M. Afzal vs State etc.

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

W.P. No.8830 of 2019 Muhammad Afzal Vs. The State etc.

Sr. No. Of Date of Order with signatures of Judge, and that of parties of Order/ Order counsel, where necessary.

Proceeding 6.11.2019 M/s Ch. Faqir Muhammad, Rana Muhammad Asif Saeed and Tahir Khan Malezai, Advocates, for the Petitioner.

Through this petition under Article 199 of Constitution of the Islamic Republic of Pakistan, 1973, the Petitioner assails the vires of investigation conducted by Respondent No.2 in case FIR No.161/2019 dated 26.3.2019.

2.Brief facts of the case are that the Sub-Divisional Officer (SDO), City Sub-Division MEPCO, Vehari (Respondent No.5), lodged FIR No.161/2019 dated 26.3.2019 against the Petitioner at Police Station City, Vehari, for an offence under section 462-K, P.P.C. alleging that he had committed theft of electricity by tampering his meter and illegally connecting with the main power supply line which had caused huge loss to the public exchequer. The investigation of the case was entrusted to Respondent No.4. The Petitioner appeared before him after being admitted to ad-interim pre-arrest bail by the learned Additional Sessions Judge, Vehari. Respondent No.4 found that he was not involved in any wrongdoing and it was Shaukat Ali (lessee of the factory where the aforesaid meter was installed) who had committed the offence. In view of these findings, the Petitioner opted to withdraw his bail application which was dismissed as withdrawn by the learned Additional Sessions Judge. On 6.5.2019, Respondent No.2 requisitioned the case file and after going through it held that the Petitioner was guilty and directed Respondent No.3 to arrest him which he did. Thereafter, the

Petitioner applied for post-arrest bail which was granted by the learned Additional Sessions Judge, Vehari, vide order dated 23.5.2019. Through this petition he has challenged the above- mentioned act of Respondent No.2.

3.The learned counsel for the Petitioner contended that case FIR No. 161/2019 was never entrusted to Respondent No.2 so he was not competent to investigate it. His authority was confined to verification of record which had a limited scope. He could neither reinvestigate the case nor substitute his findings for those of the previous Investigating Officer. The learned counsel argued that the action of Respondent No.2 was illegal, without jurisdiction and void ab-initio.

4.On the other hand, the learned Assistant Advocate General vehemently opposed this petition. He contended that Respondent No.2 being the DSP/SDPO Circle, Vehari, was the supervisory officer of Respondent No.4. He noticed certain errors while examining the file owing to which he could not agree with his findings so he corrected them. According to him, Article 18(10) of the Police Order, 2002, fully empowered him to make such corrections. Hence, no exception could be taken to his action.

5.Arguments heard. Record perused.

6.Police Order, 2002, aims at efficient prevention and detection of crime and maintenance of public order. Therefore, it separates investigation from other functions of the police. Article 18 enacts that the District Investigation Branch (DIB) shall investigate all cases registered in the district. However, the Provincial Police Officer may notify the offences which shall be investigated by the Investigation Officer in the police station under the supervision of its in-charge. If an offence in a case is required to be investigated by the DIB, it will deal with the whole of it. Article 18-A lays down the procedure for transfer of investigation from one officer to another or to a team of investigation officers. The instant case primarily hinges on the interpretation and

application of clauses (8), (9) and (10) of Article 18 which read as under:

(8)The Head of District Investigation Branch shall be directly responsible to the Head of District Police.

(9)The supervisory officers–

(a)shall ensure timely completion and verification of investigation; and

(b)may summon the investigation officer or team of officers, review the case file, evaluate the evidence and, in that case, shall issue instructions to the investigation officer or team of officers in the form of case diary.

(10)A supervisory officer not below the rank of a Deputy Superintendent of Police may verify the correctness of the investigation and accuracy of conclusions of investigation by writing a case diary before submission of report in the court.

