P L D 2008 Lahore 215 (PLP)

TARIQ SHAMIM, J.--Through this petition, the petitioner has challenged the investigation conducted by respondent No.2, Superintendent of Police (Investigation), Hafizabad, in case F.I.R. No.365 of 2006 dated 27-4-2006, for offences under sections 440, 148 and 149 P.P.C, registered at Police Station Pindi Bhattian, District Hafizabad, as being illegal, unlawful, arbitrary, without jurisdiction, in violation of law and Police Order, 2002.

2. Briefly stated the facts of the case are that after lodging of the aforesaid F.I.R. the petitioner, who is the complainant, joined investigation which was conducted by the local police in which all accused persons were declared guilty. The file was entrusted to the S.H.O. Police Station Pindi Bhattian by the D.S.P. (Investigation) to arrest the accused persons and to submit report under section 173, Cr.P.C. to the Court of competent jurisdiction. The District Police Officer, Hafizabad, respondent No.1 after completion of investigation ordered reinvestigation of the case and entrusted the same to the S.P. (investigation), Hafizabad. The complainant feeling aggrieved filed an application to the D.I.-G., Gujranwala Range, who ordered the S.P. (Investigation) to ensure that the provisions of the Police Order/law were not violated. In compliance with the said order- the S.P. (Investigation) stopped the investigation and returned the file to the S.H.O. Subsequently, the petitioner came to know that on the order of the Additional Inspector General of Police, Investigation Branch, Punjab, Lahore, reinvestigation had been ordered which was conducted by respondent No.2 and vide diary No.10 dated S8-9-2006 he had recommended cancellation of the case.

3. According to the learned counsel, respondent No.2 after receiving the order completed ante-dated investigation without associating the petitioner with the investigation proceedings and that the order passed by the Additional I.-G. of Police for reinvestigation is violative of Article 18(6) of the Police Order, 2002 inasmuch as the same was passed without recommendation of the Standing Board.

4. The Teamed Assistant Advocate General after having perused the record produced by Khalid, Sub-Inspector has not controverted the stand taken by the learned counsel for the petitioner but has verified that the S.P. (Investigation) without any lawful authority had conducted the investigation and recorded Zimni No.10 dated 28-9-2006 which is in complete disregard and violation of the Police Order, 2002 and is, therefore, liable to be set aside.

5. I have heard the learned counsel as well as the learned Assistant Advocate General and gone through the record.

6. Comments were requisitioned from Addl. Inspector General of Police, Investigation Branch, Punjab, respondent No.8 which reveal that on the application of accused Meraj Din, Addl. I.-G. of Police vide Memo. No.36812/Inv/HC dated 21-8-2006 directed the head of investigation to ensure investigation on merits under his close supervision. In the comments, it is further stated that his office never issued any order for change of investigation in the case and the Memo referred to in the writ petition contained a supervisory direction to the head of the investigation which was misconstrued as order for change of investigation. In Para No.5 of the comments it is also mentioned by the Addl. I.-G. that the investigation, if any, conducted pursuant to the above said direction is contrary to the law as the change of investigation can only be ordered by Addl. I.-G. Investigation Branch on the recommendation of the Board. He has gone further to state that the investigation conducted by the local police prevails and explanations are being sought from the concerned for their conduct contrary to the mandatory provisions of Article 18(6) of the Police Order, 2002. It is not denied by the learned Law Officer that the S.P. (Investigation) instead of complying with the direction of Addl. I.-G. of Police had, in fact conducted the investigation in the case and after associating the parties with the investigation proceedings had incorporated Zimni No.10 dated 28-9-2006. Thus, from the foregoing it is manifest that the entire exercise undertaken by respondent No.2 in conducting reinvestigation of the case is illegal and void ab initio being contrary to the provisions of Article 18(6) of the Police Order, 2002. It is conclusively proved from the record that the S.P. (Investigation), respondent No.2 had undertaken an exercise which was not warranted under the law as the same had not been entrusted to him in accordance therewith.

7. For what has been discussed above, this writ petition is accepted and case diary No.10 dated 28-9-2006 incorporated by the S.P. (Investigation), respondent No.2 is set aside. No order as to costs. H.B.T./M-620/L Petition accepted. ***