P L D 2019 Balochistan 101
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
NAQEEBULLAH and 2 others ---Petitioners
Versus
SSP, INVESTIGATION and 4 others ---Respondents
Constitutional Petitions Nos.176 and 428 of 2019, decided on 23th July, 2019.
(a) Penal Code (XLV of 1860) ---
-----Ss. 109, 337- A(iv), 406, 417, 420, 424 & 504---Constitution of Pakistan, Art. 199---
Constitutional petition ---Reinvestigation--- Supplementary statement--- First Ingformation
Report, quashing of ---Accused persons were aggrieved of reinvestigation of case on basis of
supplementary statement when challan had already been filed at Trial Court where case was
fixed for recording of evidence ---Validity ---Further investigation so carried out by
investigating agency was not maintainable in eyes of law ---Offenses mentioned in F.I.R.
were not attracted when otherwise F.I.R. was solely lodged with allegations of assaulting complainants and did not contain details of any fraud allegedly committed by accused persons with complaina nts---Such exercise carried out by investigating officer on basis of
supplementary statement was uncalled for ---Supplementary statement made by complainant
before investigating officer regarding same occurrence was neither admissible as evidence nor same c ould be equated with F.I.R. or read as its part ---Supplementary statement was
always considered fragile type of evidence and on basis of same nature of entire case cannot be changed as such kind of supplementary statements are filed after consultation and deliberations ---High Court quashed proceedings carried out by investigating officer with
regard to reinvestigation and insertions of additional offenses under S.406, 417, 420, 424, 504 & 109 P.P.C.---Petition was allowed accordingly.
Munir Ahmed Sikandar and Noor Bakhsh for Petitioners Nos. 1 and 2 and Ms. B.K.
Marwat for Petitioner No.3 (in C.P. No.176 of 2019).
Muhammad Rafiq Langove for Respoondent No.5 Amir Butt, Complainant in
C.P.No.176 of 2019 and for Petitioner (in C.P.No.428 of 2019).
Habibullah Nasar for Applicant/Intervener Hayyat Khan (in C.P.No.176 of 2019) for
Interveners.
Habibullah Gul, Additional P.G. for the State.
Date of hering:25th June, 2019.
JUDGMENT
ABDULLAH BALOCH, J. ---This common judgment disposes of C.P.No.176 filed
by the petitioners (accused) Naqeebullah and Fateh Muhammad C.M.A. No.1207 of 2019
filed by the applicant/intervener Hayat Khan, while C.P.No.428 of 2019 has been filed by the
petitioner (complainant) Amir Butt. Since both the petitions along with application under Order I, rule 10 C.P.C., pertains to the same subject matter arising out of FIR No.54 of 2018 of Police Station Zarghoon Abad Quetta, thus the same are being decided through this common judgement.
2. The facts of the C.P. No. 176 of 2019 filed by the pe titioners (accused) Naqeebullah
son of Haji Naseeb Ullah and Fateh Muhammad son of Moulvi Muhammad Anwar, are that the complainant/respondent No.5 (Amir Butt) lodged FIR No.54 of 2018 on 25th May 2018 at Police Station Zarghoon Abad Quetta under Sectiond 337 -AD, 34 P.P.C., stating therein
that sometimes earlier he had sold out his vehicle in the Motor Showroom of the petitioners and over the said vehicle there was a dispute. However, on the day of occurrence i.e. 10th May 2018 he was called by the petitione rs in the Showroom and after harsh discussion, both
the petitioners assaulted him, thus FIR was lodged. It is further averred that on completion of investigation, they were challaned before the learned Judicial Magistrate- XII Quetta ("the
trial Court"), af ter indictment and denial, the prosecution produced and examined the
complainant namely Amir Butt as PW -1. According to the petitioners, the complainant whilst
recording his statement in the trial Court has made certain dishonest improvements and contradic tions, in order to fill- up such lacunas filed an application before the trial Court for
framing of additional Charge under Sections 406, 417, 420, 424, 504, 34 P.P.C. apart from the already framed charge under Sections 337 -AD, 34 P.P.C. However, after hear ing
arguments, the trial Court rejected the said application, but the complainant instead of assailing the rejection order before the higher Forum has joined hands with the police authorities and filed a supplementary statement by narrating a story with re gard to fraud
allegedly committed with him by the petitioners and the Police Department conducted re -
investigation in the matter and offences under Sections 406, 417, 420, 424, 504 P.P.C. were inserted in the FIR, as evident from the order dated 11th Decem ber 2018 passed by PDSP.
On the basis whereof one of the petitioner namely Muhammad Aslam was arrested, while the petitioners Nos. 1 and 2 have succeeded in obtaining pre -arrest bail in the newly inserted
offences. However, subsequently the petitioner No.3 was also released on bail. Initially, the
petitioners Nos. 1 and 2 have preferred the instant petition before this Court, but subsequently vide order dated 22nd March 2019 made on application under Order I, Rule 10 C.P.C. read with Section 61- A Cr.P.C., M uhammad Aslam was arrayed in the petition as
petitioner No.3. Anyhow, in the petition, the petitioners have sought the following reliefs:
"It is, therefore, respectfully prayed that this honorable court may kindly be pleased to qash [quash] the case FIR No.54/2018 and the order of the re -investigation passed by
the respondents interest of justice.
