2016 P Cr. L J 76
[Balochistan]
Before Mrs. Syeda Tahira Safdar, ACJ and Muhammad Kamran Khan Mulakhail, J
MUHAMMAD ANWAR ---Petitioner
Versus
SHO and 2 others ---Respondents
C.P. No. 731 of 2015, decided on 13th August, 2015.
Criminal Procedure Code (V of 1898) ---
----Ss. 22 -A, 22 -B, 173 & 540 ---Constitution of Pakistan, Art. 199 ---Constitutional petition ---
Reinvestigation ---Ex-officio Justice of Peace, jurisdiction of ---FIR was registered and
investigation was conducted on the compla int of petitioner ---Petitioner was not satisfied with the
investigation, preferred an application before Ex -officio Justice of Peace for direction to
reinvestigate the matter ---Ex-officio Justice of Peace dismissed the application ---Validity ---Door
of inve stigation could never close on submission of police report before court and it remained
open for discovery of true facts even during course of trial ---Petitioner approached wrong forum,
who instead of applying to Trial Court for the purpose, approached Ex -officio Justice of Peace ---
Petitioner should have approached the Trial Court to get examined crime weapon with recovered
empties and for production of witnesses who were not associated with the investigation ---
Sufficient powers were available to Trial Cour t under the purview of S. 540, Cr.P.C. ---Petitioner
having failed to avail remedy provided by law, High Court declined to interfere in the matter as
no illegality or irregularity was pointed out ---Petition was dismissed in circumstances.
Amanullah Batez ai for Petitioner.
Date of hearing: 5th August, 2015.
ORDER
MRS. SYEDA TAHIRA SAFDAR, ACJ. ---The petitioner Muhammad Anwar assailed
order dated 13th July, 2015 of Additional Sessions Judge -II, Quetta, contended to be passed in
excess of authority a nd jurisdiction without observing the law, thus liable to be set aside.
2. It was contended that the investigation was not properly conducted by the concerned SHO,
while the evidence was not properly collected. Further the confessional statement of the accused
was not recorded deliberately with mala fides, despite the fact that the accused confessed his
guilt before the police and the witnesses.
3. Learned counsel was heard at length. He mostly repeated the stance taken in the petition. He
emphasized t hat reinvestigation of the case he ordered and fresh Police Report be submitted on
completion of the investigation.
4. Brief facts as emerged from the papers available in the case file that an incident of even date
was reported on 4th June, 2015 by one M uhammad Anwar (present petitioner). It was reported
that the complainant received information about murder of his daughter namely Samina.
Consequent thereto FIR No. 80 of 2015 Police Station New Sariab, Quetta was registered on the
same date for murder of the lady. The police proceedings held on the report noted thereon reveal
that the dead body of the lady was recovered from the house of accused Syed Gul, her husband,
while the crime weapon (pistol) was recovered lying beside the dead body. It was further noted
that husband of the lady Syed Gul produced license of the pistol, which was in his name. The
articles were taken into custody and documented. The Postmortem Report is also available in the
case file, describing the cause of death as injury to brain b y firearm, homicidal in nature. The
Police Report along with the statements and the seizure memo prepared at the site are also
available in the case file. The initial Police Report was with the fact that the articles seized were
sent to Forensic Science La boratory (FSL) for examination and its report still awaited.
5. The petitioner aggrieved of the investigation carried out by the respondent No.1 SHO Police
Station New Sariab, Quetta, moved an application under section 22 -A(6)(iii) Criminal Procedure
Code (Cr.P.C.) with the request that as the investigation was not conducted properly due to the
mala fides on part of respondent No.1 (SHO) of the concerned police station. In addition the
confessional statement of the accused was not recorded deliberately, a nd the evidence available
at the site was not preserved. This application was though submitted before the court of
Additional Sessions Judge -II, Quetta, who in its capacity as Ex -Officio Justice of the Peace
entertained the application and vide order dated 13th July, 2015 declined the request to transfer
the investigation from the concerned Thana to the Crimes Branch, Quetta. It was held that as the
investigation had already been completed, and challan had also been submitted before the court,
while the acc used was in judicial custody for trial, therefore, transfer of the investigation to the
Crimes Branch might be a futile exercise. This order made the petitioner aggrieved, who is now
before this court for a favorable order.
6. The request for transfer of investigation could he entertained on an application by the Ex -
Officio Justice of the Peace in exercise of its powers available under section 22 -A(6)(ii), Cr.P.C.
The Ex -Officio Justice of the Peace is empowered to transfer the investigation from one poli ce
station to another and also to issue appropriate direction, where the police authorities are found
negligent, failed to exercise or act in excess in relation to its function and duties. This power
remains available to Ex -Officio Justice of the Peace unt il the matter is not before the court of
criminal jurisdiction for trial of a case. As soon as the Police Report is submitted as required
under section 173, Cr.P.C. and cognizance of the offence has been taken by the court, no power
remains with the Ex -Officio Justice of the Peace for the purpose: rather it is the trial court who
has to deal with all the situations arising during pendency of trial.
7. In case in hand the grievance was against the SHO concerned. who allegedly not conducting
the investigati on properly, and failed to place the real facts before the court deliberately. For the
reason transfer of investigation was sought. Though the door of investigation never closed on
submission of the Police Report before the court, but remained open for dis covery of true facts
even during course of trial. The petitioner in case in hand approached the wrong forum; instead
of applying to the trial court for the purpose he approached the Ex -Officio Justice of the Peace.
He might have approached the trial court to get examined the crime weapon with the recovered
empties, and for production of witnesses who were not associated with the investigation.
Sufficient powers are available to a trial court under the purview of section 540, Cr.P.C. The
petitioner had faile d to avail the remedy provided by the law.
8. In addition the fact to be noted that the contents of the Police Report described that the articles
seized were already sent to Forensic Science Laboratory for the purpose of chemical analysis and
the report was awaited at the time of submission of the challan. The petitioner might have waited
for the report, if not received the trial court be approached for the purpose. If any additional
witness or evidence intended to be produced, the law is clear enough and a trial court adequately
empowered to make an order to the effect either of its own or on application, as mandated by
section 540, Cr.P.C.
No illegality or irregularity pointed out in the questioned order thus required no interference.
The petition be ing devoid of merit is hereby dismissed in limine.
MH/97/Bal. 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,
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