' TARIQ SHAMIM, J.---The petitioner through the instant petition has, challenged the investigation conducted by respondent No,2 on the direction of respondent No,1 as being contrary to the provision of Article 18(6) of the Police Order 2002.
2. Briefly stated the facts of the case are that the petitioner, who is an accused in case F.I.R. No,344 dated 27-9-2006 for offence u/s 337-A(i), 337-A(ii), -337-A(iii), 337-F(i), 337-L2 & 34 P.P.C.
Registered at Police Station Malka Hans, District Pakpattan Sharif, is alleged to have caused injuries with the active participation of his co-accused to the complainant party on 25-9-2006 at about 5 p.m. In the said occurrence, the petitioner also sustained injuries which were suppressed by the complainant in the F.I.R. And consequently cross-version had been recorded against the complainant party vide rapt No,16 dated 8-10-2006, in which the complainant party had also been challaned. Initially, the investigation of the said F.I.R and the cross case was entrusted to Assistant Sub-Inspector Shahbaz, who visited the spot and got the statements of the witnesses recorded and after finalization of the investigation concluded that three persons from the complainant side namely Manzoor Ahmad, Ghafoor and Ghulam Rasool be challaned in the cross case. On an application submitted by the complainant to the District Police Officer-respondent No,1, the investigation was marked to respondent No,2, the D.S.P. (Investigation) with a direction to ensure fair investigation of the case. Respondent No,2 instead of confining himself to the direction given by the D.P.O, proceeded to conduct investigation of the case, at the conclusion of which he declared that the cross case lodged by the petitioner against the complainant of the F.I.R and others was false. Being aggrieved by the investigations, the petitioner has approached this Court through the instant petition.
3. The learned counsel for the petitioner contends that the 'entrustment of investigation of the above said F.I.R as well as cross case to respondent No,2 by the District Police Officer-respondent No,1 is in violation of Sub-Article (6) of Article 18 of the Police Order 2002. He has placed reliance on: (PLD 2005 Lahore 470), (PLD 2006 Lahore 95) and (PLD 2006 Lahore 509).
4. The learned Assistant Advocate General while agreeing with the contention of the learned counsel for the petitioner states that the investigation was entrusted/assumed by respondent No,2 against the provisions of Article 18(6) of Police Order 2002 and, therefore, the report submitted by the D.S.P. As well as the Zimmi No,23 dated 7-3-2007 incorporated by Muhammad Nawaz, Sub- Inspector, based on the findings of the D.S.P (Investigation), merit to be set aside being contrary to the law.
5. I have heard the learned counsel for the petitioner at length and have gone through the comments furnished by Muhammad Ashraf, D.S.P (Investigation), Pakpattan Sharif-respondent No,2. Allah Dad, the D.S.P (Investigation), who had conducted the investigation in question, was transferred, whereupon Muhammad Ashraf, D.S.P (Investigation)-respondent No,2 assumed the charge of his post. The comments furnished reveal that the first Investigating Office had maintained the cross-version vide case diary No, 4 dated 8-10-2006 and vide case diary No,20 dated 24-1-2007 had declared the accused Manzoor Ahmad, Abdul Ghafoor and Ghulam Rasool guilty of the alleged offence of the cross version, while accused namely Shakoor and Rehmat were not found present at the time and place of the alleged occurrence. According to the D.S.P, his predecessor had not investigated the case in the real sense of the word but had in fact acted upon the direction of the District Police Officer, Pakpattan Sharif and had only issued directions to the subordinate Investigating Officer.
6. As against the stand taken by the D.S.P-respondent No,2 in the parawise comments, it has been observed that the D.S.P Allah Dad after having been directed by the District Police Officer to ensure fair investigation, proceeded to conduct a though investigation, in the course of which he not only visited the spot but also recorded the statements' of the witnesses and had thereafter arrived at a conclusion that the cross-version was not based on facts. He further held that none of the accused of cross-version was present at the time and place of the alleged occurrence and that all the eight nominated accused of the F.I.R were guilty of the alleged offence. He also held that in the light of the MLR of injured Ghafoor, the offence u/s 324 P.P.0 was attracted. Thereafter, the D.S.P submitted a report to the District Police Officer which is part of the police record and on the basis of his findings, Muhammad Nawaz , Sub-Inspector proceeded to record Zimni No,23 dated 7-3-2007.
7. From the foregoing, it is evident that the complainant had filed an application with the District Police Officer for transfer of Investigation, whereupon the case was entrusted to respondent No,2 with a direction to personally ensure fair investigation. In the garb of the order passed by the District Police Officer, respondent No,2 had conducted a fresh investigation and had arrived at a conclusion other than the one reached by the first Investigating Officer. Such an exercise is definitely without lawful authority, as has been held by a Full Bench of this Court in the case of Khizar Hayat and other v. Inspector General of Police, Punjab, Lahore and others (PLD 2005 Lahore 470). If at all the D.S.P had found any fault or illegality in the investigation, already conducted by.
Shahbaz, Assistant Sub-Inspector, he should have brought the same to the notice of the Superintendent of Police (Investigation), who could then initiate proceedings as contemplated by Article 18(6) of Police Order 2002 for change of investigation.
8. In view of what has been discussed above, this petition is accepted and the report bearing No,37 submitted by the D.S.P to the District Police Officer as well as the findings given in Zimni No,23 dated 7th of March 2007 are hereby declared to be without lawful authority and of no legal effect. All proceedings based on the investigation conducted by Allah Dad, D.S.P. (Investigation) are quashed. There shall be no order as to costs.