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Judgment Sheet

LAHORE HIGH COURT MULTAN BENCH MULTAN

JUDICIAL DEPARTMENT

Writ Petition No.4994 of 2019

Aswad Iqbal.

v.

JUDGMENT

R.P.O., etc.

Date of hearing

23.04.2019

Petitioner by

Mr. Mazhar Abbas Wasli, Advocate

Respondents by

Rana Mehboob Ali, Advocate

State by

Mr. Zulfiqar Ali Sidhu, Assistant Advocate General with Abdul Rehman ASI.

--------------

Anwaarul Haq Pannun, J. The petitioner, through this

constitutional petition under Article 199 of the Constitution of Islamic

Republic of Pakistan, 1973, has challenged the vires of order dated

12.02.2019, passed by Respondent No.2/City Police Officer, Multan

whereby, application filed by respondent No.7, for second change of

investigation of case FIR No.547 dated 30.06.2018, registered in respect of

an offence under Section 365-B PPC, r at Police Station Seetal Mari, District

Multan, has been allowed.

2. Briefly, the facts of the case are that respondent No.7 lodged the

aforesaid criminal case against the petitioner and others. The investigation of

the case, since could not be completed within fourteen days of registration of

case, thus, the Station House Officer forwarded an interim report under

Section 173 Cr.P.C before the learned trial court. Respondent No.7, feeling

himself aggrieved of the investigation, moved an application before

respondent No.2 for transfer/change of the investigation and its entrustment

to some other investigating officer, which was allowed vide impugned order

and consequently, the same was entrusted to Yousaf Haroon DSP

Headquarter, Multan, hence, this writ petition.

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3. Learned counsel for the petitioner submits that after forwarding an

interim report under Section 173 Cr.P.C by the Station House Officer, taking

cognizance of the offence and framing of charge on 22.01.2019 by the

learned trial court, order for the change of investigation could not be passed,

hence the impugned order of change of investigation, being illegal, may be

struck down. In order to fortify his contention, he has relied upon the case

reported as Qari Muhammad Rafique vs. Additional Inspector General of

Police (Inv.) Punjab and others (2014 SCMR 1499).

4. Conversely, learned Law Officer and learned counsel representing

respondent No.7, have submitted that there is no legal bar on further

investigation by way of its transfer. While relying on case reported as Raja

Khurshid Ahmad Vs. Muhammad Bilal and others (2014 SCMR 474) they

have opposed the above submissions made by learned counsel for the

petitioner and have prayed for dismissal of the instant writ petition.

5. The arguments advanced by the learned counsel for the parties have

been heard and record perused.

6. It is felt that the subject under consideration requires reproduction of

text of some relevant legal terms and provisions of Statutes to highlight their

bearing on the instant case, hence the same are reproduced hereinafter in a

chronology.

7. According to Ordinary Dictionary, word investigationmeans

official examination of the facts about a situation, crime etc. However, in the

legal parlance, the term investigation has been defined under section 4(l) of

the Code of Criminal Procedure, 1898 (hereinafter called as “Code”), is

reproduced as under:-

Investigationincludes all the proceedings under this Code for the collection of evidence conducted by a police-officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.

According to Law Dictionary by Dr. A R Biswas, Investigation generally

consists of the following steps:

(1)

Proceedings to the spot; (2) ascertainment of the facts and circumstances of the case; (3) discovery

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and arrest of the suspected offender, (4) collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the time of trial, and (5) formation of the opinion as to whether on the materials collected there is a case to place the accused before a Magistrate for trial and, if so, taking the necessary steps for the same by the filing of a charge-sheet under Section 173.

In Section 4(p) & 4(s) of Criminal Procedure Code, 1898, the terms

„Police Station‟ and „Station House Officer‟ have been defined as under:

4(s) "Police station" “police station” means any post or place declared, generally or specially, by the 1 [Provincial Government] to be a police station, and includes any local area specified by the 1 [Provincial Government] in this behalf.” “4(p) "Officer incharge of a police station" "Officer incharge of a police station" includes, when the officer incharge of the police station is absent from the station house or unable from illness or other cause to perform his duties, the police officer present at the station house who is next in rank to such officer and is above the rank of constable or, when the 6 [Provincial Government] so directs, any other police officer so present.”

Perusal of relevant provisions of the Code of Criminal

Procedure, 1898 and the Police Rules, 1934, as given below, reveal

that there are three classes of officers, who can generally investigate

an offence.

1. Officer Incharge of police station (Sec.156 Cr.P.C.)

2. Assistant

Sub

Inspector.

