THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Revision Application No.S-37 of 2021

Applicant:            Nawab Khan Bhayo through Mr. Athar Abbas Solangi, Advocate.

Respondents:      Mr. Ali Madad Arijo, Advocate for Respondents No. 2.

                            The State through Mr. Aitbar Ali Bullo, Deputy Prosecutor General, Sindh.

Date of hearing:  21.11.2022

Date of Order:     21.11.2022

O R D E R

AMJAD ALI SAHITO, J.- Through this Criminal Revision Application, applicant Nawab Khan son of Muhammad Hassan Bhayo has impugned the order dated 27.04.2021, passed by learned Sessions Judge, Shikarpur in Criminal Miscellaneous Application in Sessions Case No.281/2020 (Re-The State v/s. Abdul Hafeez alias Muhammad Hafeez and others), whereby the Criminal Miscellaneous Application in Sessions Case No.281/2020 was allowed.

2.                The facts in nutshell are that the F.I.Rs. No.12/2020 was registered at Police Station Karan Sharif, District Shikarpur against four accused persons namely Abdul Hafeez son of Deen Muhammad, Amjad son of Abdul Hafeez and Ayaz alias Malang son of Haji Ali Murad all by caste Bhayo and two unknown persons duly armed with Kalashnikov (K.K.), T.T.Pistol and G-3 Rifle and accused Amjad made straight fire from his K.K, which hit Kamran and accused Ayaz alias Malang fired from his T.T.Pistol upon Aziz Lal Muhammad, both after receiving firearm injuries fell down and they were shifted to the hospital, where Kamran and Aziz Lal Muhammad were succumbed to injures and died in the hospital during treatment.  After funeral ceremony F.I.R. was registered and investigation was conducted and names of both the respondents were placed in column shown as absconders.  After submitting the report under section 173 Cr.P.C. before the Magistrate, who had taken cognizance of the offence and sent up the case for trial before the learned Sessions Judge, wherein an application was filed for conducting enquiry. After hearing the parties, the learned Sessions Judge, Shikarpur allowed the Criminal Miscellaneous Application in Sessions Case No.281/2020 (Re-The State v/s. Abdul Hafeez alias Muhammad Hafeez and others) and the complainant being aggrieved by the said order filed instant Criminal Revision Application and impugned the order dated 27.04.2021.

3.      Per learned counsel for the applicant, the investigation was completed and both the applicants/accused were shown as absconders and after getting pre-arrest bail, they have joined the investigation; that the police officers after thorough investigation submitted report under section 173 Cr.P.C and both the accused have been shown as absconders; that the learned trial Court has no jurisdiction to entertain this application as during pendency of the case the accused filed simple application in the case and same was allowed by the learned Sessions Judge, Shikarpur.  He further added that after taking cognizance of the case learned Sessions Judge has to proceeded further but no power vested to him to order for further investigation of the case bearing Crime No.12/2020, which is already completed and challan has been submitted.  In support of his contentions, he has relied upon the case of Muhammad Nasir Cheema v/s. Mazhar Javaid and others (PLD 2007 S.C 31).

4.      On the other hand, learned counsel for respondent No.2 as well as learned Deputy Prosecutor General supported the impugned order and submit that the application was filed by the accused persons and in which the cogent reasons have been shown and after going through the record the learned Sessions Judge has passed the order and directed the AIGP, Sukkur Range to entrust the investigation of the instant case viz. Crime No.12/2020 under section 302 P.P.C and Crime No.13/2020 under section 25 of the Sindh Arms Act, 2013, registered at Police Station Karan Sharif, District Shikarpur to Inspector Ghulam Ali Jumani with direction to conduct fair and impartial investigation in the matter, as such learned Sessions Judge is very much empowered to direct the police officers for investigation. In support of his contentions, learned counsel for respondent No.2 has relied upon the case law reported as 2014 SCMR 474 (Raja Khurshid Ahmed v/s. Muhammad Bilal and others) and 2006 SCMR 373 (Bahadur Khan v/s. Muhammad Azam and 2 others).

