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Criminal Miscellaneous No---2775/8 of 1986, decided on 7th July, 1986.

-----S. 497--Penal Code (XLV of 1860) Ss. 148, 307, 364 & 452/149 Bail grant of Challan submitted by S.H.O. Court taking cognisance and Framing charge Re investigation by D.S.P. resulting in second challan under Ss. 148,336 & 342/149 P.P.C ----Court taking Cognizance of case before submission of second report---D.S.P. finding accused wrongly challaned under Arms Ordinance and recommending withdrawal of those cases Assistant Superintendent of Police previously seized of investigation also of the sama view--Finally state wishing to proceed against accused under bail able offence---All material available on record had to be considered and reckoned with of bail stage---Bail allowed in circumstances.

Muhammad Akbar v, state 1972 SCMR 335 Muhammad Abdul etc. v. S.H.O. 1985 P Cr. L J 325 Muhammad Aslam State 1986 PCr.L.J 1025 Ghulam Muhammad etc. v. State 1986 PC.r L J 1402 Fida Hussain etc. v. State 1985 PCr.L.J. 336 Muhammad Akbar v: State 1985 PC.r L.J. 338, Zafar Sarwar v, State 1969 SCMR 591 Muhammad Khan v, sanaullah etc. PLD 1965 (W.P) Lah 734 ref.

------S. 173---Subsequent report---effect of First report submitted by S.H.O.---Court aking cognisance of case--- Second challan submitted by D.S.P. after re-investigation---Court held, would not become functus officie after entertaining first report under S. 173, Cr.P.C and could act on report submitted after subsequent investigation.

Fida Hussain etc v, state 1985 P.C.r. L. J 3361 Muhammad Akbar v, State 1985 P.Cr. L J 338) Zafar Sarwar v. State 1969 SCMR 591 Muhammad Khan v: Sanaullah etc. PLD 1971 SC 324 and Atta Muhammad v: inspector General of Police etc. P L D 1965 (W.P.) Lah. 734 ref.

Asghar Ali for petitioner.

Ijaz Hussain Bataivi for the Complainant.

Muhammad Saleem Shad for the state.

Date of hearing: 7^th July, 1986.

Case F.IR. No. 399/95 was registered at Police station Cantt. Sargodha under section 365/307/148/149 P.P.C. on the statement of Aftab Ahmad, against the petitioners, on 11-12-1985.

The S.H.O. of the concerned police station submitted challan to Court under section 307/364/452/149 and 148 P.P.C. on 13-5-1986, Challans under sections 13 of the West Pakistan Arms Ordinance 1984 were also submitted against Muhammad Ashraf son of Muhammad Anwar Tariq Mahmood Muhammad Sarwar and Muhammad Iqbal on fire-arms paving Allegedly been recovered from them.

On An application on behalf of the accused, the D.I.G. Police Sargodha transferred the investigation to D.S.P. Sakkar.

As a result of the investigation condencted by the D.S.P. Shakkar Another report under section 173, Cr.P.C, drawn by S.H.O P.S. Cantt Sargodha on 31-5-1986 has been submitted to Court for proceeding against accused petitioners under section 336/342/148/149 P.P.C The D.S.P. also came to the conclusion that actually on fire-arms were recovered from Muhammad Anwar, Tariq Mahmood, Muhammad Sarwar And Muhammad Iqbal He, therefore, recommended that the challans submitted against them under section 14 of the West Pakistan Arms Ordinance, 1965 to Court should be with drawn This fact has been mentioned in the report submitted under section 173 Cr.P.C. on 31-5-1986.

