2012 P Cr (PLP)

SYED IFTIKHAR HUSSAIN SHAH, J.

Muhammad Gulfam, petitioner, who is the complainant of case F.I.R. No. 344 dated 29-5-2010 registered under sections 302/324/148/149, P.P.C. at Police Station, City Muridke District Sheikhpura, has assailed the legality of the change of investigation of the aforesaid case on the ground that the challan against respondents Nos.5 to 7 has been submitted before the Court, the charge has been framed and the statements of four P.Ws. have been recorded. Therefore, the change of investigation by respondents Nos.1 to 4 at the behest of accused-respondents after the framing of charge and recording of evidence may be declared illegal, unlawful, without lawful authority and the same be set at naught.

2. Learned counsel for the petitioner has contended that after the submission of challan, the police is not competent to re-investigate the matter. Learned counsel has relied upon in Syed Javed Hussain v. SHO (2010 PCr.LJ 442) and Waseem Dogar v. D.I.-G. Police and others (2010 PCr.LJ 69).

3. On the other hand, learned counsel for respondents Nos.5 to 7 has contended that the order regarding the change of investigation has been passed by respondent No.1 under Article 18 of the Police Order, 2002 and the police is competent to re investigate the matter in spite of the submission of the challan.

4. I have heard the learned counsel for the parties at a considerable length.

5. The petitioner got registered a case F.I.R. No. 344 dated 29-5-2010 registered under sections 302/324/148/149, P.P.C. at Police Station, City Muridke District Sheikhupura against respondents Nos.5 to

7. According to the aforesaid F.I.R. on 29-5-2010 at about 9-30 p.m. the petitioner along with his brother Iftikhar Ahmed and Nasir Mehmood were present at Ada Jura near Mujahid Hotel Muridke for going to see Halqa Patwari when his brother Zulfiqar Ali came on motorcycle and when reached near the bungalow of Rana Tanvir, the accused namely Irfan, Farman, Farhan and Usman along with two unknown persons armed with pistol sitting in ambush and Irfan and Farhan fired with his pistol at his brother Zulfiqar Ali and one Manzoor. Zulfiqar succumbed to the injuries in the hospital. Now the challan has been submitted in the Court against Farhan, Irfan, Farman and Usman wherein charge has been framed and the statements of four P.Ws. have been recorded. In the meanwhile, Mst. Surraya Bibi, mother of the deceased, submitted an application before the Additional Inspector-General of Police Punjab for change of investigation of this case which was allowed and now the police is re-investigating the matter.

6. It has been held by the Hon'ble Supreme Court of Pakistan in a case titled Muhammad Yousaf v. The Sate and others (2008 SCMR 453) that the submission of final report in the Court under section 173, Cr.P.C. does not debar the police to carry out fresh investigation and submit its report to Court after fresh investigation. It has been held by the Hon'ble Supreme Couri of Pakistan in Muhammad Ashfaq v. Amir Zaman and others (2004 SCMR 1924) that re investigation of the case after the submission of challan is not barred but the opinion of the Investigating Officer is not binding on the Court and it is the material collected by the police which is to be weighed and not the opinion of the police. In the case of Muhammad Asif v. S.S.P. (2010 YLR 944) it was held that the police is competent to re-investigate the matter even after the discharge of the accused by the Magistrate, if some new evidence is brought on record to prima facie connect him with the alleged offence and the police cannot stop from re-investigation. In the case cited as Meer Dad v. Inspector-General Police (2010 YLR 3201) it was held that change of second investigation is permissible. Article 18(6) of the Police Order, 2002 bestows the power on duly constituted Board to recommend for re-investigation and if the Board recommended for re-investigation of the case then even after submission of the challan the re investigation cannot be debarred. It has been held by this Court in Saddar Din v. Deputy Inspector-General of Police (PLD 2009 Lahore 585) that the investigation can be conducted even after submission of the challan. It has been observed by this Court in Malik Allah Yar Khan Awan v. State and 17 others (PLD 2008 Lah. 394) that Investigating Officer after seeking permission from the trial Court may re-investigate the matter and if material piece of evidence has been missed out in the earlier investigation, the re investigation is permissible.

7. Now it is a settled law that the opinion of the police is not binding on the Court but at the same time the law has invested the power of the collection of incriminating material on the Investigating Agency/Police. The statutory provisions contained in Cr.P.C. Police Order and Police Rules, 1934 authorized the Investigating Officer only to collect all the relevant evidence and to submit his report order section 173, Cr.P.C. before the Court, so as to enable the Court to form an independent opinion regarding sufficiency or otherwise of the evidence and the material in order to decide whether to take cognizance of offence or not or to summon any person to face a trial. The submission of even the subsequent challan is not barred under the provisions of Cr.P.C. but it is entirely the discretion of the Court to admit the additional evidence collected during the re-investigation being admissible or not. It is the duty of the Investigating Officer to collect all the relevant evidence pertaining to allegation levelled regarding the crime in issue so as to dig out the truth enabling and facilitating the Court to administer justice between the litigants. Therefore, the re-investigation even after the submission of challan can be conducted in peculiar facts and circumstances of each case and mere submission of report under section 173, Cr.P.C. cannot be made the basis for the stoppage of the investigation.

8. Resultantly, the instant writ petition has no merits and the same is hereby dismissed. N.H.Q./M-9/L Petition dismissed.