Tariq Shamim, J.--Through this petition, the petitioner has prayed for transfer of investigation of case F.I.R. No, 782 of 2006 dated 1.7.2006, for offences under Sections 302, 201, 365 and 392 PPC and Section 7 of Anti Terrorism Act, 1997, registered at Police Station Lower Mall, Lahore to any competent and honest police officer of Crime Branch, Punjab.
2. The petitioner, whose husband Muhammad Asif is one of the accused in the double murder case of Nadeem Jafri, Excise Inspector and Khalid Iqbal, Head Constable registered vide F.I.R. No, 782 of 2006 on 1.7.2006 at Police Station Lower Mall, Lahore has preferred the instant writ petition on the premise that the Investigating Agency conduced the investigation of the case with mala fide intention, under the influence of the high-ups of the Excise Department and has implicated the husband of the petitioner falsely in the case. Despite repealed requests neither the legitimate demand of the petitioner to record and investigate the version of her accused husband had been accepted nor was the case investigated on merits. Thus, prayer has been made for the transfer of investigation beyond the jurisdiction of the District and to an honest police officer of the Crime Branch Punjab.
3. The learned counsel for the petitioner argued that the Investigating Agency under the influence of the high ups of the Excise Department, dishonestly ignored the version of the petitioner as well as relevant material regarding his innocence and that the investigation report was against the law and norms of justice and based on mala fide because the same was not prepared on merit.
Further argued that since the Investigating Agency on the level of the District cannot conduct investigation of the case on merit, honestly and impartially as such, in order to secure the ends of justice the investigation of the case be entrusted beyond the jurisdiction of the District Lahore to an honest police officer of the crimes Branch, Punjab as otherwise the petitioner would suffer irreparable loss and injury.
4. The learned Assistant Advocate General representing the police officials and the State and the learned counsel representing Khalid Jafri contended that the investigation was conducted strictly in accordance with law firstly by Muhammad Hussain. Sub-Inspector (Investigation) Police Station Lower Mall, Lahore. The DIG (Investigation), Lahore constituted a Special Team on 27.7.2006 headed by S.P. Organized Crime, Lahore for the recovery of the Officials of the Excise Department which arrested Muhammad Asif accused, the husband of the petitioner who during the course of investigation disclosed that the abductees (later deceased) had been sold to Pathans of Waziristan for Rs, 3,00,000/-. During test identification parade, the accused had been duly identified by the witnesses. On the request of the Home Department, a joint investigation team comprising of representatives of the police department, Investigation Branch and Special Branch was constituted which conducted a thorough investigation on merits and consequently, the investigation report had been submitted in the Court on 20.1.2007 which had examined six witnesses in the case. Lastly contended that since after submission of challan the trial was in progress as such, change of investigation or reinvestigation in the matter would be an exercise in futility.
5. We have heard the learned counsel for the parties and the learned Assistant Advocate-General and perused the record with their able assistance.
6. Initially the F.I.R. was lodged under Section 365 PPC at Police Station Lower Mall on the report of Muhammad Arif Excise Constable for the abduction of Nadeem Jafri, Excise Inspector and Khalid Iqbal, Excise Head Constable against Muhammad Aamir, Muhammad Asif (the husband of the petitioner), Malik Hamid Mehmood and Waseem Aftab. The investigation was conducted by Muhammad Hussain, Sub-Inspector who recorded the statement of witnesses and associated the accused with the investigation. On 27.7.2006, the Deputy Inspector General of Police (Investigation), Lahore constituted a Special Team headed by Superintendent of Police I (Organized Crime) Lahore for the recovery of the abductees. On 4.8.2006 Hamid Mehmood alias Bhola accused and on 15.10.2006 Muhammad Asif accused was arrested who during investigation disclosed that the abductees had been sold for Rs, 3,00,000/- to some Pathans of Waziristan and consequently, vide Zimni No, 89 dated 27.11.2006 Section 7 Anti-Terrorism Act was added to the offences. On the request of the Home Department, Punjab, a joint investigation team comprising of the representatives of the police department, Investigation Branch and Special Branch, Punjab was constituted on 4.12.2006. However, prior thereto, on the orders of the Hon'ble Supreme Court of Pakistan dated 29.11.2006 a team comprising of Babar Sarfraz Alpa, SP (Investigation)" City Division, Masood Aziz S.P. (Organized. Crimes) and others was constituted for the arrest of the accused and recovery of the abductees. Their efforts resulted in the arrest of Muhammad Aamir, the main accused and brother of Muhammad Asif on 12.12.2006. Muhammad Aamir and Muhammad Asif accused during investigation conducted by the joint Investigation Team disclosed that the abductees had been murdered in their office and their dead bodies were thrown into the Nandipur Canal, Gujranwala. Subsequent investigation led to the recovery of dead bodies which were recovered from the canal by the local police and buried as unidentified/unclaimed. Samples were obtained for DNA test from the dead bodies. Blood stains obtained from the office of the accused Aamir and Asif as well as from the vehicle used in the crime were found to be those of Khalid Iqbal, Head Constable, one of the deceased. The pistol and the empty recovered from the place of murder, i,e, the office of Aamir and Asif accused were sent to the arms expert, Forensic Science Laboratory for comparison which in its report dated. 5.1.2007 opined that the crime empty had been fired from the said pistol. After finalization of investigation, in which the husband of the petitioner and others were found to be fully implicated in the murders, challan has been submitted and the prosecution evidence is being recorded by the learned trial Court.
7. From the above, it is evident that the investigation in the case has been conducted in a most transparent manner by senior police officials who have made painstaking efforts to uncover the true facts. Their efforts were appreciated by the Hon'ble Supreme Court in the order dated" 10.1.2007 passed in Human Rights Case No, 5587/2006. We have minutely examined the record of the case which unequivocally discloses that the husband of the petitioner and others are culpable for the murder of the Excise Inspector and the Head Constable. The argument advanced by the learned counsel for the petitioner that the investigation has not been conducted on merits and that the version of the accused Muhammad Asif has not been considered during the investigation is devoid of any force. The argument is illusionary and remains unsubstantial from the record. The assertion as to the pendency of an application preferred by the petitioner for the transfer of investigation also does not appear to be correct. Even otherwise, mere pendency of an application at this stage, when the trial has commenced and partial prosecution evidence has been recorded by the learned trial Court, is inconsequential. The Hon'ble Supreme Court of Pakistan in the case of Muhammad Nasir Cheema v. Mazhar Javid and others (PLD 2007 SC 31) has observed as under:-- "At this stage, the learned Additional Advocate-General informs us that some Additional. I.G. Police had passed some order on 15.7.2006 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.
Firstly, because the report under Section 173, Cr.P.C. 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. Secondly, because the matter related only to a document which had been examined in depth, by the learned Election Tribunal comprising an Hon'ble Judge of the High Court and which document had then been re- examined by this Court in an appeal filed by Mazhar respondent and what further investigation was required in the matter is beyond comprehension."
8. In the above noted circumstances while being fully mindful of the observations made by the Hon'ble Supreme Court in the order dated 23.2.2007 passed in Civil Petition No, 134 of 2007 we are convinced that no prejudice has been caused to the husband of the petitioner in the investigation resulting in submission of report under Section 173 Cr.P.C. B Further, no illegality, procedural or otherwise, has been found by us in the investigation conducted by the police in the matter.
9. Resultantly, the petition being devoid of merit is dismissed.