5.      Heard and perused.  Admittedly after conducting thorough investigation, the report under section 173 Cr.P.C. (challan) submitted before the learned Ist Civil Judge and Judicial Magistrate, Shikarpur, who vide order dated 20.05.2020 accepted the report and sent up the case to the Court of Sessions Judge, Shikarpur.  After receiving the challan, the learned Sessions Judge has taken cognizance of the offence and thereafter the accused persons/respondents appeared before the learned Trial Court and were attending the Court; meanwhile, a simple application was filed for conducting enquiry and same was allowed vide order dated 27.04.2021.  It is appropriate to reproduce the relevant para of the order as under:

“In view of above facts, circumstances and case law referred above, I am of the humble view that there is merit in the application, hence the same is hereby allowed.  Resultantly, AIGP, Sukkur Range is directed to entrust the investigation of instant cases viz. Crime No.12/2020 under section 302 P.P.C and Crime No.13/2020 under section 25 of the Sindh Arms Act, 2013, P.S. Karan Sharif to Inspector Ghulam Ali Jumani with directions to conduct fair and impartial investigation in the matter and submit such compliance report within 14 days of receipt of this order.”

6.      From the above, it appears that the application in which no section was mentioned by the accused persons which could suggest that the learned Sessions Judge is empowered to entertain the application for investigation when he had already taken cognizance of the offence.  Further learned Sessions Judge while passing the impugned order has not mentioned under what provisions of law he is empowered to direct AIGP, Sukkur Range for investigation of the above mentioned crimes. 

7.      Section 22(A)(6) Cr.P.C: Powers of Justice of Peace. Sub-section (6) says that “An ex-officio Justice of Peace may issue appropriate directions to the police authorities concerned on a complaint regarding:

          (i).      non-registration of criminal case;

(ii).     transfer of investigation from one police officer to another; and

(iii).    neglect, failure or excess committed by a police authority in relation to its functions and duties.” 

From the above, it appears that if any application is filed before the ex-officio Justice of Peace at the most, the ex-officio Justice of Peace can pass order for registration of the criminal case, transfer of investigation from one police officer to another police officer and direct the police officers to act in accordance with law, but no power is vested to even ex-Officio Justice of Peace to direct the Investigating Officer or high police officer for investigation.

8.      Whereas Section 173 sub-section (2) Cr.P.C empowers the Magistrate to pass the order for further investigation.  Even the learned Magistrate has no power to pass an order for reinvestigation or fresh investigation.

9.      Section 193 sub-section (1) Cr.P.C. provides that “Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction (unless the case has been sent to it under section 190 sub-section(2) Cr.P.C).” In the instant case learned Magistrate after taking cognizance of the offence sent the case to the Court of Sessions Judge and the learned Sessions Judge has taken cognizance of the offence. No provision exists in Criminal Procedure Code which empowers the learned Sessions Judge to direct AIGP to entrust the investigation to any police officer for investigation.  Further after submission of report under section 173 (2) Cr.P.C. police has right to further investigate, but not to fresh investigate or reinvestigate, under the special circumstances reinvestigation can be permitted after submission of report under section 173 Cr.P.C. and during trial before the trial Court, but findings of such investigation are just an opinion of the police and the Court has to decide the case after recording the evidence of the parties.  Even in this case, if any re-investigation is conducted by the police and police officer submitted any further report, at the most it can be treated as opinion of the police, but the Court has to decide the case on the basis of available evidence.  In the Case of Muhammad Nasir Cheema (supra) the Hon’ble Supreme Court of Pakistan has held that the investigation report (challan) had already been reached the trial Court, where trial had already commenced, changing of investigation or ordering further investigation in the matter thereafter was an exercise unsustainable in law.  It is appropriate to reproduce the relevant para of the order, which reads as under:

“9.     At this stage, learned Additional Advocate-General informs us that some Addl. I-G. Police had passed some order on 15-07-2006 and had changed the investigation.  We are surprised at this order passed by the Addl. I-G. Police (investigation Branch), ‘Punjab for more than one reasons.  Firstly, because the report under section 173 Cr.P.C. had already reached the trial Court as noticed above where the trial had already commenced and changing the investigation or ordering further investigation in the matter thereafter was an exercise unsustainable in law. Secondly, because the matter related only to a document which 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.”

10.    For the foregoing reasons instant Criminal Revision Application was allowed vide order dated 18.11.2022 with direction to the learned Trial Court to expedite the matter and conclude the same preferably within a period of 45 days. The case law relied upon by the learned counsel for respondent No.1 are distinguishable to the facts and circumstances of instant case.

                   These are the reasons of my short order dated 18.11.2022.

                                                        J U D G E

Manzoor