2013 PLP 309 (YLR)

MAZHAR IQBAL SIDHU, J.

Through the instant constitutional petition Khizar Ahmad petitioner has called in question order dated 19-7-2011 passed by respondent No.1 Deputy Inspector General of Police (Investigation), Lahore whereby the investigation of this case was transferred.

2. Facts, pithily, compelled the petitioner to institute the instant petition are that on the written complaint of Kh. Nadeem Ahmad respondent No.6 a case was registered against the petitioner vide F.I.R. No.1027 dated 1-9-2010 under sections 420/406, P.P.C. at Police Station North, Cantt., Lahore, debunking that he and the petitioner through a joint venture initiated business but the same could not continue and the petitioner allegedly dishonestly misappropriated capital invested therein.

3. Case was investigated and as being found false its cancellation report was prepared by the Inspector/S.H.O. on 13-11-2010 and then the same was placed before the learned court of Illaqa Magistrate concerned in order to obtain an order on it but in the meanwhile, investigation was transferred through the impugned order dated 19-7-2011 handed down by respondent No.1.

4. Being aggrieved of the said order, hence the instant petition.

5. Learned counsel for the petitioner venerably submits that the impugned order is perverse on the face of it on account of shorn of reasons and respondent No.1 did not provide an opportunity to the petitioner of being heard and the DSP Absar Alam respondent No.4 has played dual role in this case, when comments were called on the petition he concurred with the investigation carried by the I.O. and with the report of the S.H.O. whereas on the other hand he intimated his high ups that investigation was not properly conducted and when the matter was before the Court then the police was not competent to order for the transfer of investigation of the case and the Court had to decide the matter in issue in accordance with law. Learned counsel has relied upon legal precedents to support his arguments.

6. Contrarily, the learned counsel for respondent No.6 has refuted the arguments by submitting reverentially that the I.O. dishonestly after having joined hands with the petitioner did not investigate the case properly despite the fact that he was provided all facts and relevant material. Learned counsel has supported the impugned order with legal precedents.

7. Hearkened. Record perused.

8. It is considered expendable to dilate upon the facts of the case as the same have been mentioned herein before. At one stage, the case was found false after investigation as mentioned op-cit, after filing the instant petition, by the petitioner, respondent No.4 (DSP/SPO) was directed to submit parawise comments and reply to the writ petition, he submitted reply to it that he concurred with the aftermath of investigation but contrarily intimated his hierarchy otherwise whereupon the Standing Board transferred the investiga-tion. In order to better appreciate issue involved record of the Board as to transfer of investigation was requisitioned in order to know the reasons assigned by the Board for the transfer of investigation as required under Article 18(6) of the Police Order, 2002. The record was produced and the same was gone through. The order whereby the investigation was transferred lacks reasons. Whereas Article 18(6) of the Police Order, 2002 imperatives to assign reasons for the transfer of investigation and the same is reproduced as follows:-- (1) "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 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. Explanation.

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9. For what has been discussed above, the instant petition is accepted and the impugned order dated 19-7-2011 being shorn of reasons is declared illegal and unlawful and the same is set aside. No order as to costs. MWA/K-53/L Petition accepted.