2006 PLP 1815 (YLR)

The appellant is a complainant of case F.I.R. No. 155 of 2005 dated 14-5-2005 under sections 365, 337-A(ii) and 34, P.P.C. registered with Police Station Saddar Dunyapur, District Lodhran.

2. Briefly the facts of the case are that on 11-5-2005 at about 12-30 a.m. the complainant along with Allah Bakhsh Naib Qasid TMA Dunyapur was going on motorcycle from Dunyapur to Kot Misri for recovery of professional tax having a note book, licence book, demand collection register and other necessary documents and had also received an amount of tax Rs.450. When he reached near the land of Raja Faiz Ali Khan situated at Chak No.3531W.B., all of a sudden Muhammad Mumtaz, Bashir Ahmad, Muhammad Shamoon and Haji Muhammad Ashraf armed with Sotas who had hidden themselves in the sunflower crop, came before the motorcycle of appellant. Mumtaz accused raised Lalkara that Akram should be taught a lesson for quarrelling at Mela. Mumtaz accused caused Sota blow on the head of appellant, Bashir Ahmad also caused Sota blow on the head of petitioner and he fell on the ground. Then all the accused persons caused Sota blows to petitioner and Allah Bakhsh. On hue and cry P.Ws. Muhammad Aslam and Muhammad Iqbal came there and on seeing them the accused started firing and raised Lalkara that if anyone would come near them, he would be killed. The accused party abducted the petitioner and Allah Bakhsh, confined them in a room and gave beating. Hence this F.I.R. was registered.

3. The investigation of the case was conducted by Khalid Mahmood S.-1. Police Station Saddar, District Lodhran who visited the place of occurrence and recorded statements of P.Ws. However, subsequently one of the accused Muhammad Shamoon moved an application to the DPO Lodhran/respondent No.1 praying for an impartial inquiry. On that application the respondent No.1 transferred the investigation to respondent No.2-DSP Dunyapur District Lodhran vide letter No.284-CC dated 17-5-2005. Accordingly, the file of the case was taken by respondent No.2 and without hearing the appellant new. I.O. started investigating the case on 24-5-2005 arid declared the accused Muhammad Shamoon respondent No.4 innocent. This transfer of investigation by respondent No.1 was challenged before this court vide Writ Petition No.3088 of 2005 which was dismissed by a learned Single Judge in Chamber vide order dated 28-6-2005. Hence this appeal.

4. Learned counsel for the appellant submits that respondent No.1 could not transfer the investigation as he had no jurisdiction/authority to transfer the investigation from Khalid Mahmood Police Station Saddar Dunyapur District Lodhran to respondent No.2. It was further submitted that under the Police Order 2002, the respondent No.1 DPO was not even competent to interfere in the investigation. The grievance of the appellant is that under the procedure, as laid down under Article 18(6), of the Police Order, the investigation could be changed but in this case no such procedure was followed. It was submitted that the order of the learned Single Judge is silent on this point.

5. Learned A.A.-G. submitted that the power to change the investigation has been given in Article 18(6) of the Police Order, 2002, but nevertheless as the investigation has been completed in this case by respondent No.2, therefore, no action is required at this stage to upset the same.

6. We have heard the learned counsel for the appellant as well as the learned A.A.-G. The procedure has been provided in Article 18(6) of the Police Order 2002 for the change of first investigation as well as for the change of second investigation which is reproduced hereunder for ready reference:-- "Investigation shall not be changed except after due deliberations and recommendations by a Board headed by and 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." A bare reading of the above Article would show that the DPO does not figure anywhere in the procedure laid down for the transfer of investigation and as such the A respondent No.1 exceeded his powers by ordering transfer of investigation to DSP Dunyapur District Lodhran. It has also been noticed that in some cases in the garb of verification, the investigation has been transferred without following the procedure as laid down under Article 18(6) of Police Order, 2002. This practice has been depreciated by this Court in "Aziz Ahmad v. Provincial Police Officer, Punjab, Lahore and others", (PLD 2005 Lahore-185).

7. In the instant case, the Board constituted under Article 18(6) of the Police Order, 2002 has not recommended for the transfer of investigation, therefore the investigation could not have been changed.

8. The contention of the learned law officer that since the new I.O. has completed the investigation, therefore, no action should be taken at this stage, is not acceptable. The public functionaries are legally required to act strictly in accordance with law, we are constrained to note that the respondent No.1 acted beyond his authority to transfer this investigation. He had no legal, authority to do so and exceeded his powers by doing so. This act of respondent No.1 is without jurisdiction and without lawful authority. The learned Judge in chamber overlooked the above aspect of the case.

9. In the light of what has been stated above, this appeal is accepted and order dated 28-6-2005 passed by the learned Single Judge in Chamber is re-called and Order No.284-CC dated 17-5-2005 passed by the respondent No.1 for the transfer of D investigation of case F.I.R. No.155 of 2005 dated 14-5-2005 under sections 365, 337-A(ii) and 34, P.P.C. Police Station Saddar Dunyapur District Lodhran is declared to be unlawful and illegal.

10. Resultantly, the investigation is returned to the Investigating Officer who was previously conducting this investi gation. Consequently, the investigation carried out by respondent No.2 in the said F.I.R. is also declared as illegal and the previous I.O. shall investigate the case from the stage where it was transferred from him. H.B.T./M-1351/L Appeal accepted.