2004 PLP 1529 (YLR)

Challan/report under section 173, Cr.P.C., was accordingly, sent on 13‑5‑2003 to the Judicial Magistrate; Ferozewala, who sent up the case to the learned District and Sessions Judge, Sheikhupura on 16‑5‑2003 wherefrom it was entrusted to a learned Additional District Judge, Ferozewala, District Sheikhupura. The learned trial Judge who was seized of the matter delivered copies in terms of section 265‑C of the Criminal Procedure Code, 1898 to one of the person accused namely respondent No.4, as the other accused (respondents Nos.5 and 6) were declared proclaimed offenders.

4. Learned Additional Sessions Judge took. cognizance of the case, pending which, respondent No.1 passed yet another order on 13‑5‑2003 for reinvestigations of the case by respondent No.2, who summoned the petitioner to join investigation, before him. The petitioner has challenged this order of respondent No.1 dated 13‑5‑2002 through instant petition, for the relief noted above.

5. On notice by this Court, respondents Nos.5 and 6 who are proclaimed offenders in the challan have appeared through counsel to contest this petition. Mr. Maqbool Ellahi Malik, Advocate appearing on their behalf, requested adjournment of the case on 17‑2‑2004 on the ground that he is out of Lahore and consequently case was adjourned for today. In his place Barrister Muhammad Umer Riaz, Advocate has appeared to defend this petition.

6. Learned counsel for the petitioner submits that reinvestigation of the case ordered by respondent No.1 on 13‑5‑2003 in spite of decision of two earlier writ petition is mala fide. He further contends that under the provisions of Article 18(6) of the Police Order, 2002, respondent No.1 could not order reinvestigation of the case, for the fifth time and thus, claimed order passed by respondent No.1 is without jurisdiction. He further submitted that challan has been submitted in the Court and the learned trial Judge has taken cognizance of the case, pending which, no fresh investigation could have been ordered, in support of his submissions, he referred to the case of Muhammad Alam and another v. Additional Secretary to Government of N.‑W.F.P., Home and Tribal Affairs Department and 4 others PLD 1987 SC 103.

7. Learned counsel appearing on behalf of respondents Nos. 5 and 6 refuted the assertions of the petitioner, supported the order passed by respondent No.1 dated 13‑5‑2003 and referring to the judgments in the cases of Suleman v. Fateh Naseeb and others 1995 PCr.LJ 1543 and Muhammad Yousaf v. The State and others 2000 SCMR 453 urged that reinvestigation of the case is permissible after submission of challan and even after taken cognizance by the Court. He further elaborated his arguments by saying that reinvestigation is prerogative of investigating agency which can in no manner be restricted.

8. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. First investigation of the case was conducted by Muhammad Ashraf, Sub‑Inspector from whom it was taken over by Muhammad Arshad, Inspector/S.H.O. who declared respondents Nos.5 and 6 as innocent. Third investigation was conducted, on application of the petitioner, by Wazir Ali Dogar, D.S.P./S.D.P.O. where after it was transferred to Superintendent of Police (Investigation), Sheikhupura, which was assailed before this Court through Writ Petition No.20775 of 2002 and on account of return of file, by the official without any further investigation, this writ petition was disposed of as having borne fruit. Another order of reinvestigation by respondent No.1 was again challenged before this Court but due to submission of the challan, before the. Court, the petition was dismissed. The order impugned, passed by respondent No.1 is 5th in chain which has to be evaluated according to touchstone of new law brought to control the successive investigations, as contained in Article 18(6) of the Police Order, 2002 which is reproduced, for convenience, as below:‑‑ Article 18: Posting of head of investigation: (1) .. (2) .. (3) .. (4) .. (5) .. (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: Provided further that the second change of investigation may only be allowed with the approval of the Provincial Police Officer; or the Capital City Police Officer, as the case may be.

9. It is obvious from the language of above produced relevant provision, controlling the investigation of the cases. It limits the number of transfer of investigations, only to two. It also provides procedure for second transfer and in view of it, there was absolutely no scope left for an order, like the one passed by respondent No. 1 for any further investigation, especially when the challan was submitted before the Court and this submissions was reported to this Court while passing order dated 28‑4‑2003.

10. Writ Petition No.3289 of 2003 was filed, impleading respondent No. 1 as a party and it was dismissed on statement of an A.S.‑I. to the effect investigation has been finalized and the challan has been submitted in the Court. This statement was binding on the respondent No.1 and he could not have embarked upon an exercise of ordering reinvestigation of the case. The statement before this Court not only creates as estoppel but also deprives respondent No.1 of the authority to pass an order, like the one impugned, if at all it vested in him. In this manner any order of transfer by respondent No.1 passed after 28‑4-2003 the date of order on which above referred writ petition was dismissed or the conduct of investigation, thereunder, cannot be regarded as lawful, being militating against the order passed by this Court.

11. Though respondent No.1 could not order reinvestigation of case in view of provisions of Article .18(6) of the Police Order, 2002 for the 5th time especially after commitment before this Court, as noted above yet I feel that reinvestigation of case, after taking cognizance of the challan by the trial Court amounts to, removing of file from the cause list of the Court and is an act of directly interruption in the judicial process of law. Honourable Supreme Court in the case of Muhammad Alan and another v. Additional Secretary to Government of N.‑W.F.P., Home and Tribal Affairs Department and 4 others PLD 1987 SC 103 while dealing with the situation whether a case could be cancelled under section 173, Cr.P.C. after the Court had taken cognizance under section 190, Criminal Procedure Code, 1898, referring to the Chapter XVII of Criminal Procedure Code which deals with "commencement of proceedings before the Court" and interpreting section 204, Cr.P.C. which deals with issuance of process by the Court taking cognizance, mandated that after taking the cognizance and even issuance of process by the Court, the normal procedure under the Code has to be followed. It was also held that police report would not relieve the Court from its obligation to continue with proceedings until their proper termination under the relevant law and cancellation of case, if any, under section 173, Cr.P.C. was held to be, not permissible after the cognizance by the Court. In the instant case, challan was submitted and cognizance has already been taken by the trial Court and if the process cannot be interrupted by filing report under section 173, Cr.P.C. there appears to be no fun in ordering reinvestigation of the case and this appears to be, not permissible under law. Similar view was taken by the High Courts in the cases of Haji Muhammad Javed v. The State and 2 others 1991 PCr.LJ 62 and Safia Begum v. S.H.O. Police Station, Garb Maharaja, District Jhang and 3 others 1993 PCr.LJ

97. It remains a fact that at the time of decision of all these cases, including the judgment in the case of Muhammad Yousaf v. The State and others 2000 SCMR 453 Police Order, 2002, had not been promulgated which, as observed above, prescribes, limits of authority of the high police officials to direct fresh investigation/ reinvestigation.

12. For what has been discussed above, I am constrained to hold that order of reinvestigation by respondent No. 1 on 13‑5‑2003, the order impugned, is violative of Article 18(6) of Police Order, 2002, is contrary to commitment by the police official before this Court and this exercise could not have been undertaken after I submission of challan thus the same cannot be allowed to continue, under law this Constitutional petition is consequently accepted and writ as prayed is issued, and order dated 13‑5‑2003 passed by respondent No.1 vide diary No.877- CCRDIG is declared illegal, unlawful and of no legal effect. There will be no order as to costs. H.0B.T./M‑103/L Petition accepted.