' KHAWAJA FAROOQ SAEED, J.---Through this writ petition the petitioner wants set aside of the order issued under Article 18 (6) of the Police Order, 2002, for transfer of the investigation.
2. The brief facts of the case are that the petitioner-complainant filed an F.I.R. For the murder of his son accusing Tariq Aziz son of Siraj Din and his son namely Sameer Ali. The investigation in the titled case were completed by the Prosecution Branch and submitted before the concerned Judge for trial. On 21-6-2008 the brother-in-law of the main accused Tariq Aziz respondent No,5 submitted an application to Deputy Inspector General of Police (Investigation), Lahore, respondent No,1, for transfer of investigation by stating that the reasons for implication of the said respondents in this case is that Muhammad Asif a witness in the titled murder case owed the respondents Rs,11,00,000 which were to be paid through a cheque on 30-4-2008, but before date of payment on 22-3-2008 the said witness in collusion with the complainant and others got a false case registered against respondent No,5 and his son Sameer Ali respondent No,6. The D.I.G.
(Investigation) directed for re investigation of the case vide his order dated 24-7-2008.
3. The said order is challenged inter alia on the basis of the arguments that the respondent party is very influential which is evident from the very fact that just on one letter filed by them, the investigation has been transferred. Besides this Court has never appreciated re investigation where challan under section 173, Cr.P.C. Has already been submitted and trial has been commenced.
Moreover, that the order of re investigation is unilateral without hearing the petitioner and mentioning reasons.
4. In support of the contention that re-investigation is not lawful, learned counsel for the petitioner has referred (PLD 2007 Supreme Court 31); Muhammad Nasir Cheema v. Mazhar Javaid and others (1999, PCr.LJ 1144); Haq Nawaz and others v. Superintendent of Police and others (2002, PCr.LJ 310); Asif Ali Zardari v. Federation of Pakistan and others and (1986 SCM R 1934); Riaz Hussain others v.
The State.
5. In the referred judgment Riaz Hussain and others (supra) the Honourable Supreme Court while deciding the similar issue has opined that the system of re-investigation in criminal cases recent innovation is always taken up at the instance of the influential person and favourable reports obtained in no way assist the Court in coming to correct conclusion. The system, therefore, was disapproved. However, in the subsequent judgment in terms of (1999 PCr.LJ 1144) ref: "Haq Nawaz and others v. Superintendent of Police and others" the Honourable Supreme Court has concluded that it is only upon new material that an investigation can be changed. If there is neither any new fact nor any additional material, the re-investigation should not be done. Similar are the observations in the other judgments. The Court rather has held that a challan even if it is incomplete is a challan after its submission before the trial Court, the same cannot be changed. In this regard the recent judgment again by Supreme Court in terms of (2007 PLD Supreme Court 31): "Muhammad Nasir Cheema v. Mazhar Javaid and others" was also referred. The Honourable Supreme Court has held that no Court including High Court can direct the S.H.O. Either not to submit a report (challan as per rules) or to submit the said report in a particular manner i,e, against the such person as the Court desired or only with respect to such person as the Court wishes.
6. Learned counsel for the petitioner on the basis of his arguments and the comment that the petitioner's son has been killed mercilessly by strangling argued that in the interest of justice re- investigation order may be set aside.
7. Learned counsel for the respondents says that the petitioner has come out with general arguments and he is not being particular. It has not been brought to the notice of this Court that the challan in fact came to the Court after re investigation order had been passed, besides the same was incomplete. Later the challan was found to be as defective by the trial Coutrt also for the reasons that the same in respect of minor respondent No,6 as well as father respondent No,5 was submitted jointly which is against the prescribed law and procedure. Furthermore, that the claim of the personal enmity on the basis of financial deal with one of the witnesses also is irrelevant in the manner that the F.I.R. Had been registered much earlier than so-called issuance of cheque by the respondent to the petitioner of 1.1 million.
8. The argument of the respondent mostly was that even if the challan has been submitted there is no legal bar in investigation. The very fact that the challan was incomplete and subsequently held to be as not as per rules has clinched the issue and the writ petition has become practically infructuous. After relying upon the judgments (1999 M LD 1831): "Abdul Aziz v. Muhammad Jamil and 7 others", (2004 PCr.LJ 1575): "Muhammad Akbar v. The State" and 2000 SCM R 453 "Muhammad Yousaf v. The State and others" he concluded that since there is no legal bar besides the challan was defective and the same was submitted after the re investigation order had been approved, no interference by this Court is required.
