P L D 2016 Lahore 373 (PLP)

ZAFARULLAH KHAN KHAKWANI, J.

Better realization of this case can take place in backdrop of the facts that Muhammad Mujahid, respondent No. 4 got registered case F.I.R. No. 143 dated 26.4.2013 under Sections 302/109/34 P.P.C. at Police Station Aimnabad, Distt. Gujranwala with the allegation that with the abetment of the petitioner, her gunmen murdered Saqib Ali, a nephew of complainant over a petty issue of overtaking of cars. Case was registered and investigation was entrusted to Muhammad Arif, Sub-Inspector. However, on the very next day i.e. 27.4.2013 the C.P.O. Gujranwala passed an order bearing No. 18008 dated 27.4.2013 to the SSP (Investigation) Gujranwala subject matter of which is as under: During investigation, the complainant filed an application for change of investigation on which a Board comprising City Police Officer Gujranwala (Chairman), Senior Superintendent of Police (Investigation) and Senior Superintendent of Police (Regional Investigation Branch), (Members) made recommendations on 11.7.2013 for change of investigation and forwarded the same to the Addl. Inspector General of Police Investigation Branch, Punjab Lahore on 17.7.2013 for formal orders. The said recommendations did not find favour of the Addl. I.G. (Investigation) and vide Memorandum dated 26.7.2013 the Addl. I.G. (Investigation) referred back the recommendations to the Board with a direction that five observations made by him in the said Memorandum be taken into consideration and then orders be passed afresh on the application. On remand the matter was considered by the District Standing Board comprising Senior Superintendent of Police Investigation Gujranwala (Chairman), Deputy Superintendent of Police (Investigation II) and Deputy Superintendent of Police (Legal) Gujranwala (Members) in its meeting dated 4.12.2013 and the said Board recommended the case for change of investigation. On these recommendations the C.P.O. Gujranwala passed formal order dated 7.12.2013 for change of investigation and entrusted it to A.S.P. Wazirabad. The said A.S.P., on 8.1.2014 when this court suspended the operation of order dated 7.12.2013, concluded the investigation and declared the petitioner as guilty.

2. Feeling aggrieved of the said order dated 7.12.2013 passed by the C.P.O. Gujranwala, the petitioner has approached this Court through this constitutional petition.

3. Learned counsel for the petitioner submits that vide order dated 27.4.2013 the C.P.O. had transferred the investigation to a Joint Investigation Team consisting of eight police officers headed by S.S.P. Investigation Gujranwala and under the Police Order 2002 if the investigation was again to be transferred then the same could be entrusted only to a police officer higher in rank than the S.S.P. Investigation but in contravention to the said provision of law the C.P.O. transferred the investigation to A.S.P. Gujranwala with the direction to finalize the earlier investigation. He submits that this act of the C.P.O. is under the political intervention of the local politicians and that the said Joint Investigation Team after thorough investigation in the matter declared the petitioner as innocent. Learned counsel further submits that the recommendations made by the Board dated 11.7.2013 were taken into consideration by the Addl. I.G. (Investigation) who sent back the matter to the Board for appropriate speaking orders giving detailed reasons for change of investigation, but no such details were furnished rather on the same footing the Distt. Standing Board again made recommendations as such the same were liable to be set aside being non-speaking one and that since the C.P.O. Gujranwala had already ordered for change of investigation from Muhammad Arif, Sub-Inspector to a Joint Investigation Team vide order dated 27.4.2013 headed by Senior Superintendent of Police (Investigation) Gujranwala, therefore, the impugned order passed by the C.P.O. for change of investigation was actually second change of investigation by the C.P.O. which he could not do and as such the impugned order dated 7.12.2013 is liable to be set side.