(Rule

25(2)

of

Police

Rules, 1934).

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3. Officer

superior

to

officer

station. (Section 551 Cr.P.C.)

incharge

of

police

Certain other Provisions of Cr.P.C specify officers of particular rank

which are competent to investigate:-

1. Officer not below the rank of Superintendent of Police to investigate offence under section 295-C of P.P.C. (156-A Cr.P.C.)

2. Officer not below the rank of Superintendent of Police to investigate where a person is accused of an offence of Zina (Enforcement of Hadood) Ordinance, 1979. (156-B Cr.P.C)

3.

An officer not below the rank of sub inspector of

police. (Section 21/22 of CNSA. 1997)

4. An officer not below the rank of Inspector. (Section 19 of the Anti-Terrorism Act, 1997)

Under Section 156 of Code of Criminal Procedure, 1898,

any officer incharge of police station may, without the order of

Magistrate, investigate any cognizable case occurring in his police

station.

Term “officer incharge of police station” has been defined in

section 2(p) of Cr.P.C. as under:-

Officer incharge of a police-station. Officer incharge of a police-station' includes, when the officer incharge of the police-station is absent from the station house or unable from illness or other cause to perform his duties, the police-officer present at the station house who is next in rank to such officer and is above the rank of constable or, when the Provincial Government so directs, any other police-officer so present.

According to 25(2) of Chapter 25 of Police Rules, 1934

(1) An officer incharge of police station is empowered under section 157(1) of Cr.P.C. to depute a subordinate to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offenders. Any police officer may be so deputed under this

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section but where a police officer under the rank of assistant sub inspector is deputed the investigation shall invariably be taken up and completed by the officer incharge of police station or an assistant sub inspector at the first opportunity.

551. Powers of superior officers of police: Police officers superior in rank to an officer incharge of a police station may exercise the same powers, throughout the local area to which they are appointed, as-may-be exercised by such officer within the limits of his station.

156A. Investigation of offence under Section 295C, Pakistan Penal Code. Notwithstanding anything contained in this Code, no police officer below the rank of a Superintendent of Police shall investigate the offence against any person alleged to have been committed by him under Section 295C of the Pakistan Penal code, 1860 (Act XLV of 1860).

156B. Investigation against a woman accused of the offence of zina.---Notwithstanding anything contained in this Code, where a person is accused of offence of zina under the Offence of zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979), no police officer below the rank of a Superintendent of Police shall investigate such officer nor shall such accused be arrested without permission of the court.

Since the prosecutor has been assigned a proactive role in

submission of report under Section 173 Cr.P.C, therefore, it will be

appropriate to reproduce some relevant text from the statue etc.

Term Public Prosecutor.” has been defined in Section 4(t) of

the Code in the following words

"Public Prosecutor” means any person appointed under section 492, and includes any person acting under the directions of a Public Prosecutor and any person conducting a prosecution on behalf of the State in any High Court in the exercise of its original criminal jurisdiction.”

It may also be mentioned here that the term Prosecutionand

Prosecutorboth have been defined in the Punjab Criminal Prosecution

Service (Constitution, Functions and Powers) Act, 2006 (III of 2006)

(hereinafter to be called as, Prosecution Act) promulgated on 3 rd April, 2006.

According to Section 2(k) of the said Act,

“Prosecution” means the prosecution of a

criminal case;

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The word “prosecution” in its widest sense means:

“The continuous following up through instrumentalities created by law, of a person accused of a public offence with a steady and fixed purpose of reaching a judicial determination of the guilt or innocence of the accused…….it consists of all the successive steps having relation to each other taken against the accused by the officers charges with the enforcement of criminal law, it contemplates proceedings judicially.”

As per Section 2(l), Prosecutor” means the Prosecutor General, Additional Prosecutor General, Deputy Prosecutor General, District Public Prosecutor, Deputy District Public Prosecutor, Assistant District Public Prosecutor and a Public Prosecutor appointed under this Act and shall be deemed to be the public prosecutor under the Code;

8. The moot question, requiring its determination through the instant

proceedings, is, whether the relevant designated authority under Police

Order, 2002 can pass an order for change of investigation of a criminal case

upon submission of interim report of investigation under Section 173 Cr.P.C

by the S.H.O through the Public Prosecutor, when the Court, while taking

cognizance, had already framed the charge against the accused. The said

question can be answered through a combined reading of various provisions

of Code of Criminal Procedure 1898, Prosecution Act, promulgated on 3 rd

April 2006, Police Rules 1934 and Police Order, 2002. For ready reference,

Section 173 Cr.P.C. is reproduced hereunder:-

Report of police-officer (1) Every investigation under this Chapter shall be completed, without unnecessary delay, and, as soon as it is completed, the officer incharge of the police-station shall, 1[through the public prosecutor.