It is further prayed that the order of addi tional offences may also be set aside and
offences added may be deleted.
Any other relief which this honorable court deem fit and appropriate in the circumstance may also be granted in the interest of justice and equity."
3. Facts of C.M.A. No.1207 of 2019 filed by the applicant/ intervener Muhammad Hayat
in the C.P. No.176 of 2019 under Order 1 Rule 10 read with Section 151 C.P.C. are that he is
lawful owner/purchiser and last possessor of vehicle bearing registration No.AHJ -353 Engine
No.ISZ0971241, Chas sis No.SCP -10-0378985 and the said vehicle was purchased by him
from the Showroom of petitioner No.2 (Fateh Khan Showroom) and after payment of sale
consideration amount, the possession of vehicle along with original file and number, but the
said vehicle w as taken into possession by the Investigating Authorities. Thus, he filed an
application before the trial Court for release of the said vehicle on Superdari. In compliance
of directions, the Investigating Agency submitted verification report, besides no one has contested the application, but despite such facts the trial Court has declined to pass any proper order on the applications of the applicant, hence the intervener has filed the instant application under Order I, Rule 10, C.P.C. before this Court for arraying him as necessary party in the proceedings.
4. The C.P. No.428 of 2019 has been filed by the petitioner (complainant) Amir Butt,
whereby he is also claiming the ownership and the last possession of the vehicle in question and further added a tracke r installed in his earlier vehicle was shifted/inserted in the vehicle
in question, which shows his last possession. Anyhow, he filed an application under Section
516- A Cr.P.C. before the trial Court for release of vehicle in his favour, but the said
appli cation was rejected, vide order dated 11th February 2019 and such order was maintained
by the learned Additional Sessions Judge -IV Quetta, thus he filed the instant petition with the
prayer to allow the application under Section 516- A, Cr.P.C. and in conse quence thereof the
vehicle in question be released in his favour.
5. Record reflects that after filing above petitions, parawise comments and counter
affidavits were filed and arguments of the learned counsel for parties were heard in detail and
the case r ecord was perused with the valuable assistance. Perusal of record reveals that
initially the complainant Amir Butt lodged the FIR No.54 of 2018 at Police Station Zarghoon
Abad Quetta, under Sections 337- AD/34 P.P.C. with the allegations of assaulting the
complainant by the accused Naqeebullah and Fateh Muhammad. Hence, after filing challan
in the trial Court, the trial was commenced and the complainant of the case was also examined, he made dishonest improvement, but all of sudden the complainant filed an application for framing of additional charge under Sections 406, 417, 420, 424, 504 and 109
P.P.C. to cover the lacunas left by him at the time of lodging FIR. However, the facts and circumstances of the case show that the said offences are not attracting, thus the learned trial Court had rightly rejected the said application. Hence, under peculiar circumstances of the case the complainant instead of assailing the rejection order of the trial Court before the Higher Forum, has approached the Investigating Agency by filing a supplementary statement and requested for insertion of above referred offences under sections 406, 417, 420, 424, 504 and 109 P.P.C. The Investigating Agency ignoring the legal position of the case that not only the challan has been submit ted to the trial Court, but also the trial Court has examined the
complainant of the case, hence at this belated stage direction for the insertion of above additional offences in the FIR were un- warranting and uncalled for. In our view the exercise
so carr ied out by the Investigating Agency is not sustainable in the eyes of law. Even
otherwise, said offences are absolutely not attracting in the case in hand, when otherwise the FIR was solely lodged with the allegations of assaulting the complainant and it d oes not
contain the details of any fraud allegedly committed by the accused persons with the
complainant of the case, thus the exercise so carried out by the Investigating Agency on the basis of supplementary statement is uncalled for. It has remained the consistent view of the
Superior Courts of the country that a supplementary statement made by a complainant before the Investigating Officer regarding the same occurrence is neither admissible as evidence,
nor the same can be equated with the FIR or read as its part. The supplementary statement is
always considered a fragile type of evidence and on the basis of same the nature of entire
case cannot be changed, as such kind of supplementary statements are filed after consultation and deliberations.
6. However , as far as the prayers of the complainant and interveners for handing over
the possession of the vehicle on Superdari are concerned, suffice to observe here that the dispute arose over the vehicle in question, which was taken into possession by the Invest igating Agency as case property. Besides, there are divergent claimants of the said
vehicle. It would be appropriate to direct the trial Court to dispose of the applications of Superdari in accordance with law.
7. For the above reasons, the C.P. No. 176 of 2019 file by the petitioners (accused) is
partly allowed and only the proceedings carried out by the Investigating Agency with regard to reinvestigation and insertions of additional offences under Sections 406, 417, 420, 424, 504 and 109, P.P.C., are here by quashed. The trial Court is directed to conclude the trial to
the extent of allegations under Sections 37 -AD, 34 P.P.C. However, orders passed by the
trial Court on the application under Section 516- A Cr.P.C. filed by the parties are set -aside
with dire ction that the applications filed by the complainant Amir Butt as well as the
application filed by the applicants/interveners before the trial Court for release of vehicle
deem to be pending and the trial Court is further rdirected to decide the fate of ap plications
in accordance with law.
The petitions are disposed of in the above terms.
MH/55/Bal. Petition allowed 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,
let us know.