' HASNAT AHMAD KHAN, J.---Through this constitutional petition, the legality and validity of the order dated 24-3-2007 passed by Additional Inspector-General of Police, Investigation Branch, Punjab, Lahore (hereinafter to be referred to as respondent No, 1), whereby the application filed by respondent No,3 for the transfer of investigation of case F.I.R. No,344, dated 6-5-2006, registered at the Police Station Phoolnagar, District Kasur, in respect of offences under sections 302/324/148/149, P.P.C., was accepted and the order of the "first change of investigation" was passed, has been called into question.
2. Succinctly, the facts of the case, giving rise to the filing of this petition are; that the above- mentioned case was registered against the petitioner and some others. After the registration of the case, the investigation was conducted by the local police (Investigation Cell) under the supervisor of Superintendent of Police (Investigation), Kasur, who found the petitioner and 13 others innocent.
However, 6 people were found guilty during the said investigation. Consequently, a report under section 173, Cr.P.C. Was prepared and sent before the Court of competent jurisdiction.
3. After completion of the necessary formalities, the trial of the case was entrusted to an Addl.
Sessions Judge, Kasur. In the meanwhile, Rana Muhammad Naeem-complainant of the case, submitted an application before respondent No,1 for the transfer of investigation. On the said application, the matter was referred to the Standing Board vide Memo. Dated, 4-8-2006. The said Board recommended the first change of investigation. The recommendation of the said Board was transmitted to respondent No,1 by Deputy Inspector-General of Police, Sheikhupura Range, Lahore, vide letter dated 7-9-2006. After considering the matter, the said recommendation did not find favour with respondent No,1, who, refused to accepted the application, filed by the respondent No,3 for the first change of investigation, and instead, directed the head of investigation to finalize the matter strictly on merit.
4. It appears that feeling aggrieved by the said order, the complainant approach the Provincial Police Officer for the redressal of his grievance. The said application was marked to respondent No,1 vide Memo dated 7-11-2006 with a direction to process the same for the first change of the investigation. On receipt of the said letter, the matter was referred by respondent No,1 to the Standing Board for re-examination vide, Memo. Dated 11-12-2006.
5. After considering the pros and cons of the matter, the Standing Board declined to recommend the case of first change of the investigation. The said report, in turn, was transmitted by Regional Police Officer, Region-I, Sheikhupura, at Lahore, to respondent No,1, who, after disagreeing with the negative finding of the Board, proceeded to review his earlier order and passed the impugned order, directing first change of the investigation.
6. Feeling aggrieved by the said order, the petitioner filed the instant petition, which was admitted to regular hearing on 28-3-2007. While admitting the petition, this Court passed an injunctive order in the following terms: "Notice for 17-4-2007. Meanwhile, no investigation shall be carried out pursuant to the order of Additional Inspector-General of Police (Investigation) Punjab, dated 24-3-2007. However, this order or the order passed in the main writ petition shall not preclude the trial Court from proceeding with the trial."
7. During the course of hearing of this petition on 28-5-2008, the learned Counsel for respondent No,3 emphatically asserted that during the investigation, the statement of Muhammad Rafique, Inspector Police, who, according to the complainant, was also one of the eye-witnesses of the occurrence, had duly been recorded under section 161, Cr.P.C. But, the said statement was removed from the police file. To augument his arguments, the learned counsel for respondent No,3 had placed on the record a photocopy of the said statement. The said assertion was denied by the learned counsel for the petitioner.
8. To resolve the said controversy, Muhammad Rafique, Inspector Police was directed to appear before this Court. The said officer entered appearance and has categorically denied the making of such a statement. Moreover, he disagreed with the fact that he had written or signed such a statement. Without giving any finding on the said aspect of the matter, lest it my not prejudice the trial, I intend to proceed ahead.
9.The learned counsel for the petitioner has contended that not only the challan had been submitted in the Court but the trial has also commenced; that in this backdrop, there was no occasion for respondent No,1 to order the re-investigation of the case, especially, keeping in view the fact that he had himself turned down the plea for change of investigation in the past; that after recording the statement of the complainant, all the accused, who had been found innocent by the Investigating Officer, have already been summoned to face the trial; that opinion of the police, being neither relevant nor admissible in evidence, the case has to be decided on the basis of the evidence, produced before the learned trial Court; that the purpose of the investigation is to collect evidence, which -has already been collected and, therefore, no useful purpose would be served by further delaying the matter; that after the submission of the challan, the investigation cannot be transferred. To augment his arguments, the learned Counsel for the petitioner has placed his reliance on the case of Muhammad Nasir Cheema v. Mazhar Javaid and another (PLD 2007 SC 31).
