2010 M L D 730
[Quetta]
Before Jamal Khan Mandokhail and Ghulam Mustafa Me ngal, JJ
JAMAL SHAH KHILJI ---Petitioner
Versus
THE STATE ---Respondent
Criminal Quashment Application No.2 of 2009, decided on 24th December, 2009.
(a) Criminal Procedure Code (V of 1898) ---
----S.161 ---Appreciation of evidence ---Statement of a witness on oath before the Court has
much more value than the statement of the witness recorded under S.161, Cr.P.C. by the
police.
(b) Criminal Procedure Code (V of 1898) ---
----S.561 -A---Inherent powers of High Court ---Scope ---Section 561 -A, Cr. P.C. is meant for
providing substantial justice in a case, where no provision is available in Criminal
Procedure Code, 1898, for redressal of grievance.
(c) Criminal Procedure Code (V of 1898) ---
----S.561 -A---Control of Narcotic Substances Act (XXV of 1997), S.9(c) ---Possession of
narcotic ---Quashing of orders ---Application of accus ed for direction to Investigating
Officer to record the statements of two witnesses was rejected by Judicial Magistrate ---
Criminal Revision filed by the accused against th e said order was also dismissed by the
Special Court ---Validity ---Trial Court had the power to summon material witnesses who
had not been examined during investigation by the Investigating Officer, if they were
necessary for just decision of the Case ---High Court was competent to quash the
administrative order, under S. 561 -A, Cr. P. C, if found arbitrary, but since trial in the case
had commenced, High Court in exercise of its inherent power could not divert the normal
course of trial initiated before a Co urt of law, nor hamper the process of investigation ---
Sessions Court in exercise of its revisional powers might call for and examine the record of
the proceedings of the inferior Court ---Revision petition before the Sessions Court against
the administrativ e orders of the Judicial Magistrate was not competent ---Petition was
dismissed in circumstances.
2007 YLR 2161; PLD 2007 SC 31; 2006 PCr.LJ 518 and 1999 PCr.LJ 258 ref.
Kamran Mullakhail for Petitioner.
Malik Zahoor Ahmed Shahwani P.G. for the Stat e.
Date of hearing: 17th November, 2009.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J .---This quashment petition has been filed against
the order, dated 12 -6-2009 and 3 -7-2009 passed by Judicial Magistrate and Special Judge,
Control of Narcotic Substances Ac t, 1997, respectively.
2. Briefly stated facts of the case are that the petitioner was arrested vide F.I.R. No.22 of
2009 under section 9(c) of Control of Narcotic Substances Act, 1997. During
investigation, the petitioner has filed an application before the Judicial Magistrate -VI,
Quetta, alleging therein; that Investigating Officer has refused to record statement of two
witnesses, hence, he has requested the Judicial Magistrate to direct Investigating Officer
to record their statements under section 161 , Cr.P.C. The Judicial Magistrate, while
dismissing the application, has held as under: --
"The Court of Judicial Magistrate cannot interfere in the investigation and issue an
appropriate direction because it is not a change of investigation. I see no
substantive law, which might have empowered the Court of Judicial Magistrate to
issue such direction to police to investigate, particularly, with reference to Chapter
No.XIV of Cr.P.C. that governs investigation."
Against said order, the petitioner has file d Criminal Revision Petition before Special
Judge, C.N.S., who, while dismissing the same, has observed that, though the opinion of
Judicial Magistrate was not correct, but since the accused has been shifted to judicial
custody and challan of the case has also been submitted before the Court for trial,
therefore, at this stage, no affidavit can be included, the petitioner was, however, allowed
to produce evidence before the Court, if any, thus, feeling aggrieved, the petitioner has
preferred instant petitio n.
3. Learned counsel for the petitioner has submitted that though the witnesses could be
called under section 540, Cr.P.C. and can also be produced in defence by the petitioner,
but the purpose for recording statement of witnesses by Investigating Offic er will
strengthen the plea of petitioner. Furthermore, it is duty of Investigating Officer to record
statements of witnesses under section 161, Cr.P.C., who are supposed to be acquainted
with the facts and circumstances of the case. According to him, sinc e the above named
persons were important witnesses, who were fully aware about the facts and
circumstances, therefore, recording of their statements was necessary for just and proper
investigation, but the Investigating Officer has refused to record their statements. The
Judicial Magistrate had power to order re -investigation, but he too has declined the
request. He has further submitted that though the revisional Court was not agreed with
findings of Judicial Magistrate, but the revision was dismissed for the reasons that since
the trial has been commenced, therefore, no order for re -investigation can be made. The
order of revisional Court to this extent is not legal and proper, as such, he requested to
issue directions to the Investigating Officer to recor d statements of said witnesses.
