Afzal Ahmad Vs CPO Faisalabad etc

Stereo. HCJDA 38

JUDGMENT SHEET

LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Writ Petition No. 21663 of 2021

Afzal Ahmad Vs.

City Police Officer, Faisalabad, etc.

JUDGMENT

Date of hearing 21.03.2022 For the Petitioner: Syed Hammad-ul-Hassan, Advocate. For Respondent Nos.1-3: Mr. Mukhtar Ahmad Ranjha, Assistant Advocate General, with Atta-ur-Rehman/ DSP and Shahid/SI.

For Respondent No.4: Mr. Abid Saqi, Advocate.

Tariq Saleem Sheikh, J:- The Petitioner lodged FIR No.428/2020 dated 12.8.2020 under sections 302 & 452 PPC at Police Station Saddar Tandlianwala, District Faisalabad, against Respondent No.4 accusing him of the murder of his brother Abdaal Ahmad. The case was investigated by the SHO, Saddar Tandlianwala, District Faisalabad, who found that Respondent No.4 had committed the alleged offence. Report under section 173 Cr.P.C. was submitted accordingly. On 20.10.2020 the Additional Sessions Judge, Tandlianwala, indicted Respondent No.4 and summoned prosecution evidence. On 3.12.2020 examination-in-chief of Azam Ali (PW-1) was recorded. In the meanwhile, on the recommendation of the District Standing Board (DSB), Respondent No.1 transferred the investigation of the aforementioned case (FIR No.428/2020) to Abdul Khaliq, ASP/SDPO Peoples Colony Circle, Faisalabad, vide Order No.935/DSB dated 29.10.2020. A few days later, Abdul Khaliq/ASP was posted out whereupon Respondent No.1 entrusted the investigation to Asad Ali/ASP vide Order No. 1101/DSB dated 8.12.2020. Incidentally Asad Ali/ASP was also transferred after some

time so Respondent No.1 entrusted the matter to Rehman Qadir/DSP (Investigation-III), Faisalabad, vide Order No.74/DSB dated 21.1.2021. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”), the Petitioner has challenged the vires of order dated 21.1.2021.

2.The learned counsel for the Petitioner contended that a case could not be reinvestigated or further investigated after the commencement of trial. Therefore, Order No.935/DSB dated 29.10.2020 was without jurisdiction and the transfer of investigation of case FIR No. 428/2020 to Abdul Khaliq/ASP was void. He further contended that even if it was assumed that it was not, orders dated 8.12.2020 and 21.1.2021 were not sustainable because under Article 18A of the Police Order 2002 only the Regional Police Officer was competent to transfer the investigation.

3.The learned Assistant Advocate General contended that the law neither prohibits reinvestigation nor further investigation of a criminal case even after the commencement of trial. In the instant case, the impugned order dated 21.1.2021 was necessitated owing to the transfer of the Investigating Officer, Asad Ali/ASP. The learned Law Officer argued that Respondent No.1 was competent to pass the said order under section 551 Cr.P.C. and in the given situation the matter was not required to be considered by the Regional Police Officer in terms of Article 18A(2) of the Police Order.

4.The learned counsel for Respondent No.4 adopted the arguments of the Assistant Advocate General and added that the instant petition could not proceed because the Petitioner had not challenged Order No. 935/DSB dated 29.10.2020 which was foundational.

5.Arguments heard. Record perused.

6.Section 4(l) of the Code of Criminal Procedure, 1898 (hereinafter referred to as the “Code” or “Cr.P.C.”), defines the term “investigation” as follows:

(l)“Investigation”.– “Investigation” includes 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.

7.Fair investigation is concomitant to the right to fair trial guaranteed under Article 10A of the Constitution. In Babubhai v. State of Gujrat and others [(2010) 12 SCC 254] the Supreme Court of India held that it is also a part of right to life and personal liberty and that “investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law.” Rule 25.2(3) of the Police Rules, 1934, enjoins that it is the duty of the Investigating Officer to dig out the truth and bring it before the court of justice. It is reproduced below for ready reference:

25.2 Power of investigating officers:

(3)It is 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.