9. This Court in earlier Writ Petition No,9176/2008 has discussed this issue. Re investigation generally, obviously cannot be appreciated. Successive investigation obviously because of cumbersome procedure involved generally, does not sound appreciable to the common man. The general impression that successive re investigation is under pressure of the influential persons is in a way to a danger to the society also. This has not only effected the moral fiber but has also brought about very dangerous effects on the general outlook of the people at large. Influence, be it in any form is used by all the parties concerned in such matters to get favourable reports and the re investigation is one of its major methods. One may agree that investigation which is defective or incomplete, may in itself be because of some influence at the early stage of the proceedings. In such circumstances, re investigation in fact becomes necessary. However, if the earlier investigation is transparent, A without any fault, independent and does not suffer from any illegality or irregularity and is complete in all respects, re investigation should not be allowed.
10. The Police Order, 2002, in fact has tried to stream line the earlier method which was obviously defective. Article 18(6) has provided for strings for re investigation. It starts from the word 'investigation shall not be changed' which obviously gives the impression that it can be changed but shall not be changed if procedure prescribed therein is not properly adopted. The parameters, therefore, for change of investigation on the basis of the earlier judgments on the subject as well as Police Order, 2002, now are obvious.
11. In the present case the admitted facts are as follows:--
(i) that the challan was submitted in the Court on 27-7-2008.
(ii) that the competent authority approved the recommendation of the Board on 24-7-2008.
However, the letter was issued on 30-7-2008.
(iii) The Prosecution Department while submitting the challan itself says that the same is incomplete.
(iv) That the trial Court has observed that the minor and adult have been challaned together.
12. This is where the relevant part from the report of the Inspector General of Police (Investigation)
Lahore, needs reference:-- "It is added that petitioner Sajjad Ali, Muhammad Mustafa and Tariq Mehmood brothers-in-law of accused. Tariq Aziz submitted an application before the answering respondent for change of investigation. The answering respondent sent/marked the same to SP/Investigation City Division Lahore, with the observation, "Please call Investigating Officer and both parties personally and ensure Justice". The said SP summoned the parties as well as Investigating Officer of the case and heard them at length and recommended for change of investigation of the case. On the recommendation of SP/Investigation City Division, Lahore, the answering respondent referred the case to Board constituted on the subject for deliberation and recommendation regarding change of investigation. Subsequently, the investigation of the above mentioned case was transferred and entrusted to Mr. Multan Khan, D.S.P./Old Anarkali Circle Lahore, on the recommendation of Board vide impugned order dated 30-7-2008. On receipt of order dated 7-8-2008 passed by this Honourable Court, the investigation of the case has been stopped."
13. From the above para it is clear that the transfer of investigation is on the basis of a formal request and after joining all the concerned parties. The requisite information was obtained and recommendation for B change of investigation was after due compliance of Article 18(6) of the Police Order, 2002. This Court does not agree with the petitioner counsel that a defective or incomplete challan fulfil the requirement of section 173, Cr.P.C. It needs no emphasis that proviso to section 173, Cr.P.C. After subsection (b) provides for submission of interim report in the form prescribed by the Provincial Government stating therein the result of investigation made until then and the Court shall commence the trial on the basis of such interim report unless for the reasons to be recorded, the Court decided that the trial should not so commenced.
14. An interim report can obviously not considered as a complete challan. The omission which may be in any form can obviously be rectified subsequently by submission of report to the trial Court. In this regard one can refer 2003 M LD 1753 ref: "Muhammad Ajmal Khan and 15 others v. Syed Asif Shah, Inspector General of Police AJ & K, Control Police Office Building, New Secretariat, Muzaffarabad and 6 others" which inter alia states that the police is free to submit subsequent report which is competent to proceed against an accused. The purpose and intent being that through an F.I.R. The police is informed and activated to proceed and investigate into an occurrence. Such investigation should not ordinarily be stopped and stayed unless essential or exceptional circumstances so come in the way. Calculation of evidence in the shape of witnesses recorded, document received and all other matters incidental, ancillary or necessary to investigation had to be judged by the police. It cannot be out rightly said that re investigation is always to favour some one. Such an allegation can be put on at preliminary stages also. In our society unfortunately it is equally true and sometimes registering an F.I.R. Of an offence becomes a cumbersome exercise. It is very difficult to get an F.I.R. Registered and the same also requires some kind of influence at least. The first investigation also is normally not free from allegation of nepotism or political or some other influence. It, therefore, depends upon facts of each case separately that re investigation should be done or not.
The change, therefore, is only possible if the same is based upon reasons. The reasons must be supported by such arguments which makes it a belief and not just a thought that some party has been favoured in investigation. Similarly, where certain witnesses are missing or certain E legal formalities have been ignored and interim challan is submitted, the same can always be added subsequently. The term interim in itself E speaks of status of the challan. There is, therefore, no cavil that the same can be completed subsequently.
16. The upshot of the above discussion in the light of facts and circumstances of this case, therefore, becomes obvious. The F re investigation in this case is lawful and in fact is justified. The writ petition, as such, stands dismissed accordingly.