2006 P Cr (PLP)

MUHAMMAD JEHANGIR ARSHAD, J.

The petitioner who is accused in case F.I.R. No.123, dated 8-4-2005 under sections 337-A(i), 337-A(ii)/34, P.P.C. Police Station Tibba Sultanpr Tehsil Mailsi, District, Vehari, is aggrieved against the refusal by Additional Inspector-General of Police/respondent No.1 to transfer the investigation of the said case in terms of Article 18(2) of the Police Order.

2. The, facts in brief are that as a result of first investigation conducted by Khalid Israr Ghuman, the petitioner was declared as innocent but on an application moved by the complainant the investigation for the first time changed and was handed over to Bashi. Ahmad, S.-I. who while disagreeing the findings of the first Investigating Officer about innocence of the petitioner, declared him as accused and for that purpose the petitioner moved application under Article 18(6) of the Police Order for second change of investigation but the same was disallowed by Additional Inspector-General of Police respondent No.1, hence this constitutional petition.

3. It is submitted by learned counsel for the petitioner that this Court while sitting in constitutional jurisdiction is empowered to interfere and direct respondent No.1 to change the investigation as the same was in the interest of justice. It is further contended that since the petitioner has got no alternate remedy against refusal order by the said respondent, therefore, this constitutional petition is maintainable.

4. On the other hand, learned A.A.-G. assisted by learned counsel for the complainant has submitted that it is not necessary in every case that investigation must be changed whether the same was required or not. They further argue that want of alternate remedy against refusal of the Additional Inspector-General to change investigation, does not mean that this Court must interfere irrespective of the fact that same was called for or not. The learned Law Officer has also argued that it is an established principle of law that finding of the Investigating Officer is not binding on Court, hence change of investigation would have no bearing on the trial of the petitioner as the trial Court despite findings of the Investigating Officer declaring the petitioner as innocent can still direct the Investigating Officer to submit report under section 173, Cr.P.C. and proceed with the trial. In support of this contention reliance has been placed on the case Muhammad Ashfaq v. Amir Zaman and others 2004 SCMR 1924.

5. I have considered the above arguments of learned counsel for the parties and perused the material available on record.

6. It is an established principle of law that constitutional jurisdiction is discretionary in nature and High Court is not bound to interfere in each and every matter just on the ground of want of alternate remedy against the action impugned or called in question in writ petition, unless there are some compelling reasons showing that non-interference would either result in injustice or would amount to support the retention of illegal gain, as held by the Honourable Supreme Court of Pakistan in the case Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC

304. The only purpose seeking change of investigation, as advanced by learned counsel for the petitioner, is that he has been found guilty in the second investigation; therefore, second change of investigating by the Additional Inspector-General was inevitable so as to have a second opinion. However, the above mentioned contention of the learned counsel has got no legal sanctity and second opinion by the Investigating Officer cannot be made a ground for approaching this Court. In any case as held by the Honourable Supreme Court in the cited judgment, the findings of the Investigating Officer about guilt or innocence of any person as a result of the investigation, aim of which is just to collect evidence, has no binding effect on the Court and despite finding by the Investigating Officer declaring a person as innocent, jurisdiction of the trial Court to take cognizance of the matter and to proceed with the trial against the accused still would not be taken away, just on the ground that the Investigating Officer declared the petitioner as innocent. Even otherwise, in the case Brig. (Rtd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142 the Honourable Supreme Court in unequivocal terms held that the Court could not assume the .role of investigation nor can control the investigation by interfering in constitutional jurisdiction. Earlier in Riaz Hussain and others v. The State 1986 SCMR 1934 the Honourable Supreme Court also disapproved successive change of investigation which trend according to the Honourable Supreme Court was being used at the behest of influential persons of the Society. Perhaps for this reason the Legislature thought it proper to regulate the question of change of investigation permanently by incorporating provisions of Article 18(6) of the Police Order giving the jurisdiction of change of investigation exclusively to the concerned authorities and in case the concerned authorities do not consider proper to change the investigation any interference by this Court would amount to interference in the internal administration of the State authorities which is against the principle of doctrine of trichotomy of powers which grants powers under the Constitution to each organ of the State to decide the matter in its allotted sphere. Reliance is placed on the case Syed Nazar Abbas Jaffri v. Secretary to Government of the Punjab and another 2006 SCMR 606 and Ch. Zahur Ilahi, M.N.A. and 2 others v. Mr. Zulfikar Ali Bhutto and others PLD 1975 SC 383.

7. For what has been discussed above, this petition has no force and is accordingly dismissed with no order as to costs. H.B.T./W-22/L Petition dismissed.