The petitioner filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan. According to the learned counsel for the petitioner F.I.R.No,69 of 2004 dated 7-8-2004, under section 302, P.P.C., P.S. Noshera District Khushab was registered at the instance of Ahmed Nawaz son of Sarfraz. After completion of investigation challan was submitted before the trial Court. The learned counsel further contends that D.P.O. Has directed to Ghulam Ali, D.S.P.
(headquarters), Khushab to re-investigate F.I.R. No,69. According to him, order of re-investigation is illegal, in the above circumstances. The precise grievance of the learned counsel for the petitioner is that since challan has been submitted and cognizance has been taken by the learned trial Court, at this stage re-investigation is not inconsonance with the provisions of Police Order, 2002.
He prays that the learned Sessions Judge, Khushab may kindly be directed to proceed with the trial on the basis of challan submitted before him on the basis of earlier investigation.
2. D.P.O., Khushab was directed to submit report in the instant case.
3. On 3-12-2004, the report was submitted, on the basis of that report, Ch. Jamshed Hussain, A.A.-G.
Argued that re-investigation was not ordered by the D.P.O., the D.P.O. Ordered for confirmation/ verification of the investigation. He further submitted that the D.P.O. Derives .Power of verification from Circular No,1 of 2002 passed by I.G.P./Provincial Police Officer, Punjab.
4. I have asked the learned A.A.-G. Whether such power of verification exist in the Police Order, 2002? The learned A.A.-G. Frankly answered that such power does not exist in the Police Order, 2002. The learned A.A.-G. As well as the learned counsel for the petitioner were asked to address the Court, whether the I.G.P./Provincial Police Officer, Punjab could exercise such power of verification on the basis of a circular, if it is not provided under the Police Order, 2002?
5. On 15-12-2004, the learned counsel for the petitioner, the learned counsel for the complainant, learned A.A.-G. And D.P.O. Khushab appeared before the Court. The learned A.A.-G. Made a request for short adjournment as the learned Advocate-General himself wanted to address the Court on the above legal point. On 20-12-2004, Mr. Masood Mirza learned counsel for the petitioner submitted an amended petition, wherein, the I.G.P./Provincial Police Officer was also made party.
The amended petition was allowed to be brought on the file.
6. On 22-12-2004, learned Advocate-General Punjab appeared and strongly contended that I.G.P./Provincial Police Officer can pass such a circular i,e, Circular No,1 of 2002 under Article 187 of the Police Order, 2002. Article 187 reads asunder:-- "187. Power to remove difficulties.--(1) If any difficulty arises in giving effect to the provisions of this Order, the Government may, by notification in the official Gazette, make such provisions as appear to be necessary or expedient for removing the difficulty: ' Provided that no such notification shall be issued after the expiry of two years from the commencement of this Order.
(2) Every notification issued under this Article shall be laid before the Parliament or the Provincial Assembly, as the case may be."
' I drew attention of the learned Advocate-General that clause (1) of Article 187 ibid says that if any difficulty arises in giving effect to the provisions of Police Order a Notification may be issued, the question is, is there any provision which provides concept of verification? The learned Advocate- General could not answer this question convincingly. It Was further asked to him, under Article 187, the Government can issue a Notification, is I.G.P./Provincial Officer is Government. The answer to this question was also not appealing. It may further be added that. Circular No,1 of 2002 was issued on 5-11-2002 signed by the Additional Inspector of Police Investigation Branch, Punjab, Lahore.
Addressed to the Capital City Police Officer, Lahore, all Range D.I.Gs., District Police Officers and all Staff Officers, C.P.O. It reads "kindly find enclosed herewith a Circular bearing No,1 of 2002 duly approved by the Inspector-General Punjab regarding change of investigation for information and compliance in letter and spirit, signed by Shaukat Javed, Additional Inspector of Police Investigation Branch, Lahore". The said Circular cannot be said in any sense as a Notification from the Government. It may also be pointed out that Article 187 of the Police Order, 2002, clause (2) requires that every notification issued under this Article shall be laid before the Parliament or the Provincial Assembly, as the case may be. The above Circular No,1 of 2002 was never laid before the Parliament or the Provincial Assembly, as the case may. It may also be pointed out that power to remove difficulties is not meant to issue departmental circulars, it relates to making new provisions in law to achieve the objectives and purposes provided under the main statute and these measures cannot exceed or frustrate the objectives and provisions of the main statute.