(a) forward to a Magistrate empowered to take cognizance of the offence on a police-report a report, in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case and stating whether the accused (if arrested) has been forwarded in

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custody or has been released on his bond, and, if so, whether with or without sureties, and

(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.

[Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under section 154, the officer incharge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the court decides that the trial should not so commence. (emphasis provided)

(2) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may pending the orders of the Magistrate, direct the officer incharge of the police-station to make further investigation.

9. The provision of Section 173 Cr.P.C, catering no ambiguity, contains

a command in clear terms, that every investigation under this Chapter

{Chapter XIV of Criminal Procedure Code, 1898 titled “Information to

the Police and their Powers to Investigate”} shall be completed without

unnecessary delay and as soon as it is completed, the officer incharge of

the police station, through the Public Prosecutor shall forward a report to the

Magistrate empowered to take cognizance of the offence on a police report.

This report, shall be compiled, in the form prescribed by the Provincial

Government, setting forth the names of the parties in it, the nature of the

information and the names of the persons who appeared to be acquainted

with the circumstances of the case. Under section 161 Cr.,P.C., the police

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officer making an investigation under this Chapter, has been vested with the power so as to examine orally any person supposed to be acquainted with the facts and circumstances of the case and the report shall also disclose the names of the accused arrested and forwarded in custody or released on bail on his bond and that whether the accused so released had submitted any surety or had been released without surety. The said provision further provides that in case the investigation is not completed within a period of 14 days from the date of recording of First Information Report under section 154 Cr.P.C., it casts a duty on the Station House Officer of the police station that he shall, within a period of three days of the expiration of such period {a period of 14 days} forward an interim report in the form prescribed by the Provincial Government in this behalf of the investigation through a Public Prosecutor, to the Magistrate, stating therein, the result of investigation made until then and the court shall commence the trial on the basis of such interim report unless for reasons to be recorded the court decides that the trial should not so commence. The scrutiny of the above provision, with a view to reply the question under consideration, makes it abundantly clear that it is the intention of the law that after its commencement, no unnecessary delay should occasion in completing the investigation. However, in case the investigation is not completed within a period of 14 days, the Station House Officer is under a legal obligation to forward an interim report { According to Word & Phrases, word „interim‟ means „meanwhile; time intervening; interval between; belonging to an interim; done; made occurring for an interim or meantime; temporary. In a case reported as Abdul Qayyum vs. Niaz Muhammad and another (1992 SCMR 613), the word `interim' inter alia means one for the time being; one made in the meantime and until something is done; an interval of time between one event, process or period and another; belonging to or taking place during an interim; temporary; something done in the interim; a provincial arrangement adopted in the meanwhile; done, made, occurring etc. in or in the meantime; provisional} of investigation conducted till then, through Public Prosecutor to the Magistrate within next three days. Thus, the provision containing words

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„interim report‟ itself allows, enabling and authorizing the police officer to hold further investigation in a criminal case and places no bar in submission a report on the basis of subsequent investigation before the Court. The power of police has been expounded through a plethora of case law pronounced by the superior courts holding that there exists no bar for further investigation and on submission of report based on subsequently collected incriminating material.

10. Let us now examine the relevant provision of The Punjab Criminal

Prosecution Service (Constitution, Functions and Powers) Act, 2006 which are also relevant to the question under discussion and is reproduced

below:-

Section 9. Conduct of prosecution.(1) The Prosecutors shall be responsible for the conduct of prosecution on behalf of the Government.

(2)……

(3)…………

(4) A police report under section 173 of the Code including a report of cancellation of the first information report or a request for discharge of a suspect or an accused shall be submitted to a Court through the Prosecutor appointed under this Act.

 

(5)

The Prosecutor shall scrutinize the report or the request and

may

 

(a)

return

the

same

within

three

days

to

the

 

officer incharge of police station or investigation officer, as the case may be, if he finds the same to be defective, for removal of such defects as may be identified by him; or

 

(b)

if it is fit for submission, file it before the Court of competent jurisdiction.

