2019 P Cr (PLP)

MUHAMMAD WAHEED KHAN, J.

Through the instant petition filed in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has made the following prayer;- "It is therefore, most respectfully prayed that instant Writ Petition may kindly be accepted and the transfer of investigation and proceeding thereon may kindly be quashed after declaring the same to be illegal, unlawful and without jurisdiction. Any other relief which this Honourable Court deems fit and appropriate may also be awarded to the petitioner."

2. Learned counsel for the petitioner submits that the petitioner lodged FIR No.140 dated 11.02.2018 under sections 506/341, P.P.C. at Police Station Sadar Okara against respondents Nos.5 to 8 regarding the occurrence allegedly took place on 08.02.2018. The matter was thoroughly investigated by the Investigating Officer-respondent No.4, thereafter, investigation was conducted by the Station House Officer Police Station concerned and the Deputy Superintendent of Police, namely, Zia Ullah also confirmed the investigation conducted by two Investigating Officers. Thereafter, respondents Nos.5 to 7 applied to the Provincial Standing Board for second transfer of investigation and same was transferred and entrusted to the Range Crime, Sahiwal, wherein after thorough investigation respondents Nos.5 to 8 were found involved in the alleged crime. Submits that report under section 173, Cr.P.C. has been submitted before the learned trial Court on 10.04.2018, copies of statements under section 241-A, Cr.P.C. have also been delivered to respondents Nos.5 to 8 and charge has also been framed against them on 05.12.2018. Submits that thereafter, I.G. of Police, Punjab/respondent No.1 on the recommendations of Provincial Standing Board ordered for third change of investigation in the instant case and petitioner has challenged the impugned order passed by respondent No.1 on the ground that after submission of report under section 173, Cr.P.C. investigation of the case cannot be transferred or the matter cannot be re- investigated. Learned counsel has relied upon the dictum laid down in cases of "Qari Muhammad Rafique v. Additional Inspector General of Police (Inv.), Punjab and others" (2014 SCMR 1499), wherein it is held that after framing of charge and commencement of trial the change of investigation at that belated stage was not sustainable. A similar view is observed by the august Supreme Court of Pakistan in its judgment passed in case of "Muhammad Nasir Cheema v. Mazhar Javaid and others" (PLD 2007 Supreme Court 31).

3. On the other hand, learned counsel for respondents Nos.5 to 8 has vehemently opposed the arguments advanced by the learned counsel for the petitioner, whereas learned Law Officer has supported the arguments advanced by the learned counsel for the petitioner.

4. Pro and contra arguments have been heard. Record perused.

5. Record shows that report under section 173, Cr.P.C. has already been submitted before the learned trial Court and trial has also commenced against respondents Nos.5 to 8, so, keeping in view the above cited judgments, there is no cavil to the proposition that after submission of report under section 173, Cr.P.C. and commencement of trial, change of investigation by respondent No.1 was uncalled for and is not sustainable in the eye of law. Even otherwise, there would be an ample opportunity for both the parties to prove their stance before the learned trial Court by producing evidence.

6. In view of the above discussion, instant petition is hereby allowed and impugned order dated 30.03.2019 passed by the I.G. of Police, Punjab-respondent No.1 for change of investigation is set aside and the learned trial Court is directed to proceed with the matter in accordance with law. SA/M-96/L Petition allowed.