Wednesday, 20 April 2016

Re-investigation of decided case is not allowed

PLJ 2015 Lahore 1227[Multan Bench Multan]
PresentMahmood Ahmad Bhatti, J.
GHULAM ABBAS--Petitioner
versus
REGIONAL POLICE OFFICER, D.G. KHAN and 12 others--Respondents
W.P. No. 5893 of 2015, heard on 27.5.2015.
Constitution of Pakistan, 1973--
----Art. 199--Police Order, 2002, Art. 18-A(1)--Constitutional petition--Change of investigation--Quashing of order--Validity--Order of transfer of first investigation can be made by D.P.O. u/Art. 18-A(1)--R.P.O. gets involved in change of investigation--After obtaining opinion of R.S.B can order change of investigation for second time--If R.P.O. had decided an application for transfer of investigation, PPO may order transfer of investigation of case to an investigation officer or team of Investigating Officer--Officer who passed order and transferred investigation to DSP, R.P.B was not supposed to entertain fresh application for transfer of investigation either on part of an accused or on part of complainant.
                                                                   [Pp. 1221 & 1232] A, B & C
Re-investigation--
----Reinvestigation was not permissible--Second time investigation was wholly un-warranted--Validity--Re-investigation of case subsequent to submitting of challan and taking cognizable by Court was not legal and tenable.            [P. 1233] D
Criminal Procedure Code, 1898 (V of 1898)--
----S. 173--Change of investigation--Where trial had already commenced and changing investigation or ordering further investigation in matter thereafter was an exercise unsustainable in law.     [P. 1234] E
Investigation--
----Restrained from carrying out fresh investigation--Once a case is decided by trial Court or appellate Court for that matter, police are not vested with any authority to make re-investigation of case.
                                                                                            [P. 1234] F
Re-investigation--
----Opinion of police--Ipsi dixit--Pronounce verdict of guilty--Validity--Reason for such approach is not far to seek--On one hand, ipsi dixit of police is not binding on Courts and, on other, when a Court pronounces a verdict of guilty or otherwise, opinion of police relegates to background and becomes meaningless for all intents and purposes.          [P. 1234] G
Rana Shaukat Hayat Noon, Advocate for Petitioner.
Sardar Zafar Ahmad Lund, Advocate for Respondent No. 9.
Mr. Muhammad Javed Saeed, AAG for Respondent No. 10.
Date of hearing: 27.5.2015.
Judgment
Ghulam Abbas, the petitioner has filed this petition seeking to quash the order dated 15.4.2015 passed by the Regional Police Officer, Dera Ghazi Khan, Respondent No. 1, whereby he ordered a change of investigation of case FIR No. 140/2014 dated 20.5.2014 registered under Sections 302/148/149, PPC at Police Station Shehr Sultan, District Muzaffargarhfor the second time.
2.  Putting in a nutshell, the facts are that Nazir Ahmad, Respondent No. 9 herein, lodged the above-mentioned FIR against the petitioner and others for causing the death ofMushtaq Ahmad, his father. To be exact, Jam Faiz Akbar, co-accused was alleged to have knocked down Mushtaq Ahmad, due to which he breathed his last.
3.  The Investigating Officer of the above-mentioned case declared Nasir Iqbal and Muhammad Hussain, co-accused innocent. It was also opined by him that the petitioner and co- accused, Hazoor Bakhsh did not take part in the incident contrary to the allegations made in the FIR and that place of occurrence did not belong to the complainant, as was claimed in the FIR. Be that as it may, Jam Faiz Akbar, the principal accused filed an application with the District Police Officer, Muzaffargarh for a change of investigation in terms of Article 18A (1) of the Police Order, 2002, as amended by Act XXI of 2013 in Punjab. After having obtained the opinion of the District Standing Board, District Police Officer, Muzaffargarh, changed the investigation vide order dated 18.12.2014. As a consequence, the investigation of the case was undertaken by Abdul Sattar, Inspector. Reposing no confidence in him, the petitioner and Jam Faiz Akbar, the aforementioned made a joint application to the Regional Police Officer, Dera Ghazi Khan, Respondent No. 1. It so happened that he, after obtaining the opinion of the Regional Standing Board, allowed their application vide order dated 20.2.2015, thereby transferring the investigation to Shah Alam Gishkori, DSP, Regional Investigation Branch, D.G. Khan, Respondent No. 5. Nazir Ahmad, Respondent No. 9 seemed ill at ease. He also approached the Regional Police Officer, Dera Ghazi Khan, Respondent No. 1 for a further change of investigation. Oddly enough, Respondent No. 1 also obliged him and ordered the change of investigation vide the impugned order dated 15.4.2015.