10. Conversely, the learned counsel appearing on behalf of respondent No,3 has defended the impugned order by submitting that no illegality had been committed by respondent No,1 while accepting the application of the complainant; that under section 21 of the General Clauses Act, respondent No,1 was within his rights to review his earlier order; that the contents of the F.I.R. Clearly depict that the occurrence had taken place in the presence and sight of Muhammad Rafique, Inspector, who, therefore, during his investigation had recorded his own statement under section 161, Cr.P.C. But the said statement was dishonestly removed from the police file to benefit the accused; that the statement made by the said police officer before this Court, today, is totally false and the complainant reserves his right to proceed against him for making a false statement and tampering with the record and that the impugned order, being a well-reasoned order, does not merit interference in exercise of the constitutional jurisdiction.
11. The learned Assistant Advocate-General has adopted the arguments put forth by the learned counsel for respondent No,3.
12. Having heard the respective counsel for the parties and going through the record minutely I have gathered that the case was registered on the application of the complainant way back on 6- 5-2006. After the investigation, a report under section 173, Cr.P.C. Was submitted and the trial in the said case is in progress. Though, during the investigation, some of the accused were found innocent but, admittedly, when the complainant made his statement, during the trial, the said accused were summoned by the learned trial Court to face the trial. Though, there is no bar against re-investigation of the case after the submission of report under section 173, Cr.P.C. As has been held by the Honourable Supreme Court in the case of Bahadur Khan v. Muhammad Azam and 2 others A (2006 SCMR 373), yet the fact remains that ultimately, the case has to be decided on the basis of evidence recorded before the learned trial Court. The purpose of investigation, as defined under section. 4(1), Cr.P.C. Is the collection of evidence by a police officer or by any other person (other than a Magistrate) who is authorized by a Magistrate in this behalf. The said definition does not talk of the opinion of the police office, who under the said definition, is only authorized to collect the evidence, therefore, the opinion of the police is neither relevant nor admissible in evidence. In this backdrop, frequent transfers of investigations, has been discouraged by the superior Courts. As a matter of fact, the Police Order 2002 was promulgated to discourage the said tendency, which ordinarily causes delay in the trials. In a landmark judgment reported as Muhammad Bashir v. Station House Officer, Okara Cantt. And others (PLD 2007 SC 539), it was observed by the Honourable Supreme Court as under:- "This tossing around of the investigation acquired the name of transfer of investigation and in turn also acquired notoriety as the same caused inordinate delays in the conclusion of investigations; resulted in contradictory opinions of different Investigating Officer and in collection of pieces of evidence which were irreconcilable and also because motives also started to be attributed to orders leading to such transfers. Needless to add that such like investigations had devastating effects on the quality of trials that followed. And it was for these reasons that the Superior Court of the country never approved of the said so-called transfers of investigations and always deprecated the same."
13. Nevertheless, the re-investigation of a case after the submission of the challan cannot be debarred. The judgment relied upon by the learned Counsel for the petitioner is not applicable, because of its distinctive features. Even otherwise, Bandaur Khan's case (supra) whereby it has been held by the Honourable Supreme Court that the investigation can be conducted even after the submission of the challan, is of a Larger Bench. It has been categorically held by the Honourable Supreme Court that a judgment of the Larger Bench of the Supreme Court would be preferred over the judgment of a smaller. Bench. Reliance in this regard is placed on the case of Azmatullah through L.Rs, v. Mst. Hameeda Bibi and others (2005 SCMR 1201).
14. Now, I intend to proceed further to determine, as to whether in this particular case, the order for change of first investigation was justified or not? While doing sa, I have gathered that in this case the complainant being dissatisfied with the result of first investigation, wherein most of the accused were declared innocent, he approached respondent No,1 for transfer of investigation. On the said move, the Standing Board recommended the case for the change of investigation.
However, respondent No,1 vide order dated 16-9-2006 did not agree with the said recommendation and refused to order the first change of investigation. On the second move of the complainant, respondent No,1 again referred the matter to the Standing Board, which did not recommended the case for the first change of investigation. While doing so, it was observed as under:- "Investigation ' Investigation of the case was conducted by S.I. Saad Ullah under the close supervision of S.P./Investigation Kasur. During investigation accused Tariq Mehmood, Maqbool Ahmed, Muhammad Boota and Sarfraz were found guilty and sent to judicial lock-up after recovery of weapons of offence. Whereas accused Javed Iqbal, Liaqat Ali, Muhammad Yousaf have been found innocent. Complainant got recorded his supplementary statement mentioning the accused as Sajjad Ahmed, Habib Ahmed, Fiaz etc. During investigation accused Habib Ahmed and Fiaz have been found guilty and sent to Jail whereas accused Sajjad Ahmed has been found innocent whereas accused Azam along with 13 who were nominated in supplementary statement were also found innocent and challaned in Column No,2. No new reasons have arisen to cause change of investigation. The Board has not recommended the case for 1st change of investigation."