8.Section 173 Cr.P.C. mandates that every investigation should be completed without unnecessary delay. It further states that as soon as it is done the officer in-charge of the police station shall forward a report (through the Public Prosecutor) in the prescribed form to the magistrate empowered to take cognizance of the offence. If the investigation is not finalized within 14 days from the date of registration of the FIR, the officer in-charge of the police station shall, within three days of the expiration of the said period, forward an interim report (through the Public Prosecutor) to the magistrate in the prescribed form stating the result of the investigation made until then. Immediately thereafter the court should commence the trial unless there are reasons to postpone it. In Hakim Mumtaz Ahmed and another v. The State (PLD 2002 SC 590) the Hon’ble Supreme Court of Pakistan held that the provisions of section 173 Cr.P.C. are mandatory as their non-compliance constitutes violation of Articles 4 and 9 of the Constitution. The apex Court further observed:

“... on completion of period of police remand under section 167 Cr.P.C. if final or interim report has not been submitted the magistrate before whom accused has been produced for remand can insist upon the prosecution by passing order in writing to comply with the provisions of section 173(1) Cr.P.C. or record reasons for remanding the accused to judicial custody for want of challan in terms of section 344 Cr.P.C. and simultaneously direct initiation of departmental proceedings against the police officer responsible for submission of challan for not complying with mandatory provision of law and proving thereby himself/themselves to be inefficient police officers ...”

9.Neither the Code nor the Police Rules, 1934, provide any procedure for transfer of investigation of a criminal case from one police officer to the other. This lacuna came to be exploited so when the Police Order 2002 was promulgated to reconstruct and regulate the police,1 certain provisions were made to rectify the situation. However, the Police Order (Amendment) Act, 2013 (XXI of 2013), enacted Article 18A and introduced a new regime for transfer of investigation of criminal cases. Article 18A(1) stipulates that the first application for transfer of investigation should be made to the Head of District Police. He shall seek opinion of the DSB thereon within seven working days and then pass an appropriate order giving reasons therefor. Article 18A(2) provides that 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 (RSB) and for reasons to be recorded in writing, transfer the investigation of a case to another officer or a team of officers who are equal to or higher than the rank of the previous officers. Article 18A(3) states that when the Regional Police Officer has decided an application as aforesaid, the Provincial Police Officer would be the final authority. He may, within thirty days of filing of an application, after obtaining opinion of the Standing Review Board, transfer the investigation if he deems fit. Article 18A(4) enjoins that 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. Article 18A(5) describes the composition of the DSB, RSB and the Review Board.

Preamble of the Police Order 2002.

10.It is important to note that Article 18A only prescribes three forums before which an application for transfer of investigation may be made. It is a separate matter whether the authority accepts or rejects it. Article 18A does not talk of “first”, “second” and “third” change of investigation as we generally hear. It is a misnomer which must be avoided.

11.The question as to whether investigation can be changed or, to put it in another way, whether a case can be reinvestigated or further investigated after the submission of final report under section 173 Cr.P.C. (and, more particularly after the accused is/are indicted) is quite contentious. There are two streams of decisions of the Hon’ble Supreme Court on this point. It is trite that in such eventuality the one rendered by the Larger Bench prevails.2 Therefore, this Court is obligated to follow the dictum laid down in Muhammad Akbar v. The State (1972 SCMR 335) because that decision was handed down by a 4-member Bench while all others have come from Benches of low numeric strength. In Muhammad Akbar the apex Court held that “there is nothing in the Code of Criminal Procedure to prevent the Investigating Officer from submitting a subsequent report in supercession of his earlier one, either on his own initiative or on the direction of the superior police officer.” The oft-quoted case Qari Muhammad Rafique v. Additional Inspector- General of Police (Inv.), Punjab and others (2014 SCMR 1499) that takes the opposite view was decided by a 3-member Bench. Further, it was passed on a petition refusing leave to appeal. In Abid Hussain v. The State and others (2022 PCr.LJ 83) a Single Judge of this Court has also ruled that Muhammad Akbar is the binding authority.

