2017 PLP 1703 (YLR)

ABDUL SAMI KHAN, J.

Through this petition in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has called in question order for 2nd change of investigation passed by Regional Police Officer, Sahiwal through which on the application filed by respondent No.4, the Regional Police Officer Sahiwal vide order dated 3.6.2015 in exercising of the power under amended Article 18-(5) (b) of Police Order 2002 recommended for 2nd change of the investigation in case FIR No. 636/2010 dated 24.9.2010 under sections 452, 354, 337-F(iii), 337-L(2), 337-A(i), 34, 109 P.P.C. Police Station City Depalpur District Okara.

2. I have heard the arguments of learned counsel for the parties as well as learned Addl. Advocate General and also gone through the record of the case. The question to be decided in this writ petition is that whether in view of the facts and circumstances of the present case, the investigation of the case can be changed or not. On this question of law I have taken guidance from the Hon'ble Supreme Court of Pakistan from a case reported in 2014 SCMR 1499 wherein the August Supreme Court of Pakistan held as under:-- "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. "

3. Record reflects that this case FIR No. 636 was registered on 24.9.2010 and after thorough investigation of the case, the report under section 173, Cr.P.C. was submitted in the learned Trial Court on 1.4.2011 and the charge against the accused was framed on 2.7.2012. The complainant being dissatisfied by the investigation of the police, also filed private complaint in which the accused were summoned and after distribution of copies, the charge was also framed on 7.3.2015. Now the State case FIR No. 636/2010 as well as private complaint filed by the respondent No. 4 are fixed for prosecution evidence.

4. The only provision relating to the subject which is available in the Code of Criminal Procedure is section 173 which commands expeditious conclusion of the investigations and further ordains that on conclusion of every investigation, the concerned S.H.O. shall submit a report of the result thereof in the prescribed manner to the Magistrate competent to take cognizance under section 190, Cr.P.C. No power vests with any Court including a High Court to override the said legal command and to direct the S.H.O. either not to submit the said report (mentioned as challan in the Police Rules and also in the impugned order) or to submit the said report in a particular manner i.e. against only such persons as the Court desires or only with respect to such offences as the Court wishes. The impugned order can also not be sustained because, as has been mentioned above, the challan in question stood already submitted in Court and was thus beyond the reach of the concerned S.H.O. The statutory provisions contained in Cr.P.C. Police Order and Police Rules, 1934 authorized the Investigating Officer only to collect all the relevant evidence and to submit his report order section 173, Cr.P.C. before the Court, so as to enable the Court to form an independent opinion regarding sufficiency or otherwise of the evidence and the material in order to decide whether to take cognizance of offence or not or to summon any person to face a trial. The submission of even the subsequent challan is not barred under the provisions of Cr.P.C. but it is entirely the discretion of the Court to admit the additional evidence collected during the re-investigation being admissible or not. It is the duty of the Investigating Officer to collect all the relevant evidence pertaining to allegation levelled regarding the crime in issue so as to dig out the truth enabling and facilitating the Court to administer justice between the litigants.

5. It is noticed that the report under section 173, Cr.P.C. in this case was already submitted in the learned Trial Court on 1.4.2011 and the learned Trial Court took the cognizance of the case and framed the charge on 2.7.2012. The petitioner is suffering the agony of trial from the year 2011 and after such a belated stage the Regional Police officer vide order dated 3.6.2015 recommended for 2nd change of investigation. As the trial had already commenced, therefore, changing the investigation or ordering further investigation in the matter there-after was an exercise unsustainable in law.

6. For what has been discussed above, in the light of above reproduced judgment of the apex Court, the order of respondent No.1/Regional Police Officer, Sahiwal dated 03.06.2015 would be a futile effort, as the trial Court has to proceed with the trial on the basis of the report already submitted under section 173, Cr.P.C. Consequently, this writ petition is allowed, the order/letter dated 03.06.2015 passed by respondent No.1/Regional Police Officer, Sahiwal for change of investigation is hereby set aside. HBT/Z-21/L Petition allowed.