2006 P Cr (PLP)

SH. HAKIM ALI, J.

Facts leading to the filing of present writ petition are that F.I.R. No.443 of 2005 was got lodged by Abdur Razzaq son of Saeed Ahmad, the present petitioner on 26-10-2005 under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 with Police Station Uch Sharif. The investigation of the case was in progress when incomplete challan was submitted by Peer Bakhsh, A.S.-I. through the S.H.O., Police Station Uch Sharif in the concerned competent Court. On 14-4-2006, an application was moved with the Regional Complaint Cell of D.I.-G. of Police Office, Bahawalpur for entrustment of investigation to the S.P. (Investigation), Bahawalpur. According to learned counsel for the petitioner, S.P. (Investigation), without any order having been passed by the Board of Investigation under section 18(6) of the Police Order, 2002, commenced the investigation and made report on '2-6-2006 for cancellation of the case. Aggrieved from' order 2-6-2006, the present writ petition has been filed with the assertion that the S.P. (Investigation) was not empowered to conduct the investigation of the case as there was no lawful and legal order passed under section 18(6) of the Police Order, 2002 for the change of investigation from Peer Bakhsh, A.S.-I. or S.H.O. Police Station Uch Sharif to S.P. (Investigation). So, order, dated 2-6-2006 may be declared illegal and unlawful.

2. Defending the order and the report of investigation conducted by S.P. (Investigation), learned A.A.-G.- submits that the S.P. (Investigation) being Incharge. of investigation of whole Bahawalpur region, can withdraw the investigation of a case and can commence proceedings of investigation of a case himself. Therefore, the investigation conducted by S.P. (Investigation) in the present case was valid. He has referred to subsection (4) of section 18 of the Police Order, 2002.

3. Heard. Record perused.

4. The law on the subject is clear that investigation-of a case can be transferred 1i-op one Investigating Officer to another by Investigation Board, headed by an officer not below the rank of Senior Superintendent of Police and two Superintendents of Police, one being Incharge of the concerned District. In other words, Incharge of investigation of the District has been placed in the Board as a member of that Board and has got no other 'status or power so as to withdraw investigation of a case himself lonely and solely. It is the Board, which can approve such change of investigation; otherwise, there is no other provision granting power to Incharge of Investigation of the District to withdraw any case from any Investigating Officer and to conduct investigation of it himself. As regards section 18(4) of the Police Order, 2002, that subsection has granted power of supervision only as a head of investigation of the District. It does not include the power to withdraw the case for investigation and to conduct it himself. Therefore, the report/ recommendation, dated 4-2-2006 for cancellation of the case cannot be upheld and that report/recommendation of cancellation is declared illegal and unlawful. However, if any party to the case desires any transfer of investigation, it may move the Investigation Board in accordance with provision of section 18(6) of the Police Order, 2002. The writ petition stands disposed of. H.B.T./A-170/L Order accordingly.