2021 P Cr. L J 1598
[Balochistan]
Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ
RAKHSHANDA JAMAL ---Petitioner
Versus
SHAHID -UL-HASSAN and 2 others ---Respondents
Constitutional Petition No. 767 of 2020, decided on 28th August, 2020.
(a) Criminal Procedure Code (V of 1898) ---
----Ss. 22- A & 22 -B---Powers of Ex- officio Justice of Peace--- Scope ---Change of
investigation---Scope ---Petitioner assailed the dismissal of her application under S. 22-
A(6)(ii), Cr.P.C., for transfer of investigation ---Said application was made when
Investigation had already been completed, the challan whereof had been submitted before the
Trial Court and the case was pending adjudication at final stage---Provisions of Ss. 22- A &
22-B, Cr.P.C. were not meant to interf ere in the judicial functions of the courts, if after
investigation the challan was submitted and cognizance was taken by the court of competent jurisdiction ---Petitioner had not raised any new point in her application for re -investigation
of the case i.e. discovery of new facts ---Constitutional petition, being devoid of merits, was
dismissed, in circumstances.
(b) Criminal Procedure Code (V of 1898) ---
----Ss. 22 -A & 22 -B---Powers of Ex -officio Justice of Peace---Scope ---Sections 22 -A & 22 -
B, Cr.P.C. provi de a remedy to the citizens at their door steps against the highhandedness of
the police, if they failed to perform their duties regarding registration of the criminal case, proper investigation or excess is committed by them about their functions and duti es.
(c) Criminal Procedure Code (V of 1898) ---
----S. 173--- Report of police officer ---Re-investigation ---Scope ---No bar exists for re -
investigation of a criminal case even after submission of a final report under S. 173, Cr.P.C.; however, re -investigation cannot be allowed when a criminal case has finally been disposed
of by the Trial Court.
Riaz Hussain and others v. The State 1986 SCMR 1934; Raja Khurshid Ahmad v.
Muhammad Bilal and others 2014 SCMR 474 and Bahadur Khan v. Muhammad Azam and 8 others 2006 SCMR 373 rel.
(d) Constitution of Pakistan ---
----Art. 199--- Constitutional jurisdiction ---Discretionary and equitable relief ---Scope ---
Jurisdiction under Art. 199 of the Constitution is not only discretionary but also equitable ---
Such exercise of discretionary and equitable relief is governed by the maxim; "he who seeks
equity must come to the Court with clean hands".
Atiq Ahmed Khan for Petitioner.
Date of hearing: 25th August, 2020.
ORDER
ROZI KHAN BARRECH, J .---The petitioner through the instant pe tition has sought
the following relief:
"It is, therefore, respectfully prayed that, in consideration of above stated facts and circumstances of the case, this Hon'ble court may be pleased to set aside the impugned order dated 12.08.2020 passed by Additional Sessions Judge -II/MCTC -I/
respondent No. 2 and to accept the application under section 22--A(6)(ii), Cr.P.C. filed by petitioner/applicant, by transferring the investigation to Police Station Crimes Branch to the extent of abduction/missing of t wo daughters of the petitioner/applicant
namely Mah Noor and Maryam at the hands of respondent No.1/accused and then to submit the supplementary challan before the trial court, in the interest of justice and equity."
2. After completion of the usual invest igation, the challan was submitted before the
learned Additional Sessions Judge -II/MCTC -I Quetta (trial court). The charge was framed
and read over to the accused/respondent to which he did not plead guilty and claimed trial. Thereafter the prosecution pro duced its evidence. After recording the statements of
prosecution witnesses, the accused/respondent was examined under section 342, Cr.P.C., wherein he denied the allegation levelled against him and professed innocence. When the case was fixed for the stat ement of defense witnesses, learned counsel for the
complainant/petitioner filed an application under section 22- A(6)(ii), Cr.P.C. for
reinvestigation of the case by the Crimes Branch Quetta.
3. After hearing the learned counsel for the parties, the trial court dismissed the said
application filed by the petitioner vide order dated 12th August, 2020. Hence, the instant petition.
4. In the instant case the investigation has already been completed and the challan
whereof was submitted before the trial court a nd the case was pending adjudication at the
final stage, when the learned counsel for the petitioner filed the application under section 22-A(6)(ii), Cr.P.C. before the trial court for reinvestigation of the case. It is worthwhile to mention here that prov isions of sections 22 -A and B, Cr.P.C. have been introduced through
legislation to provide a remedy to the citizens at their door steps against the highhandedness of the police, if they fail to perform their duties regarding registration of the criminal ca se,
proper investigation or excess is committed by them about their functions and duties. However, these provisions have not been meant to interfere in the judicial functions of the
courts if after investigation the challan is submitted and cognizance is t aken by the court of
competent jurisdiction. The learned counsel for the petitioner has failed to show that after the
submission of challan how an application under sections 22- A and B, Cr.P.C. is competent
before the Justice of Peace.
