2005 PLP 1593 (MLD)

This petition is directed against the order dated 27-4-2005 passed by the learned Additional Sessions Judge, Multan whereby he dismissed the application of the petitioner for transfer of investigation in case F.I.R. No.6 of 2005 dated 7-1-2005 registered under section 379, P.P.C. at Police Station Alpa District, Multan to Range Crime Branch, Multan.

2. Learned counsel for the petitioner submits that being not satisfied with the conduct of investigation the petitioner had approached the police functionaries but nothing was done. Subsequently the petitioner moved an application under section 22-A, Cr.P.C. in the Court of learned Sessions Judge, Multan for transfer of investigation. It is contended that the learned Additional Sessions Judge called the record and without any reason dismissed the application vide order dated 27-4-2005. Further contended that a direction be issued for transfer of investigation.

3. I have heard learned counsel for the petitioner and also gone through the impugned order dated 27-4-2005 passed by learned Additional Sessions Judge, Multan whereby he has observed that investigation of the case was conducted by Muhammad Ramzan, S.-I. which was verified by DSP/SDPO, then S.P. (Investigation) District, Multan also probed into the matter and all the three Investigating Officers were unanimous regarding the .innocence of the accused and had commended for cancellation of case. The learned Additional Sessions Judge being not satisfied dismissed the application filed by petitioner.

4. Section 22-A, Cr.P.C. was inserted in the Code a Criminal procedure just to lessen the burden on this Court whereby such-like matters ought to be resolved by the Court of first instance by deciding matter.

5. Article 199 of the Constitution of Islamic Republic of Pakistan, A 73 empowers this Court to review or set aside the order passed under section 22-A, Cr.P.C. but such powers can only be exercised if the lower Court has not applied its mind or has overlooked some material pest of the case. When the lower Court has passed a well-reasoned order keeping in view the fact of the case, no interference is required by this Court and approaching this Court should be discouraged.

6. Section 22-A and B is reproduced below for convenience: 22-A: Powers of Justice of the Peace.--(1) A Justice of Peace for any local area shall for the purposes of making an arrest having within such area all the powers of a Police Officer referred to in section 54 and an officer-in-charger of a police station referred to in section 55. (2) A Justice of the Peace making an arrest in exercise of any powers under subsection (1) shall, forthwith, take or cause to be taken the person arrested before the officer-in-charge of the nearest police station and furnish such officer with a report as to the circumstances of the arrest and such officer shall thereupon re-arrest the person. (3) A Justice of the Peace for any local area shall have powers, within such area, to call upon any member of the police force on duty to aid him:-- (a) in taking or preventing the escape of any person who has participated in the commission of any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having so participated; and (b) in the prevention of crime in general and, in particular, in the prevention of a breach of the peace or a disturbance of the public tranquility. (4) Where a member of the police force on duty has been called upon to render aid under subsection (3), such call shall be deemed to have been made by a competent authority. (5) A Justice of the Peace for any local area may, in accordance with such rules as may be made by the Provincial Government. (a) issue a certificate as to the identity of any person residing within such area, or (b) verify any document brought before him by any such person, or (c) attest any such document required by or under any law for the time being in force to be attested by a Magistrate, and until the contrary is proved, any certificate so issued shall be presumed to the correct and any document so verified shall be deemed to be duly verified, and any document so attested shall be deemed to have been fully attested as if he had been a Magistrate. 22-B: Duties of Justice of the Peace.

Subject to such rules as may be made by the Provincial Government, every Justice of the Peace of any local are shall:-- (a) on receipt of information of the occurrence of any incident involving a breach of the peace, or of the commission of any offence within such local area, forthwith make inquiries into the matter and report in writing the result of his inquiries to the nearest Magistrate and to- officer-in-charge of the nearest police station; (b) if the offence referred to in clause (a) is a cognizable offence, also prevent the removal of anything from, .or the interference in any way with, the place of occurrence of the offence; (c) when so required in writing by a police officer making an investigation under Chapter XIV in respect of any offence committed within such local area: (i) render all assistance to the police officer in making such an investigation; (ii) record any statement made under expectation of death by a person in respect of whom a crime is believed to have been committed."

7. In the instant case the investigation was conducted upto the level of S.P. (Investigation) and all the three Investigating Officers found the accused innocent. If there had been any conflict in the findings of Investigating Officers, the petitioner would have any case for transfer of investigation. Although the police has recommended the cancellation report yet the concerned Magistrate may challan the accused disagreeing with the police findings as the same would not be binding upon him. Even if the Magistrate agrees with the police report and discharge the accused even then, the petitioner has a remedy to file a private complaint. So at this stage, the petitioner has no case for transfer of investigation. The learned Additional Sessions Judge has rightly declined to transfer the investigation. The impugned order is based on the appraisal of facts of the case and findings of the learned Additional Sessions Judge warrants no interference.

8. Even otherwise Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 is a discretionary jurisdiction whereby the Court has to. be satisfied regarding the matter and when the approp:i9te remedy is available to the petitioner. Writ petition is not competent reliance is placed on "Malik Khalid Mehmood v. Impector-General of Police Punjab and others" (2002 PCr.LJ 1613), "Fida Hussain v. The State" (1975 SCMR 150) and Abdul Wahid Khan v. Government of the Punjab and others" (PLD 1989 SC 508). Finding no substance in the instant writ petition, the same is dismissed in limine. H.B.T./Z-105/L Petition dismissed.