2019 P Cr (PLP)

MUHAMMAD WAHEED KHAN, J.

Through this writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has impugned the order dated 02.03.2018 passed by Regional Police Officer, Sheikhupura Region, RPO Office, Lahore/respondent No.1 whereby the investigation of case FIR No.179 of 2017 dated 16.05.2017, registered with Police Station Warburtan, District Nankana Sahib has been changed.

2. The crux of arguments of learned counsel for the petitioner is that report under section 173, Cr.P.C. has already been submitted before the learned trial court and the trial in this regard has commenced and keeping in view this situation it was not an occasion for respondent No.1 to pass the impugned order whereby the second investigation of the instant case had been changed.

3. On the other hand, learned counsel appearing on behalf of respondent No.3 opposed the contention of the learned counsel for the petitioner and contends that in fact respondent No.1 has passed the order on the recommendations of Regional Standing Board, Sheikhupura Region and it was well within the competence of respondent No.1 to change the investigation in the instant case.

4. Heard. Record perused.

5. The facts, in brief, are that complainant/respondent No.3 lodged FIR No.179/2017 dated 16.05.2017 against the petitioner and six others under sections 452, 354, 148, 149, 337-A(i), 337-F(i), 337-L(2), P.P.C. at Police Station Warburtan, District Nankana Sahib. A cross version was also recorded under sections 337-F(iii) and 34, P.P.C. on the complaint of one of the accused persons of FIR namely, Muhammad Arshad son of Roshan Din against respondent No.3/Muhammad Nadeem and three others.

6. The investigation of the case was conducted by Mushtaq Ahmed, ASI who declared one of the accused persons namely Sajjad alias Shahzad innocent being not present at the place of occurrence however, he declared rest of the accused persons guilty, and also declared accused of cross version namely Rashid Ali guilty but declared rest of the three persons as innocent.

7. Being aggrieved of the investigation of above said Mushtaq Ahmed ASI, petitioner party moved an application for change of investigation which was allowed by the DPO Nankana Sahib on the recommendations of Standing Board vide order dated 11.09.2017 and investigation was re-conducted by Sadaqat Ali (SHO)/Inspector Police Station Sadar Shah Kot who declared accused persons namely Arshad Ali guilty of house trespass and accused namely, Shoaib was held guilty of offence under section 354, P.P.C. and rest of the accused persons of FIR were declared innocent being not participated in the occurrence and on the other hand, said I.O. declared Rashid accused of cross version guilty of causing injury to Arshad Ali and rest of the accused persons were declared innocent being not present at place of occurrence.

8. The investigating Officer concluded his investigation on 22.09.2017 and forwarded the same to SHO/respondent No.2 for submission of report under section 173, Cr.P.C. to the court of competent jurisdiction.

9. Respondent No.2/SHO submitted report of the case under section 173, Cr.P.C. before the learned District Public Prosecutor Nankana Sahib on 10.11.2017 who forwarded the same to court of competent jurisdiction for its trial.

10. The learned trial court by taking cognizance of the matter framed charge against the accused persons on 10.02.2018.

11. At this juncture, on the application of complainant/respondent No.3, RPO/respondent No.1 on the recommendations of Regional Standing Board, Sheikhupura Region ordered second change of investigation of case vide his order dated 02.03.2018.

12. From the above narration of facts it reveals that since the report under section 173, Cr.P.C. had already been submitted before the learned trial court and the learned trial court had taken the cognizance of the case and framed the charge against the accused persons on 10.02.2018 and after that the complainant of the instant FIR respondent No.3 moved an application to respondent No.1 who after recommendations of the Regional Standing Board recommended for second change of investigation. As such, the order for change of investigation at that belated stage was not sustainable in view of the law laid down by the Hon'ble Supreme Court of Pakistan in case of Qari Muhammad Rafique v. Additional Inspector General of Police (Inv) Punjab and others (2014 SCMR 1499) and in the case of Muhammad Nasir Cheema v. Mazhar Javed and others (PLD 2007 Supreme Court 31). In the case of Qari Muhammad Rafique (supra) the Hon'ble Supreme Court of Pakistan has observed as under:- "

5. We have heard the learned counsel for the parties and perused the available record. Learned counsel for the petitioner while arguing the matter before the learned Division Bench, seized of the Intra Court Appeal No.288 of 2013, admitted in clear terms that the challan was submitted in court at least two months prior to the transfer of investigation at that time charge had also been framed against the accused by the learned trial Court. The trial had also commenced at the time of transfer of investigation, as such, the order for transfer of investigation at that belated stage was not sustainable in view of the law laid down by this Court in the case of Muhammad Nasir Cheema v. Mazhar Javaid and another PLD 2007 SC

31. In such circumstances learned Single Judge in Chamber had rightly accepted the Writ Petition filed by respondent No.6 and had committed no illegality or material irregularity and we also find no jurisdictional defect in the said order. The learned Division Bench had also dismissed the Infra Court Appeal for valid reasons which findings cannot be interfered with by this Court in its constitutional jurisdiction under Article 185 of the Constitution.

6. The resume of the above discussion is that we find no merit in this petition which is hereby dismissed. Leave refused."

13. For what has been discussed above, the instant petition is hereby allowed and the impugned order dated 02.03.2018 passed by Regional Police Officer, Sheikhupura Region, RPO Office, Lahore/respondent No.1 is hereby set aside and learned trial court is directed to proceed with the matter in accordance with law. SA/M-61/L Petition allowed.