2013 P Cr (PLP)

SALAHUDDIN PANHWAR, J.

Applicant Sikander Ali Suhag has assailed impugned order dated 25-5-2012, passed by 3rd Additional Sessions Judge, Khairpur through this Criminal Miscellaneous Application under section 561-A, Cr.P.C. on an application under section 22-A and B, Cr.P.C.

2. The relevant facts of the subject-matter are that complainant lodged F.I.R. bearing Crime No.45 of 2012, alleging therein that Zulifquar Ali Suhag and others have old enmity with the complainant party. Nazeer brother of complainant resides with his family in Talpur Colony and the complainant had come to visit his brother, on the date of incident the complainant, his brother Nazeer Ahmad his sons Naseer and Illahi Bux and wife Nageena were available at the house when at about 0745 hours accused Zulifquar, Sikander, Asad Ali, Bakhat Ali, Mashooq, Aashiq Ali, Khadim, Waqar, Israr along with two other unidentified persons armed with TT pistols trespassed in their house and on the instigation of accused Zulifquar other accused made straight firing upon the complainant party, which resulted in injuries to Nazeer, Naseer, Illahi Bux and Mst. Nagina.

3. Record further reveals that after registration of F.I.R. the police investigated the matter and submitted the challan before the Court having jurisdiction by placing the name of present applicant Sikander Ali Suhag in Column No.3 of the Challan sheet, the plea of alibi raised by the applicant was not considered by Investigating Officer therefore the applicant being aggrieved moved Application under section 22-A and B, Cr.P.C. regarding re-investigation of the case, which was dismissed.

4. The learned counsel for the applicant has inter alia contended that the applicant is innocent and has been falsely implicated in this case due to old enmity as admitted in the F.I.R.; at the time of alleged incident co-accused Zulifquar was admitted in Hira Medical Centre, he had undergone operation and he was discharged from the Hospital in the evening of 17-3-2012 whereas on the said date present applicant Sikander Ali was available in Lahore where he attended the Court of Ist Class Magistrate in a criminal case; hence his presence in Khairpur at a distance of about 1200 Kilometers is impossible; that during investigation, plea of alibi raised by applicant Sikander Ali Suhag was not considered though same was supported by documentary evidence.

5. Learned DPG appearing for the State has argued that the impugned Order is valid in the eye of law; the applicant has not challenged the order dated 10-4-2012 whereby the Magistrate took the cognizance of this case; as such the applicant is at liberty to agitate the plea of alibi before the trial Court and at this stage, the re-investigation of the case is not permissible under the law and the same will seriously prejudice to the case of complainant party as the case is pending adjudication before the trial Court.

6. Heard the arguments of the learned counsel for the respective parties and perused the material available on record.

7. The learned counsel has emphasized that his plea of alibi was not given weight by investigation agency so also by the Magistrate while taking the cognizance on report (challan) of the case crime submitted by the police; though legally he was required to be released/discharged from the case crime on such strength of his plea of alibi. I am not in agreement with such contention of the learned counsel for the applicant because there is a series of decisions of this court and honourable apex Court to the effect that collection of evidence or recording of statements of defense witnesses in favour of accused during the course of investigation is not permissible under the law and such practice is seriously deprecated. If such practice is allowed to hold the field then there will be a new window for accused persons and even it may result in prejudicing the competence of trial Court in determining question of guilt and innocence. Every complainant will be at the mercy of investigating agency and there will be an ample opportunity that investigation agency instead of carrying out investigation honestly may fall to prey to such defence during course of investigation. It may be added here that purpose of investigation has never been to defence the question of guilt or innocence but collection of material and its submissions before the court of law for determination. It may also be added here that plea of alibi is always taken against some allegation(s) by witnesses hence if it is left open for investigating agency to decide such controversy at investigation stage it would amount to pre-trial verdict which jurisdiction is never vested with investigation agency under Chapter XIV of Cr.P.C.

8. No doubt re-investigation can be carried out at any stage but that should be on solid grounds or if it is prima facie established that earlier investigation is mala fide or within colourful exercise. In the instant case the present applicant did not question the order of the Magistrate, taking cognizance into the matter though the law provides him remedy if there is any grievance to any of the parties against order of Magistrate on report of police, submitted under section 170/173, Cr.P.C. which the applicant did not avail. It is also added that since the applicant intends his release/discharge from the case crime which case is pending trial before a competent court of law and if the applicant finds himself entitled to acquittal he may approach learned trial Court which is competent to pass such order therefore no useful purpose will be served if reinvestigation is allowed. The impugned order is maintainable in the eyes of law, hence this criminal miscellaneous application merits no consideration and is dismissed as such. MWA/S-59/K Application dismissed.