 
 

(6)

On receipt of an interim police report under section 173 of the Code, the Prosecutor shall

(a) examine the reasons assigned for the delay in the completion of investigation and if he considers the reasons compelling, request the Court for the postponement of trial and in case investigation is not completed within reasonable time, request the Court for commencement of trial; and

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(b)

in cases where reasons assigned for delay in the completion of investigation are not compelling, request the Court for commencement of trial on the basis of the evidence available on record.

(7)

The Prosecutor shall submit, in writing, to the Magistrate or the Court, the result of his assessment as to the available evidence and applicability of offences against all or any of the accused as per facts and circumstances of the case and the Magistrate or the Court shall give due consideration to such submission.

11. Bare perusal of subsection (4) of Section 9 of the Punjab Criminal

Prosecution Service (Constitution, Functions and Powers) Act, 2006, envisages that a report “under section 173 Cr.P.C.” including “a report of cancellation of First Information Report” or a “requestfor discharge of suspect or accused, be submitted to a court through a Prosecutor. Subsection (5) of the Act ibid further reveals that it authorizes the Prosecutor to scrutinize the above mentioned “report” or the “request” and permit him, who may, within three days, return the same, if he finds the same to be defective {report or request} to the officer incharge of the police station or investigation officer, as the case may be, for removal of defects, he had identified. It goes to disclose further that in case the Prosecutor finds no defect or fault in the report rather finds it fit for submission, he shall, as required under subsection 5, place it before the court of competent jurisdiction. Sub-section (6) of Section 9 of the Act ibid provides that on receipt of interim police report under section 173 Cr.P.C., (i) the Prosecutor shall “examine the reasons assigned” for “the delay in completion of investigation” obviously given by SHO and if he considers the “reasons to be compelling”, he “shall request” the court for the postponement of trial. (ii) In case, the Prosecutor, after examining the reasons, considers that despite reasons, still the investigation cannot be completed within a

reasonable time, he shall request the court for commencement of trial and in case, (iii) reasons assigned for delay in completion of investigation are not compelling, he shall request the court for commencement of trial on the basis of evidence available on record.

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12. The role of Investigating Officer is very pivotal in the hierarchy of the

system for dispensation of criminal Justice. Rules 25.2, Chapter 25 of the

Police Rules, 1934, for ready reference, is reproduced as under:-

25.2 Power of investigating officers.-

(1)……

(2)

(3) It is the duty of an investigating officer to find out the truth

of the matter under investigation. His object shall be to discover

the actual facts of the case and to arrest the real offender or

offenders. He shall not commit himself prematurely to any view

of the facts for or against any person.

13. The above-quoted rule of Police Rules, 1934 casts a duty upon

investigating officer to find out the truth of the matter under investigation. It

also makes clear that arrest of an accused is not a pre-condition for holding

an investigation. The investigating officer shall not pre-maturely commit

himself to any view of facts for or against any person allegedly connected

with the crime under investigation. The police officer or any other person,

especially empowered by a Magistrate, has been vested with the power

while discharging his official obligations, to have his visual touch with the

crime scene. He may examine orally any person supposed to be acquainted

with the facts and circumstances of the case under investigation and may

also record his statement while complying with the requirements of law in

discharge of his official duty. The person under examination of the police

officer conducting investigation is bound by law to answer the questions so

put to him except those questions which would have a tendency to expose

him to a criminal charge or forfeiture. There is a judicial consensus that

investigation is the name of proceedings and process to be conducted and

undertaken respectively by the investigating officer to collect evidence in

respect of a crime or the offence alleged. The investigation consists of

certain steps to be taken gradually facilitating the collection of evidence. The

steps to be taken in a chronology have been enumerated in Chapter 25 of

Police Rules, 1934 which are statutory rules having force of law. The

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investigation being foundational proceedings for raising a super structure for the prosecution of a person accused of the commission of an offence for its placement before the Court of law for deciding the case. These steps must be taken fairly without fear, favour or bias against any party. Investigation must be conducted while keeping in view the object for achieving the philosophical idea behind formation of a criminal justice system consisting of various rungs in a ladder leading to its eternal destination known as dispensation of justice. It may be relevant that while conducting investigating, the investigating officer must collect the evidence at its earliest available opportunity without wasting any time. The delay in collection of evidence, unless explained satisfactorily, sheds its negative repercussion upon the cases in the courts. Needless to observe that it is not the domain of an investigating officer to pronounce guilt or innocence of an accused as it is the exclusive domain of the courts being final arbiter in this regard.

Neglect, lethargy, lure, greed, persuasions, venom and malafide, despite their disapproval by the society, are the inherent human weaknesses and the enactment of various penal laws is the proof of realization of this eternal human trait.

