This constitutional petition challenged the legality of proceedings initiated for a second change of investigation in a murder case (FIR No. 661 of 2009) after the police report (challan) had been submitted to the trial court and the trial had commenced, with evidence of a prosecution witness already recorded. The petitioner, the complainant, contended that the respondent seeking the change was a fugitive from law who had not surrendered to the police. The core legal questions were whether a second change of investigation is permissible after trial commencement and whether a fugitive from law can seek such a change.
The Lahore High Court held that once a report under Section 173 Cr.P.C. has been submitted to the trial court and the trial has commenced, further or fresh investigation is unsustainable in law. The Court, relying on Supreme Court precedents, deprecated the system of re-investigation, particularly successive re-investigations, as it creates complications and is often sought by influential persons for favourable reports. Furthermore, the Court reiterated that a fugitive from justice loses the normal rights of audience and cannot be granted relief unless they surrender. Consequently, the petition was accepted, and the proceedings for the second change of investigation were quashed.
' C.M. No,651 OF 2010.
' IJAZ AHMAD CHAUDHRY, J.---This petition for placing of certain documents on the file is allowed subject to all just and legal exceptions.
' MAIN CASE
2. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 following prayer has been made:-- "In view of the submissions made above, it is most respectfully prayed that by allowing this writ petition, the proceedings before the Board i,e, Respondents Nos.2 to 4 for recommendations for second change of investigation as ordered by respondent No,1/GP on the application of respondent No,8 may very kindly be declared illegal unlawful and without lawful authority and of no legal consequences and the same may very kindly be quashed in the larger interest of justice."
3. Brief facts of this petition are that petitioner is complainant of case F.I.R.No,661 of 2009 dated 15- 7-2009 for the offences under sections 302/148/149/109, P.P.C. Registered at Police Station Saddar Sheikhupura and the claim of the petitioner is that accused nominated in the aforesaid F.I.R. Are influential persons, who in order to occupy the land of the petitioner committed the occurrence in league with the local police. Then being dissatisfied with the conduct and behaviour of Iftikhar Ahmed, S.-I./I.O. Of the said case, the petitioner filed W.P. No,15791 of 2009 before this Court and vide order dated 20-8-2009 after observing the entire facts of the case, this Court finally passed the order directing Addl. I.-G.P. To transfer the investigation of the case to some police officer of integrity. Thereafter on the application of the petitioner, the Addl. IGP transferred the investigation of the case to respondent No,6/S. P. (Investigation) Kasur, who conducted thorough investigation under the supervision of respondent No,5/RPO Sheikhupura, who too summoned both the parties in his office and approved the findings of S.P. (Investigation) Kasur while holding, the nominated accused' i,e, respondent No,8 and others guilty to whom a firearm injury has been attributed at the chest of the deceased. The S.P. (Investigation), Kasur also recommended departmental action against Iftikhar Ahmed, S.-I. Respondent No,8 moved an application before respondent No,1 for transfer of second change of investigation and respondent No,1 ordered the Addl. I.G.P. For process of second change of investigation who constituted a Board for the said purpose consisting of respondents Nos.2 to 4. In this regard a letter was issued to the petitioner to appear before the Board on 19-1-2010. On 19-1-2010 the petitioner appeared before the Board, but applicant i,e, respondent No,8 who was fugitive from law did not appear and proceedings were adjourned by the Board for 22-1-2010. However, on the said date, the petitioner did not appear and approached this Court. Through this petition petitioner has prayed that proceedings before the Board i,e, respondents Nos.2 to 4 for recommendation of second change of investigation as ordered by respondent No,1 on the application of respondent No,8 is illegal, void ab initio and of no legal consequences, result of malice and be quashed.
4. Learned counsel for the petitioner contends that respondent No,8 is fugitive from law, whose petitions for pre-arrest bail were dismissed by learned sessions Judge fot five times due to non- appearance, but again the petitioner sought protective bail from this Court by concealment of facts and then he applied for pre-arrest bail afresh before the learned trial Court, which has been ultimately dismissed as withdrawn on 9-2-2010, but he never surrendered before the police; that on the direction of this Court Investigation of this case was entrusted to S.P. Investigation Kasur under the supervision of R.P.O. Sheikhupura by the Addl. I.G.P. And both the officers arrived at concurrent findings that respondent No,8 was guilty for the murder of the deceased having caused a firearm injury at the chest of the deceased, who cannot apply for second change of investigation unless he surrenders himself before the Court and even his application could not be entertained being fugitive from law; that being dissatisfied with the investigation the petitioner has already filed a private complaint while the challan by the police has already been submitted in the Court and proceedings on the complaint as well as the challan case have already commenced before the trial Court where the evidence of P.W.1 i,e, Doctor has also been recorded; that on each and every date of hearing the entire prosecution evidence is being produced before the learned trial Court for recording of their evidence, but the same is not being recorded on the ground of absence of any of the nominated accused one by one that it is not a fit case for change of second investigation as the trial has already commenced. In support of his arguments learned counsel relies on case titled Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31, Bahadur Khan v.
