2016 P Cr. L J 865
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Muhammad Ejaz Swati, JJ
AKHTAR MUHAMMAD ---Petitioner
Versus
ASSISTANT COMMISSIONER KILLA ABDULLAH and 3 others ---Respondents
C.P. No. 963 of 2014, decided on 14th January, 2016.
Criminal Procedure Code (V of 1898) ---
----S. 22 -A---Balochistan Levies Force Act (IV of 2010), Ss. 10 & 9 ---Offences Against Property
(Enforcement of Hudood) Ordinance (VI of 1979), S. 17(3) ---Ex-Officio Justice of Peace ---
Order to change invest igation ---Scope ---Section 10(5) of Balochistan Levies Force Act, 2010 did
not bar exercise of powers available to Ex -Officio Justice of Peace for entertaining application
under S. 22 -A, Cr.P.C. ---Procedure provided in Code of Criminal Procedure, 1898 was t o be
adopted by the Investigating Officer as described by S. 9 of Balochistan Levies Force Act, 2010 -
--Serious allegations of mala fide and exercise of influence and pressure had been leveled against
the Investigating Officer ---Nothing was on record as to why the proceedings were held with a
delay of one month by the Investigating Officer ---Discrepancies on the part of Investigating
Officer and allegation leveled against him could be believed ---No bar existed on investigation
and re -investigation of a case already before a Trial Court ---Ex-Officio Justice of Peace could
order for re -investigation with change of Investigating Officer in exercise of powers under S. 22 -
A, Cr.P.C. ---Investigation of the case was transferred from Investigating Officer to the Crim es
Branch with the direction to re -investigate the matter and submit police report before the Trial
Court within the stipulated period of fourteen days ---Trial Court was directed not to further
proceed with the matter till receipt of challan ---Constitution al petition was disposed of in
circumstances.
Muhammad Yousaf v. State 2000 SCMR 453 and Atta Muhammad v. Inspector General
Police (West Pakistan) Lahore and others PLD 1965 (W.P.) Lahore 734 rel.
Mohi -ud-Din Achakzai for Petitioner
Amir Hamza Men gal Deputy Prosecutor -General for Respondents.
Date of hearing: 3rd November, 2015.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---The order dated 28th November 2014 of
Additional Sessions Judge, Chaman was questioned by the petitioner Akhtar Muhammad, while
contending that the law was misappreciated, and the jurisdiction though available, but not
assumed. It was ignored that the case of the prosecution was destroyed due to the incompetency
of the Investigating Officer. Further, the investigation was not properly carried out, neither the
stolen truck was recovered, nor the nominated accused persons were arrested despite pointation.
In addition the matter was reported in time, but the FIR was lodged with a delay of one month
without any reason. This was du e to the fact that there was exercise of undue influence, and
pressure on part of the nominated persons. Further, the identification parade held for
identification of the arrested persons was deliberately held contrary to the required procedure by
the Tehs ildar Killa Abdullah, the Investigating Officer, with an intent to benefit the nominated
persons. The acts on part of the Investigating Officer described his mala fides. It was prayed that
the investigation of the case pursuant to FIR No. 36 of 2014, Levie s Thana Killa Abdullah be
transferred from the Tehsildar Killa Abdullah to the crimes Branch for re -investigation of the
matter, and arrest of the nominated persons.
2. The learned counsel for the petitioner repeated the stance taken in the petition, onl y
added that the Additional Sessions Judge, Killa Abdullah at Chaman while exercising the powers
as Ex -officio justice of the Peace misunderstood the applicability of the Criminal Procedure
Code (Cr.P.C.) in the cases registered by the Levies for the offen ces committed in the area
identified as B -area, and the law i.e. the Balochistan Levies Act, 2010 (Act 2010) was
misapplied. It was further stated that the charge had already been framed for the offence under
Section 17(3) The Offences Against Property (En forcement of Hadood) Ordinance, 1979, and
the complainant recorded his statement.