' Ironically enough, this time respondent No,1 again disagreed with the recommendation of the Board and proceeded to review his earlier order and ordered for the first change of investigation for reasons best known to him. The conduct of respondent No,1, prima facie, is very strange. At first, when the Board recommended for change of first investigation, the same was refused and later on, when the Standing Board refused to recommend the case for the first-change of investigation, a contrary order was passed by him. It goes without saying that according to me, the Addl.
Inspector-General of Police (Investigation), though, under Art.18(6) of Police Order, 2002 is bound to have the deliberations and recommendations by a Board constituted in terms of the said provision but, of course, after considering the pros and cons of the case, he can disagree with the said recommendation, however, he has got no power to review his earlier order. If this practice is allowed, no finality would be attached to the orders of Additional Inspector-General of Police (Investigation). The end to be achieved by this finality i,e, minimization of the wastage of time in the matter of transfer of investigation, would be frustrated. Even, otherwise, under the provisions of the Police Order, he has got no power to review his earlier order. Right of review is a substantive right and is always the creation of relevant statute on the subject.
15. The spirit of Article 18(6) of the Police Order, 2002 is to discourage the re-investigation. Reliance in this regard is placed on Imran Shaukat v. In charge (Investigation), Police Station, Nawankot, Lahore and 2 others (2006 MLD 501). The exercise of powers under special enactment does not imply a power to review earlier orders in exercise of inherent powers, unless the power of review is specially conferred by the said statute. Reliance in this regard is placed upon the cases of Inayat Ullah Khan & Co v. Secretary Food, Government of the Punjab and 2 others (2006 YLR 656), Mian Ghulam Mustafa and another v. Chief Conservator of Forest Punjab and another (2004 PLC (C.S.)
527), Tanya Knitwear (Pvt.) Ltd. And others v. First Women Bank Ltd. (PLD 2008 Karachi 29), Muzaffar Ali v. Muhammad Shafi (PLD 1981 SC 94), Messrs Haji Abdul Ghafoor Haji Muhammad v. Central Board of Revenue and others (2004 PTD 2524), Dr. Shahnaz Nadir v. The Government of N.-W.F.P.
Through Chief Secretary Civil Secretariat, Peshawar and 3 others (2005 PLC (C.S) 88), National Development Finance Corporation v. Wafaqi Mohtasib, Islamabad and others (2004 CLD 260) and Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1)
16. Insofar as the contention of the learned counsel for the complainant that under section 21 of General Clauses, Act, respondent No,1 was legally competent to review his earlier order, is concerned, I do not see eye to eye with him, because, the said section does not confer the right of review to elucidate the matter, the said section is reproduced here: `21. Power to make, to include power to add to, amend, very or rescind orders, rules or by-laws.-- Where by any (Central Act) or Regulation, power to (issue notifications), order rules or bye-laws is conferred then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any (notification) orders, rules or bye-laws so issued.'
The provision of the said section, which does not include the power of review, cannot be stretched on the rule of beneficial interpretation, which cannot be claimed on unreasonable construction of law. Reliance in this respect is placed on Messrs New Shaheen Trading Company through Managing Director v. Government of Pakistan through Secretary Ministry of Commerce and 2 others (2008 SCMR 17).
17. Besides, it cannot be said that some new material justifying the review of earlier order by respondent No,1, had come on the record. The material, which has been discussed by respondent No,1 through the impugned order, was already on the record. One of the reasons for reviewing his earlier order passed by respondent No,1 was that out of 13 accused, only 6 were held guilty and the remaining were declared innocent. As mentioned above, the Courts are not bound to agree to the opinion of the police, therefore, at the end of the day, the accused would not be entitled to any relief on the basis of the such an opinion. Admittedly, after recording the statement of the complainant, the accused who were found innocent by the police, have already been summoned to face the trial. The fate of the case will, depend upon the evidence, collected during the trial.
18. For all the reasons detailed above, I am inclined to accept this petition. Consequently, the impugned order dated 24-3-2007, passed by respondent No,1 is declared to be illegal, unlawful and without jurisdiction. Consequently, the same is quashed. There shall be no order as to costs.