The petitioner, who is complainant in case FIR No. 28 dated 20.1.2010 under Sections 302/324/148/149 PPC, P.S. Fateh Jang, District Attock has assailed the vires of order dated 01.01.2011 passed by the Additional Inspector General of Police (Investigation), Punjab, Lahore (Respondent No. 1), whereby the investigation of the said case was transferred and entrusted to RIB, Rawalpindi Region, Rawalpindi.
2. One Mehmood Khan father of Mubashar Mehmood Khan alias Gory khan accused had submitted an application for transfer of the investigation with the contention that the said accused person was at Lahore on the day of occurrence to look after his ailing sister-in-law and remained there till 25.01.2010. He contended that he was not seen by the persons present at the spot and was falsely implicated. It was further contended that Shahzad son of Sher Zaman had made firing due to which Khalid Javed, etc., were injured. After obtaining the report from the Board, the Additional Inspector General of Police (Investigation Branch), Punjab, passed the impugned order.
3. The learned counsel for the petitioner has contended that the first challan was submitted in the Court on 21.1.2010 and the second challan was submitted in June, 2010, so an order for fresh investigation could have not been passed. It is also urged that the reasons for transfer of investigation have not been given in the impugned order so the same is violative to the provisions of Article 18(6) of the Police Order, 2002. It is finally urged that Mubashar Mehmood Khan alias Gory Khan is a proclaimed offender, who has mis-used the process of law and moved about 10/12 applications for grant of pre-arrest bail/protective bail and after availing of the. relief, had been disappearing and as such without surrendering before the Court or the. Police authorities, no request for transfer of the investigation could have been entertained on his behalf or anybody acting for him. It is further contended that his father was neither an accused nor complainant in the case so the investigation could have not been transferred on his application. In support of the contentions raised, reliance is placed on Muhammad Bashir v. Station House Officer, Okara Cantt. and others (PLD 2007 SC 539), Muhammad Nasir Cheema v. Mazhar Javaid and others (PLD 2007 SC 31), Liaqat Ali Virk v. Inspector General of Punjab Police, Lahore and 8 others (PLD 2010 Lahore 224) and an unreported judgment dated 11.5.2010 of his Court passed in ICA No. 76 of 2010.
4. Controverting these arguments, the learned counsel for Mubashar Mehmood Khan alias Gory Khan accused has contended that the investigation of the case is aimed to collect necessary evidence to find the truth and there is no bar on re-investigation even after submission of challan, if cogent reasons are available in this regard. It is contended that the version of the accused was not correctly brought on the record and the case was not impartially investigated, so there was no option left for him but to seek re-investigation and as such Mehmood Khan, his real father moved the application. It is urged that no doubt he had been moving the applications for grant of pre- arrest/protective bails before different Courts but this cannot be considered as a ground to set aside the impugned order because he had the right to approach the Courts of competent jurisdiction. If is further contended that he was wrongly declared as proclaimed offender although he was always available for investigation as he had been extended concession of pre-arrest bail/protective bail from different Courts. It is vehemently contended that the Board while considering the application of his father had given cogent reasons in its report and the same were approved by the competent authority i.e. Additional Inspector General of Police (Investigation), Punjab, while ordering the transfer of investigation so the order cannot be interfered in writ jurisdiction. In support of the contentions raised, reliance is placed on Bahadur Khan v. Muhammad Azam and 2 others (2006 SCMR 373), Javaid Iqbal v. Additional Inspector-General of Police, Lahore and 4 others (PLD 2008 Lahore 488), Saddar Din v. Deputy Inspector General of Police (Investigation), Capital City Police, Lahore and 6 others) PLD 2009 Lahore 585) and Muhammad Iqbal v. The State (2010 PCr.LJ 888).
5. Sardar Zaheer Ahmed Khan, Advocate has filed power of attorney on behalf of Mehmood Khan father of Mubashar Mehmood Khan accused today and prayed that he be allowed to address the arguments as the application for transfer of investigation was moved by his client. In the larger interest of justice, he was allowed to assist the Court. Relying on Allah Bakhsh and another v.