12.It is true that at times reinvestigation or further investigation may bring on record conflicting evidence and contradictory opinions of the police officers. In such eventuality it is the duty of the court to evaluate them in accordance with the established principles of criminal jurisprudence and rules of evidence to reach a correct decision. In Fazal Muhammad Chaudhari v. Ch. Khadim Hussain and 3 others (1997 SCMR 1368); Sardar Muhammad Nawaz v. Mst. Firdous Begum (2008 SCMR 404); Chairman, State Life Insurance Corporation and others v. Humayun Irfan and 2 others (2010 SCMR 1495); and National Bank of Pakistan v. Nasim Arif Abbasi and others (2011 SCMR 446).

Writ Petition No. 21663/2021 -6-

Muhammad Ashfaq v. Amir Zaman and others (2004 SCMR 1924) the Hon’ble Supreme Court held:

“The apprehension of the petitioner/complainant that his case is likely to be prejudiced by submission of report on reinvestigation is misconceived. Firstly because the court concerned can proceed with the trial on the basis of the report already submitted under section 173 Cr.P.C. and secondly it is not bound by the opinion given in the said report or expressed in the report being submitted pursuant to reinvestigation. It is always the judicial consideration of the material collected by police which weighs with the court while issuing process.”

13.Even though investigation or further investigation is permissible, subject to Article 18A of the Police Order 2002, the first rider is that it cannot be done after the case has been decided by the trial court. 3 Further, it cannot be ordered in routine. In Abid Hussain v. The State and others (2022 PCr.LJ 83) this Court held:

“In this view of the matter, it is clear that reinvestigation, further investigation or transfer of investigation is permissible even after submission of challan or for that matter framing of charge and till the time the trial is concluded. However, this, at the same time, does not mean that change of investigation or further investigation can be ordered in routine. There are certain postulates that have to be met before an order for further investigation or reinvestigation or transfer thereof can be passed. Such an order may be passed if some new event or incident is discovered warranting reinvestigation or further investigation. Such an order can also be made if some new evidence is discovered. Such an order can also be passed if the previous investigations have been conducted unilaterally without associating the actual culprit involved and without trying to identify and ascertain the person responsible for committing the crime. The police does not have an unfettered power in this respect and reinvestigation or further investigation may only be carried out if some further material relating to the case is required or if the previous investigation is mala fide or in excess of jurisdiction.”

14.The High Court does not sit in appeal over the decision of the authorities under Article 18A. As such, it cannot substitute its opinion for their holding though in appropriate cases it can exercise power of judicial review in accordance with the settled legal principles.

15.In the present case, Respondent No.1 transferred the investigation of FIR No. 428/2020 for the first time vide Order No.935/DSB dated 29.10.2020 on the recommendation of the DSB and entrusted it to Abdul Khaliq ASP/SDPO. The Petitioner has not challenged the said order. Even if he had, in the light of the above Bahadur Khan v. Muhammad Azam and 2 others (2006 SCMR 373).

discussion it may be observed that this Court would not have struck it down merely for the reason that it was issued after the commencement of trial. He would have been required to plead something more against it.

16.The Petitioner has a grouse against Order No. 74/DSB dated 21.1.2021 passed by Respondent No.1 whereby he entrusted the investigation of the case to Rehman Qadir/DSP on the transfer of Asad Ali/ASP. His objection is premised on Article 18A of the Police Order 2002. In my opinion, the repeated use of the words “filing of an application” in the said Article clearly suggests that it provides a remedy to the parties who are not satisfied with the investigation for any reason. It does not apply to the cases in which the change is necessitated by the transfer of the Investigating Officer. They are to be dealt with under section 551 Cr.P.C.

17.It has been brought to the notice of this Court that Rehman Qadir/DSP had hardly conducted any investigation as he was also transferred and Respondent No.1 entrusted the case to Atta-ur- Rehman/DSP. The Petitioner has not assailed that entrustment in this petition. Further, the prosecution has examined all its witnesses and even the examination-in-chief of Atta-ur-Rehman/DSP has been recorded as CW-1. These are more reasons why this petition must fail.

18.In view of the above, this petition is dismissed.

(Tariq Saleem Sheikh) Judge Naeem

Approved for reporting

Judge