2005 P Cr (PLP)

The learned counsel for the petitioner contends that respondent No.5 got registered F.I.R No.4, dated 8-1-2004, under sections 452, 148, 149, 337-A(ii) P.P.C at Police Station Terkhanwala, District Sargodha against the petitioner and 6/7 other persons.

2. Firstly, the case was investigated by S.-I. Sher Baz of the Local Police Station who found the case as false and also recommended for its cancellation. The above finding was endorsed by SDPO concerned. Secondly, respondent No.5, complainant of the F.I.R applied DPO for reinvestigation. The DPO referred the matter to the SP (Investigation), Sargodha and by his order investigation of F.I.R No.4/04 was conducted by Yar Muhammad Gondal, Inspector (Investigation). He also found the case false and politically motivated. Thirdly, the complainant, respondent No.5 again moved for further investigation to respondent No.2, Additional I.G Punjab Investigation. Respondent No.2 ordered Regional Investigation Branch, Sargodha for reinvestigation of the above F.I.R. The investigation was entrusted to Ghulam Jillani, Inspector Range Investigation who held petitioners and other guilty. Aggrieved of the above investigation, the petitioner approached respondent No.1 for transfer of investigation, the request of the petitioner was rejected by respondent No.1. The petitioner has challenged the orders of Additional Inspector-General (Third Investigation) as violative of Article 18(6) of the Police Order, 2002.

3. The learned counsel submits that respondents be directed to consign the case in accordance with result of the first two investigations or another (fourth) investigation be ordered in accordance with provisions of Police Order, 2002.

4. The respondent No.2 was directed to submit a report and parawise comments. The report has been submitted by respondent No.2. According to the report, initially investigation was assigned to A.S.-I. Muhammad Hussain of P.S. Terkhanwala, subsequently, on the direction of S.H.O, Sher Baz S.-I. took over the investigation and he amended the offence to section 458 P.P.C. He also recorded the supplementary statement of respondent No.5 on 13-1-2004, who identified and nominated the unknown accused as Muhammad Hussain, Muhammad Anwar, Riaz etc. S.-I. Sher Baz found the case suspicious. The S.H.O. and SDPO/DSP concurred with the opinion of S.-I. Sher Baz.

5. The report further reveals that SP (Investigation), Sargodha took over the investigation of the case on 8-3-2004 under Article 18(4) of the Police Order, 2002; he deputed Ahmad Yar Inspector, Investigation, Sargodha as to investigate the case. The Inspector Ahmad Yar recommended that the file be returned to the S.H.O., directing him to join the accused in the investigation of the case and finalize the same. The file was finally sent to the S.H.O. who prepared an untraced report in the case. The S.H.O. finally concluded that the accused were falsely involved as no incriminating evidence was found against them and he declared accused innocent. The SDPO agreed with the opinion of the S.H.O. and a report was prepared.

6. According to the report of respondent No.2, an application was submitted by Dr. Hafiz Riaz Hussain son of respondent No.5 (complainant) for further investigation. The matter was referred to the Standing Board by the D.I.G Sargodha Range who recommended for the change of the investigation. The respondent No.2 being head of investigation, Punjab under the provisions of Article 18(6) of Police Order, 2002 ordered for the first change of investigation of the case, hence the investigation was sent to Ghulam Jillani, Inspector Range Crime, Sargodha. Ghulam Jillani Inspector held the accused guilty and recommended that accused be challaned. Five accused, Muhammad Aslam, etc. have been challaned on 28-2-2004, whereas non-bailable warrants of arrest of two accused Aman Ullah and Muhammad Hussain were obtained from the Court. The investigation of the case, according to the report, is in progress.

7. Gist of report of respondent No.2, the investigation conducted by A.S.-I. Muhammad Hussain, S.-I. Sher Baz, Inspector/S.H.O. P.S. Terkhanwala and D.S.P./S.D.P.O. Circle Sahiwal is considered collectively as first investigation. The taking over of investigation by SP (Investigation) under Article 18(4) of the Police Order, 2002 was improper and uncalled for. Against the above mentioned investigation by SP (Investigation), the complainant party preferred an application to the DIG, Sargodha Range for change of investigation and the same was referred to the Standing Board, Sargodha who recommended for the re-investigation. Under the law that would be treated as first change of investigation. According to the report, respondent No.2 being head of investigation of Punjab, ordered for the first change of investigation as envisaged under Article 18(6) of the Police Order, 2002.

8. According to the report that investigations conducted by A.S.-I. Muhammad Hussain, S.-I. Sher Baz, S.H.O./Inspector P.S. Terkhanwala and concurred by S.D.P.O., had declared petitioner innocent. He also declared the above investigations to be treated as first and one investigation. He also stated that SP (Investigation), Sargodha also found petitioner innocent but, according to him, the investigation by S.P. (Investigation), Sargodha was improper and uncalled for, therefore, he did not recognize that investigation at all. That is why, he considers investigation ordered by him as first change of investigation. If the order of taking over investigation by SP (Investigation), Sargodha was improper or uncalled for, what action has been taken against him? If he had taken cognizance improperly or illegally, should the petitioner be penalized for that? Should police officials be allowed to be benefited from their own illegality and mistake? If the respondent No.5 being dissatisfied with investigation of A.S.-I. Muhammad Hussain, S.-I. Sher Baz, Inspector/S.H.O. P.S. Terkhanwala, D.S.P./S.D.P.O. Circle Sahiwal and S.P. (Investigation), Sargodha, can be compensated by investigation ordered by respondent No.2, the same treatment should also be awarded to the petitioner as being dissatisfied by the last investigation ordered by respondent No.2, therefore, it would be appropriate and consistent with Article 18(6) of the Police Order, 2002 that respondent No.1 be directed to order for second, change of investigation.

9. The justification submitted by respondent No.2 for passing an order for the last investigation is .not satisfactory for reasons I B have already discussed and facts disclosed in the record of this case.

10. Too many investigations are deprecated by the Superior Courts, that was the idea behind the latest legislation, but the desired objective is not being achieved for reason of too much interference from different forces that should be discouraged. Investigation should only be intervened to save fundamental and legal rights of the parties or where mala fide and excess of jurisdiction is patent on the record. Another circumstance in which High Court may interfere in matters of investigation under the Constitutional jurisdiction is where a statutory functionary is found exercising his power not for the purpose for which it was conferred or by bare reading of F.I.R. it becomes obvious that the facts do not constitute offence mentioned in the F.I.R. The learned Additional Advocate-General Punjab has also shown his dissatisfaction on report submitted by respondent No.2, which is very fair on his part. D This fact also convinces this Court to direct respondent No.1 to order for second change of investigation in the interest of justice. This writ petition is allowed in above terms. N.H.Q/A-446/L Petition allowed.