PLJ
2011 Lahore 545
[Rawalpindi Bench Rawalpindi]
[Rawalpindi Bench Rawalpindi]
Present: Hassan Raza Pasha, J.
MEER DAD--Petitioner
versus
INSPECTOR GENERAL POLICE--Respondent
W.P. No. 1406 of 2010, heard on 23.4.2010.
Police Order, 2002 (22 of 2002)--
----Art. 18(6)--Constitution of Pakistan,
1973--Art. 199--Constitutional petition--Recommended for
re-investigation--Change of second investigation was approved--Challenge the
legality and validity of order--Recommendation of P.S.B were approved by I.G.
Police and investigation was entrusted (RIB)--Question of--Whether Police
authorities were empowered to initiate re-investigation of the same crime for
which they had already filed report u/S. 173, Cr.P.C.--Validity--Under Art.
18(6) of Police Order, the law bestows a power on duly constituted board to
recommend for re-investigation and if the Board recommended for
re-investigation of the case then even after submission of the challan the
re-investigation could not be debarred--Petition was
dismissed. [P. 550] A
Duty of Investigating Officer--
----Administer justice--To collect all the relevant evidence
pertaining to allegation levelled regarding the crime in issue so as to dig out
the truth enabling and facilitating the Court to administer justice between the
parties--Held: An investigating officer is not to render any opinion regarding
guilt or innocence of an accused person and statutory provisions contained in
Cr.P.C. Police Order and Police Rules, 1934 he is only to collect all the
relevant evidence and to submit his report before the magistrate so that
magistrate can form their own independent opinion regarding sufficiency or
otherwise of the evidence and material order to decide whether to take
cognizance of offence or not to summon any person to face a
trial. [P.
550] B
PLD 2002 Lah. 470, rel.
Constitution of Pakistan, 1973--
----Art. 199--Police Order, 2002,
Art. 18(6)--Constitutional petition--Change of second
investigation--Submission of subsequent challan--Not barred--Discretion of
Court to admit additional evidence--Alternative remedy--Validity--Holding of
successive investigations were deprecated by the Court with intent to avoid
undue lingering on the case--How a subsequent challan which almost was
completed for submission in the Court of competent jurisdiction can be withheld
or brushed aside--Even submission of subsequent challan was not debarred under
the provisions of Cr.P.C.--It was entirely discretion of the Court to admit
additional evidence if the cognizable of the case submitted to it by the police
has already been taken--Complainant can avail an alternative remedy of filing a
private complaint--Petition was dismissed. [P. 551] C
Raja Rizwan Abbasi, Advocate for Petitioner.
Syed Zafar Ali Shah & Syed Ali Shah Bukhari,
Advocates for Respondents.
Mr. Abdul Wahid Babar, AAG for State.
Date of hearing: 23.4.2010.
Judgment
Through this constitutional petition, the petitioner has
challenged the legality and validity of order dated 14.1.2010 passed by
Inspector-General of Police Punjab, Lahore-Respondent No. 1 whereby
"second change of investigation" was approved and investigation of
the case was entrusted to Mr. Liaqat Ali Deputy Superintendent of Police,
Investigation Branch Punjab.
2. Brief facts of the case, giving rise to the
filing of this petition are that the petitioner got registered F.I.R. No. 140
dated 9.4.2009 under Sections 302, 324, 427, 148, 149 PPC read with Section 7
Anti Terrorism Act at Police Station Murree District Rawalpindi with the
allegation that on 9.4.2009 at 5.30 p.m. petitioner along with his brother
Arshad, Muhammad Irfan and Rashid Sarwar, a taxi Driver were taking tea at
Hotel Express Way situated in the area of Samli Bera and were waiting for
Faisal to receive money. Imtiaz Bhola, owner of the hotel was also present
there. In the meanwhile, Naseer Mehfooz, Waheed Mehfooz, Bashi Khan along with
some other accused person came there on one Parado, one double cabin and two
corolla cars. They alighted from the vehicles and started indiscriminate firing
with their respective weapons and started demolishing the hotel. When
Arshad forbad them not to demolish the hotel. Naseer Mehfooz fired a shot
with Kalashnikov which hit him on his mouth who fell down and succumbed to the
injuries at the spot. Waheed Mehfooz also fired a shot with Kalashnikov which
hit on right wrist of Rashid Sarwar-Driver who fell down. Thereafter the
accused while boarding the vehicles left the place of occurrence.