14. Before the promulgation of Police Order 2002 (Chief Executive’s

Order No. 22 of 2002) under the law in force, neither any specific provision, empowering a particular authority nor any statutory mechanism, providing procedure for change of investigation of a criminal case from one police officer to another was available. The superior officers of the Police Department, in view of their positions in the official hierarchy, while exercising their general administrative powers, used to pass orders for change of investigations of criminal cases. Mostly, the persons wielding influence including the political personalities, while exploiting their positions used to get passed the orders for change of investigations of criminal cases from the superior officers for entrustment of the same with the investigating officer of their choice to get favourable results/opinions. This unhealthy trend and tendency caused disappointment and

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dissatisfaction amongst the criminal litigants with increasing possibilities,

defeating the object of fair and impartial investigation into crimes.

Ultimately, this practice caused a sense of injustice at the very stage of

investigation amongst the people concerned. Needless to say that in view of

sharp parochial political polarization being in vogue in the country, this

vicious trend gained currency generating a sense of despondency amongst

the litigants. This practice also politicized the police, adversely affecting

their overall efficiency and performance in the field of investigation.

Realizing the adverse repercussions of whimsical exercise of discretion for

change of investigation by some of the superior police officers on the eye

blink of powerful quarters, The Police Order 2002 (Chief Executive’s

Order No. 22 of 2002) (hereinafter to be referred as „the Order‟) was

promulgated with the aim to reconstruct and regulate the police. The order

provides certain measures introducing structural reforms in the hierarchy of

the police service, besides a formal mechanism, streamlining the process for

the change of investigation. According to Article 18-A of the Order, contrary

to the previous practice, by way of change of investigation, inter alia the

numbers of investigations have been fixed. For ready, reference, the relevant

provision of Article 18-A of the Police Order, (Amendment, Act 2013

(XXI of 2013), is reproduced hereunder:-

18-A. Transfer of investigation.(1) Within seven working days of the filing of an application, the Head of District Police may, after obtaining opinion of the District Standing Board and for reasons to be recorded in writing, transfer investigation of a case from the investigation officer to any other investigation officer or a team of investigation officers of a rank equal to or higher than the rank of the previous investigation officer.

(2) If the Head of District Police has decided an application for transfer of investigation, the Regional Police Officer may, within seven working days of the filing of an application, after obtaining opinion of the Regional Standing Board and for reasons to be recorded in writing, transfer investigation of a case from the investigation officer or a team of investigation officers to any other investigation officer or a team of investigation

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officers of a rank equal to or higher than the rank of the previous investigation officer or officers.

(3) If a Regional Police Officer has decided an application for transfer of an investigation, the Provincial Police Officer may, within thirty days of filing of an application, after obtaining opinion of a Standing Review Board, transfer investigation of a case to an investigation officer or a team of investigation officers of a rank equal to or higher than the rank of the previous investigation officer or officers.

(4) A case under investigation with a District

Investigation Branch may only be transferred to another officer or a team of officers of the District Investigation Branch, Regional Investigation Branch or Provincial Investigation Branch.

(5) For the purpose of this Article

(a) „District Standing Board‟ means the District

Standing Board constituted by the Head of District Police consisting of a Superintendent of Police as chairperson and two officers not below the rank of Deputy Superintendent of Police as members; 7 Inserted by the Punjab Police Order (Amendment) Act 2013 (XXI of

2013).

(b) „Regional Standing Board‟ means the Regional Standing Board constituted by the Regional Police Officer consisting of a Superintendent of Police as chairperson and two Superintendents of Police as members;

(c) „Standing Review Board‟ means the Standing

Review Board constituted by the Provincial Police Officer consisting of a Deputy Inspector General of Police as chairperson and two officers not below the rank of Superintendent of Police as members; and

(d) reference to Head of District Police and

Regional Police Officer in the case of Capital City District shall be construed to mean the Head of District Investigation Branch of the Capital City and the Capital City Police Officer, respectively.

15. The procedure, unambiguously, for transfer of Investigation, in case a

party is not satisfied with the quality of an investigation, or the conduct of

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any investigating officer has exhaustively been explained in article 18-A of the Police Order, 2002. For the 1 st change of investigation, an application preferably in writing by an aggrieved party, is to be submitted to the Head of District Police. Within seven working days of filing of such application, the Head of District Police has to place it before the District Standing Board, to be constituted by him consisting of a Superintendent of Police as Chairperson and two officers not below the rank of Deputy Superintendent of Police as its members. The said Board will then give its opinion, in writing, consisting of its recommendations. The Head of the District Police, while examining the opinion so formed by the Board, after recording reasons, in writing, may transfer investigation of a case from one investigating officer to some other investigating officer or a team of investigating officers equal or higher than the rank of previous investigating officer.

