2014 PLP 1499 (SCMR)

IJAZ AHMED CHAUDHRY, J.

Qari Muhammad Rafique, petitioner, by way of instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, seeks leave to appeal against the order dated 8-4-2013, passed by a learned Division Bench of Lahore High Court, Lahore in Intra Court Appeal No. 288 of 2013.

2. Briefly, the facts relevant for the disposal of this petition, are that F.I.R. No. 52 of 2012, dated 16-5-2012, was registered against the petitioner and 10 others under sections 302, 148, 149, 109, P.P.C. at Police Station Chakrala, District Mianwali. During the course of investigation, co-accused of the petitioner, namely, Gul Rehman, Muhammad Hanif, Qamar Din and Rafiullah were declared innocent to the extent of occurrence but declared guilty to the extent of common intention. The petitioner, moved an application to the Additional Inspector-General of Police (Investigation) Punjab, Lahore for change of investigation on 3-12-2012 on which a Board was constituted under Article 18(6) of Police Order, 2002, which after hearing both the parties, changed the investigation vide order dated 25-2-2013. Feeling dissatisfied with the aforesaid order Jan Muhammad filed Writ Petition No. 5664 of 2013 which was accepted by a learned Single Judge in Chamber vide order dated 27-3-2013 and the order dated 25-2-2013 was quashed whereby the investigation in the instant case was transferred. Being aggrieved by the aforesaid order, petitioner filed Intra Court Appeal No. 288 of 2013 which stood dismissed vide order dated 8-4-2013. Hence, this petition for leave to appeal.

3. Learned counsel for the petitioner contends that the order passed by the learned Single Bench as well as the learned Division Bench are against law and facts of the case; that there is no legal bar for change of investigation even after submission of challan, if some fresh material is available on record; that there is no legal bar in submitting the supplementary challan by the Investigating Officer before the learned trial Court and, as such, the learned High Court erred in law in brushing aside the order of change of investigation.

4. Learned counsel for respondent No.6, while vehementally opposing this petition, contends that the order passed by the Board transferring the investigation was well within the competence of the Board which was passed after fulfilling the requirements and after hearing both the parties but the same has illegally been set aside; that the application for transfer of investigation was filed on 3-12-2012, whereas challan was submitted few days thereafter; that learned Single Judge has interfered with the process of investigation and set aside the well reasoned order and the Board transferred the investigation of the case on the basis of some fresh material available on record.

5. We have heard the learned counsel for the parties and perused the available record. Learned counsel for the petitioner while arguing the matter before the learned Division Bench, seized of the Intra Court Appeal No.288 of 2013, admitted in clear terms that the challan was submitted in court at least two months prior to the transfer of investigation and at that time charge had also been framed against the accused by the learned trial Court. The trial had also commenced at the time of transfer of investigation, as such, the order for transfer of investigation at that belated stage was not sustainable in view of the law laid down by this Court in the case of Muhammad Nasir Cheema v. Mazhar Javaid and another (PLD 2007 SC 31). In such circumstances learned Single Judge in Chamber had rightly accepted the Writ Petition filed by respondent No.6 and had committed no illegality or material irregularity and we also find no jurisdictional defect in the said order. The learned Division Bench had also dismissed the Intra Court Appeal for valid reasons which findings cannot be interfered with by this Court in its constitutional jurisdiction under Article 185(3) of the Constitution.

6. The resume of the above discussion is that we find no merit in this petition which is hereby dismissed. Leave is refused. MWA/M-35/SC Petition dismissed.