4, The D.S.P. who appeared with record, clarified that after investigation he had recommended for submission of challan Against the accused under section 452/336/342/506/148/149 P.P.C:, but the District Attorney, on examination of the file opined that challan should be submitted against the accused under section 336/342/148/149 P:PC, and it was no account of his opinion that challan has been submitted under section 339/342/148/149 P.P.C. he also verified the fact that he has recommended for withdrawal of cases cases under the Arms Ordinance Against the above named four petitioner. It was also sated by him that A.S.P. Mankera had also conducted the investigation before it was entrusted to him and he had also come to the view later formed by him:

5. It has been argued on behalf of the petitioners that they have been involved in this ease falsely, that the case was of registered by the complainant in conviction with the then S.H.O P.S. Cantt Sargodha who was inimically disposed towards the petitioners, In support of the latter contentention learned counsel for the Petitioners submitted that in spite of the fact that the S.H.O, had stated before the Magistrate on 6-5-1986 that the investigation had been transferred to D.S.Shakkar by the D.I.G and had prayed for a week's judicial remand tip of the accused, he submitted challan on the neat date i,e, 13-5-1986 notwithstanding the fact that the investigation was being conducted by the D.S.P. Bhakkar and the police file was not with him (S. H .O.) . Learned counsel argued that as a result of the investigation conducted by the D. S. P., the petitioners are now charged of only having committed bailable offences. Learned counsel argued that the second report submitted under section 173, Cr.P.C. has to be given full weight notwithstanding the fact, that earlier, the S.H.O. had submitted a report under section 173, Cr.P.C. challaning the accused under section 307/364/452/141/149, P.P.C. In support of his contentions learned counsel placed reliance on Muhammad Akbar v. State 1972 SCMR 335. Muhammad Abdullah etc. v. S.H.O. 1985 P Cr. L J 325, Muhammad Aslam v. State 1986 P Cr. L J 1025 and Ghulam Muhammad etc. v. State 1986 P Cr. L J 1402.

6. Learned counsel for the complainant while opposing the grant of bail contended that the trial Court had taken cognizance of the case on the challan, submitted to Court by the S.H.O. and had recorded some evidence as well, after framing the charges, and as such, the second report submitted by the police as a result of subsequent investigation cannot estop the trial Court from proceeding with the case, according to the charges already framed. Learned counsel argued that the police cannot be allowed to hamper the judicial process in the name of subsequent investigations. Learned counsel contended that subsequent report under section 173, Cr. P. C., in fact, cannot be given the status of report under section 173, Cr.P.C. and at the best it can be treated as opinion of another police officer. Learned counsel argued that the practice of transfer of investigations from one officer to another is not conducive to the administration of justice. Lastly, learned counsel contended that even as a result of the investigation conducted by the D.S.P. none of the petitioners was found innocent during investigation and it is not the case of the police even at present that no occurrence had taken place. Fida Hussain etc. v. State 1985 P Cr. L J 336, Muhammad Akbar v. State 1985 P Cr. L J 338, Zafar Sarwar v. State 1969 S C M R 59 and Muhammad Khan v. Sanaullah etc. P L D 1971 SC 324 have been cited in support of the above contentions.

7. Learned counsel for the State submitted, that since the State case, at present, is that the accused are liable to be tried under section 336/342/148/149, P.P.C., which are bailable, he does not oppose the grant of bail.

8. Before embarking upon to consider grant or otherwise of bail to the petitioners, I would like to dispose of the mainstay of argument of the learned counsel for the complainant that no second report under section 173, Cr.P.C. can be filed and that even if as a result of the subsequent investigation, another view is formed and the report is submitted following the view taken by the Investigating Officer, it will, at best be only an opinion by another Police Officer and not a report under section 173, Cr.P.C. and that when cognizance of the case had already been taken on the first report of the police, the second report should not be allowed to hamper the judicial proceedings already in hand.

9. Except the observations made in 1985 P Cr. L J 338 that, "...... the law does not contemplate two reports under section 173, Cr.P.C. If the police decides to hold further investigation even after filing report/challan under section 173, Cr.P.C. then also those reports which are in fact opinions of the Investigating Officers, cannot be considered reports under section 173. Those are only the opinions of the Investigating Officers and as such, cannot be supplied to the accused before the commencement of the trial. A report under section 173, Cr.P.C. is not per se legal evidence of the facts stated therein. It is at the most an opinion of the Investigating Officer not binding on the Courts."

In none of the other judgments cited by the learned counsel for the complainant any observation his been made that the police cannot submit a second report, as a result of subsequent investigation, although in the judgment reported as 1985 P Cr. L J 336, the practice of transfer of investigations by superior officers, i.e. D.I.-G. or I.-G. Police, were held not to be conducive to the administration of justice. But it has not been laid therein, that the police cannot submit the second report.