4. Learned counsel for State has vehemently opposed the contention of petitioner and has
stated that since the trial has been commenced, therefore, the petitioner has remedy to
approach the Court under section 540, Cr.P.C. According to him, re -investigation would
be an abuse of the process of law, thus, the order impugned passed by Sessions Judge is
just and proper.
5. We have heard learned parties' counsel and have perused the record, as well. Main
contention of the coun sel for petitioner is that the Investigating Officer was bound to
record the statement of a person, who is aware about facts and circumstances of the case,
and, if statement of such witness is not recorded by Investigating Officer either
intentionally or d ue to non -availability of the witnesses, or for the other reason at the
relevant time, then, re -investigation can either be ordered by police or by Judicial
Magistrate.
In view of section 161, Cr.P.C., it is the duty of Investigating Officer to collect a ll the
material and evidence, which is necessary for just and fair investigation of the case. In a
situation, where the police officer submits his report to Magistrate or any Court under
section 173, Cr.P.C., Magistrate or Court is not expected to blindly follow the
investigation undertaken by the police, as the ipse dixit of police is never binding on
Magistrate or Court of law. If the Court feels necessary that some important or credible
material is necessary for proper investigation, and, such material o r evidence has not been
collected, the case can be re -investigated, even after submission of challan and there is no
ouster of jurisdiction or any legal bar in this behalf. However, while passing an order for
re-investigation, it must not be without any ju stification and the same should not be used
so frequently.
In the second phase, when the trial is commenced and the Court comes to conclusion that
the Investigating Officer has not recorded statements of important witnesses, then, instead
of ordering for re-investigation, the Court has powers under section 540, Cr.P.C. to call
any person as witness, whose statement is necessary for just and proper decision. In the
present case, trial has already been commenced, wherein, statements of witnesses have
been r ecorded, therefore, at this stage, re -investigation will complicate the matter. In this
behalf, reliance has been placed on a case reported in:
2007 YLR 2161
PLD 2007 SC 31
which is reproduced as under:
"At this stage, the learned Additional Advoc ate-General informs us that some
Additional I. -G. Police had passed some order on 15 -7-2006 and had changed the
investigation. We are surprised at this order passed by the Additional I. -G. Police
(Investigation Branch), Punjab for more than one reason. Fir stly, because the
report under section 173, Cr.P.C. had already reached the trial Court as noticed
above where the further investigation in the matter thereafter was an exercise
unsustainable in law. Secondly, because the matter related only a document whi ch
had been examined in depth, by the learned Election Tribunal comprising an
Hon'ble Judge of the High Court and which document had then been re -examined
by this Court in an appeal filed by Mazhar respondent and what further
investigation was required in the matter is beyond comprehension."
Another aspect of the present case is that the petitioner is seeking permission for
recording statements of witnesses through Investigating Officer, because if their
statements are recorded during investigation, by In vestigating Officer, it will gain
weight and will be helpful for the petitioner/accused. We are not in agreement with
learned counsel on the point, because statement of witness on oath, before the Court has
much more value than the statement of witness rec orded under section 161, Cr.P.C. It is
a settled principle law that section 561 -A is meant for providing substantial justice in a
case, where no provision is available in Cr.P.C. for redressal of grievance, thus, in view
of the fact that for recording evid ence of certain witnesses, whose statements have not
been recorded during investigation, are necessary for just and proper decision of the
case, the trial Court has got all the powers to summon material witnesses or examine a
person, who fulfils requiremen ts of being helpful for just decision of the case.
5. Keeping in view the above discussion, administrative order, if found arbitrary, can be
quashed by the High Court in exercise of its inherent jurisdiction under section 561 -A,
Cr.P.C., but since trial in the case has been commenced, therefore, this Court in exercise
of its inherent power can not divert the normal course of trial initiated before the Court
of law, nor hamper the process of investigation, as otherwise, the same would defeat the
spirit of law. In this behalf, reliance has been placed on judgments reported in:
2006 PCr.LJ 518
1999 PCr.LJ 258.
Without prejudice to the above, the petitioner had filed an application before the
Judicial Magistrate, who was acting in an administrative capa city and has rejected the
same, as such, the petitioner has filed Criminal Revision against said order. According
to section 435, Cr.P.C., the Court of Session may call for, and examine the record of
any proceedings before any inferior Court situated withi n local limits of its jurisdiction.
Since the Judicial Magistrate, at the time of passing said order, was not performing his
duties as inferior Courts or Subordinate Court to Court of Sessions Judge, therefore, in
our view, revision petition against an a dministrative order before Sessions Judge was
not competent.
Thus, in view of what has been stated hereinabove, the petition is dismissed.
N.H.Q. /9/Q Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.