2007 PLP 2811 (YLR)

M.A. SHAHID SIDDIQUI, J.--This single order will dispose of Writ Petitions Nos.1690 of 2006 and 1755 of 2006, as both the petitions are the outcome of the same F.I.R.

2. This matter pertains to case F.I.R. No.63 of 2 '05 registered at Police Station Seetal Ma District Multan on 2-4-2005.

3. According to the F.LR. Naeem Nawaz complainant, his brother Amin Nawaz and father Sher Nawaz were going in their car on 31-3-2005 at about 8-00 p.m. from General Bus Stand to their house in Gulgashat Colony. When they were near the underpass towards Tughlaq Town two young men aged 25/30 years emerged from the rear on CD-70 motorcycle. They tried to get the car stopped but the complainant who was driving the car apprehending danger did not stop it. Upon which the one who was sitting on the rear seat of the motorcycle fired with a pistol hitting Sher Nawaz on the left side of his chest. Both the perpetrators then disappeared. Sher Nawaz was taken to Nishtar Hospital. His son Naeem Nawaz got the F.I.R. registered on 2-4-2005 under section 324 read with section 34, P.P.C. Thereafter Sher Nawaz succumbed to the injuries.

4. After the registration of the case the complainant made a supplementary statement in which he implicated Mujahid Hussain, Arshad Mehmood and Khizar Hayat accused. Mujahid Hussain and Khizar Hayat accused were identified as culprits during the identification parade and Arshad Mehmood was declared as innocent and accordingly the challan was submitted. On an application by the complainant to the Additional Inspector-General of Police. Rab Nawaz D.S.P. reinvestigated the case and got Arshad Mahmood discharged. Thereafter the complainant moved another application to the Additional Inspector-General who vide order, dated 10-10-2005 directed the District Police Officer, Multan to place the matter before the Board under Art.18(6) of the. Police Order, 2002 to consider the change of investigation. The D.P.O. instead of placing the matter before the Board forwarded the case to the S.P. (Investigation) who deputed two D.S.Ps. namely Ashfaq Ahmad Barki and Tallat Yaqub to reinvestigate the case. Ashfaq Ahmad Barki, D.S.P. without associating the petitioner and the co-accused added section 109, P.P.C. and directed the S.H.O. to submit challan against Tanvir Ahmad petitioner and one Taqi Raza Shah as well. The petitioner feeling aggrieved has challenged the legality and propriety of order, dated 10-10-2005 and the findings recorded by Ashfaq Ahmad Barki, D.S.P.

5. Learned counsel for the petitioner has vehemently argued that the order of the Additional I.-G. dated 10-10-2005 was without any, lawful justification and that the findings of Ashfaq Ahmad Barki, D.S.P. regarding the involvement of the petitioner under section 109, P.P.C. being unfounded is of no legal effect.

6. Learned counsel for the complainant has supported the impugned order as well as the proceedings conducted by Ashfaq Ahmad Barki, DSP. He, at the very outset challenged the maintainability of the petition on the ground that the petitioner who has been arraigned as an accused in the last report submitted by the S.H.O. under section 173, Cr.P.C. has neither surrendered before the police nor has he obtained bail order from any Court as such the office should not have entertained this petition which merits dismissal. He further submitted that the irregularities pointed out by the learned counsel for the petitioner have, after the submission of the challan, lost their significance.

7. The learned A.A.-G. after going through the police file frankly conceded . that the findings about the involvement of the petitioner and one Taqi Raza Shah in the case in hand under section 109, P.P.C. are without any evidence.

8. I have heard the learned counsel for the parties and have perused the record. The opinion of, the Investigating Officer cannot be treated as legal evidence in any case. Under the scheme of law the Police Officers are not even required to give finding of guilt or innocence of the accused persons. Determination of guilt or innocence of the accused is solely the function of the Court. They are simply required to collect the evidence as contemplated under section 4(1), Cr.P.C. I seek guidance from the law laid down by the Honourable Supreme Court of Pakistan in. the case of Syed Muhammad .Ahmad v. The State and others PLD 2006 SC 316.

9. In view of the above the opinions expressed by the different Police Officers in this case are held to be of no consequence. The report under section 173, Cr.P.C. has been submitted. The police has now become functus officio. Objection regarding the maintainability of this petition being without any lawful basis is of no consequence. The learned trial Court while proceeding further with the case shall take into consideration the entire incriminating legal evidence against the accused regardless to the irregularities committed by the police during the investigation of the case. He would not be, influenced by the unfounded opinions of the Investigating Officer. These petitions stand disposed of with the above direction. H.B.T./T-9/L??????????????????????????????????????????????????????????????????????????????????????? Order accordingly.