5. The only legal is sue involved in the present case is whether the police authorities
were competent to entrust a criminal case for reinvestigation after submission of complete challan in the court or otherwise. In case Riaz Hussain and others v. The State (1986 SCMR 1934) i t was held as under:
"The system of re -investigation in criminal cases is a recent innovation which is
always taken up at the instance of influential people and favourable reports obtained. This in no way assists the courts in coming to a correct conclusi on it rather creates
more complications to the Court administering justice. We, therefore, disapprove this system altogether."
In this regard, the august Supreme Court of Pakistan in a case titled Raja Khurshid
Ahmad v. Muhammad Bilal and others (2014 SCM R 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 submis sion 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 SCMR 373),
while discussing the issue thoroughl y, 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 cas e 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 t he 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."
6. From the above -referred dicta of the august Supreme Court, no bar certainly exists 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 dispose d of by a trial Court.
In the case in hand, the challan has already been submitted before the trial court and
the case is at the final stage. Statement of the prosecution witnesses have been recorded. It is
a case of a single accused and there is no other absconding accused. The petitioner has not
mentioned the name of the other accused from whom the investigation is required to the extent of recovery of the alleged abductee. The only thing, therefore, to be seen is whether in
this case there was a need to reinvestigate? The answer will be negative in view of the fact
that challan has been submitted a long time back and the evidence has already been recorded
by the trial court. Even otherwise the petitioner did not raise any new point in .her application fi led before the trial court for reinvestigation of the case i.e. discovery of new
facts.
8. It is important to mention here that the petitioner has already filed C.P. No. 73 of
2020 before this court with the following prayer:
"It is, therefore, in view of the above submissions, respectfully prayed that the
respondents may kindly be called upon to explain their position regarding not tracing out the mived/abducted two daughters of the petitioner namely Maryam and Mah Noor at the hands of respondent No.1 and after tracing out the custody of the
daughters may be handed over to the petitioner in the interest of justice, equity and fair play."
After hearing the learned counsel for the parties this court, while dismissing the
aforesaid petitioner vide order date d 14th February, 2020 observed as under:
"3. Heard learned counsel for the petitioner at length and perused the record. It depicts that the petitioner got registered an FIR No.73 of 2019 on 24th May, 2019 at Police Station Gawalmandi, Quetta against respondent No. 1. The challan of the case
has b een submitted. The trial court (Session Judge (Ad hoc/MCTC) Quetta) has taken
cognizance of the case, framed charge and recorded statements of four witnesses and the trial is yet to be concluded. The petitioner has agitated the same matter before this court on constitutional jurisdiction. The record reveals that the petitioner has obtained
Khula from respondent No.1 by approaching the court of law. Admittedly there is personal grudge and dislike of petitioner towards the respondent No. 1. The petitioner has invoked the constitutional jurisdiction of this court despite the fact that criminal
proceedings are pending against the respondent No.1. the petitioner could not invoke the jurisdiction on the case matter simultaneously. Reliance is placed on the case of
Mehmood Medical Store through proprietors v. Service Hospital Lahore through Medical Superintendent 2012 YLR 174 (Lahore)."
On the other hand, while filing the application before the trial court by the petitioner
for reinvestigation of the case it was mentioned in para No.3 as under:
"3. That after submission of challan, the applicant time and again approached the respondent for .proper investigation specially in respect of two missing daughters of the applicant, but all in vain, hence the applicant had filed C.P. No.73/2020 before the Hon'ble High Court of Balochistan Quetta, which came up for haring and was disposed off with the observations to approach the trial court for redressal of grievance, hence this application."
9. After perusal of the aforesaid order passed by this court in C.P. No. 73 of 2020 which
was filed by the petitioner which revealed that no observation whatsoever was made by this
court "to approach the trial court for redressal of grievance". Meaning thereby that the petitioner gave misstatement before the trial court. The jurisdiction under Article 199 of the Constitution is not only discretionary but also equitable. The exercise of such discretionary
and equitable relief is governed by the maxim: "he who s eeks equity must come to the Court
with clean hands". The petitioner has not come to the court with clean hands and did not
deserve relief sought in a writ petition.
For what has been discussed above the petition being devoid of merits is dismissed in
limine.
SA/224/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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