3. The learned Deputy Prosecutor General was of the view that there was no illegality on
the part of the Ex -officio Justice of the Peace, and no grounds were available for transfer of the
investigation from the Levies to the Crimes Branch.
4. The order dated 28th November 2014 of the Additional Sessions Judge, Killa Abdullah at
Chaman in his capacity as Ex -officio Justice of the Peace, the request for transfer of the
inves tigation was declined. Section 10 of the Balochistan Levies Act, 2010 was pressed and
thereby the decision was arrived that:
"Without adopting the above -mentioned procedure the investigation cannot be transferred
from one Investigation Officer to another investigation officer. Rather to invoke the
jurisdiction of this court the applicant has to first concern ( -) with the Deputy
Commissioner Killa Abdullah and Director General Levies Balochistan. The applicant
remained failed to adopt the proper procedure and in the light of above mentioned
provision the application also lose its legal grounds. Moreover, it is settled principle
when, there is a special law prevails then the general law is not applicable. In order to
transfer the investigation from one offic er to another officer, special law in the form of
Balochistan Levies Act, 2010 prevails, without considering the same the provision of
section 22 -A, Cr.P.C. cannot be exercised straightaway."
5. In the case in hand the relief of transfer of investigation was declined at the strength of
Section 10 of the Act, 2010. Though a special procedure provided in the referred Section for
change of the investigation from one Investigating Officer to another as contained in subsection
(5) of the section 10, Act, 2010. This provision in fact place no bar on exercise of the powers
available to an Ex -Officio Justice of the Peace, while entertaining an application under section
22 A, Cr.P.C. This provision i.e. section 10 of the Act, 2010 itself spelt applicability of the Code
of Criminal Procedure on the investigation held by the Levies Force in the described area. The
procedure provided in the Code of Criminal Procedure is to be adopted by the Investigating
Officers as described by section 9 of the Act 2010.
6. In the c ase in hand serious allegations of mala fides, and exercise of influence and
pressure were leveled against the Tehsildar Killa Abdullah, and the nominated persons
respectively. The facts collected from the papers in the case file that the matter was report ed
without any loss of time on 15th September 2014 with specific nomination, followed by a
subsequent report submitted on 19th September 2014 with the same contents. The copy of FIR
annexed with the petition disclosed that the report was entered into presc ribed Performa with the
stamp and signatures of the Tehsildar Killa Abdullah. The date noted on the FIR and under the
proceedings, described to be held by the Levies on receipt of report, was 19th September 2014,
but in column No. 1 of the pro forma the da te noted as 15th October 2014. The contents of the
FIR failed to address the variation in the dates. No extracts of the identification parade held
annexed with the petition, only a supplementary statement of the complainant dated 1st
November 2014 availabl e in the case file, probably prepared on identification of two of the
accused Amanullah and Abdul Samad by the petitioner. The statements of the witnesses were
recorded and seizure memos were prepared on 15th October 2014. Nothing available on the
record t o justify the proceedings held with a delay of nearly one month.
7. Thus to sought out the truth the initial Police Report, and the subsequent one were called
from the trial court. In compliance the Police Reports were received along with copies of the
seizure memos. prepared, the charge, and the statements of the witnesses, three in numbers, till
date appeared before the trial court. The perusal of the initial Police Report (challan) reveals that
the reason for lodging of the FIR on 15th October 2014, de spite the fact that the report was with
the date 19th September 2014, was not addressed, nor any explanation was given to the effect.
Further, the challan also not described conducting of the identification parade on arrest of the
accused Amanullah and Abd ul Samad, nor described preparation of the required Form. In
addition the perusal of the Police Report, reveals that six persons were named and shown to be
on bail. Charge was also against the persons, six in numbers, namely Ali Muhammad, Sadam,
Amanullah, Abdul Samad, Musa Jan and Ghulam Jan. The FIR contained name of a person Khan
son of Raz Muhammad specifically nominated, but the Police Reports were silent to the extent.