4. On the other hand learned Law Officers assisted by learned counsel for respondent No. 4 vehemently opposed the petition on the ground that order dated 27.4.2013 passed by the C.P.O. was not an order for change of investigation rather it was only an order constituting supervisory team and actually Muhammad Arif S.I. the original investigating officer was investigating the matter; that the first recommendation of the Distt. Standing Board was not acceded to by the Addl. I.G. Investigation and the case was remanded back for reconsideration by the Standing Board. On remand the Distt. Standing Board recommended the change of investigation and actually it was the first change of investigation and thus the impugned order of the C.P.O. who was the competent authority after amendment under Police Order, 2002 transferring the investigation to A.S.P. Wazirabad, Gujranwala was a valid order in accordance with law. The learned Law Officer further submits that the order dated 27.4.2013 has no value in the eye of law as it was not for change of investigation; that the purpose of investigation is only collection of evidence and not otherwise and that by no stretch of imagination the order of the C.P.O. dated 27.4.2013 can be called an order for change of investigation order rather it was an order just to supervise the investigation. Learned counsel for respondent No. 4 added that actually the petitioner is an influential person of the locality and she managed to declare her not involved in the matter by the local police.

5. The C.P.O. Gujranwala also appeared before this Court on 25.4.2014 and tried to explain that his order dated 27.4.2013 constituting a Joint Investigation Team headed by S.S.P. Investigation Gujranwala including the original investigating officer/Sub-Inspector was only an administrative order and was not an order for change of investigation. He further submitted that Muhammad Arif S.I. the original investigating officer was the only investigating officer in this case and the other seven officers headed by S.S.P. (Investigation) were only deputed to supervise the matter because under the Police Order 2002 the Head of Investigation of a District is authorized to supervise investigations in the District. He further submitted that the case was very much sensitive as the incident was grave in nature so he passed the said order for the arrest of the accused.

6. Before proceeding further in the matter it would be appropriate to have a look on the laws relating to investigation, transfer of investigation and also the persons relating to investigation. Definition of investigation has been given in Section 4(l) of the Cr.P.C. as under: "Investigation includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf. It is thus clear that investigation is collection of evidence to be made by a police officer or a person to be authorized by a Magistrate in this behalf. In the case titled Abdul Latif v. Inspector General, Police and others (1999 PCr.LJ 1357) it has been held that investigation generally consists (1) proceeding to the spot, (2) ascertainment of facts and circumstances of the case, (3) discovery and arrest of the suspected offender, (4) collection of evidence relating to the commission of the offence which may consist of (a) examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial, and if so, taking the necessary steps for the same by the filing of a charge-sheet under Section 173, Cr.P.C.

7. The Police Order 2002 provides the procedure relating to investigation, its transfer and supervision by the police officers. Article 18 of the Police Order 2002 was substituted by Punjab Ordinance No. II on 24.7.2013 and thereafter was made part of the Statute bearing Act No. 21 of 2013 on 11.9.2013. Occurrence in the present case took place on 26.4.2013 and as such at the relevant time erstwhile Article 18 of the Police Order 2002 was in field. Sub-article (6) of Article 18 provided that investigation was not to 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 Superintendents of Police, one being incharge of the investigation of the concerned District. There was a proviso to sub-Article to the effect that 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. As stated above the present case was registered on 26.4.2013 and the investigation was entrusted to Muhammad Arif, Sub-Inspector. On the very next i.e. the C.P.O. Gujranwala constituted a Joint Investigation Team (JIT) headed by S.S.P. Investigation. There is nothing on record to show as to what prompted the C.P.O. to constitute this JIT consisting of eight members comprising SSP (Investigation), one S.P., two DSPs, two SHOs and Incharge investigation all senior in rank to Muhammad Arif Sub-Inspector. Although the C.P.O. claimed that it was an order just to supervise the investigation but he could not show any authority or provision of law under which he was authorized to constitute a joint investigation team. I am afraid his verbal statement is directly in conflict with his earlier order/letter dated 27.4.2013. His claim of just supervision is negated by his words written in his letter to the S.S.P. Investigation dated 27.4.2013 noted above that: Even the Remand Order/Memorandum of the Addl. Inspector General of Police dated 26.7.2013 mentions in clause (i) to the effect, "the case has been investigated by SSP/Investigation along with one SP, two DSPs, two SHOs and Incharge Investigation. The Investigating Team conducted detailed investigation and CCTV footage and cell datas have been obtained." His claim is further rebutted by the Case Diary according to which the JIT gave finding that it had not found the petitioner involved in the case. At this stage a question creeps into mind that if investigation was not changed then why all the members of JIT investigated the matter as indicated above. The act of the C.P.O. prima facie indicates to influence the said actual investigator (Muhammad Arif Sub-Inspector) to get the investigation conducted according to their own choice.

