2011 PLP 1179 (MLD)

SH. AHMAD FAROOQ, J.

Through the instant constitutional petition, the petitioner has prayed for declaring the recommendations dated 14-1-2010, whereby respondent No.2 has transferred the investigation of case arising out of F.I.R., No.406 of 2007 dated 7-12-2007 registered in Police Station Sabz Peer, District Sialkot, and the order dated 4-2-2010, passed by respondent No.1, as illegal and without lawful authority.

2. Brief facts, necessary for the disposal of the instant petition, are that one Muhammad Akram, lodged F.I.R. No.341 of 2007 dated 7-10-2007, against Mohsin and eight others, in Police Station Sabz Peer, District Sialkot, under sections 302/324/148/149 and 337-H(2), P.P.C. The petitioner contended that respondent No.4 with mala fide intentions filed a petition under sections 22-A and 22-B, Cr.P.C. which was disposed of by the learned Additional Sessions Judge, Sialkot, vide order dated 25-10-2007 with a direction to S.H.O., Police Station Sabz Peer, District Sialkot to register a criminal case against Shabbir Hussain etc., under the relevant provisions of law and taking further proceedings thereon. Consequently, S.H.O. Police Station Sabz Peer, Sialkot, registered an F.I.R. No.406 2007 dated 7-12-2007 against the present petitioner and 36 others nominated accused, in addition to 8/10 unknown accused persons, under section 380/458, P.P.C. The petitioner further contended that in fact F.I.R. No.406 of 2007 was a counter blast of F.I.R. No.341 of 2007, which was lodged in addition to being an after- thought on the part of the complainant. The petitioner claimed that three Investigating Officers found thirty (30) accused in the F.I.R. No 406 of 2007 as innocent and accordingly, the local police submitted a challan under section 173, Cr.P.C. in the trial Court against nine (9) accused persons. The learned trial Court framed charge in the said case on 11-1-2009 and the case was fixed for the evidence of the prosecution. At this stage, respondent No.4 moved an application for transfer of the investigation of the aforementioned F.I.R. No.406 of 2007 which was transferred to RIB, Gujranwala, Region, Gujranwala by respondent No.4/District Police Officer, Sialkot, vide order dated 4-2-2010. The petitioner asserted that neither a notice was given to him prior to the passing of the impugned order dated 4-2-2010 nor the investigation could have been transferred after the submission of the challan in the Court. Hence the instant petition.

3. Respondent No.1 filed a report and para-wise comments wherein he submitted that on the application of Ghulam Abbas, dated 5-11-2008 for first change of investigation the District Standing Board, after deliberations, recommended the said application. He further submitted that the recommendations of the District Standing Board were examined and considered by the Additional Inspector-General of Police, Punjab, who issued formal order for first change of investigation of the subject case and entrusted the same to RIB, Gujranwala Region, Gujranwala, vide order, dated 4-2-2010, in accordance with Article 18(6) of Police Order, 2002. He contended that the impugned order dated 4-2-2010 was passed in accordance with law and legally sustainable.

4. It is contended by the learned counsel for the petitioner that respondent No.4/Ghulam Abbas moved an application for transfer of the investigation of the case arising out of F.I.R. No.406 of 2007, dated 7-12-2007, under sections 458/380, P.P.C. and the District Standing Board, headed by respondent No.2, transferred the investigation of the said F.I.R. to RIB, Gujranwala Region, Gujranwala, without any reason and associating him in the proceedings, vide order dated 4-2-2010. It is further contended by the learned counsel for the petitioner that no notice was issued to the petitioner prior to the change of the investigation. He maintained that after the submission of challan in respondent of the F.I.R. No.406 of 2007, the investigation could not have been changed.

5. On the contrary, learned counsel for respondent No.4 submitted that there is no legal bar for re-investigation of a criminal case even after the submission of final report, under section 173, Cr.P.C. In support of his contention, learned counsel for respondent No.4 relied upon Muhammad Yousaf v. The State and others (2000 SCMR 453), Bahadur Khan v. Muhammad Azam and 2 others (2006 SCMR 373) and Saddar Din v. Deputy Inspector-General of Police Investigation) Capital City Police, Lahore and 6 others (PLD 2009 Lahore 585).

6. Arguments heard. Record perused.

7. The impugned order dated 4-2-2010 has been passed by the respondent No. 2 in exercise of the powers under Article 18(6) of Police Order, 2002, after following the procedure prescribed therein. The only grievance of the present petitioner is that no notice was given to him prior to the passing of the afore-mentioned order. The said contention of the petitioner is belied from the recommendations contained in memorandum dated 21-1-2010 wherein it is mentioned that the Standing Board heard the parties as well as Investigating Officer prior to recommending the transfer of the Investigation. This Court while exercising, constitutional powers cannot give a conclusive finding regarding the truthfulness or otherwise of the said observations incorporated in the memorandum dated 21-1-2010 as it is a factual controversy which requires recording of evidence.

8. As far as the second objection of the present petitioner regarding the transfer of the investigation after the submission of a report under section 173, Cr.P.C. is concerned, the same has been successfully rebutted by the learned counsel for respondent No.4 by relying upon Muhammad Yousaf v. The State and others (supra); Bahadur Khan v. Muhammad Azam and 2 others (supra) and Saddar Din v. Deputy Inspector-General of Police (Investigation), Capital City Police, Lahore and 6 others (supra). It has been held in Bahadur Mian v. Muhammad Azam and 2 others (supra.), that there is no legal bar for re-investigation of a criminal case even after submission of final report under section 173, Cr.P.C. and the police could carry out the fresh investigation and submit its report to the trial Court.

9. In view of above, it cannot be held that the impugned order dated 4-2-2010 is illegal, arbitrary and without lawful authority. Hence, the instant petition is without any force and the same is accordingly, dismissed. H.B.T./L-9/L Petition dismissed.