2008 PLP 999 (MLD)

MUHAMMAD AKRAM QURESHI, J.

Muhammad Munir, Liaqat Ali, Sarfaraz, Muhammad Akmal and Muhammad Aslam, petitioners have assailed the order, dated 17-3-2008 passed by the learned Additional Sessions Judge Faisalabad summoning Toqeer Hayat, SP (Rtd.) as C.W.

2. The learned counsel for the petitioners contends that Toqeer Hayat SP (Rtd.) has not himself investigated this case; obviously he did not record the statement of any person during his investigation nor collected any piece of evidence during the time when the investigation remained with him; the investigation was not entrusted to him on the recommendations of the Board of S.Ps constituted under Article 18(6) of the Police Order, 2002; he was simply directed by D.I.-G Investigation Faisalabad to supervise the investigation of this case; he in suppression of above mentioned provision of Police Order supervised the investigation of this case and he has been summoned by the learned trial Court because of the reason that during the investigation he held all the accused guilty mentioned in the police report and the F.I.R. While challenging the vires of the above mentioned order the learned counsel for the petitioners relied upon Khizer Hayat and others v. Inspector-General of Police Punjab Lahore (PLD 2005 Lahore 470) and Muhammad Bahsir v. S.H.O. (PLD 2007 SC 539). He submits that the evidence of Toqeer Hayat, S.P. was not expedient for the ends of justice and thus he could not have been summoned under the provisions of section 540, Cr.P.C.

3. Conversely the learned counsel for the complainant submits that the petitioner had not mentioned in the petition that Toqeer Hayat was Investigating Officer of this case. The petitioner suppressed some of the facts of the present case. S.H.O. Police Station Thekriwala District Faisalabad is one of the accused of the present case. He submits that the Investigating Officer of the present case had declared all the accused innocent and that Toqeer Hayat S.P. (Rtd.) has reversed his opinion while verifying his investigation. He submits that facing injustice from the hands of the earlier Investigating Officer the complainant submitted an application to D.I.-G who entrusted the investigation to the said officer and it was under his order that the investigation was carried out by the said S.P. He inspected the spot, examined the witnesses and finally imparted his opinion regarding the guilt of accused.

4. Learned Deputy Prosecutor-General for the State supported this revision petition.

5. I have considered the respective contentions of the learned counsel for the parties and also perused the record of this case with their assistance.

6. Police Order, 2002 was promulgated regulating the force of the police and the investigation. Under Article 18(6) of the said Order the investigation of a case can only be transferred by adopting the procedure laid therein. It is an admitted fact that D.I.-G has no jurisdiction to pass an order for the change of investigation of a case. The head of investigation in a general Police area may order change of investigation on recommendations of the Board of S.Ps constituted under the said Order. In the present case, the D.I.-G received an application from the complainant party of the case and without adopting the legal course entrusted the investigation to Mr. Toqeer Hayat SP Faisalabad. His powers were without the legal force of the Police Order, 2002 and thus illegal. Consequent to the said orders the investigation having been conducted by Toqeer Hayat S.P. was also illegal. The assertion of the learned counsel for the complainant, that the said S.P. did not investigate the case himself but supervised it, is misconceived because according to the learned counsel he inspected the spot, examined the witnesses of the parties and gave his divergent opinion. The proceedings having been conducted by him are investigation for all purposes. Illegal proceedings conducted by above mentioned officer cannot be made basis for any judicial opinion.

7. Toqeer Hayat, S.P. could have been examined as P.W. but the learned counsel for the complainant and the learned D.P.-G have not been able to show reasons as to why he was not summoned as such. By summoning him as C.W. the cause of the prosecution would be advanced. In Muhammad Ashraf v. Zafar Mahmood alias Master Khaki Zaman and others (PLD 1967 Lahore 1045) it has been held that the Court acts as an arbitrator between two parties. He is judge of a cause. The Court does not act as investigator. While exercising powers under section 540, Cr.P.C. the Court cannot put a party in a position of advantage viz-a-viz the other. Whatever he would do so the superior Courts would be justified to correct the error. By summoning the above mentioned C.W. the learned trial Court has put the prosecution in a position of advantage viz-a-viz the defence. Certain lacunas of the prosecution would be filled if the said CW is allowed to be mined. The learned trial Court has not properly exercised its version. I have asked the learned counsel for the complainant to justify as to how the evidence of the said P.W. is essential for the just decision of the case. He has not been able to explain the said position, therefore, in my view the examination of Toqeer Hayat (Rtd.) S.P. would not advance the ends of justice.

8. Resultantly I am of the view that the learned trial Court has not properly exercised the jurisdiction under section 540, Cr.P.C. The order, dated 17-3-2008 is illegal, improper and incorrect. Therefore, while exercising my revisional powers, I accept this revision petition and set aside the impugned order, dated 17-3-2008. H.B.T./M-84/L Petition accepted.