Settlement Commissioner and another (1986 MLD 467) and Water and Power Development Authority/Lahore Electricity Supply Company Limited through Sub-Divisional Officer, Sheikhupura v.
Messers Bhatti Ice and Rice Mills, Buchiki through Proprietor and another (2004 YLR 1263) he has maintained that as Mehmood Khan was not impleaded in the writ petition so the same is liable of dismissal on this score alone.
6. There is no legal bar on re-investigation of a criminal case after submission of the final report under Section 173 Cr.P.C. if new event/incident takes place warranting re-investigation or further investigation. In this respect, reliance is placed on Bahadur Khan v. Muhammad Azam and 2 others (2006 SCMR 373). It is true that the August Supreme Court of Pakistan in Muhammad Nasir Cheema v. Mazhar Javaid and others (PLD 2007 SC 31) had held that the order for change of investigation after submission of the challan was an exercise unsustainable in law but the judgment reported as 2006 SCMR 373 was pronounced by a larger Bench of the Apex Court so the same would be followed under Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973. However, the yard stick given in the judgment of the Apex Court has to be followed in letter and spirit. In this case the final report under Section 173 Cr.P.C. has yet not been submitted and only interim challans were submitted and further investigation would be required on arrest of the remaining accused or any other lawful reason so legally speaking there was no bar on transfer of the investigation. The impugned order was passed on the basis of the report submitted by the Board comprising of S.P.
(Investigation), Chakwal, S.S.P. (Regional Investigation), Rawalpindi, Members and Dr. Muhammad Akhtar, Abbas, District Police Officer, Attock, Chairman. The detailed reasons have been mentioned therein. The Additional Inspector General of Police (Investigation). Punjab, had held that the reasons given by the Board were cogent and warranted change of the investigation. The Proviso to Article 18(6) of the Police Order, 2002, does contain a condition that the head of Investigation in the general police area would give reasons for change of the investigation but it does not mean that if the reasons given by the Board are found to be reasonable and cogent then the same should be reproduced in the order.
7. However, there is an important aspect of the matter. The report of the Board shows that Mubashar Mehmood Khan is a proclaimed offender in the case. As per record' proclamation under Section 87 Cr.P.C. was issued against him and served. The learned counsel for the petitioner has contended that the accused has been seeking protective bail from different Sessions Courts of Haripur, Mardan, Charsada, Peshawar, Abbotabad and also has been granted interim pre-arrest bail by different Courts including High Court from time to time but had been absenting himself at the time of hearing and his applications were dismissed so he has been mis-using the concession of bail for the last more than one year. The learned counsel for Mubashar Mehmood Khan could not deny the correctness of this assertion but urged that it was his right to move the applications and seek relief from the Courts of law. He has not produced the copies of the bail petitions and orders moved from time to time before different Courts to show that he had been disclosing the fate of earlier applications. The fact remains that he is the proclaimed offender against whom the challan has been submitted under Section 512 Cr.P.C. so without his appearance or surrender before the competent authority, the request for transfer of investigation from him or any once acting on his behalf could have not been entertained. It is true that while disposing of W.P. No. 802/10 filed by Khalid Javed his co-accused, this Court had directed that he may move an application before concerned authorities for transfer of the investigation but it is stated that he moved an application but did not succeed in obtaining the transfer orders. Mehmood Khan was neither the complainant nor the accused in the case. His application for transfer of the investigation on any ground whatsoever could have not been entertained as it was specifically mentioned in the report of the Board that he is father of the proclaimed offender. Respondent No. 1 ignored this all important aspect of the matter. In fact, he could have not entertained the application of a third person, who was representing none else than a proclaimed offender of the case. Such orders show that someone is interested in providing a shield to a proclaimed offender. Mehmood Khan is neither a necessary nor, proper party and there is no non-joinder of the parties. The case law relied upon by his learned counsel is not applicable on the facts of this case.
8. For the reasons supra, the impugned order is not sustainable in the eyes of law and is hereby set aside by allowing the instant writ petition. However, if Mubashar Mehmood khan alias Gory Khan accused surrenders or appears and himself moves the application, the same be dealt with purely on merits and strictly in accordance with law as admittedly the final report under Section 173 Cr.P.C. has yet not been submitted.