Tahir Javed Vs State

JUDGMENT SHEET

PESHAWAR HIGH COURT, ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

Writ Petition No.1129-A of 2016

JUDGMENT

Date of hearing...............03.07.2017......................

Petitioner(s) ...(Tahir Javed) by Mr.Fazal-i-Haq Abbasi, Advocate.........

Respondent(s)...(The State etc)by M/S Raja Muhammad Zubair, AAG and Atif Ali Jadoon, Advocate ..................

SYED MUHAMMAD ATTIQUE SHAH, J.- The petitioner through instant petition has approached this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayer:-

“It is, therefore, humbly prayed that on acceptance of this petition, by invoking the Constitutional powers of this august Court, conferred under Article 199 of the Constitution this august Court may very graciously be pleased to declare the order No.4346-47/R/Inv/Hqrs dated 09.12.2015 of Respondent No.4 void ab initio, ultra vires and of no legal effect and be quashed alongwith any proceedings or result ensues thereon.”

2.The brief facts leading to filing of the instant petition are that the present accused/ petitioner alongwith others was charged in case F.I.R. No.276 dated 08.05.2015 under sections 302/324/109 PPC read with section 7 ATA and sections 3/4 of Explosives Substances Act in police Station Sarai Saleh, Haripur. The local police after investigation in the case submitted complete challan on 08.07.2015 before the Anti-Terrorism Court, Hazara Division, Abbottabad. Later on, the learned Judge, Anti-Terrorism Court vide order dated 10.07.2015 transferred the case to Sessions Judge, Haripur, which order was impugned by the present petitioner before this Court in WP No.2701-P/2015, which was finally allowed by this Court vide judgment dated 03.09.2016 by setting aside the order dated 10.07.2015 of the learned Judge, Anti- Terrorism Court, Hazara Division, Abbottabad, and the case was remitted back to it for disposal on merits. During pendency of Writ Petition No.2701- P/2015, the accused-respondents No.6 to 8 through their mothers submitted an application to respondent No.2 i.e. Inspector General of Police, Khyber Pakhtunkhwa for the re-investigation of the present

case. Consequent upon the approval of the competent authority, respondent No.4 entrusted the case for re-investigation to respondent No.5 vide order dated 09.12.2015. The present petitioner has challenged the validity of the said order before this Court in the present writ petition.

3.Learned counsel for the petitioner

argued with vehemence that the impugned order of respondent No.4 vide which the case has been entrusted for the re-investigation to respondent No.5 is illegal, based on malice and malafide and is the result of colourful exercise of authority and thus the same is untenable in the eye of law. Further argued that there is no provision in the law which allows re- investigation of a case, particularly, when challan has already put in Court, and the Court concerned has taken cognizance of the same. He prayed for setting aside the impugned order.

4.Conversely, learned counsel for

respondents No.6 to 8 has seriously controverted the arguments of the learned counsel for the petitioner and has categorically stated that in the light of judgments of superior Courts, respondent No.4 was competent to order for re-investigation of the case.

Learned AAG representing the State, has also forcefully supported the impugned order of respondent No.4 and argued that the respondent No.4 was competent to order for re-investigation of the case, as there is no bar in the law, which prohibits the re-investigation of the case.

5.Arguments of the learned counsel for the parties heard and the available record perused.

6.The only legal issue involved in the present case is whether the police authorities were competent to entrust a criminal case for re- investigation after submission of complete challan in the Court or otherwise.

7.The matter of re-investigation of criminal cases has remained under discussion at several occasions in number of cases before the superior Courts of the country and finally the Hon’ble Apex Court has determined that the police authorities have got the powers and authority to issue directions for the re-investigation of a case if facts of the case calls for re-investigation. In this regard, this Court would refer to a recent judgment of august Supreme Court of Pakistan in case titled Raja Khurshid Ahmad Vs.

Muhammad Bilal and others (2014 SCMR 474), wherein, it has been observed by their Lordships that:

“It would be seen that as per settled law, there is no bar to the reinvestigation of a criminal case and the police authorities are at liberty to file a supplementary challan even after submission of the final report under section 173, Cr.P.C. However, this cannot be done after the case has been disposed of by the learned trial Court.”

Likewise, in Bahadur Khan v. Muhammad Azam and 8 others (2006 SCMR373), while discussing the issue thoroughly, the august Apex Court had held that:

“It is well-settled proposition of the law as also held consistently in the reported judgments of this Court and those cited by the learned Advocate- on-Record, in view of the provision of section 173, Cr.P.C. that no legal bar existed for reinvestigation of a criminal case even after submission of final report under section 173, Cr.P.C. and the police could carry out the fresh investigation and submit its report to the Court but this would not mean that in a case in which earlier, after completion of investigation challan was submitted for trial of the offence for any offence on which an accused/accused persons have been tried and the case finally decided upto the level of the High Court and by this Court, as the case may be, to entertain the subsequent challan submitted as the result of reinvestigation/further investigation of the case by the police on the happening of a subsequent incident and to proceed with the trial of the case in the normal course oblivious of the facts of the case decided earlier by such Court, and; the facts and circumstances including incriminating material necessitated submission of the subsequent challan in the case already having been decided and attained finality.”

7.From the above referred dicta of the august Supreme Court, it is certain that no bar is existed for reinvestigation of a criminal case even after submission of a final report under section 173 Cr.P.C. However, reinvestigation cannot be allowed when a criminal case has been finally disposed of by a trial Court.

8.In this view of the matter, this Court while relying on the above referred dicta of the superior Courts, reached to the inescapable conclusion that respondent No.4 was competent enough to pass the impugned order for re-investigation of the case and the order passed by him is based on the exercise of lawful authority, as there is no legal bar under the law for the reinvestigation of a criminal case. Thus, the present writ petition being bereft of merits is dismissed in the present circumstances.

Dt.03.07.2017. JUDGE

JUDGE

M.Saleem/*