7. I have serious doubt about the validity of Circular No,1 of 2002 on the basis of which, investigation has been changed under the guise of verification. The language of Circular No,1 of 2002 is repugnant and contravenes the provisions of Article 18(6) of the Police Order, 2002. To elaborate the same, provisions of Article 18(6) are reproduced as under:-- "Investigation shall not be changed except after due deliberations and recommendations by a board headed by an officer not below the rank of Senior Superintendent of Police and two Superintendents of Police, one being Incharge of the investigation of the concerned district: ' Provided that the final order for the change of investigation shall be passed by head of investigation in the general police area who shall record reasons for change of such investigation: ' Provided further that the second change of investigation may only be allowed with the approval of the Provincial Police Officer, or the Capital City Police Officer, as the case may be."
' Sub-Article (6) clearly provides that investigation shall not be changed except after due deliberations and recommendations by a board headed by an officer not below the rank of Senior Superintendent of Police and two Superintendents of Police, one being Incharge for investigation of the concerned district and the final order for the change of the investigation shall be passed by head of the investigation who shall also record his reasons for change of such investigation. On the other hand para. 4 of Circular No,1 of 2002 provides that action taken by district head of investigation or any other Supervisory Officer of Investigation Branch while carrying out supervision or verification of investigation or on administrative and technical ground with regard to investigation would not be construed as change of investigation as laid down in Article 18(6) of the Police Order, 2002.
8. I have gone through the Police Order, 2002 myself and also requested to the learned counsel and Advocate-General to show me any provision which deals with the concept of the verification of investigation or what are administrative and technical grounds with regard to investigation, we could not, find any provision on these points. Para. 4(a) of the Circular No,1 of 2002 further provides that action taken by the respective supervisory officers of Investigation Branch in the context of mandatory verification of cases of important nature i,e, terrorism and special reported cases would not mean change of investigation. Where expression of mandatory verification comes from? It is not provided in the Police Order, 2002. Para. 4(b) further provides that the Supervisory Officers during the course of supervision or verification of investigations can entrust the investigation to some other competent officer or a team of officers on administrative and operational grounds. The above provisions of para. 4 of Circular No,1 of 2002, in my opinion, are not only violative of Article 18(6) of Police Order, 2002, also provides a jurisdiction to the I.G.P./Provincial Police Officer Punjab and the District Police Officer which is not conferred upon them in the Police Order, 2002. The jurisdiction which they have assumed is not there in the main statute/Police Order, 2002. How can they exercise such power on the basis of a circular without legal backing and sanctity? The Departmental circular is not more than a departmental instruction. The Departmental circular/instruction even cannot be called a rule. The Departmental circular are good enough for the internal management and control but they cannot confer a right or deprive a person of a right, which is, only possible on the basis of a statutory provisions or a rule made by a competent authority under the concept of delegated legislation, as held in Sub. Muhammad Asghar v. Safia Begum and others PLD 1976 SC 435.
9. Even rules made under the concept of delegated legislation cannot be allowed to exceed or frustrate the main statute. (For further elaboration Kh. Ahmad Hassan v. Government of the Punjab 2004 SCJ 668 may be referred). It is well-known and well-settled legal proposition, "if the rules framed under the statute are in excess of the provisions of the statute or are in contravention or inconsistent with such provisions then provisions of the main statute must prevail and such rules, etc. Cannot be given legal effect". As I have already observed, the impugned Circular No,1 of 2002 cannot even be treated as a rule then how can it be allowed to exist when it is clearly inconsistent, contravenes and frustrates the objective mentioned under Article 18(6) of the Police Order, 2002?
The spirit of Article 18(6) of the Police Order, 2002, is to discourage re-investigations. That is why re- investigation has been made difficult, and a clear procedure has been provided. The said objective cannot be by-passed or stultify by using device i,e,. Verification of investigation, etc. In view of my above findings, Circular No,1 of 2002, dated 5-11-2002, is hereby declared as void, illegal, without lawful jurisdiction and of no legal effect. The learned Sessions Judge, Khushab is directed to proceed with the trial on the basis of challan submitted before him on the basis of earlier investigation, however, if re-investigation is directed as provided under Article 18(6) of the Police Order, 2002, that will not be affected by this order.