8. Under the law prevailing at the relevant time the C.P.O. was not authorized to constitute a Joint Investigation Team to investigate the case and his act was beyond the scope of sub-Article (6) of erstwhile Article 18 which was as under: "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 Superintendents 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;

9. As stated above Article 18 of the Police Order 2002 was substituted by the Punjab Police Order (Amendment) Ordinance No. II of 2013 on 24.7.2013 and later on received the assent of the legislature and made part of the Statute w.e.f. 11.9.2013 as Act No. 21 of 2013 and relevant provisions read as under: "18 Separation of investigation function.-(1) There shall be separation of investigation from other functions of the police. (2) Subject to clause (3) the District Investigation Branch shall investigate, under the supervision of the Head of District Investigation Branch, all cases registered in the District. (3) The Provincial Police Officer may notify the offences which shall be investigated by the investigation officer in the police station under the supervision of the officer-in-charge of the police station and if an offence in a case is required to be investigated by the District Investigation Branch then the entire case shall be investigated by the District Investigation Branch. (4) The District Investigation Branch, other than in the Capital City District or a City District, shall be headed by a police officer not below the rank of a Superintendent of Police and shall consist of such other police officers as the Provincial Police Officer may determine. (5) In the Capital City District and a City District, the District Investigation Branch shall be headed by a police officer not below the rank of Deputy Inspector General of Police and Senior Superintendent of Police respectively and shall consist of such other police officers as the Provincial Police Officer may determine. (6) (7) (8) . (9) The supervisory officers: (a) shall ensure timely completion and verification of investigation; and (b) may summon the investigation officer or team of officer, review the case file, evaluate the evidence and, in that case, shall issue instructions in that case to the investigation officer or team of officers in the form of case diary." A new Article 18A was also inserted in the Police Order 2002 by the same Ordinance/Act providing procedure for transfer of investigation. "18A: Transfer of Investigation:(1)Within seven working days of the filing of an application, the Head of District Police may, after obtaining opinion of the Distt. Standing Board and for reasons to be recorded in writing, transfer investigation of a case from the investigation officer to any other investigation officer or a team of investigation officers of a rank equal to or higher than the rank of the previous investigation officer. (2) If the Head of District Police has decided an application for transfer of investigation, the Regional Police Officer may, within seven working days of the filing of an application, after obtaining opinion of the Regional Standing Board and for reasons to be recorded in writing, transfer investigation of a case from the investigation officer or a team of investigation officers to any other investigation officer or a team of investigation officers of a rank equal to or higher than the rank of the previous investigation officer or officers. (3) If a Regional Police Officer has decided an application for transfer of an investigation, the Provincial Police Officer may, after obtaining opinion of a Standing Review Board, transfer investigation of a case to an investigation officer or a team of investigation officers of a rank equal to or higher than the rank of the previous investigation officer or officers. (4) (5) For the purpose of this Article- (a) 'District Standing Board' means the District Standing Board constituted by the Head of District Police consisting of a Superintendent of Police as chairperson and two officers not below the rank of Deputy Superintendent of Police as members; (b) Regional Standing Board means the Regional Standing Board constituted by the Regional Police Officer consisting of a Superintendent of Police as chairperson and two Superintendents of Police as members; (c) 'Standing Review Board' means the Standing Review Board constituted by the Provincial Police Officer consisting of a Deputy Inspector General of Police as chairperson and two officers not below the rank of Superintendent of Police as members; and (d) " Although the Board in its meeting dated 11.7.2013 recommended first change of investigation but the same was disagreed by Addl. I.G. so need not to be discussed. But later, on remand, after obtaining opinion of the Distt. Standing Board dated 4.12.2013 the C.P.O. transferred the investigation to A.S.P. Wazirabad which was not tenable in view of Section 24-A of the General Clauses Act (detail to be followed).