For 2 nd change of investigation, if the head of District Police, has decided an application for transfer of application, an aggrieved party, has to submit an application to the Regional Police Officer seeking change of investigation. Within seven working days of filing of such application, the Regional Police Officer has to place it before the Regional Standing Board, to be constituted by him consisting of a Superintendent of Police as Chairperson and two officers not below the rank of Superintendent of Police as its members. The said Board will then give its opinion, in writing, consisting of its recommendations. The Head of the Regional Police, after examining the opinion so formed by the Board, after recording reasons, in writing, may transfer investigating of a case from one investigating officer to some other investigating officer or a team of investigating officers equal or higher than the rank of previous investigating officer (s).

For the 3 rd change of investigation, if the Regional Police Officer, has decided an application for transfer of investigation, an aggrieved party, has to submit an application to the Provincial Police Officer {to be appointed under article 11 of Police Order 2002}. Within thirty days of filing of such application, the Provincial Police Officer has to place it before the

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Standing Review Board, to be constituted by him, consisting of a Deputy Inspector General of Police as Chairperson and two officers not below the rank of Superintendent of Police as its members. The said Board will then give its opinion, in writing, consisting of its recommendations. The Head of the Standing Review Board, after examining the opinion so formed by the Board, in writing, may transfer the investigating of a case from one investigating officer to some other investigating officer or a team of investigation equal or higher than the rank of previous investigating officer. The perusal of article 18-A(3) of Police Order, 2002 makes it clear that conspicuously the requirement for passing an order in writing for third change of investigation is missing. Moreover, unlike the constitution of District Standing Board and the Regional Standing Board by the requisite authorities within a stipulated statutory period of seven working days of filing of application for 1 st & 2 nd change of investigation, has also been omitted in proviso 3 of the said Article. However, it may be stated that no order can be passed in the air by any of the functionary of the State. Even in absence of such requirement of passing an order in writing, it is expected that while passing an order on the application for 3 rd change of investigation, the Provincial Police Officer, shall keep under consideration the spirit of section 24-A of General Clauses Act, 1897. It may be pointed out that in case of Capital City District, a reference to Head of District Police and Regional Police Officer shall be construed to be the Head of District Investigation Branch of the Capital City and Capital City Police Officer respectively.

The standing boards have a mandate to look into the faults of the investigation conducted by previous Investigating Officers. The board should give its opinion based on some reasons. The boards can also examine the justification and bona fides of the applicant seeking change of investigation. In the cases reported as Muhammad Ashfaq vs. Additional Inspector General of Police (Investigation Punjab, Lahore and 3 others (2013 P Cr. L J 920), Abdul Qayyum vs. D.P.O. and others (2016 P Cr. L J 618) some guidelines have been pronounced which are required to be

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fulfilled for making an application for change of investigation. No crime should remain undetected nor any guilty person should go scot free nor any innocent person should face the rigor of prosecution.

16. Article 18-A of Police Order, 2002 when examined closely, it

explicitly set out no period of limitation after registration of a criminal case for filing an application seeking transfer/change of investigation. It further

reveals that even if the investigation is changed, no outer time limit of period has been fixed for its conclusion. It only provides that in case of filing of applications seeking transfer of investigation by either of the parties to the case, the respective authorities i.e. the Head of the District Police, the Regional Police Officer and the Provincial Police Officer, shall within stipulated statutory periods, on filing of such applications, constitute the respective Standing Boards and after obtaining their opinions, have to pass order, assigning reasons, in writing, for transfer of investigation. It may be relevant to mention, as discussed above, that in case of third change of investigation, the requisite time period within which, an opinion of the relevant Review Board has to be obtained by the Provincial Police Officer for passing the order for change of investigation, has been extended up to thirty days. It may be important to mention that Article 18-A of Police Order, 2002 more expressly allows holding of more than one investigations and subsequent investigations through its formal change to be conducted by an officer of equal or higher in rank than the previous investigating officer. It also introduces the concept of investigation by Joint Investigation Team. It may be observed that this concept of Joint Investigation will ensure transparency in the investigation to be conducted by the experts having field experience. It will improve the worth and level of investigation.

