With the concurrence of learned counsel for the parties, it is being treated as an admitted case.
2. Briefly, the facts necessary for the disposal of this case are that a case F.I.R. No. 226 was registered at Police Station, Qila Deedar Singh, Gujranwala, under Sections, 324, 109 and 34, P.P.C. at the instance of one Haji Muhammad Nasir against the petitioner alleging therein that he alongwith his co-accused caused fire-arms injuries to Haji Maqsood Amjad, Rathore. Thereafter, the petitioner obtained interim bail and joined the investigation, and subsequently, respondent No. 6 Muhammad Yaqoob S.-I, declared the petitioner alongwith other co-accused to be innocent.
Thereafter, the petitioner filed a petition under Sections 22-A and 22-B, Cr.P.C. which was decided on 5-7-2006 wherein it was clearly mentioned that the investigation agencies have declared the petitioner innocent and the comments filed by the S. H.O. Police Station, Qila Deedar Singh Respondent No. 5, in which the petitioner was also found to be innocent.
3. Learned counsel for the petitioner states that; the important aspect of the case is that the petitioner was declared innocent by Muhammad Yaqoob S.-I. Respondent No. 6 vide Zimni No. 12, dated 19.6.2006 which was verified by the S.P. (Investigation-Respondent No. 3). But, unfortunately Respondent No. 3 was transferred and Respondent No. 4 got the charge as S.P. Investigating and appointed Hussain Ali, S.-I. Respondent No. 7 as new Investigating Officer, without adopting any lawful and legal procedure according to sub-Article (6) of Article 18 of the Police Order, 2002.
Respondent No. 7 started raiding at the house of the petitioner and causing illegal harassment to his family, whereas, Respondent No. 4 has no authority for change of investigation, which is illegal and is in confrontation with the provisions of Police Order, 2002. Further states that the factual controversy between the complainant and the petitioner is that the petitioner was ex Naib Nazim of U.C. No. 52 of Nandipur Town, Gujranwala in the years, 2004 and 2005, in which the petitioner lost the election from Respondent No. 8, etc. Thereafter, the petitioner filed an election petition before the Election Tribunal and for that reason the petitioner has been falsely roped in this case.
4. Conversely, learned counsel for the respondents states that; it is not a case of change of investigation, as has been argued by learned counsel for the petitioner. On the transfer of the First Investigating Officer, the S.P. Investigation, under the control of his general supervision, marked the investigation to Respondent No. 7, who with lawful authority conducted the investigation and for that, issued summons in the name of the petitioner to join the investigation. Further states that; it is not a case of change of investigation and Incharge Investigation rightly conducted the investigation. The evidence collected and proceeding recorded cannot be set at naught. This case is not covered by sub-section (6) of Section 18 of Police Order, 2002. Reliance has been placed on the following case law:--
(i) Ikram-ul-Haq v. Inspector-General of Police Punjab, Lahore and 12 others (2005 PCr.LJ 754 Lah.).
(ii) Aziz Ahmad v. Provincial Police Officer (I-G.P) Punjab Lahore and 6 others (PLD 2005 Lahore 185).
(iii) Muhammad Ali Hussain v. District Police Officer and others (PLD 2006 Lahore 95).
(iv) Mst. Naseem Begum and others v. S. H.O. and others (PLD 2006 Lahore 509).
(v) Ijaz Ali v. D.P.O. and others (2006 PCr.LJ 1596 Lahore).
5. The petitioner by filing this writ petition, has challenged the summons of appearance and the raid conducted by the respondent S. H.O. Inspector Investigation to whom investigation has been entrusted by S.P. Investigation, after the transfer of first Investigating Officer on the grounds that S.P.
Investigation marked the investigation to Inspector to conclude or complete the investigation and submitted challan report under Section 173, Cr.P.C. The S. H.O. Inspector Investigation has no authority to reinvestigate the case and for that purpose to summon the petitioner and conduct raids on his house and harass his family members as the petitioner was declared innocent in the first investigation conducted by Muhammad Yaqoob S.-Linvestigation. If the complainant is aggrieved of that investigation, he should move an application to the Additional Inspector General (Investigation) for change of investigation. Any order of change of investigation by the Board, Inspector Investigation has no lawful authority to re-investigate the matter. Even otherwise, no order/decision for reinvestigation of the case was given by the S.P. Investigation in its report and parawise comments has stated that on the application of the complainant. Inspector Hassan Ali, Incharge Investigation was directed to conduct the investigation in the case. He re-summoned the accused, who did not appear before him and he concluded that as per his secret and open investigation, accused/petitioner were found to be guilty.
6. In reply to Para No. 6 of the writ petition, It is stated that investigation was marked to the Inspector Incharge Investigating on the direction of D.I.G., Gujranwala Region and in the application, dissatisfaction was shown to the finding recorded by S.-I., Investigation declaring the petitioner to be innocent. The stance taken by the S.P. Investigation was that Inspector Hassan Ali verified the investigation under the supervision of S.P. Investigation. The said Hasan Ali Inspector Incharge Investigation, in attendance, stated that on receiving the file of the case, he conducted open and secret investigation and collected new evidence and found the petitioner to be guilty of the offence levelled against them.
7. From the stand taken in the reply, it is clear that the investigation was in fact changed and marked to Respondent No. 1 to verify the investigation, whereas, there is no provision for verification of the investigation.
"Verification" as defined in the Concise Oxford Dictionary means "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". Even if it is presumed that the case was marked to Inspector Incharge Investigation to verify the report of acquittal of the petitioner, he was supposed to verity the result from the material available on the police file and not to re-investigate the case, as it has been done by him.
8. Even otherwise, an investigation cannot be changed under the garb of verification of the investigation. It can only be changed as per the procedure provided under sub-Article (6) of Article 18 of Police Order, 2002.
9. Here in this case, investigation was transferred to Respondent No. 1 on the direction of D.I.G., Gujranwala, which order is totally in violation of Article 18(6) of Police Order, 2002 and was passed without lawful authority and action of the Inspector Investigation was in violative of law laid down in full judgment of this Court, reported as Khizer Hayat and others v. Inspector General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470), Kaneez Fatima v. Inspector-General of Police, Punjab, Lahore and 16 others (2004 MLD 1520 Lahore) and Sardar Muhammad Ashiq v. Inspector- General of Police, Punjab, Lahore and 3 Others (2004 YLR 931 Lahore).
It is not a case of re-investigation of case. Provision of Article 18(6) of Police Order, 2002, which controlled the investigation of cases, had limited the number of investigation, only to two, providing procedure for change of first and second investigating. Thus, the change of investigation by S.P.
Investigation under the garb of verification is not approved and the new Investigation Officer was not authorized to conduct new investigation, unless he is specifically directed by a Board, as its change and by Inspector General for second investigation, as provided under the law.
10. In view of the prevailing circumstances of this particular case, the order of S.P. Investigation, passed on the direction of D.I.G. (Range) is declared to be without lawful authority and of no legal consequence, therefore, this writ petition is allowed, as prayed for.