2005 P Cr (PLP)

This Constitutional petition is directed against the summons for appearance dated 6-1-2005 pursuant to the transfer of investigation of the case.

2. Brief facts necessary for adjudication of the lis in hand are that F.I.R. No.89 of 2004, dated 24-2-2004, under sections 302/324, 148/149, P.P.C., was lodged at Police Station Gogera, by the petitioner against respondents Nos.5 to

9. Initially, the investigation in the case was conducted by the S.H.O. Police Station, Gogera, who concluded that some of the respondents-accused were innocent.

3. Aggrieved by the aforesaid investigation, the petitioner filed Writ Petition No.6151 of 2004, before this Court as a consequence whereof respondent No.2 changed the investigation and transferred the same to the Regional Investigation Branch, Sheikhupura. The said investigation was concluded and challan filed on 23-11-2004. It appears that the trial has also commenced. Thereafter, one of the accused filed an application before respondent No.1 for transfer of investigation. It appears that an opinion was solicited from respondent No.2 and the D.I.-G. Crimes Investigation Branch, Punjab; whereafter vide order dated 14-12-2004, respondent No.1 directed the transfer of the investigation and pursuant thereto the impugned notice, dated 6-1-2005 was issued by the Additional I.-G. Investigation Branch Punjab, Lahore, to the parties for joining the investigation on 10-1-2005 before the Investigating Officer.

4. The counsel for the petitioner has been heard, the record appended with this petition along with report and parawise comments filed by respondents Nos.1 to 3 have also been perused.

5. The petitioner has challenged the summons for appearance on two grounds; firstly, since the challan has been submitted and the trial has commenced, hence no investigation, now, can take place and secondly that, the order of the transfer of the investigation by respondent No.1 is illegal and ultra vires of Article 18(6) of the Police Order, 2002.

6. As far as the first objection raised on behalf of the petitioner is concerned the same is misconceived. There is no legal bar for the conduct of the investigation of a case even after the filing of report under section 173, Cr.P.C.; and the police is authorized under the law to carry out fresh investigation and submit its report to the Court. This is a settled law and has been reiterated by the august Supreme Court of Pakistan in the case reported as Muhammad Yousaf v. The State 2000 SCMR 453.

7. With respect to the second objection, it has been contended by the learned counsel that in terms of Article 18(6) of the Police Order, 2002, respondent No.1 has no powers to transfer the investigation of a case except on the recommendations of the Board constituted under the said provision of law. The Article 18(6), Police Order, 2002 read as under:-- 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.

8. A bare reading of the proviso along with the main Article makes its clear and obvious that an investigation cannot be changed except upon the recommendations of a Board constituted under Article 18(6). The said provisions also contemplate that the final order for change of investigation shall be passed by the head of the investigation in the general police area, who shall record reasons for such change. It is further provided that for the second change of investigation the approval of respondent No.1 would be required. No independent power of transfer has been conferred upon respondent No.1 without the recommendation of a Board constituted for the purpose.

9. The learned Law Officer has attempted to rely upon the second proviso of 18(6) of the Police Order, 2002 to canvass the proposition that the same confers the powers upon respondent No.1 to effect transfer of investigation. I am afraid that the contention of the learned Law Officer cannot be accepted. The proviso in a statute generally cannot travel beyond the scope of the main enactment. It is ordinarily something subordinate to the main clause and must be read along with the same. I am fortified in my view by the judgments reported as Commissioner of Income Tax v. Messrs West Punjab Factories Ltd., Okara PLD 1966 (W.P.) Lah. 236 and Province of Punjab v. Nadeem & Company, Lahore PLD 1976 Lah. 1273.

10. There is nothing in the wording of the second proviso, which can be interpreted so as to confer an independent power upon respondent No.1 to transfer the investigation. It merely provide that in case of second transfer of investigation an additional condition is imposed i.e. the approval of respondent No.1. In a recent judgment passed by this Court in a case reported as Kaneez Fatima v. Inspector-General of Police Punjab, Lahore and others 2004 MLD 1520 it was held to this effect also, and the relevant portion is reproduced hereunder:-- Respondent No.1 has also not considered the provisions of Police Order, 2002, whereunder he could not do it, for the fourth time and that too without seeking any recommendations from the Committee so constituted.

11. In view of the above, it is clear and obvious that the order of the transfer of the investigation passed by respondent No.1 is illegal and ultra vires of the Police Order, 2002 and is hereby set aside along with the impugned notice, dated 6-1-2005. This Constitutional petition is accepted. However, it is clarified that the change of an investigation may be effected on the recommendation of a Board constituted under Article 18(6) of Police Order, 2002; and after obtaining requisite approval of respondent No.1 contemplated therein. H.B.T./I-79/L Petition accepted.