1992 P Cr (PLP)

S. 403

Bar contained in S.403, Cr.P.C. would only apply when an accused had gone through a process of law in a competent Court. Hashmat Ali Habib for Petitioners. Sarfraz Ahmed, AA.-G. for Respondents. Date of hearing: 27th August, 1991. IMAM ALI G. KAZI, J. -- We propose to decide Constitutional Petition No.D-1171 of 1990 (Zafar Alam Babar and others v. Syed Badar Alam and others) Constitutional Petition No.D-1172 of 1990 (Naseer Ahmed and others v. S. Badar Ali Shah and others) and Constitutional Petition No.D-1173 of 1990 (Sharafat Ali and others v. Syed Badar Ali and others) by this common judgment as these petitions are based on common facts and involved common point of law. The petitioners in the above petitions are employed as officers in the Pakistan. Railways and were concerned with the engagement of temporary gangmen for the maintenance of railways. Some information was received by the Assistant Director Federal Investigation Agency Crime II, Karachi that the officers of the Pakistan Railways were withdrawing the salaries in the name of certain gangmen against their thumb-impressions affixed on such vouchers and are misappropriating the amounts so withdrawn. He, therefore, on the basis of this information conducted the spot enquiries and physical checking of record on 15-10-1987 and registered a case under section 409/468/471/477-A/34, P.P.C. and under section 5(2) of the Prevention of Corruption Act, against War Alain Babar, Muhammad Hussain Usman and Khalid Hussain Shah the three petitioners in Constitutional Petition No.D-1171 of 1990. During the enquiries it transpired that Sharafat Ali and Bashir Ahmed, petitioners in Constitutional Petition No.D-1173 of 1990, and petitioners Naseer Ahmed, Muhammad Ramzan and Muhammad Mushtaq, petitioners in C.P. No.D-1172 of 1990 were also concerned with commission of such offences. He, therefore, registered two more complaints respectively under F.I.R. No.10/1988 and F.I.R. No.11/1988 on 27-3-1988. Out of the above petitioners, the petitioner Zafar Alam Babar withdrew his petition and his name was dropped as a petitioner by the order of this Court passed on 21-1-1991. All the petitioners in above petitions had applied for grant of bail before their arrest before the Special Judge, Anti-Corruption, Central Karachi and were successful in obtaining the same. After making some progress in the investigation of the three cases mentioned above it appears that the Director F.IA., Saddar Zone, Karachi, on the basis of some orders issued by their Headquarters at Islamabad, addressed a letter to Superintendent of Police Railways at Karachi whereby he transferred the above cases for further investigation by him. The Superintendent of Pakistan Railways Police, Karachi, on investigation of the cases, did not find sufficient evidence against the petitioners and he filed a report before the Sub-Divisional Magistrate, Karachi City, for cancelling the F.I.R. Sub-Divisional Magistrate allowed such request. Thereafter, the Sub-Inspector Incharge Crime Branch Pakistan, Railways, Karachi, under orders from A.I.-G. Crimes Branch Office, Pakistan Railways Police, Karachi, commenced reinvestigation of the cases against them. On enquiry the petitioners learnt that there was disagreement between the Superintendent of Pakistan Railways Police and A.I.-G. Crimes Pakistan Railways Police and on that account reinvestigation had been ordered. The petitioners have, therefore, filed these petitions with a prayer that the reinvestigation ordered in their cases be declared to have been commenced without jurisdiction and without lawful authority and to be of no legal effect. Mr. Hashmat Habib, Advocate for the petitioners in the above petitions mainly contended that once order cancelling the F.I.R. is passed by a Sub-Divisional Magistrate on a report filed by investigating authorities under section 173, Cr.P.C. the case cannot be reinvestigated at the pleasure of Police Officers without obtaining appropriate orders from that Magistrate. In support of his contention reference has been made by him to P L D 1977 Lah. 180, PLD 1986 Lah. 81 and 256. . The case of Din Muhammad Shakir alias D.M. Shakir v. D.S.P. Ichhra, Lahore reported in P L D 1977 Lah. 180 is a case where, as a result of investigation, case was found *to be not cognizable one and, in view of bar contained in section 155, Cr.P.C., it was held that the police could not on its own in absence of any order passed by a competent Magistrate under section 155, Cr.P.C. be reinvestigated. This case has no bearing on the point in the present petition. Similarly the two cases referred to by the counsel for the petitioners are also not relevant for the purpose of point involved in these petitions. Mr. S. Sarfraz Ahmed, Additional Advocate-General, Sindh merely contended that no suqh bar is contained in section 173, Cr.P.C. Unlike the provisions of the law made in section 403, Cr.P.C., which embodies the ancient maxim `nemo debet vis vexari pro una et eadem causa' (no person to be vexed twice for the same cause) and common law principle of `autrefois acquit' (formerly acquitted) and `autrefois convict' (formerly convicted) that no one shall be punished twice for the same offence. Such a prohibition is not contained in section 173, Cr.P.C. Bar contained in section 403, Cr.P.C. will only apply when an accused person has gone through a process of law in a competent Court of law. In absence of any such prohibition in section 173, Cr.P.C. the police can either on the basis of material collected by it or under orders of superior officers always reinvestigate an offence in spite of orders passed by a Magistrate accepting the recommendation of police under section 173, Cr.P. Code in a case. There is no provision in the Code of Criminal Procedure which limits the investigation of offences. We are supported on such point by the judgment passed in the case of Aftab Ahmed v. Hassan Arshad and 10 others reported in P L D 1987 SC

13. In view of the above there is no merit in the present petitions which are dismissed with no order as to costs. H.B.T./Z-177/K?????????????????????????????????????????????????????????????????????????????????? Petitions dismissed.