P L D 2012 Lahore 315 (PLP)

RAUF AHMAD SHEIKH, J.

The petitioner has assailed the vires of order dated 16-11-2010 passed by respondent No.1 whereby the investigation of case F.I.R. No.199 of 2010 dated 6-8-2010 Police Station Akbari Gate, Lahore, under section 365, P.P.C., was transferred from Police Station Lytton Road, Lahore to DSP, Organized Crime (CIA), Civil Lines, Lahore.

2. Briefly stated the prosecution version as embodied in the F.I.R. recorded on the application of respondent No.5 is that her son Muhammad Irfan went to Darbar Sakhi Ghaus Shah Muhammad for offering tributes. She tried to make contact with him on his mobile phone but the same did not respond so she along with her other sons went to said Darbar and made search for her son but could not find any clue. She inquired from his friends and relatives for 3/4 days and learnt that the petitioner had abducted her son and apprehended that he might have been murdered due to dispute over the house.

3. Learned counsel for the petitioner has contended that the investigation of the case was transferred under the orders of the Provincial Ombudsman, who had no authority to pass an order for transfer of the investigation of a criminal case; that the report under section 173, Cr.P.C. has already been submitted in the Court so without permission of the trial court, no order for transfer of the investigation could have been passed and that the complainant had submitted an affidavit to the effect that she was satisfied due to 'Nian' (Special Oath) to the effect that the petitioner was not involved in the commission of the offence. In support of the contentions raised, reliance is placed on Muhammad Nasir Cheema v. Mazhar Javaid and others (PLD 2007 SC 31).

4. Learned D.P.G. has contended that the Provincial Ombudsman had only forwarded the grievance of respondent No.5 regarding dishonest investigation and the matter was placed before the Board, which after due deliberations made the recommendations for transfer by assigning cogent reasons and the impugned order was accordingly passed in accordance with law. It is urged that there is no bar on re-investigation or further investigation even if the report under section 173 Cr.P.C. is submitted in the court. In support of the contentions raised, reliance is placed on Javaid Iqbal v. Additional Inspector General of Police, Lahore and 4 others (PLD 2008 Lahore 488) and Bahadur Khan v. Muhammad Azam and 2 others (2006 SCMR 373).

5. The contention that the impugned order is illegal in the eyes of law as the Provincial Ombudsman had no power to pass such order is misconceived as a letter was sent to the concerned Police authorities and thereafter the matter was placed before the Board under Article 18 (6) of the Police Order, 2002, which made recommendations for transfer of the same. The impugned order is passed by the competent authority. The office of the Provincial Ombudsman was established for redressing and rectifying any injustice done to a person through maladministration as is clear from the preamble of the Punjab Office of the Ombudsman Act, 1997 and under section 9 of the Act ibid, the Ombudsman has the power to probe the malpractice.

6. The impugned order reveals that a Board was constituted under Article 18(6) of the Police Order, 2002, which made recommendations for transfer of 13 cases including the instant case and the same were approved by the Deputy Inspector General of Police (Investigation), Lahore. The deliberations were to be made by the Board. It is true that in PLD 2007 SC 31, it was held by the apex Court that after submission of the challan, the order for change of investigation is not sustainable in law but the august Supreme Court of Pakistan in Bahadur v. Muhammad Azam and 2 others (2006 SCMR 373) has held that there is no legal bar on re-investigation of a criminal case after submission of the final report under section 173, Cr.P.C. if new event/incident takes place warranting re-investigation or further investigation. This judgment was pronounced by a larger Bench of the apex Court so the same would be followed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. In the instant case, the affidavit of respondent No.5 had no value in the eyes of law as it has constantly been held by the Superior Courts of the country that conclusion of the investigation of criminal cases on 'Nian' is illegal. This ground alone was sufficient to pass an order for transfer of investigation for re-investigation and further investigation especially when the son of the complainant has yet not been recovered. The Police officers are under obligation to conduct and conclude the investigation purely on merits and strictly in accordance with law. The slipshod manner to draw conclusions on 'Nian', etc. is one of the glaring examples of maladministration. It is the duty of the Investigating Officer to unveil the truth and collect all relevant material/evidence in this regard. The impugned order is not improper or illegal rather appears to have been passed to achieve the above objects. The case-law cited by learned counsel for the petitioner is not applicable on the facts of the present case. The writ petition is without merits and the same is hereby dismissed. N.H.Q./M-27/L Petition dismissed.