4.  In support of this petition, learned counsel for the petitioner has put forward two arguments. One, once the Regional Police Officer, Dera Ghazi Khan had ordered the change of investigation vide order dated 20.2.2015 he could not exercise this authority for the second time to change the investigation. Two, the second investigation was undertaken by a DSP in consequence of the order dated 20.2.2015 passed by the Regional Police Officer, Dera Ghazi Khan, but when he passed the impugned order, the investigation was entrusted to a team consisting of an Inspector, an ASI and a Constable, which was clearly violative of the provisions of sub-Article (2) of Article 18A of the Police Order, 2002. It was elaborated by him that whenever an investigation is to be changed, the Investigating Officer is to be either equal to the rank of the previous Investigating Officer or he should rank higher than him.
5.  Learned counsel for the Complainant/Respondent No. 9 has opposed this petition tooth and nail. He has made the argument that if the investigation can be changed on the asking of the accused why cannot this right be conferred upon a complainant? It has further been argued by him that the impugned order dated 15.4.2015 is to be read in continuation of the order dated 20.2.2015. In other words, Regional Police Officer, Dera Ghazi Khan did not pass a fresh order on 15.4.2015. According to him, only the names of the Investigating Officers were changed, while the investigation is to be carried out by the police officials posted at Regional Investigation Branch (RIB), Dera Ghazi Khan. He postulated that a team of three persons would be better equipped to conduct investigation impartially than its being carried out by a single person. Towards the fag end of his arguments, he did a somersault. It was pointed out by him that the challan of the case has already been submitted. Neither the second nor the third change of investigation could be ordered. To reinforce his submissions, he has placed reliance upon a judgment of the Honourable Supreme Court of Pakistan reported as Muhammad Nasir Cheema VsMazhar Javaid and others (P.L.D. 2007 S.C. 31).
6.  Learned Law Officer did not take sides. Apparently, he found it difficult to support the impugned order.
7.  I have heard the learned counsel for the parties and perused the record with their assistance. I have also acquainted myself with the relevant provisions of law having bearing on the outcome of the controversy raised in this writ petition.
8.  In order to appreciate the contentions of the learned counsel for the parties, it would be advantageous to reproduce Article18A of the Police Order, 2002 hereunder:--
18A. 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 Investigating Officer to any other Investigating Officer or a team of Investigating Officers of a rank equal to or higher than the rank of the previous Investigating 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 Investigating Officer or a team of Investigating Officers to any other investigation officer or a team of Investigating Officers of a rank equal to or higher than the rank of the previous Investigating Officer or officers.
(3) If a Regional Police Officer has decided an application for transfer of an investigation, the Provincial Police Officer may, 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;
(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.”
9.  From a bare perusal of the above provisions of law, it is abundantly clear that the order of transfer of first investigation can be made by the Head of District Police under sub-Article (1) of Article 18A of the Police Order, 2002. Thereafer, the Regional Police Officer gets involved in change of investigation. He alone, after obtaining the opinion of the Regional Standing Board, can order the change of investigation for the second time. Once he makes any order under sub-Article (2) of Article 18A of the Police Order, 2002, nothing remains in his hands and he virtually becomes functus officio. Should one or the other party have any genuine grievance regarding the conducting of investigation by the Investigating Officer or the team of officers to whom investigation is entrusted by him, it has only one remedy open to it. It might approach the Provincial Police Officer for a change of investigation for the third time. As is defined in clause (xvii) of Article 2 of the Police Order, 2002, the Provincial Police Officer is none other than the Inspector General of Police appointed under Article 11 of the Police Order, 2002. The construction so put on sub-Article (3) of Article 18A of Police Order, 2002 is in consonance with the phrasealogy used by the legislature. This sub-article opens with the words that if a Regional Police Officer has decided an application for transfer of an investigation, the Provincial Police Officer may order the transfer of investigation of a case to an Investigating Officer or a team of Investigating Officers. However, his powers are hedged in by the constraints that he would first obtain the opinion of a Standing Review Board before ordering the transfer of investigation. Furthermore, Investigating Officer or a team of Investigating Officers so appointed by him should not be below the rank of the previous Investigating Officer or the team of officers. He should either be co-equal to the previous Investigating Officer or the team of Investigating Officers appointed by him should be higher in rank than the team of Investigating Officers appointed by the Regional Police Officer.
10.  To return to the facts of the instant case, the Regional Police Officer, Dera Ghazi Khan, Respondent No. 1 overstepped his authority and went beyond his jurisdiction when he passed the impugned order dated 15.4.2015. It bears repeating that the officer who passed the order dated 20.2.2015, and transferred the investigation to Shah Alam Gishkori, DSP, Regional Investigation Branch, Dera Ghazi Khan was not supposed to entertain a fresh application for the transfer of investigation either on the part of an accused or on the part of the complainant. He had better advise the complainant to approach the Inspector General of Police for the redressal of his grievance, if any. His order is also not sustainable on another ground as well. When he passed the impugned order dated 15.4.2015, he ordered to entrust the investigation to a team which ranked below the previous Investigating Officer. Although the new investigating team consists of three members, none of them holds the post of a DSP. Looked it from whatever angle, the impugned order dated 15.4.2015 passed by Respondent No. 1 is a nullity and liable to be set aside.