17. Diversification remained a constant feature of the universe. Allah

Almighty has created the man while bestowing upon him with a variety of faculties. The human traits may be good or bad in their nature. The virtues and vices go side by side. The criminals, with the rare exceptions, try to escape from the punishment for the crime they have committed. In order to achieve their object, they try to screen themselves off by adopting various

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Writ Petition No.4994-2019

strategies. Needless to observe that a police investigation officer has been placed under an obligation to find out the truth of the matter under his investigation. He has been cautioned not to commit himself to any view about the involvement or otherwise of a person accused of an offence pre- maturely. The wicked criminals, at sometimes, camouflage their identity in order to save themselves from their criminal liability by adopting innovating mechanism. The arrest of the accused is not a pre-condition for holding investigation. Realizing diversity in criminal cases, a principle for criminal dispensation of justice has been established by the superior Courts of the country that each and every criminal case is to be decided on its own peculiar facts and circumstances. Due to complications involved in detecting the real culprits, the delay may contribute towards the completion of investigation within the initial stipulated period of 14 days. The variety in modes of crime and unforeseen complications might have been weighed with the legislature for not placing any bar on further investigation. The Prosecution Act also does not provide any specific time period in clear cut

terms for conclusion of the investigation. It only mention that if the Prosecutor is of the opinion that the investigation cannot be completed within a reasonable time, he shall request the Court for commencement of trial. It can safely be concluded that nowhere in the laws, relating to subject of investigation/reinvestigation, any limitation for conclusion of the investigation has been provided.

18. The specific issue under discussion can also be viewed from another

angle. Section 173 Cr.P.C. contains a command that every investigation under this Chapter shall be completed without any unnecessary delay, and as soon as it is completed the officer incharge of the police station, through the Public Prosecutor, forward a report to the court empowered to take cognizance of the offence of a police report. In case, where investigation is not completed within a period of 14 days from the date of recording of First Information Report under section 154 Cr.P.C., the officer incharge of the police station, within three days of the expiration of said period, forward to the Magistrate through the Public Prosecutor, and the court shall commence the trial on the basis of such interim report unless for the reasons to be

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recorded, the court decides that the trial should not so commence. The provision containing word „interim report‟ allows, while placing no bar on the police officer, to hold further investigation in the criminal case. It permits submission of a report before the Court on the basis of a subsequent investigation. The above said provisions, in verbatim leave no doubt to point out that after submission of report under Section 173 Cr.P.C., it is the sole and exclusive domain and discretion of the court for commencement of trial or its postponement. Section 9 (6)(a) & (b) of the Punjab Criminal Prosecution Service (Constitution, Functions & Powers) Act, 2006 explains powers and function of the Public Prosecutor. Sub-section (6) of Section 9 of the Act ibid provides that on receipt of interim police report under section 173 Cr.P.C., (i) the Prosecutor shall “examine the reasons assigned” for “the delay in completion of investigation” and if he considers the reasons to be compelling”, he “shall request” the court for the postponement of trial. (ii) In case, the Prosecutor, after examining the reasons, considers that despite reasons, yet the investigation cannot be completed within a reasonable time, he shall request the court for commencement of trial and in case, (iii) reasons assigned for delay in completion of investigation are not compelling, he shall request the court for commencement of trial on the basis of evidence available on record. It may be observed that under Section 173 Cr.P.C., before promulgation of Prosecution Act 2006, the role of the prosecutor was no more than a postman. However, on the promulgation of act ibid, the prosecutor apart from his powers mentioned in section 9 of the Act, has to perform his statutory functions after examining the report under Section 173 Cr.P.C by way of making a request before the Court either for the commencement or postponement of the trial. It may be observed here that on making of such request by the prosecutor, the Court has to consider it while applying its judicial mind, in the peculiar facts and circumstances of the case. It may not be out of place to mention here that the Court or the magistrate, without losing sight of the interest of justice, shall be the final arbiter to examine the reasonability of request so made by the prosecutor. It is also observed that even in presence of compelling reasons for non-conclusion of investigation,

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the Court while rejecting the request of the prosecutor for the postponement of the trial, for the reasons to be recorded, may commence the trial. The close scrutiny of provision of sub section (6) of section 9 of the Prosecution Act, 2006 clearly points out the above mentioned three eventualities. It is thus observed that the forming of opinion by the prosecutor and making of his request before the trial Court, is quite in line with the command for filing of an interim report under Section 173 Cr.P.C, due to its non-completion within a statutory period of 14 days.

