P L D 1965 (W (PLP)

SAJJAD AHMAD, J.‑This is a writ petition under Article 98 of the Constitution, seeking as the main relief, besides other ancillary reliefs which will be noted hereafter, that the discharge order, dated the 13th of March 1965, passed by Mr. Akhtar Joseph, a Magistrate of the First Class, Khanpur, under section 173 (3) of the Code of Criminal Procedure in favour of respondents Nos. 4 to 8, namely, Nur Muhammad, Muhammad Shafi, Taj Muhammad, Shah Muhammad and Hashmat Ali, should be set aside, as it was passed without lawful authority, having been based on the final report of the police submitted under section 169 of the Criminal Procedure Code which in turn was also without any legal effect.

2. The facts leading up to this petition may be briefly stated. Ata Muhammad petitioner lodged a report in the Khanpur Police Station on the 4th of February 1965 (F. I. R. No. 23 of 1965), lay ing a charge against thirteen persons, including respondents Nos. 4 to 8, mentioned above, for having committed serious offences in Chak No. 44‑P of the aforesaid police station, resulting in the murder of one Sabir Hussain and firearm injuries to several others. The local police led by respondent No. 3, Ghulam Sarwar Khan, started investigation of the case. Nur Muhammad respondent in the meanwhile moved this Court for bail before arrest. His applica tion (Criminal Miscellaneous No. 371 of 1965) was laid before his Lordship the Chief Justice who granted him interim bail on the 17th of February 1965. This was followed up by a similar appli cation for bail before arrest by the four sons of Nur Muhammad, respondents Nos. 4 to 8, and their application (Criminal Miscel laneous No. 429 of 1965) was laid before our learned brother, Mr. Justice Muhammad Yaqub Ali, on the 23rd of February.1965. He was pleased to withhold their arrest till the 25th of February 1965, with the direction that they should apply for their bail to the Sessions Judge, Rahimyar Khan, in the first instance. An application was thereafter made to the learned Sessions Judge, Rahimyar Khan, who extended the period of interim bail of the respondents and postponed his decision till such time as the High Court had decided the question of the confirmation of interim bail allowed to Nur Muhammad. Ata Muhammad petitioner applied to this Court for cancellation of the interim bail granted to the respondents (Criminal Miscellaneous No. 599 of 1965) This matter was heard by the learned Chief Justice on the 8th of March 1965, and he issued notices to the aforesaid respondents for the 17th of March 1965. On this date an order NN as produced before his Lordship the Chief Justice made by Mr. Akhtar Joseph, dated the 13th of l0arch 1965, whereby, purporting to act under section 169, Criminal Procedure Code, which was obviously a mistake for section 173 (3) of the Code, he discharged the respondents Nos. 4 to 8 on the basis of the police report, as already mentioned above. His Lordship the Chief Justice ordered the summoning of the original record of. The proceedings. We have already disposed of the application for cancellation of the bail allowed to the respondents (Criminal Miscellaneous No. 599 of 1965) by our order dated the 1st of June 1965. In our view the application had become infructuous in view of the discharge order passed in favour of respondents Nos. 4 to

8. The discharge order is under challenge in this writ petition and as remarked by us. in our order the question of bail or cancellation of bail of the respondents concerned would arise only if the case against the aforesaid respondents is revived and thus the effect of the discharge order is terminated.

3. The reversal of the discharge order as being without lawful authority is claimed in the writ petition on the ground which have been put in the form of ancillary reliefs by the petitioner, which are that the police submitted its final report to the Magistrate under section 169 of the Criminal Procedure Code on the 12th or the 13th of March 1965, after the Inspector‑General of Police had directed them to stop further investigation and after he had entrusted the conduct of the investigation to the Crimes Branch. The allegation made by the petitioner in this behalf is that after the orders of the learned Chief Justice, directing the issue of a notice in Criminal Miscellaneous No. 599 of 1965, which sought the cancellation of the ad interim bail granted to respondents Nos. 4 to 8 and after the order of the Inspector‑General of Police, entrusting the investigation to the Crimes Branch had become known, the local police, made all‑out efforts, for improper motives; to damage the prosecution case and submitted their report in a hurry to the Magistrate to secure the release of the respondents con cerned. It is contended for the petitioner that after the Inspector General of Police had stopped the local police to continue with the investigation, which was done on the 10th of March 1965, the local police had no power to proceed with the investigation and to submit their final report on the 13th of March 1965, giving out that the five respondents mentioned above were innocent of the charges levelled against them. 4: Written statements have "submitted on behalf of the Magistrate, Mr. Akhtar Joseph (respondent No. 2) and Ghulam Sarwar Khan, Sub‑Inspector Khanpur (respondent No. 3). The position taken up by the former is that he made the discharge order under section 173 (3) of the Code of Criminal Procedure although by mistake he cited section 169 of the Code, on the application made before him by the S. H. O. Khanpur and after consulting the police file. According to him the challan was submitted in Court on the 17th of March 1965, in which the name of respondents Nos. 4 to 8 were shown in column No. 2 of the challan. It came to his notice on the 19th of March 1965, that there was cutting of the names of the respondents in column No. 2, but the challan in the meantime had gone to the copying agency for preparation of the copy. He asked Ghulam Sarwar Khan, Sub‑Inspector, if he had made the cutting and if he did no intend to put the respondents Nos. 4 to 8 in column No. 2. far as he remembered, the Sub‑Inspector replied in writing the respondents were correctly put in column No.