10. I have gone through both, the opinions dated 4.12.2013 rendered by Distt. Standing Board and the order passed thereon by the C.P.O. dated 7.12.2013 for change of investigation and entrustment of the same to the A.S.P. Wazirabad. It is very unfortunate state of affairs that police officers of such a stature have rendered opinion and passed orders in such like manner. Proceedings of Distt. Standing Board consist of three and a half pages but the opinion/recommendations is only one and a half line and that too for satisfaction of the complainant/applicant only and reads as under: Same is the position of the order dated 7.12.2013 passed by the C.P.O. carrying no reason for change of investigation and is to the following effect: "Finding of the Board has been examined and considered by the undersigned. The Board has given cogent reasons for Ist change of investigation." As quoted earlier the Board had not pointed out even a single discrepancy justifying transfer of investigation and had formed opinion only on the ground that complainant was not satisfied with the investigation of local police. Such an opinion and orders thereon are clear violation of the instructions contained in Section 24-A of the General Clauses Act which speaks as under: "24-A. Exercise of power under enactments.- (1)Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment. (2) The authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be, for issuing the direction and shall provide a copy of the order or, as the case may be, the direction to the person affected prejudicially. The provision of law clearly requires that a public functionary is bound down to decide the applications of the citizens with reasoning and after applying judicious mind as also laid down by the apex court in the case of Wajid Saeed Khan v. Abdul Qadoos Khan Swati and others (2007 SCMR 1759). It is also important to mention here that the Distt. Standing Board in its meeting dated 4.12.2013 did not take into consideration the guidelines given by the Addl. I.G. in its remand order dated 26.7.2013 wherein it was specifically mentioned that the five observation made by him be taken into consideration before passing any order on the application filed by the complainant for change of investigation. After discussing all these aspects now the question arises as to whether this Court in its constitutional jurisdiction is competent to interfere in the matter of transfers of investigation. The Hon'ble Supreme Court in Ghulam Sarwar Zardari v. Piyar Ali alias Piyaro and another (2010 SCMR 624) has elaborately held that the High Court has jurisdiction under Article 199 of the Constitution and competent to correct such proceedings and pass necessary orders to ensure justice and fairplay. The investigating authorities do not have the entire and total authority of running investigation according to their whims, therefore, if the investigation is launched mala fide or beyond the jurisdiction of the investigating agency, then the same can be corrected and appropriate orders can be passed. It may also come in mind that if the order dated 27.4.2013 is not in accordance with law then what would be the fate of investigation conducted by the JIT under the umbrella of said order. The answer lies in the Supreme Court's judgment reported as Rehmatullah and others v. Saleh Khan and others (2007 SCMR 729) that when basic order is without lawful authority, then all superstructure built on it would fall on the ground automatically. 8(sic). Having arrived at this conclusion that this Court has jurisdiction to correct the illegalities/irregularities committed by the public functionaries, this petition is disposed of in the following terms that: a) the C.P.O. had no power to pass the order dated 27.4.2013 to constitute a joint investigation team so the issuance of letter dated 27.4.2013 is declared illegal and unlawful having no legal effect and all subsequent proceedings taken thereon are declared null and void; b) the opinion/recommendations of District Standing Board dated 4.12.2013 and order dated 7.12.2013 passed by C.P.O. are also declared unlawful being non-speaking and only for the satisfaction of the complainant and as such subsequent investigation conducted by A.S.P. is declared to be null and void having no legal effect; c) the application filed by the complainant for change of investigation shall be deemed to be pending. Since most of the senior officers in the police hierarchy at the level of Gujranwala District remained connected with the case in the shape of joint investigation team as such in the peculiar circumstances of the case and taking it as a special case the matter is referred to the Regional Police Officer Gujranwala who shall pass appropriate orders to place the application for change of investigation before the Regional Standing Board as provided in clause (b) of sub-Article (5) of Article 18-A of the Police Order, 2002 who shall decide the same after going through whole record of the case; and d) the Regional Standing Board if it thinks fit to change the investigation the same may be entrusted to a team of investigation comprising upright, bold and competent police officers other than the officers who remained connected with the investigation of the case in any capacity who shall investigate the case right from 26.4.2013 uninfluenced by the investigation already conducted in the case. MH/S-109/L Case remanded.