7.The term “verify” has not been defined in the Police Order so we look at its dictionary meaning in the first instance. According to P Ramanatha Aiyar’s Advanced Law Lexicon Dictionary (4th Edition, Vol.4), “verify” means “to assent or approve to be true; to ascertain, confirm or test the truth or accuracy of”. In Words and Phrases (Permanent Edition, Volume 44, p.251) the word “verify” is defined as “confirm or substantiate by oath and also to check or test accuracy or exactness of or to confirm or establish authenticity of”. Similarly, the Concise Oxford Dictionary defines “verification” as “the process or an instance of establishing the truth or validity of something, the process of verifying procedure or to verify truth or correctness by examination or demonstration.”

8.From the above discussion it follows that “verify” and “verification” are not synonyms with “investigation” or for that matter, “reinvestigation” which essentially implies collection of evidence to find out how the occurrence took place and who was involved in it.

9.The expression “verification” and its scope came up for discussion before a Full Bench of this Court in “Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others” (PLD 2005 Lahore 470) with reference to Article 18 (6) of the Police Order as it was on the statute book at that time. The

Court ruled that the verifying officer has to confine himself to the record of the investigation already conducted and cannot substantiate his own conclusions for those of the Investigating Officer. The relevant excerpt is reproduced hereunder: “It has come to our notice in some other cases that police officers other than those mentioned in Article 18(6) of the Police Order, 2002 have been changing investigation of criminal cases in the name of ‘verification’ of investigation. It may be clarified by us that the law is quite settled on the point that where the law requires a thing to be done in a particular manner then that thing must be done in that manner alone or not at all. In any case if an investigation by an investigating officer is to be verified by some other officer then such verification must be confined to verification of the record of investigation and such an exercise cannot be allowed to be conducted in a manner giving it a colour of fresh investigation with fresh conclusions. The verifying officer has to confine himself to the record of investigation already conducted and cannot substitute his own conclusions for those of the investigating officer and if he finds any serious fault with the investigation already conducted then the verifying officer can bring such fault to the notice of the Superintendent of Police (Investigation) of the concerned District who can then initiate the process contemplated by the provisions of Article 18(6) of the Police Order, 2002 for change of investigation.” The Court further said:

“It has also come to our notice in some other cases that an impression is being entertained among some senior police officers that the provisions of Article 18(6) of the Police Order, 2002 pertain to ‘vertical’ change of investigation and not to ‘horizontal’ transfer of investigation, the former standing for change of investigation by authorities outside and above the relevant District and the latter denoting transfer of investigation by officers performing duties within the relevant District. We have found such a distinction to be innovative but totally artificial and self-created and a distinction motivated to defeat the very purposes of Article 18(6) of the Police Order, 2002 so as to perpetuate the maladies for the removal of which the said Article had been introduced. We, therefore, categorically reject all notions regarding such a distinction.”

Reference may also be made to “Qamar Jehan and 2 others v. Bashir Ahmad through Legal Heirs and 5 others” (PLD 2006 Lahore 99), “Mst. Naseem Begum and others v. S.H.O. and others” (PLD 2006 Lahore 509), “Ijaz Ali v. D.P.O. and others” (2006 PCr.LJ 1596) and “Mirza Jahangeer Baig v. D.I.G. of Police, Gujranwala Range and 7 others” (2007 MLD 579) which reiterate the same principles.

10.In the instant case, the investigation of FIR No.161/2019 was entrusted to Respondent No.4. The Petitioner

appeared before him while on ad-interim pre-arrest bail and proved his innocence. No doubt Respondent No.2 was his supervisory officer in terms of Article 18(10) of the Police Order but he had no authority to conduct fresh investigation or substantiate his own conclusions for those of Respondent No.4. If he was not satisfied with the result of the investigation he could have brought such faults to the notice of his superior who could then initiate the process contemplated in Article 18-A of the Police Order, 2002, for change of investigation. Respondent No.2 has transgressed his mandate so his proceedings are declared to be without lawful authority and of no legal effect. Nevertheless, since Respondent No.2 is not satisfied with the findings of Respondent No.4 he may move the officer concerned under Article 18-A for change of investigation and have the case re-investigated.

11.This petition is accepted subject to the above observations.

(Tariq Saleem Sheikh) Judge Yasir*