta was registered on the same date for murder of the lady. The police proceedings held on the report noted thereon reveal that the dead body of the lady was recovered from the house of accused Syed Gul, her husband, while the crime weapon (pistol) was recovered lying beside the dead body. It was further noted that husband of the lady Syed Gul produced license of the pistol, which was in his name. The articles were taken into custody and documented. The Postmortem Report is also available in the case file, describing the cause of death as injury to brain by firearm, homicidal in nature. The Police Report along with the statements and the seizure memo prepared at the site are also available in the case file. The initial Police Report was with the fact that the articles seized were sent to Forensic Science Laboratory (FSL) for examination and its report still awaited.

5. The petitioner aggrieved of the investigation carried out by the respondent No.1 SHO Police Station New Sariab, Quetta, moved an application under section 22-A(6)(iii) Criminal Procedure Code (Cr.P.C.) with the request that as the investigation was not conducted properly due to the mala fides on part of respondent No.1 (SHO) of the concerned police station. In addition the confessional statement of the accused was not recorded deliberately, and the evidence available at the site was not preserved. This application was though submitted before the court of Additional Sessions Judge-II, Quetta, who in its capacity as Ex-Officio Justice of the Peace entertained the application and vide order dated 13th July, 2015 declined the request to transfer the investigation from the concerned Thana to the Crimes Branch, Quetta. It was held that as the investigation had already been completed, and challan had also been submitted before the court, while the accused was in judicial custody for trial, therefore, transfer of the investigation to the Crimes Branch might be a futile exercise. This order made the petitioner aggrieved, who is now before this court for a favorable order.

6. The request for transfer of investigation could he entertained on an application by the Ex-Officio Justice of the Peace in exercise of its powers available under section 22-A(6)(ii), Cr.P.C. The Ex-Officio Justice of the Peace is empowered to transfer the investigation from one police station to another and also to issue appropriate direction, where the police authorities are found negligent, failed to exercise or act in excess in relation to its function and duties. This power remains available to Ex-Officio Justice of the Peace until the matter is not before the court of criminal jurisdiction for trial of a case. As soon as the Police Report is submitted as required under section 173, Cr.P.C. and cognizance of the offence has been taken by the court, no power remains with the Ex-Officio Justice of the Peace for the purpose: rather it is the trial court who has to deal with all the situations arising during pendency of trial.

7. In case in hand the grievance was against the SHO concerned. who allegedly not conducting the investigation properly, and failed to place the real facts before the court deliberately. For the reason transfer of investigation was sought. Though the door of investigation never closed on submission of the Police Report before the court, but remained open for discovery of true facts even during course of trial. The petitioner in case in hand approached the wrong forum; instead of applying to the trial court for the purpose he approached the Ex-Officio Justice of the Peace. He might have approached the trial court to get examined the crime weapon with the recovered empties, and for production of witnesses who were not associated with the investigation. Sufficient powers are available to a trial court under the purview of section 540, Cr.P.C. The petitioner had failed to avail the remedy provided by the law.

8. In addition the fact to be noted that the contents of the Police Report described that the articles seized were already sent to Forensic Science Laboratory for the purpose of chemical analysis and the report was awaited at the time of submission of the challan. The petitioner might have waited for the report, if not received the trial court be approached for the purpose. If any additional witness or evidence intended to be produced, the law is clear enough and a trial court adequately empowered to make an order to the effect either of its own or on application, as mandated by section 540, Cr.P.C. No illegality or irregularity pointed out in the questioned order thus required no interference. The petition being devoid of merit is hereby dismissed in limine. MH/97/Bal. Petition dismissed.