3. Learned counsel for the petitioner submitted
that after submission of challan before the trial Court the Inspector-General
of Police could not transfer the investigation of the case. Learned counsel has
argued that superior Courts have many a times disapproved the practice of
successive investigation, thus action of Respondent No. 1 being a nullity in
the eyes of law is liable to be quashed. Further argued that
after Ist change of investigation, the investigation was conducted by
the Superintendent of Police and now the investigation was entrusted to the
Deputy Superintendent of Police. This fact smacked of mala fide on the part of
the police. The act of Respondent No. 1 is nullity in the eyes of law and that
the accused party is very much influential and the investigation was
transferred to the Deputy Superintendent of Police by giving special task to
favour the accused party. Learned counsel further argued that the purpose of
the investigation is to collect evidence, which has already been collected and,
therefore, no useful purpose would be served by further delaying the matter. In
support of his submission, the learned counsel has relied upon Muhammad Nasir
Cheema v. Mazhar Javaid and other (PLD 2007 SC 31).
4. Learned counsel for Respondents No. 5, 6 &
7 as well as learned Assistant Advocate-General, have submitted that there is
no statutory bar for the police authorities to embark upon investigation of the
case even after submission of complete challan, that the petitioner has only
challenged the order dated 14.1.2010 for 2nd change of investigation. He has
not challenged the recommendations of the Provincial Sanding Board; that the
policehas only to collect evidence far and against of either party and the
trial Court will decide regarding the innocence or guilt of the accused; that
the police can investigate the matter at any stage of the trial on the
availability of fresh material and evidence. They have relied upon Ashiq Ali v.
Deputy Inspector-General of Police, Punjab, Lahore and 4 others (2009 PCr.LJ
830), Javaid Iqbal v. Additional Inspector General of Police, Lahore and 4
others (PLD 2008 Lahore 488), Muhammad Naseem v. S.H.O. Police Station
Thikriwala, District Faisalabad and 2 others (1997 MLD 1555) and Saddar Din v.
Deputy Inspector-General of Police (Investigation), Capital City Police, Lahore
and 6 others (PLD 2009 Lahore 585) Muhammad Yousaf v. The State and others
(2000 SCMR 453).
5. I have heard the arguments of learned counsel
for the parties and have gone through the record carefully. After registration
of the case, the investigation was conducted by the S.H.O. who arrested
Muhammad Pervez alias Bashi Khan and challaned to Court whereas Naseer Mehfooz
and Waheed Mehfooz accused were declared innocent by the local police. The
complainant feeling aggrieved of the investigation carried out by the local
police applied to the C.P.O. Rawalpindi for Ist change of
investigation and investigation was entrusted to Regional Investigation Branch
(RIB) Rawalpindi Region, Rawalpindi. During investigation, conducted by
Regional Investigation Branch Rawalpindi, both the accused namely Naseer
Mehfooz and Waheed were found guilty. Being dissatisfied with the investigation
conducted by Regional Investigation Branch Rawalpindi, an application was moved
on behalf of Naseer Mehfooz and Waheed Mehfooz for 2nd change of
investigation. Upon the said application a Provincial Standing Board
comprising of Deputy Inspector General of Police. Investigating Branch
Punjab (Chairman), Senior Superintendent of Police Investigating Branch Punjab
(Member) and Deputy, Superintendent of Police Investigating Branch Punjab was
constituted under Provisions of Article 18(6) of Police Order, 2002. The
Provincial Standing Board recommended the above said case for 2nd change of
investigation on the following grounds:--
(i) As
per report of complainant Meer Dad, he along with his brother Arshad Ali,
Muhammad Irfan and Taxi Driver Muhammad Arshad were sippling tea at a Tea Stall
on main road Murree and waiting for their friend when the accused Muhammad
Pervez alias Bashi Khan, Waheed Mehfooz and Nasir Mehfooz along with some other
persons came on cars and jeeps, made indiscriminate firing and started
demolishing the tea stall. Arshad forbade them to do so on which Nasir Mehfooz
fired at Muhammad Arshad killing him at the spot, Waheed Mehfooz fired at
Rashid Sarwar injuring him seriously;
(ii) The
local police arrested Muhammad Pervez alias Bashi Khan sent him to judicial
lock up and challaned him. The other two accused were declared innocent on the
basis of their alibi.
(iii) During
investigation of RIB, the I.O. belied the alibi of two accused, held them
guilty, arrested them and sent them to judicial lock up without recovery as the
Court declined to remand the accused further.
(iv) It has
been noted that there is difference of opinion between local police and RIB
regarding innocence/guilt of two accused.
(v) There is
no solid motive brought on record against the deceased.
(vi) The owner
of tea stall who was witness to the occurrence resiled from his stance.
(vii) The I.O. also could
not trace the accused other than nominated in the F.I.R.