2. The Magistrate had also questioned the copying agent as to why he had left column No. 2 blank in the copy supplied by him and his explanation was that since the names of the respondents were cut; he did not repeat their names in the copy and left the' column blank. Mr. Akhtar Joseph has further stated in the written statement that he was not aware that the Inspector‑General of Police had stopped the local police from handling this case at any stage:

5. Ghulam Sarwar Khan, Sub‑Inspector, respondent No. 3, in his written statement denied knowledge of the order of the Inspector‑General of Police, stopping the local police from investi gating this case. According to him, Khan Ghulam Qasim Khan, Deputy Superintendent of Police, Khanpur, had investigated the case and as a result of his investigation the five respondents were found to be innocent and he directed the Sub‑Inspector to secure their discharge and that it was at the instance of the Deputy Superintendent of Police that he moved the application for the discharge of the accused person by the Magistrate. He has affirmed that the discharge order by the Magistrate under section 173 (3) of the Code of Criminal Procedure was correctly made.

6. Another fact which needs mention here is that the peti tioner Ata Muhammad has since filed a complaint in the Court of a Magistrate against the five respondents who were deleted from the police challan as a result of the discharge order made by Mr. Akhtar Joseph and in that complaint the learned trial Magistrate has recorded the statements of about ten prosecution witnesses under section 202 of the Code of Criminal Procedure. He has thus taken cognizance of the complaint and is holding an inquiry, the result of which may be that either he decides to summon the accused persons named in the complaint to hold their trial or he rejects the complaint under section 203 of the Criminal Procedure Code.

7. The Inspector General of Police, who is impleaded in this petition as respondent No. 1, has not filed any written statement, but the learned Advocate‑General appearing for him has stated at the bar that if this Court decides that a second report by the police is competent on the basis of further investigations and that there is no bar to the filing of a subsequent challan in spite of the earlier discharge order in the first challan and the complaint case, which is pending against the discharged respondents, the police will have no difficulty in submitting a second report. This state ment by the learned Advocate‑General seems to confirm the allegations made in the writ petition that a second investigation' has been ordered in this case and has been conducted but the police is of the view that the first challan already submitted in which the Magistrate has passed a discharge order in favour of respondents Nos. 4 to 8 and the complaint filed by the petitioner in a competent Court against the aforesaid respondents, inviting a fresh inquiry into their guilt constitute a hurdle to the submis sion of a second challan in the case. The learned Advocate‑ General pointed out that the basis for this view of the police is an unpublished judgment by a Division Bench of this Court in Abdul Halim v.' Raja Qurban Husain and others (Criminal Original No. 23 of 1965), decided on 17th of May 1965, and another judgment by Mr. Justice Jai Lal, as a Judge of a Lahore High Court, reported as emperor v. Ali and another (A I R 1932 Lah. 611). We have examined these judg ments and we feel that the first‑mentioned does not at all refer to this issue as to' whether a second or multiple investigations are competent under the Code of Criminal Procedure after the police has once filed its final report in a case under section 173 of the Code. The learned Advocate‑General referred us to paragraph 10 of the judgment in Criminal Order No. 23 of 1965, wherein it was laid down that if a Magistrate, after taking cognizance of a case, considers before the issue of process to the accused persons that the matter should be investigated, he can order such an investiga tion under section 202 of the Code of Criminal Procedure and not under section 156 (3) of the Code, the reason being that once he has decided to take cognizance he can no longer avail himself of the alternative procedure laid down under section 156 of the Code.. Obviously, these observations have no bearing on the issue of multiple investigations by the police.‑

