1999 PLP 1950 (YLR)

The petition has been directed against the judgment of Tehsil Criminal Court, Mirpur, dated 31‑3‑1998 whereby the submission of the petitioner, that the challan presented against him may be dismissed was declined. The facts, briefly, are that a challan under section 419/420, A.P.C. and 14 E.H.A. was presented in the lower Court against the petitioner with another accused on 7‑10‑1997 and the next date was fixed for recording the statement of accused under section 242, Cr.P.C. During this period a fresh challan was presented by police on 1‑12‑1997 whereby the name of the petitioner was deleted from the column of accused and was given a benefit of section 169 of Cr.P.C. On 17‑1‑1998 the petitioner submitted that he may be discharged from the proceedings. The trial Court after hearing the arguments declined the request of the petitioner and proceeded with the case. This order of the trial Court has been assailed before us in this revision petition. Mr. Muhammad Riaz Alam, the learned counsel for the petitioner contended that the name of the petitioner was excluded in the fresh challan presented on 1‑12‑1997 under subsection (3) of section 173 of Cr.P.C. He also argued that it was incumbent upon the Court to file the subsequent report and release the accused. In support of his contention he relied upon the following case -law:‑‑ (i) PLD 1985 SC 62. (ii) 1986 MLD 2439. (iii) PLD 1987 SC

13. In rebutal Mr. Abdur Rashid Kernahi, Assistant Advocate‑General for the State submitted that according to the police record the petitioner was declared innocent, therefore, the State does not want to prosecute the petitioner. I have persuaded the file of the whole case and the documents attached with it. I have also gone through the case‑law referred by the learned counsel for the petitioner' and am of the view that even after taking the cognizance of the case by the trial Court the police cannot be precluded by the re‑investigation of the case and the investigation officer cannot be prevented from submitting the subsequent report in supersession of his earlier one either on his own initiative or on the direction of the senior police officer. In the instant case the matter was re‑investigated on the direction of D.I.G., Police Range, Mirpur and it was declared that there is nothing to justify the sending of the accused for trial. The petitioner was firstly involved on the basis of the allegation that the petitioner is co‑accused with the principal accused but later on it was found that the evidence against the petitioner is not sufficient. Therefore, police put the name of the petitioner in column 2 of the challan. Under the facts and circumstances of the case the first point to be resolved is, whether the investigation officer is authorised to submit a subsequent report the answer is very much in affirmative as discussed above. In this respect case of Aftab Ahmed v. Hussain Irshad and 10 others PLD 1987 SC 13 can be referred which reads as under:‑‑ S.173 ‑‑‑Police officer‑‑‑Report of‑‑ Submission of‑‑‑Effect of second report‑‑‑Competency of‑‑‑Court already taking cognizance of case after submission of challan report by police‑‑‑Held: Subsequent investigation and submission of another report in supersession of earlier one to be competent. The abovementioned case‑law makes it crystal clear that the investigation officer was very much competent to present a subsequent challan. I do not agree with this contention of the learned counsel for the petitioner that the trial Court was supposed to follow the police report rather the trial Court is quite competent to look into the facts of the case, It is admitted position of law that when a second report is received by the Court the opinion of police officer is not binding on the Court. The Court is quite competent to peruse the record and pass a proper order but in the present case the trial Court has not applied its mind according to the admitted principle of law and justice. A careful scrutiny of the record reveals that there is no sufficient proof on record to involve the petitioner and because of the reason a subsequent report was presented on 1‑12‑1997 and benefit of section 169 of Cr.P.C. was given to the accused. Therefore, it was incumbent upon the trial Court to release the accused according to the peculiar facts and circumstances of the case but the trial Court wrongly held that after taking the cognizance of the report the police cannot re‑investigate the matter. As it has been held earlier that the investigating officer was quite competent to re‑investigate the matter and sufficient material is not available against the accused. The order of the trial Court is erroneous and bad in law which certainly needs the interference of this Court in the interest of justice. The trial of the case will be an exercise in futile. For the forgoing reasons we are inclined to accept the petition and declare the impugned order, taking cognizance and issuance of process against the petitioner as illegal without lawful authority and of no legal affect. Hence the petitioner is discharged forthwith. H.B.T./65/Sh.C.(AJ&K) Revision petition accepted.