10. There can be no two opinions about the phrase used by the learned counsel for the complainant that the police should not be allowed to hamper the judicial process, but the fact has not to be granted that the law does not bar more than one investigations of any case. This question was considered more than once by the superior Courts and almost on each occasion, the Courts came to the view, that the police can hold more than one investigations in the same case. The usefulness of the subsequent investigations has generally not been denied. In this connection reference can be made to Atta Muhammad v. Inspector-General of Police etc. P L D 1965 (W.P.) Lah. 734 and Muhammad Akbar v. State 1972 S C M R 335, referred to by the learned counsel for the petitioners.

11. Since subsequent investigations have been considered lawful, the reports submitted as a result thereof have also to be given weight. The subsequent investigations sometimes have ended in volta face, i.e. the accused already being proceeded against on the reports under section 173, Cr.P.C. were found innocent and the complainants were found guilty. The Courts have been taking cognizance on the latter reports against the persons named therein.

It was to be accepted as a principle of law, that no report can be submitted as a result of subsequent investigation or that no weight should be attached to the report submitted as a result of the subsequent investigation, then what will happen to the result of the investigation or the report drawn thereafter in the case of the accused being proceeded against having been found absolutely innocent. It would be anomalous to say that even if the accused are found to be innocent on the basis of some sound evidence they will have to be proceeded against because of an earlier report having been submitted against them. That would mean that subsequent investigations would only be a fun. This of course, should not be taken to mean that after the submission of second report under section 173, Cr.P.C. in favour of an accued declaring him innocent, the Court becomes functus officio and per force has to discharge or acquit him. The Court can continue with proceedings but due weight shall have to be given to the subsequent report, after recording the evidence.

The point that I want to clarify is, that the Court does not become functus officio after entertaining the first report under section 173, Cr.P.C. and it can act on the report submitted after subsequent investigation declaring the accused innocent.

12. The argument that there can be only one report under section 173 Cr.P.C. has not impressed me. It is one thing that the police officer after subsequent investigation ma express his opinion in the case diaries only, but if he chooses to take the Court into confidence by submitting a report to Court. He will have to do that under section 173 Cr.P.C. only because there is no other provision in the Code of Criminal Procedure that he can avail of for drafting a report for submission to the Court. There is no such provision in the police rules as well.

13. As for the petition in hand is concerned, I feel the facts and circumstances of the cases cited by the learned counsel for the complainant are different from the facts and circumstances of the case in hand.

Petitioners Hassan Arshad and Majid Rashid who are real brothers are first cousins of Aftab Ahmad complainant. The plea taken by the petitioners that they have been involved in this case because of differences that arose as a result of business partnership with the complainant, has been stated as motive for the occurrence in the F.I.R.

According to petitioners Hassan Arshad and Majid Rashid the complainant owed a heavy amount eared from joint business.

14. In consequence of the investigation conduct by the D.S.P. challan now has been submitted against the petitioners under section 336/342/148/149 P.P.C. No doubt the trial Court has taken cognisance of the case before the submission of the second report. On the report submitted by the S.H.O. and had framed charges against the petitioners under section 307/364/452/148/149 P.P.C. but for the purposes of bail all material available at this stage has to be considered and reckoned with. The D.S.P. not only came to the conclusion that the petitions were not liable to be proceeded against under section 307/364/452/148/149 P.P.C. but he also came to the conclusion that four of the petitioners were wrongly challaned under section 13 of the West Pakistan Arms Ordinance 1965 and have recommended for withdrawal of those cases. Alongwith the recommendations for withdrawal for those cases he also recommend section against the concerned police officer.

The A.S.P. who was seized of investigation before it was handed over to the D.S.P. according to the D.S.P. had also come to the same view.

15. Since the investigations have shown different results about the commission of offences by the petitioners and the State now wants to proceed against them under section 336/342/148/149 P.P.C. which are liable I feel inclined to exercise discretion in their favour. They shall be released on bail on furnishing bail bonds in the sum of Rs, 25,000 each, with two sureties each in the like amount, to the satisfaction of Assistant Commissioner, Sargodha.

S.A./737/L Bail allowed.

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