P L D 2009 Lahore 585 (PLP)

HAFIZ TARIQ NASIM, J.

The backdrop of this writ petition is that the petitioner got registered F.I.R: No.1207/08 under section 376 P.P.C. with Police Station Shandara Lahore with the allegation that respondent No.7 forcibly committed rape with the petitioner/complainant's daughter. The case was entrusted to respondent No.6 for investigation, who recorded statement of, the prosecution witnesses under section 161, Cr.P.C. statement of the victim was recorded before the learned Illaqa Magistrate under section 164, Cr.P.C. and she was also got medically examined. Respondent No.6 concluded his investigation, prepared his report under section 173, Cr.P.C. and submitted before the trial Court, however, after submission of challan, D.I.G./respondent No.1 .has transferred the investigation and entrusted the same to D.S.P./SPO Shafiqabad Circle, Lahore vide the order dated 2-3-2009 which is impugned in the present writ.

2. Learned counsel for the petitioner argued the case at length and submitted with vehemence that after submission of challan before the trial Court on 27-2-2009 the D.I.G./respondent No.1 could not transfer the investigation of the case and entrust to D.S.P. Shafiqabad Circle, thus action of respondent No.1 being a nullity in the eye of law is liable to be quashed. Further submits that the said exercise being parallel to the investigation conducted by respondent No.4 D.S.P. Shandara Circle through report dated 18-2-2009 is without any lawful authority and has virtually prejudiced the petitioner's case which is also liable to be declared illegal. In support of his submissions, the learned counsel has relied on Aziz Ahmad v. Provincial Police Officer (I.-G.P.), Punjab Lahore and 6 others (PLD 2005 Lahore 185), Khizar Hayat and others v. Inspector-General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470) and Muhammad Nasir Cheema v. Mazhar Javaid and others (PLD 2007 SC 31).

3. On the other hand, learned Advocate-General as well as the learned counsel for respondent No.7 submits that respondent No.4 D.S.P. Shandara did not investigate the case, in fact on an application for transfer of investigation moved by brother of the accused namely Miraj Khalid, the D.I.-G. (Investigation) marked the case to respondent No.4 for verification and report and the said D.S.P, after hearing both the parties, submitted his requisite report, then the matter was placed before the appropriate Board constituted in terms of Article 18(6) of Police Order 2002 and then the impugned order was passed. Further submits that the petitioner's case cannot be said to be prejudiced because the trial Court is to examine the evidence on record and is not bound by the opinion of the police.

4. At this juncture, learned Advocate-General suggested that the petition be disposed of with a direction to the learned trial Court to decide the matter on the basis of evidence without being influenced from the opinion of any police officer.

5. Arguments heard. Record perused.

6. It is well settled law laid down by the Honourable Supreme Court of Pakistan that "each and every case is to be decided on its own merits". It is also well settled law that "if the law requires to do a thing in a particular manner, it must be done in that manner only and not otherwise".

7. To resolve the present controversy, first of all I have to go through the judgments referred by the learned counsel for the petitioner as well as the relevant provisions of the Police Order, which shall be advantageous to reproduce as under:-- "18(6) Investigation shall not be changed except after due deliberations and recommendations by a Board headed by a officer not, below the rank of Senior Superintendent of Police and two Superintendents of Police, one being in-charge of .the investigation of the concerned district: Provided that the final order for the change of investigation shall be passed by head of investigation in the general police area who shall record reasons for change of such investigation: Provided further that the second change of investigation may only be allowed with the approval of the Provincial Police Officer, or the Capital City Police Officer, as the case may be."

8. After going through the provisions of Police Order supra and the judgment reported as Muhammad Nasir Cheema v. Mazhar Javaid and others (PLD 2007 SC 31), the facts of the present case if examined in its true spirit, then to my mind the judgment relied upon by the learned counsel for the petitioner is not applicable because of its distinctive features, particularly when there is a case-law reported as Bahadur Khan v. Muhammad Azam and 2 others (2006 SCMR 373), wherein it has been held by the Honourable Supreme Court that the investigation can be conducted even after the submission of the challan. It is also noticed that judgment in the case of Bahadur Khan is of a Larger Bench and it is well settled law laid down by the Honourable Supreme Court reported as Azmat Ullah through L.Rs. v. Hamidan Bibi and others 2005 SCMR 1201 that judgment of a Larger Bench of the Supreme Court would be preferred over the judgment of a Smaller Bench. It is also noticed that in the judgment reported as Muhammad Nasir Cheema v. Mazhar Javaid and others (PLD 2007 SC 31), the judgment reported as Bahadur Khan v. Muhammad Azam and 2 others (2006 SCMR 373) is not overruled or even discussed.

9. So far the judgment referred by the learned counsel for the petitioner in the case of Aziz Ahmad (supra) is concerned, the learned Bench practically adverted to Article 18(6) of the Police Order and finally held that "if reinvestigation is directed as provided under Article 18(6) of the Police Order 2002, that will not be effected by this order".

10. So far the judgment referred by the learned counsel for the petitioner Khizar Hayat and others v. Inspector-General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470) is concerned, it is held, "The job of an Investigating Officer is, thus, only to collect all the relevant evidence pertaining to the allegation levelled regarding the crime in issue so as to dig out the truth enabling and facilitating the relevant Court to administer Justice between the parties. His job is not to satisfy the parties to the case or to arrogate to himself the role of an adjudicator rendering an opinion regarding guilt or innocence of any person.--We may clarify here for the benefit of all concerned that an investigating officer of a criminal case is not to render any opinion regarding guilt or innocence of an accused person and under the relevant statutory provisions contained in the Code of Criminal Procedure, 1898, the Police Order, 2002 and the Police Rules, 1934, he is only to collect all the relevant evidence and to submit his report and the collected evidence and material before the relevant Magistrate so that the Magistrate or the trial Court can then form their own independent opinion regarding sufficiency or otherwise of the evidence and material in order to decide whether to take cognizance of the offence and of the case or not to summon any person to face a trial or not and to frame a charge against a person or, not

The law is firmly settled on the point to the extent of being trite that an opinion of the police officer regarding guilt or innocence of an accused person is inadmissible in evidence being irrelevant".

11. No doubt that in this judgment the learned Bench of this Court disapproved the system of reinvestigation in criminal cases but the fact remains that the present case having distinctive features cannot attract the jurisdiction of this Court under Article 199 of the Constitution of Pakistan for setting aside the order dated 2-3-2009 only on a short ground that according to Article 18(6) of the Police Order, 2002, the law bestows a power on the duly constituted Board to recommend for reinvestigation and if the said Board recommends for reinvestigation of the case then even after the submission of the challan the reinvestigation cannot be debarred.

12. So far the opinion or report of the respondent No.4 in the present case is concerned, it is held that it shall have no binding effect on the trial Court, rather the learned trial Court is to decide the case on the basis of evidence and shall not be bound to agree to the opinion of any police officer. With these observations, the writ petition is dismissed. N.H.Q./S-67/L Petition dismissed.