6. The recommendation of the Provincial Standing
Board were approved by the Inspector-General of Police Punjab and the
investigation was entrusted to Mr. Liaqat Ali Deputy Superintendent of Police,
Investigation Breach Punjab. The main grievance of the petitioner is that the
re-investigation of the case is motivated. The pivotal issue in the field is
whether the police authorities are empowered to initiate re-investigation in
respect of the same crime for which they have already filed report under
Section 173 Cr.P.C.
7. To resolve the present controversy the
provisions of Article 18(6) of the Police Order, 2002, is reproduced as under:
"18(6) Investigation shall not be changed
except after due deliberations and recommendations by a Board headed by an
officer not below the rank of Senior Superintendent of Police and two
Superintendent of Police, one being incharge of the investigation of the concerned
district:
Provided that the final order for the change of
investigation shall be passed by head of investigation in the general police
area who shall record reasons for change of such investigation:
Provided further that the second change or investigation may
only be allowed with the approval of the Provincial Police Officer, or the
Capital City Police Officer, as the case may be."
8. Under Article 18(6) of the Police Order, 2002,
the law bestows a power on the duly constituted Board to recommend for re-investigation
and if the said Board recommends for reinvestigation of the case then even
after the submission of the challan the re-investigation cannot be debarred.
The job of an Investigating Officer, is thus only to collect all the relevant
evidence pertaining to the allegation levelled regarding the crime in issue so
as to dig out the truth enabling and facilitating the relevant Court to
Administer Justice between the parties. I may clarify here that an
Investigating Officer is not to render any opinion regarding guilt or innocence
of an accused person and under the relevant statutory provisions contained in
the Code of Criminal Procedure, 1898, the Police Order, 2002 and the Police
Rules, 1934 he is only to collect all the relevant evidence and to submit his
report before the relevant Magistrate so that the Magistrate or the trial Court
can from their own independent opinion regarding sufficiency or otherwise of
the evidence and material in order to decide whether to take cognizance of the
offence or not to summon any person to face a trial. Reliance is placed on
Khizar Hayat and others v. Inspector General of Police Lahore and others (PLD
2002 Lahore 470).
9. Nevertheless, the re-investigation of a case
after submission of the challan cannot be debarred. Reliance is paled on
"Atta Muhammad v. Inspector General of Police" reported in PLD 1965
Lahore 734, wherein it has been held as under:
"There is no statutory prohibition in the Code of
Criminal Procedure for the police not to embark on a fresh investigation of the
case after the conclusion of the first and the submission of the final report
whatever the defects in the first investigation or the flaws in the final
report given in the wake of it, that might subsequently be detected. The first
investigation may be utterly unsatisfactory for many reasons. It maybe due to
non-availability of the evidence, or the successful induction of false evidence
during the investigation, or the reason may be, the corrupt behaviour of the
police officer concerned. To say that the same police officers or their
superiors on receipt of further information or on the availability of better
evidence cannot revive the investigation already done, leading to a contrary or
a varied result, would virtually amount to putting a seal on human errors and
frailties once committed whether by design or by inadventence, with no
opportunity to make amends, although it be possible to do so. The police, as an
agency of the State, should be as much interested as any other agency concerned
in the administration of justice, to find out the truth in respect of a crime
and lay the whole facts bare for determination by the competent Tribunals as
honestly and correctly as possible. The statutory functions of the police and
the Courts in this respect are complementary to each other and do not overlap.
The facts that the previous investigation had yielded certain results should
not act as a hurdle or a deterrent for the police in reaching the truth if
additional facts and additional circumstances brought to light help in its
discovery. The Magistrate himself does not have the legal powers to direct a
further investigation by the police after he himself has taken cognizance of
the case and had himself launched an inquiry or trial; but there is no bar for
the police to pursue its own investigation and submit their results to the
Court to find the guilt or innocence of the accused persons before it becomes
too late. There is no bar to the investigation by the police after the
submission of a final report under Section 173 of the Criminal Procedure Code,
1898, nor is the police not competent to file, if it is so disposed,
a second report as a result of its subsequent investigation into the
case."
10. No doubt that holding of successive
investigations are deprecated by the superior Courts with the intent to avoid
undue lingering on the case but how subsequent challan which almost is complete
for submission in the Court of competent jurisdiction can be withheld or
brushed aside, even otherwise submission of subsequent challan is not debarred
under the provisions of the Criminal Procedure Code, however, it is entirely
the discretion of the Court to admit additional evidence if the cognizance of
the case submitted to it by the Police has already been taken. Moreover, in
case of any grievance, the complainant can avail an alternative remedy of
filing a private complaint.
11. In view of what has been discused above, I
find no merit in this writ petition, which is accordingly dismissed.
(R.A.) Petition dismissed.
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