8. The second case Emperor v. Ali and another, proceeds on different facts, but it does not contain a general statement on the point to the following effect:‑ "If on the other hand the investigation is complete then he must send up the case under section 173, and then he has no power to resume the investigation. I am aware of no legal sanction for further investigation by a police officer if he has sent up the case for trial under section 173, especially with a view to find evidence in favour of the accused." With all difference to the learned Judge, we have not been able to discover any legal or rational basis for this observation and we must dissent from it with the utmost respect. There is no statutory prohibition in the Code of Criminal Procedure for the police not to embark on a fresh investigation of the case after the con clusion of the first and the submission of the final report whatever the defects in the first investigation or the flaws in the final report given in the wake of it, that might, subsequently be detected. The first investigation may be utterly unsatisfactory for many reasons. It may be due to non‑availability of the evidence, or the successful induction of false evidence during the investigation or the reason may be, as alleged in this case, namely; the corrupt behaviour of the police officers concerned. To say that the same police officers or their superiors on receipt of further information or on the availability of better evidence cannot revive the inves tigation already done, leading to a contrary or a varied result, would virtually amount to putting a seal on human errors anti frailities once committed, whether by design or by inadvertence, with no opportunity to make amends, although it be possible to do so. The police, as an agency of the State, should be as much interested as any other agency concerned in the administration of justice, to find out the truth in respect of a crime and lay the whole facts bare for determination by the competent tribunals as honestly and correctly as possible. The statutory functions of the police and the Courts in this respect are complementary to each other and do not overlap. The fact that the previous inves tigation had yielded certain results should not act as a hurdle or a deterrent for the police in reaching the truth if additional facts and additional circumstances brought to light help in its discovery. The Magistrate himself does not have the legal powers to direct a further investigation by the police after he himself has take cognizance of the case and has himself launched an inquiry or trial; but there is no bar for the police to pursue its own investi gations and submit their results to the Court to find the guilt or innocence of the accused persons before it becomes too late. The competency of the police to carry out multiple investigations in the same case has been considered and upheld in several cases. In Muhammad Niwaz v. The Crown (48 Cr. L J 774), decided‑by Din Muhammad and Cornelius, JJ., when both their Lordships were on the Lahore High Court, the law on the subject was stated as follows:‑ "The number of investigations into a crime by a police officer is not limited by law and when one has been completed, another may be begun on further information received." In Raghunath Sharma and others v. The State (A I R 1963 Pat. 268) it was held as follows:‑ "The Superintendent of Police, who is an officer superior in rank to the officer in charge of the police station, as the authority to direct the submission of a charge‑sheet when the officer in charge of the police station had already submitted the final report under section 173, Criminal Procedure Code, and a Magistrate is competent to take cognizance of an offence on the basis of such a charge‑sheet. There is no bar to the investigation by the police after the submission of a final report under section 173."

9. We are in respectful agreement with the view as expressed in the decisions cited above on the point, particularly as we feel that there is not only no statutory bar in the Code of Criminal Procedure for the police to carry out fruitful investigations in a crime as many times as the circumstances of the case may lead to, but also because a denial of this power to the police may in some cases cause frightful harm to the cause of justice, and fair-play for the public which the police is supposed to serve and which must always be the first and the foremost target of police investi gations. If the police gets irrevocably committed to its findings in an investigation and cannot get out of them even when the falsity of those findings is patently exposed, it will be lending its weight not to the service of the community but to its positive dis‑service. We have referred to this point in a little detail because of the arguments addressed to us by the learned counsel for the respondents that this petition under Article 98 should be discarded out of hand on the simple ground that other adequate remedies are open to the petitioner for the redress of the wrongs complained by him in the petition. He mentioned that the complaint against the respondents which is pending in a Magistrate's Court and in which action has been taken is one adequate remedy which has already been availed of by him: The complaint is obviously competent, as according to the preponderating legal view the previous discharge order in favour of respondents Nos. 4 to 8 was merely in the nature of an administrative order and not a judicial one. If the Magistrate as a result of his inquiry which he is holding in the complaint finds that there are grounds to proceed with it further, he will certainly take further action, as required by law. The learned Advocate‑General also joined the learned counsel for the petitioner in questioning the competency of the writ petition on the ground that another adequate remedy available. He had also his mind set on the complaint, with an amount of hesitation as to the competency of the police to file a second report on the basis of a second investigation. Since we are of the view that adequate alternative remedies are open to the petitioner, the one to which he has already resorted, i.e., the complaint filed by him, and the second, viz., the subsequent police report which the police can certainly file in the case if it is so disposed as a result of its subsequent, investigation, we are cons trained to dismiss this writ petition which we hereby do. The, records of the case which were summoned from the lower Court and the Inspector‑General of Police may be returned. K.B.A. Petition dismissed.