Neither he (Khan) was shown to be in custody or on bail, even his name not appeared in column
No. 2 of the Police Report (Challan). These facts placed a mark on the investigation carried out
by the Tehsildar Killa Abdullah. An adverse inference could be drawn on basis thereof.
8. The narrated facts spelt the discrepancies on part of th e Investigating Officer, and the
allegations leveled against him could be believed. The petitioner is before this court for re -
investigation of the matter, despite the facts Police Reports had already been submitted and trial
was on its way as on framing o f the charge, three witnesses appeared and recorded their
statements. Thus the only question dealt with in the instant petition whether an order could be
made to direct re -investigation of a case already before a trial court. Though there is no bar on
investigation and re -investigation of a case, if a need arises. The Honorable Supreme Court in
judgment in case Muhammad Yousaf v. State, reported in SCMR 2000 page 453 held that:
"However, we may add that since there is no legal bar on the re -investigation of the case,
even after the submission of final report under section 173, Cr.P.C., the police may carry
out fresh investigation and submit its report to the Court."
The principle determined in the case Atta Muhammad v. Inspector General Police (West
Pakistan) Lahore and others, reported in PLD 1965 (WP) Lahore 734 was referred and relied by
their Lordships, wherein it was held:
"... There is no statutory prohibition in the Code of Criminal Procedure for the police not
to embark on a fresh investigation of the case after the conclusion of the first and the
submission of the final report whatever the defects in the first investigation or the flaws
in the final report given in the wake of it, that might, subsequently be detected. The first
investigation may be utterly unsatisfactory for many reasons. It may be due to non -
availability of the evidence, or the successful induction of false evidence during the
investigation or the reason may be, as alleged in this case, namely; the corrupt behaviour
of the polic e officers, concerned. To say that the same police officers or their superiors on
receipt of further information or the availability of better evidence cannot revive the
investigation already done, leading to a contrary or a varied result, would virtually
amount to putting a seal on human errors and frailties once committed, whether be design
or by inadvertence with no opportunity to make amends, although it be possible to do so.
The police, as any agency of the State, should be as much interested as any ot her agency
concerned in the administration of justice, to find out the truth in respect of a crime and
lay the whole facts bare for determination by the competent Tribunals as honestly and
correctly as possible. The statutory functions of the police and th e Courts in this respect
are complementary to each other and do not overlap. The fact that the previous
investigation had yielded certain results should not act as a hurdle or a deterrent for the
police in reaching the truth if additional facts and additio nal circumstances brought to
light help in its discovery. The Magistrate himself does not have the legal powers to
direct a further investigation by the police after he himself has taken cognizance of the
case and has himself launched an inquiry or trial; but there is no bar for the police to
pursue its own investigations and submit their results to the Court to find the guilt or
innocence of the accused persons before it becomes too late."
9. In view of the stated facts and the principles as laid down by the Honorable Supreme
Court there could be an order for re -investigation with change of Investigating Officer by an
order of the Ex -officio Justice of the Peace in exercise of powers under section 22 -A, Cr.P.C. It
is also due to the fact that an Ex -offici o Justice of the Peace is not equated to a judicial officer
who has taken the cognizance of an offence, thus debarred to order for re -investigation.
10. In view of the above discussion the investigation of the case pursuant to FIR No. 36 of
2014, Levies Station Killa Abdullah is transferred from the Tehsildar Killa Abdullah to the
Crimes Branch with the direction to re -investigate the matter, and submit Police Report before
the trial court within the stipulated period of fourteen days. Further, till submi ssion of the Police
Report (challan) before the trial court, further proceeding would not be advisable; therefore, the
trial court is directed not to proceed with the matter till receipt of the Police Report (Challan). If
the Report is not submitted within the stipulated period the matter may be informed without any
loss of time to this court for an appropriate order, while the trial court proceed with the matter on
the Police Report already before it.
The petition stands disposed of in the above terms.
ZC/22/Bal. Order accordingly.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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