Saifullah etc vs Govt

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH.

(Judicial Department)

W.P No. 290-B/2014

JUDGMENT

Date of hearing 11.03.2015 .

Appellant-Petitioner: By Pir Liaqat Ali Shah, Advocate.

Respondent: By Muhammad Rasheed Khan and Saif ur Rehman Khattak, Addl: AG

MUHAMMAD YOUNIS THAHEEM, J.--- We intended to dispose of instant Writ petition No.290-B/ 2014, Criminal Revision No.14-B /2014 as well as Quashment petition No.21-B/2014 through our this single judgment as common question of law and facts are involved in all the three petitions.

2.The briefly stated facts leading to filing of instant petitions are that on 21.10.2012 a case FIR No.566 was registered against Gul Shahzad ASI

(respondent No.10) for the murder of Zarwali Khan on the report of Inamullah Khan, one of the petitioners. On the same day Safeerullah also lodged a report for the same occurrence which was reduced into writing in shape of FIR No.576 by Ghousullah ASI (respondent No.12) wherein the petitioners were made as accused.

3.On completion of investigation in case FIR No.566 a challan U/S 173 Cr.P.C was submitted to the trial court against respondent No.10. Formal charge was framed and the case was fixed for prosecution evidence.

In the meanwhile one Wasiqullah son of Gul Shahzad (respondent No.10) submitted an application to D.P.O, Bannu for re-investigation through Crime branch investigation unit Capital Police Officer Peshawar. The said application was marked to the Regional Police Officer Bannu for conducting preliminary inquiry and report. On presentation of report, Additional Inspector General Police Investigation directed respondent No.5 to constitute a board and respondents No.8 & 9 were

directed to investigate the case and submit report on completion of re-investigation. Gul Shahzad (respondent No.10) was declared as innocent while the petitioners were burdened with the commission of offence of “qatl- e-amd” of Zarwali and another.

4.The petitioners being feeling aggrieved through the instant Writ petition No.290-B/2014 have challenged the very construction and composition of Board U/S 18 (6) of Police Order, 2002 and the order of re-investigation in the case FIR No.256 dated 26.10.2012 being void ab initio, illegal and having no legal effect.

5.Challan U/S 173 Cr.P.C against petitioners Saifullah etc and were transposed as an accused in case FIR No.566. The learned trial court on receipt of second challan vide order dated 8.3.2014 declined to proceed further in challan filed against petitioner Saifullah and decided to proceed against respondent No.10 namely Shahzad Khan as the first challan was filed against him.

So respondent No.10 namely Shahzad Khan being

aggrieved of the said order dated 8.3.2014, challenged it through the connected Criminal Revision petition No.14- B/2014. Barkat Ali S/O Zarwali Khan deceased filed connected Quahsment petition No.21-B/2014 for quashment of challan dated 19.2.2014 and proceedings were carried out in re-investigation.

6.As the instant Writ petition No.290-B/2014, connected Criminal revision petition No.14-B/2014 and Quashment petition No.21-B/2014 have been arisen out of the same matter, therefore we intend to dispose of all the petitions through our this consolidated single judgment.

7.The learned counsel for the petitioner in Writ petition No.290-B contended that the composition of Board for reinvestigation of the case was void ab initio and have no legal effects and the inquiry conducted by the DIG Bannu Range is against the law without lawful authority, illegal and irregular as the reinvestigation was ordered by an authority not competent in that regard; that

the reinvestigation carried out by respondent police officer upon application of son of the respondent No.10 is illegal as on account of FIR No.566 and over investigation upon it, the challan has already been submitted against respondent No.10 and same is still subjudice before a learned competent court below.

8.On the other hand, learned counsel for respondent No.10 contended that the reinvestigation in FIR No.566 was just, fair and was in accordance with law under the police order 2002, while the impugned judgment dated 8/3/2014 of the learned trial court is against law; further stated that no bar exists on reinvestigation even if any challan is placed before the trial court.

9.To properly resolve the objection raised by the learned counsel for the petitioner on the formation of Board for the purpose of transfer of investigation or reinvestigation in a criminal case we deem it proper to

reproduce the relevant portion of the Police Order 2002, Article 18 (6)which is as under:-

(6)“Investigation shall not be changed except after due deliberations and

recommendations by a board headed by an officer not below the rank of Senior

Superintendent of Police and two

Superintendents of Police, one being

incharge of investigation of the concerned District”

10.The available record reveals that Regional Police officer Bannu after receipt of application on behalf of respondent No.10 conducted a preliminary inquiry through a DSP Inayat Ali Shah in respect of genuineness or otherwise of the application on behalf of respondent No.10.The said DSP thoroughly inquired the matter and the Worthy Regional Police Officer recommended it inview of inquiry conducted by the said DSP.

11.The application moved on behalf of

respondent No.10 for transfer of the investigation to the investigation Unit Capital Police Officer (herein after called as CPO) for the end of justice. The Additional Inspector General of police in contemplation of Article 18(6), Police Order 2002 constituted a Board comprising Deputy Inspector General Police Investigation Head, CPO (Capital Police Officer) as a Chairman and one Zakir Hussain Piprani, senior Superintendent of police, Sanaullah Khan Head Investigation Lakki Marwat as member.