19. Article 18-A of Police Order, 2002 when examined, it explicitly set

out no period of limitation for filing of applications seeking any change of investigations after its commencement from the stage of registration of a criminal case under Section 154 Cr.P.C., only the statutory period of seven days has been provided in the said Article in order to pass an order by the relevant authority for the change of first and second change of investigation. This period however, in case of third change of investigation has been fixed as thirty days. It may be held that even after passing of the order for change of investigation no outer time line has been prescribed for completion or conclusion of investigation. This is perhaps to enable the investigating officer to find out the truth of the matter under his investigation. The submission of report under section 173 Cr.P.C. and commencement of trial thus creates no bar to pass an order for the change of investigation in terms of Article 18-A of the Police Order, 2002. In case a contrary view is taken, it would tantamount to defeat the object of Article ibid leading to its redundancy. Needless to say that the opinion of the investigating officer is

neither admissible in evidence nor binding upon the courts. The proposed

evidence, collected through investigation, on is transformation into real evidence in a Court of law only matters for deciding a case.

20. Before the promulgation of the Prosecution Act, as observed

hereinabove, forwarding of an interim report under Section 173 Cr.P.C., the court itself has to decide either to commence the trial or to postpone it. On promulgation of the Act ibid, the proactive role for prosecutor has been envisaged. He after examining the compelling reasons (compiled by the Station House Officer or the Investigating Officer) for delay in completion

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of investigation, shall make his own opinion about the reasonability of the compelling reasons for non-completion of the investigation. If he is of the view that the reasons for non-completion of the investigation, prima facie are virtually compelling, he shall make request to the Court for postponement of the trial. However, in case, he forms his opinion that despite availability of the reasons, the investigation cannot be completed within a reasonable time or there appears to be no reason for con-completion of investigation, the Prosecutor shall make a request to the Court or the Magistrate for commencement of the trial. Needless to observe that a court shall have to make its own decision, after applying its judicial mind while considering the request of the Prosecutor and facts and circumstances of the case. If the argument of learned counsel for the petitioner that after framing of the charge, no order for change of investigation can be passed by the relevant authorities designated under the Order, is accepted, it would tantamount to rendering the Article 18-A of the Police Order, 2002 to be redundant. Redundancy of one piece of legislation by way of its interpretation with the other is neither desired nor approved. It is always desired that efforts must be made to create harmony even amongst the conflicting laws while interpreting them and a harmony beween the laws must be created. The above object duly advanced through the legal provisions has well been explained in the case reported as Raja Khursheed Ahmad vs. Muhammad Bilal and others (2014 SCMR 474) wherein it has been held as under:-

It would be seen that as per settled law, there is no bar to the reinvestigation of a criminal case and the police authorities are at liberty to file a supplementary challan even after submission of the final report under section 173, Cr.P.C. However this cannot be done after the case has been disposed of by the learned trial Court (see Bahadur Khan (Supra) Similarly there is no cavil to the proposition that a Court of law is not bound by the Ipsi Dixit of the police authorities and rather should formulate its own independent views irrespective of the investigation whether or not to charge the accused with a particular crime. Seen in this view of the matter, perhaps no exception can be taken to the Judgment of the learned High Court which has held as such i.e. that a charge under

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section 380, P.P.C. can also be framed against the accused if sufficient material is placed on the record which would convince the learned trial Court to do so. However this aspect does not debar the police authorities from carrying out further investigation in the case. In this regard reference can be made to Article 18(6) of the Police Order, 2002 (Supra). The correspondence placed on record tends to show that firstly the Additional Inspector General, Investigation Branch, Punjab had not agreed with the findings of the Board for re-investigation vide letter dated 23-12-2011. Thereafter the Capital City Police Officer, Rawalpindi vide his letter dated 10-2-2012 addressed to the Additional Inspector-General insisted for the first change of investigation which was again resisted by the latter Vide his reply dated 20-2-2012. Yet again vide letter dared 15-3-2012 the Capital City Police Officer insisted on his earlier views and finally vide letter dated 24-3-2012, the Additional Inspector-General relented and agreed to the change of investigation. Consequently we are of the view that the matter has not been thoroughly examined at the level of the police officials concerned and perhaps due to pulls and pressures the first change of investigation has been ordered.

21. The learned counsel for the petitioner has failed to point out any

defect in exercise of powers by respondent No.2 for passing the impugned order of first change of investigation on the request of respondent No.7. Therefore, for what has been discussed hereinabove, the instant writ petition being without merits, stands dismissed.

*Y asin*

Approved for reporting

Judge

(Anwaarul Haq Pannun) Judge