11.  This brings me to the argument advanced by the learned counsel for the complainant that once a challan is submitted to a Court, re-investigation of a case is not permissible. The argument of the learned counsel for the complainant literally turns the table on him. It was pointed out to him that if his argument was accepted, the investigation changed by Respondent No. 1 for the second time was wholly unwarranted. To his credit, he folded his papers and left the rostrum. Be that as it may, there appear to be two strands of opinion. At one end of the spectrum, it has been held in a string of judgments that re-investigation of a case subsequent to the submitting of a challan and taking cognizance by the Court is not legal and tenable. In this behalf, reference may be well made to the judgments reported as: Qari Muhammad Rafique versus Additional Inspector General of Police (Inv), Punjab and others’ (2014 SCMR 1499), Zahoor Ahmad versus The State’ (PLD 2007 SC 231), ‘Muhammad Ashfaq versus Additional Inspector General of Police (Investigation) Punjab, Lahore’ (2013 P.Cr.L.J. 920), Liaqat Ali Virk versus Inspector General of Punjab, Police, Lahore’ (PLD 2010 Lah 224),‘Muhammad Siddique versus Inspector General of Police, Punjab’ (PLD 2013 Lahore 85),‘Muhammad Gulfam versus Regional Police Officer, Sheikhupura Range, Lahore’ (2012 P.Cr.L.J. 1493), ‘Muhammad Mazhar versus Additional I.G. Police Investigation Branch, Punjab, Lahore’ (2011 YLR 2463 Lahore), ‘Aftab Ahmad versus Hasan Arshad’ (PLD 1987 SC 13), Bahadur Khan versus Muhammad Azam (2006 SCMR 373), Khizar Hayat versus Inspector General of Police (Punjab), Lahore’ (PLD 2005 Lahore 470), ‘Mir Dad versus Inspector General of Police, Punjab’ (2010 YLR 3201) and ‘Muhammad Hafeez versus District Police Officer, Narowal’ (2010 YLR 3142) At the other end of the spectrum there is plethora of judgments in which an altogether different view has been taken. In this category falls the judgments reported as ‘Raja Khurshid Ahmed versus Muhammad Bilal (2014 SCMR 474), ‘Muhammad Ashfaq versus Additional Inspector General of Police (Investigation), Punjab,Lahore (2013 P. Cr.L.J. 920), ‘Muhammad Iqbal versus The State’ (2010 P.Cr.L.J. 888) and Liaquat Ali Virk versus Inspector General of Punjab Police, Lahore’ (PLD 2010 Lahore 224).
12.  The cleavage of opinion can be better appreciated by taking a look at a few excerpts from the two sets of judgments. In the case of ‘Muhammad Nasir Cheema versus MazharJavaid and others’ (PLD 2007 SC 31) it was held that:--
“At this stage, the learned Additional Advocate-General informs us that some additional I.G. Police had passed some order on 15.07.2006 and had changed the investigation. We are surprised at this order passed by the Addl. I.G. Police (Investigation Branch), Punjab for more than one reasons. First, because the report under Section 173, Cr.P.C. had already reached the trial Court as noticed above where the trial had already reached the trial Court as noticed above where the trial had already commenced and changing the investigation or ordering further investigation in the matter thereafter was an exercise unsustainable in law.”
13.  In the case of Qari Muhammad Rafique versus Additional Inspector General of Police (Inv), Punjab and others’ (2014 SCMR 1499) the above view was reiterated in the following words:--
“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 thechallan 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).”
14.  The following extract from the judgment reported as Raja Khurshid Ahmed Vs. Muhammad Bilal and others (2014 SCMR 474) is illustrative of the other view:
“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.”
15.  There is only one exception in which police have been restrained from carrying out fresh investigation. Once a case is decided by the trial Court or the appellate Court for that matter, the police are not vested with any authority to make the re-investigation of the case. The reason for this approach is not far to seek. On the one hand, the ipsi dixit of police is not binding on the Courts and, on the other, when a Court pronounces a verdict of guilty or otherwise, the opinion of the police relegates to the background and becomes meaningless for all intents and purposes.

16.  In view of the discussion made above, this writ petition is allowed and the impugned order dated 15.4.2015, passed by the Regional Police Officer, Dera Ghazi Khan, Respondent No. 1 is declared to have been passed without lawful authority and of no legal effect, which accordingly is set aside.
(R.A.)  Petition allowed

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