Re-investigation of case

2017 YLRN 343 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss.156, 173, 190 & 344Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10Zina or zina-bil-jabrRe-investigation of caseSubmission of final reportCognizance of offence by MagistratePower to postpone or adjourn proceedings

Petitioners, had prayed to set aside the administrative order passed by Judicial Magistrate on final report under S.173, Cr.P.C.

Investigating Officer got conducted medical check up of victim sent through Lady Doctor, who certified that girl was not virgin

Investigating Officer, could not succeed to get recorded the statement of the victim under S.161, Cr.P.C.

Investigating Officer recorded the statements of other witnesses under S.161, Cr.P.C., but DNA test analysis report was awaited

After approval of Higher Officers, Investigating Officer submitted the final report of the case in "A-Class", and reported about non-availability of sufficient evidence

Investigating Officer, in the last line of final report under S.173, Cr.P.C., had made a prayer that on receipt of DNA test report, charge-sheet would be submitted

Said final report had shown that Investigating Officer was required to continue investigation and make sincere efforts for detection of case as the offence was serious and heinous in nature

Final report was approved by Magistrate concerned under 'A-Class' without DNA report

Only on that score, the administrative order passed by Magistrate, could be termed as non-speaking order, passed without applying judicial mind; as the Judicial Magistrate, was supposed to act judicially, fairly, justly and honestly by passing appropriate order on the report under S.173, Cr.P.C.

On submission of final report under S.173, Cr.P.C., impugned order had been passed by the Magistrate in a casual or routine manner without issuing any sort of directive, such as; enlargement of time for receipt of DNA report, and that of further investigation of the case

Magistrate had to deal with charge-sheet by bestowing upon his judicial consideration; and to pass a speaking order, as to whether the time of submission of final report was enlarged under S.344, Cr.P.C., or not

Law did not debar the Investigating Officer to re-investigate the matter or to conduct further investigation in supersession of earlier one in appropriate cases

Magistrate could or could not agree with the Police report

If the Magistrate wanted to start the proceedings against accused, he must act under S.190, Cr.P.C., which stipulated that a Magistrate could take cognizance of an offence upon a Police report, upon a complainant or upon information received by him; and if he disagreed with the report under S.173, Cr.P.C., he could not agree with the conclusion by passing speaking order

Impugned order on a final report, being not tenable in law, was set aside, in circumstances

Petition was disposed of, with directions to the concerned Sessions Judge to transfer the matter to some other Judicial Magistrate for passing appropriate and speaking order, in circumstances.

2016 YLRN 37 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss.169, 170 & 173Penal Code (XLV of 1860), Ss. 302, 324 & 34Anti-Terrorism Act (XXVII of 1997), S.7Constitution of Pakistan, Arts.10-A & 199Constitutional petitionQatl-i-amd, attempt to commit qatl-i-amd, common intentionRe-investigation of case

Petitioner had challenged the order of AIGP/(operation) passed for and on behalf of Inspector General, Sindh Police, whereby a committee was constituted for the re-investigation of the crime

Validity

Nothing reflected from the impugned order to decipher that while ordering re-investigation, any independent mind was applied to decide, whether the re-investigation was necessary or not; whether the Investigating Officer in the earlier investigation, ignored or failed to collect material piece of evidence

Trend of directing fresh investigation after submission of challan, and taking cognizance, was neither warranted nor approved

If re-investigation was made to obtain a fresh opinion regarding guilt or innocence of accused, such re-investigation would be inconsequential, because the FIR could not be cancelled, nor accused could be discharged after taking cognizance of the case by the Trial Court and the question of guilt or innocence of accused, could only be determined by the court alone and none else

System of re-investigation, was a recent innovation which was always taken-up at the instance of influential people and favourable reports were obtained which in no way would assist court in coming to a correct conclusion

Where the trial had already commenced, changing the investigation or ordering further investigation was an exercise unsustainable in law

Re-investigation could be conducted by the Police in peculiar circumstances of the case and that could also be directed by the superior courts, but not at the instance of influential people to obtain favourable reports which could create complications for the court, while administering justice

Notwithstanding the repeal of Police Order, 2002, (for the Province of Sindh) there was no absolute bar in Cr.P.C., which debarred the investigating Officer from submitting fresh report in supper-session of his earlier one, either on his own endeavor, or the direction of the Superior Police Officer, but there were certain conditions and the limitations, which could include the visible defects in the first investigation or flaws in the final report detected subsequently, or the first investigation was unsatisfactory for many reasons, including non-availability of the evidence; or the successful induction of false evidence during the investigation, or the corrupt behaviour of the Police Officer

Neither the Investigating Officer had made any request in the case for the re-investigation, (rather he argued before the court that he had completed the entire investigation with utmost care), nor anything was available on record to show that the Superior Officers, or the Investigating Officer felt re-investigation necessary

Re-investigation, could be conducted to unearth the truth where the fairness, rectitude and impartiality demanded, but it would not mean that after submission of challan; re-investigation should be ordered de novo in a routine, or as a custom without any rational or articulated justification

Re-investigation, could not be used as a tool to save, protect or favour any influential person under the garb or outfit of re-investigation

Defect in the investigation, or the challan, if any, could be easily examined by the Trial Court

Benefit of any defective or technical flaw in the investigation, could go to accused, where all accused would be afforded ample opportunity to defend the indictment

Non-allowance of the re-investigation, in the present case would not mean the deprivation of the right of fair trial of accused as envisaged under Art.10-A of the Constitution on the contrary, if the trend of applying, or directing re-investigation in every case was promoted or permitted as a fashion, without any rational or pressing need, then there would be no end to it, rather it would amount an invitation to every person to apply for re-investigation in order to drag and delay the proceedings; and being aggrieved with the result of re-investigation, the other side feeling as a victim of re-investigation, could also move similar application for another investigation

Such marathon, would have no end; but it would create chaos and deteriorate the criminal administration of justice

Exercise of jurisdiction of passing orders for re-investigation, should not be taken so easily, callously and, or offhandedly at the whims or aspiration, but application of impartial and independent mind of the authority concerned, was indispensable

Constitutional petition, was admitted to regular hearing and allowed

Impugned order issued for re-investigation of crime, was set aside, in circumstances.