1997 PLP 2063 (MLD)

Raza Mohsin Qazilbash for the State. Date of hearing: 2nd May, 1995. . The petitioner through this Constitutional petition has taken exception to the act of respondent No.2 Magistrate Section 30, Lahore in proceedings under section 322, P.P.C., against Muhammad Khan respondent No.3.

2. Facts briefly are that the petitioner got F.I.R., No.115/93 recorded under section 324, P.P.C., against respondent No.3 with the allegation that he trespassed into his house and enquired about Sajid alias Bhola his son‑in‑law with whom respondent No.3 had altercation three days earlier. Thereafter, he extended threats of dire consequences. The petitioners' wife Mst. Rehana Shaheen objected to the attitude of respondent No.3 whereupon he was infuriated and threw the burning oil stove towards her by kicking it through his foot. Thereupon, her clothes got fire and she was seriously burnt. Mst. Rehana Shaheen succumbed to the injuries after three days and accordingly section 302, P.P.C., was added.

3. The case was thoroughly investigated and thereafter, on 17‑6‑1993 challan was submitted under section 302, P.P.C., against respondent No.3. However, subsequently in a clandestine manner without there being any change at all in the evidence, the Investigating Agency submitted a supplementary challan before the Judicial Magistrate under section 322, P.P.C. and the latter took the cognizance of the same by framing charge under section 322, P.P.C. against respondent No.3.

4. Grievance is made through this Constitutional petition that the respondent Magistrate has wrongly taken cognizance of the supplementary challan without adverting to the first challan earlier submitted under section 302, P.P.C., There being no change in the evidence, the submission of supplementary challan under section 322, P.P.C., is without lawful authority it is argued.

5. Learned counsel appearing for the respondent has stated that the petitioner should first raise objection before the trial Magistrate. He, however, has admitted that the subsequent challan has been submitted without there being any change in the evidence.

6. I have given my anxious consideration to the entire facts of this case. It is reflected from the resume that the challan was submitted under section 302, P.P.C., against respondent No.3 on 17‑6‑1993 and thereafter, there was no change in the evidence. The supplementary challan has simply been submitted by the Investigating Agency under section 322, P.P.C., without there being any fresh evidence. It is true that there is no bar in the number of investigation as held in Aftab Ahmad v. Hassan Arshad etc. PLD 1987 SC 13 wherein it was held as under:‑‑‑ "The law on the first point raised by the learned counsel, is settled, the first case coming to our notice in which the previous law was also discussed in Muhammad Niwaz v. The Crown 48 Cr.LJ 774 wherein a Division Bench of the Lahore High Court held that the number of investigation 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. And this was also possible even after the submission of the challan report when the Court has already taken cognizance of the case. This Court also in Muhammad Akbar v. The State and another 1972 SCMR 335 held that there is nothing in the Code of Criminal Procedure to prevent the Investigating Officer from submitting a subsequent report in suppression of his earlier one either on his initiative or on the direction of the superior police officer." However, in the present case the supplementary challan was simply submitted it a mechanical manner without there' being any change in the evidence. In these circumstances, the best course for the trial Magistrate was to send the original challan coupled with the supplementary one before the Sessions Judge who shall of course have proceeded in the matter in accordance with law. If this practice of supplementary challan without there being any change in the evidence in not arrested then the judicial proceedings would be dependent upon the whimsical decision of the Investigating Officers. Resultantly this writ petition is accepted and it is directed that the Magistrate shall send both the challans to the learned Sessions Judge for decision in accordance with law. N.H.Q./M‑2543/L Petition accepted.