IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.
Crl: Misc. Application No.D- 161 of 2015
Present:- Mr. Justice Naimatullah Phulpoto &
Mr.Abdul Maalik Gaddi, JJ.
FOR KATCHA PESHI.
09th. June, 2015.
Mr. Abdul Baqi Jan Kakar, Advocate for the Applicants/accused.
Mr. Abdul Rehman Kolachi, A.P.G for the State.
O R D E R
ABDUL MAALIK GADDI, J:- Through this criminal miscellaneous application Under section 561-A, Cr.P.C, the applicants/accused have prayed for the following reliefs:-
To direct/appoint any competent honest Police Officer to conduct further investigation/ inquiry in above case in crime No. 17 of 2015, P.S Hingorja Offence under Section 9(c) CNSA, 1997 on Holy Quran for the interest of justice with the direction to ascertain the actual and real facts in the above crime as stated as above.
To direct the respondent No.2 to appear in person and submit detail report in above case before this Hon’ble Court with criminal record of applicants, if any.
To grant any other relief which this Hon’ble Court deems fit and proper in circumstances of the case.
2. Briefly stated, the facts of the case are that on 24.1.2015 at about 1330 hours complainant SIP Muhammad Amir Pathan of police station, Hingorja, District Khairpur Mir’s lodged F.I.R against the applicants/accused, alleging therein that on the day and time of incident when he along with his subordinate staff was on patrolling duty so also started checking the vehicles. When all of a sudden, he saw a truck going towards Karachi and signalled it to stop but the driver tried to drive it away, but on chasing, it was got stopped. It is further alleged that two persons namely Gul Faraz Khan S/o Karam Dad Khan and Rehmatullah S/o Gul Badin Achakzai were found sitting in the said truck. On checking the contraband Charas weighing 5000 grams were recovered from the said truck so also empty Oil drums and due to non-availability of private mashirs, PCs- Faiz Muhammad Thebo and Qamaruddin Shar were made as mashirs. The Charas was weighed and sealed at the spot. On their personal search a cash of Rs.20000-00 was recovered from accused Gul Faraz and cash of Rs.5000-00 and a mobile set from accused Rehmat Khan was recovered. The accused persons were enquired about the documents of the truck, which they failed to produce therefore, the accused were arrested and brought at police station, where F.I.R was registered U/s 9(c) Control of Narcotics Substance Act, 1997.
3. Mr. Abdul Baqi Jan Kakar, Advocate appeared on behalf of the applicants/accused and contended that the case against the applicants is false, no such incident had taken place, no contraband material /charas was recovered from the truck. He further contended that both the applicants/accused are quite innocent, they have been victimized by the S.H.O police station, Hingorja who also damaged the truck with malafide intention and the learned trial Court while accepting the challan has not applied his judicial mind to the effect that the investigation on the basis of which the applicants were challaned is based upon the mala fides, he prayed for reinvestigation of the case so that the real facts should come on surface.
4. Mr. Abdul Rehman Kolachi, A.P.G for the State has opposed this application on the ground that the applicants/accused are involved in the case of heinous nature and they were arrested a huge quantity of contraband Charas was recovered from truck. He further contended that the case has already been challaned and there is sufficient material against the applicants/accused to connect them with the offence, but the applicants/accused are trying to prolong and drag the trial unnecessarily just to avoid conviction.
5. We have heard the learned Counsel for the parties and perused the record. From the perusal of record, it appears that the applicants/accused were arrested on 24.1.2015 a huge quantity of contraband charas was recovered from truck in presence of two mashirs namely PCs Faiz Muhammad Thebo and Qamaruddin Shar, who have no enmity with the present applicants/accused. It also appears from the record that the challan of the case has been submitted before the trial Court on 08.2.2015 but the present application has been filed on 07.4.2015 on the ground that the I.O of the case has conducted investigation malafidely and has suppressed some material pieces of evidence, which caused serious prejudice to the case of the applicants/accused.
6. In order to ascertain the true meaning of word mala fide as to what is the mala fide. The word mala fide has been interpreted in the case of The Federation of Pakistan, through Secretary Establishment Division, Government of Pakistan, Rawalpindi Vs. Saeed Ahmed Khan [P L D 1974 SC 151 at page 170] and it has been defined as under:-
“Mala fides†literally means “in bad faithâ€. Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person again whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorized by the law under which the action is taken or action taken in fraud of the law are also mala fide. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been, motivated by any one of the considerations mentioned above.
It is clear from the above definition that if the investigation is launched in bad faith out of personal motives either to hurt the accused or to benefit oneself or in colourable exercise of powers not authorized by the law under which action is taken or action taken in fraud of law then it comes within the scope of mala fides. The fraud of law or colourable exercise of powers amount to abuse of process of law.
In view of the above position, the investigation can be corrected and necessary orders can be passed if aggrieved party alleges and proves one or other of the following conditions.
Investigation initiated beyond the jurisdiction of Investigating Agencies;
investigation initiated with mala fide intention;
in bad faith out of personal motives either to hurt the person against whom the action is taken or to benefit oneself.
in colourable exercise of powers;
not authorized by the law under which the action is taken;
action taken in fraud of the law; and
abuse of the process of law.
7. During the course of arguments, learned Counsel has failed to point out any of the aforesaid conditions in the support of his case. On the contrary, it is brought on record that challan has already been submitted and trial Court has taken cognizance of offence.
8. Learned Counsel for the applicants/accused during the course of arguments has filed a statement along with photocopy of reinvestigation report dated 20.5.2015, conducted on the orders of D.I.G Sukkur which is taken on record, however the fate of this reinvestigation report dated 20.5.2015 is to be decided by the trial Court in accordance with law. No exceptional circumstances are appearing in this case to interfere in the matter and this application is misconceived and no case for reinvestigation is made-out. Resultantly, this criminal miscellaneous application is dismissed.
JUDGE
A.R.BROHI