Muhammad Azam and 2 others 2006 SCM R 373 and Mst. Irshad Begum v. Sessions Judge and 5 others 2007 M LD 258.
5. On the other hand, learned counsel for respondent No,8 contends that every case in criminal jurisdiction has to be decided on its own merits; that there are glaring contradictions in the F.I.R.
And the post mortem report that respondent No,8 was on interim bail when he moved application which was dismissed as withdrawn vide order dated 9-2-2010 and on 10-2-2010 he appear before S.S.P. Investigation Punjab and he has been regularly appearing in the complaint case in the Court and has not been declared as Proclaimed Offender. Learned counsel for respondent No,7 contends that it is wrong to argue that it was a third change of investigation rather it was an application for second change of investigation; that as the Additional I.-G. Has passed an order after the recommendation of the Board for change of the investigation which is the second change of investigation and is supported by the police order; that much water has flown and petitioner has not challenged the order of the change of investigation. In support of his arguments learned counsel relies upon the case titled Bahadur Khan v. Muhammad Azam and 2 others 2006 SCM R 373, Aftab Ahmad v. Hassan Arshad and 10 others PLD 1987 SC 13, Muhammad Yousaf v. The State and others 2000 SCM R 453 and Azmat Ullah through L.Rs, v. Mst. Hameeda Bibi and others 2005 SCM R 1201. Further contends that petitioner has already filed a private complaint and in view of Nur Ellahi's case the complaint case has to be commenced in the first instance; that even otherwise opinion of the police is not binding upon the Court.
6. I have heard the arguments of learned counsel for the parties and perused the record.
7. The stand taken up by learned counsel for the petitioner is that after submission of report under section 173, Cr.P.C. And commencement of trial, when the evidence of one P.W. Has also been recorded no further and fresh investigation can be carried out in view of judgment of Supreme Court, as laid down in Bahadur Khan v. Muhammad Azam and 2 others 2006 SCM R 373, the relevant portion whereof is reproduced as under;-- "Ss. 156 & 173---Reinvestigation---System of reinvestigation is a recent innovation which is always taken up at the instance of influential people for obtaining favourable reports, which in no way assists the Courts in coming to a correct conclusion, rather they create more complications in the way of administration of justice---Such system of reinvestigation and successive reinvestigation, therefore, was disapproved."
' From the perusal of above citation it is found that august Supreme court after the submission of challan/report under section 173, Cr.P.C. Has deprecated the re-investigation on the application of the influential persons to have a favourable opinion from the police. The said proposition has also been dealt with in case titled Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31 wherein it has been held that after submission of report under section 173, Cr.P.C. Investigation cannot be changed and the relevant portion thereof is reproduced as under:-- "S.173---Investigation report (challan)---Further investigation---Investigation report (challan) already filed in Trial Court--Validity---As investigation report (challan) had already reached Trial Court, where trial had already commenced, changing of investigation or ordering further investigation in the matter thereafter was an exercise un-sustainable in law." and the order of the Addl. I.-G.P. For the change of the investigation was set aside.
' In another judgment of this Court titled Mst. Irshad Begum v. Sessions Judge and 5 others 2007 M LD 258, while dealing with the same Proposition this Court has held as under:-- "It is a settled law that Courts of law would not act in aid of a fugitive from justice and no relief could be granted to him unless he first surrenders himself before the authorities."and the order passed by the Addl. I.-G.P. For the transfer of the investigation was set aside.
8. In this case after the submission of the challan in the Court the trial has commenced and evidence of P.W.1 has also been recorded. Two Senior Officers of police had conducted the investigation and found respondent No,8 guilty and also recommended for departmental action against Iftikhar Ahmed S.-I./Investigating Officer. It is not denied that respondent No,8 has not surrendered before the police till today and it is settled law that fugitive from law loses the normal rights of audience. The case-law relied upon by the respondents runs on different footing.
According while relying upon the judgments of Apex Courts mentioned above, this petition is therefore accepted and proceedings initiated on the basis of application of respondent No,8 thereupon for recommendation of second change of investigation and further investigation and its entrustment to Shahid Hanif SSP for conducting fresh investigation are therefore, quashed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.