12.The Board constituted as aforesaid after due deliberations, unanimously recommended the change of investigation in case FIR No.566 from local police of Police station Naurang District Lakki Marwat to the Crime investigation Unit C.P.O Peshawar. The said recommendation of the Board was duly approved by the Additional Inspector General of Police Khyber

Pukhtunkhwa Peshawar and the investigation was transferred to the Crime investigation unit Peshawar.

13.The contention of the learned counsel for the petitioners that the Board was not properly constituted and if constituted, then it was by unauthorized person, is misconceived. Paragraph 13 of Police Order 2002 empowers the Government to appoint or post such number of Additional Inspectors General of Police to assist the Provincial Police Officer (PPO) or Capital City Police Officer (CCPO), as the case may be, in the efficient performance of his duties as it may deem fit, in consultation with the PPO or CCPO as the case may be, while paragraph 18 order ibid provides that the head of investigation in a general police area other than the Capital City District or the City District shall be of the rank of Additional Inspector General of Police.

14.In the case in hand, the Board was validly constituted by Additional Inspector General of Police

Khyber Pukhtunkhwa being posted as Head of Investigation.

15.The other contention of learned counsel for the petitioner that the police could not exercise the power of transfer of investigation or re-investigation when the case is subjudice before the competent court of law is also is misconceived. In this respect, reliance is placed on case titled “Bahadur Khan..VS...Muhammad Azam and 2 others” (2006 SCMR 373), wherein it is held that:- “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”.

16.The same view was reiterated in the case titled “Mumtaz Khan..VS... A/G Lahore” (2011 P.Cr.L.J 1209) (b) and “Ch: Muuhammad Anwar VS Senior Superintendent of police, Investigation Cell, Lahore and 2 others” (2002 P.Cr.L.J 2014 (c), wherein it is held that :-

“A report under section 173 Cr.P.C even if filed earlier, can be filed again on discovery of new facts and

collection of further evidence. The only thing to be seen is whether what is to be appended as an additional material, has nexus with what has been previously deposited in the Court.

The Court has then to take cognizance which means that it has to apply its mind with respect to new facts

unfolded before it while connecting the present with the past and while

appreciating whether what has been

newly submitted, was necessary for the

ends of justice and was not based on

malafides”

17.As far as the Criminal revision petition No.14- B/2014 filed by respondent No.10 against the impugned order dated 8/3/2014 is concerned, the second report U/S 173 Cr.P.C which was directly forwarded through the Public prosecutor to the learned trial court (ASJ-I, Lakki Marwat) is against the provisions contained in clause “a” of sub-section (1) of section 173 Cr.P.C. As per the contents of sub section (1) of Section 173 Cr.P.C, the Officer Incharge of police station is bound to forward every report to a Magistrate empowered to take cognizance of an offence on such report.

18.Section 193 of Cr.P.C bars the Sessions court to take direct cognizance of any offence as a court of original jurisdiction unless the case is sent to it U/S 190 (2) of Cr.P.C.

19.In the case in hand the condition precedent for bar of exercise of jurisdiction i.e, sending the case to the Sessions court as required by Section 193 (1) Cr.P.C was not fulfilled as such Sessions court was not competent to take cognizance of the offence on the report U/S 173 Cr.P.C directly submitted through District Public prosecutor, however, it is not an illegality which would vitiate trial against the petitioners. Such an error or omission is curable under section 537 and 537 (a) of Cr.P.C which reads as under:-

Section 537 “Finding or sentence when

reversible by reason of error or omission in charge of other proceedings. Subject to the provisions hereinbefore contained, no

finding, sentence order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXCII or on appeal or revision on account.

Section 537 (a) of any error, omission or irregularity in the complaint, report by police-

officer under section 173, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code or (b)........

20.So in such view of the matter the District Public Prosecutor concerned is directed to ensure that the challan of the case shall be forwarded to the Magistrate empowered to take cognizance of the offence who after doing the needful send the same to the court of Sessions Judge for trial according to the law.

21.So this Criminal revision petition No.14- B/2014 is disposed of in the above terms.

22.As far as the Quashment petition No.21- B/2014 filed by Barkat Ali Khan son of Zarwali Khan U/S 561-A Cr.P.C regarding re-investigation and second challan is concerned, the learned counsel for the petitioner, contended that the reinvestigation conducted by the concerned Police officer, was illegal and

deliberately undue concession was extended to the respondent No.10.

24.This petition filed U/S 561-A Cr.P.C against the proceedings carried out by the police, could not be entertained by this court in exercise of its inherent jurisdiction. It is by now settled principle of law as enunciated by the Hon’ble apex court that orders passed by any authority not in judicial capacity could not be challenged by invoking the inherent jurisdiction of this court U/S 561- A Cr.P.C, when an alternate remedy under the law is available to the aggrieved person. The second provision attached to Sub paragraph 6 of paragraph 18 of Police Order, 2002 provide adequate remedy to the petitioner to approach the competent authority as envisaged there-under for redressal of their grievance which reads as under:-

“Provided further that the second change of investigation was only be allowed with the approval of Provincial Police officer or the

Capital City Police officer as the case may be”.

25.As through this judgment for the reasons mentioned herein above Writ petition No.290-B/2014, has been dismissed and the grounds taken in the quashment petition are the same as taken in the said Writ petition, therefore, this quashment petition No.21-B/2014 being devoid of force and merit is also dismissed accordingly

Announced. JUDGE

JUDGE