Muhammad Mazhar petitioner/accused in case FIR No. 352/2010, dated 27.12.2010, under Section 295-B PPC, Police Station Noushera Jadid, District Bahawalpur was found guilty in the police investigation and accordingly report under Section 173 Cr.P.C. was sent up by the S.H.O. on 13.1.2011 to the Maga Magistrate who taking notice that offence under Section 395-B PPC is exclusively triable by the learned Sessions Judge forwarded the same to the learned District & Sessions Judge, Bahawalpur. It was duly entrusted to the Court of learned Additional Sessions Judge, Ahmedpur East for trial. The learned Additional Sessions Judge, Ahmedpur East after disbursing the copies of necessary documents in terms of Section 265-C Cr.P.C. formally charge, sheeted the accused on 18.2.2011 and directed the prosecution to produce the evidence, which is still pending at the evidence stage but no P. W. could be recorded till date.
2. In the meanwhile, on reference findings of the District Standing Board Bahawalpur received from the office of R.P.O. Bahawalpur Region dated 02.4.2011 recommending first change of investigation came up before Additional Inspector General Police, Investigation Branch, Punjab for examination and consideration. Additional Inspector General Police, Investigation Branch Punjab, Lahore finding the recommendations of the Board equipped with cogent reasons through impugned order dated 15.4.2011 in exercise of powers conferred upon him under Article 18(6) of Police Order 2002, allowed first change of investigation and entrusted the investigation to R.I.B. Bahawalpur with the direction to ensure early finalization of investigation purely on merits.
3. The petitioner/accused being aggrieved of the impugned order has called it in question by invoking the constitutional jurisdiction of this Court through this petition on the grounds that since the trial Court has taken cognizance of the offence on the report under Section 173 Cr.P.C. already submitted by the Inspector/SHO, therefore, Additional Inspector General Police/Respondent No. 1 has no power to change the investigation; that respondents want to involve other innocent family members of the petitioner in this case and the impugned order is illegal, against the law and facts and liable to be set aside.
4. I have given patient hearing to learned counsel for the parties-and gone through the record with his able assistance.
The object of investigation as divulged through its definition given in Section 4(1)(e) Cr.P.C. is to collect evidence to ascertain the truth or falsehood of the information or complaint for determination of probable innocence or probable guilt of the person suspected of the crime.
Sections 156 and 157 of the Cr.P.C. lay down the procedure relating to investigations by a police officer. However, some changes in the procedure for transfer of investigation has been introduced with the promulgation of Police Order, 2002. Article 18 of the Police Order (ibid) deals with the procedure of investigation and reinvestigation. Perhaps the object behind introducing the procedure under Article 18 of the 'Police Order (ibid) was to keep process of the investigation away from the control of administrative/executive authority.
6. Although practice of re-investigation, at times. is disapproved by the superior Courts, however, the fact remains that it is never prohibited keeping in view a clear line separating the administrative authority from the judicial power designed in our Criminal Justice System. In this regard dictums laid down in the following cases may be seen:--
(i) In the case of Aftab Ahmed Vs. Hassan Arshad (PLD 1987 Supreme Court 13) it was laid down that subsequent investigation after submission of first report under Section 173 Cr.P.C. to competent Court is not prohibited; there is nothing in the Code to prevent the Investigating Officer from submitting his subsequent report in supersession of his earlier report and the number of investigations into a crime by police officers is not limited by law and when one has been completed, another may be commenced on further information received and this is also possible even after the submission of the challans and when the Court has even taken cognizance of the case.
(ii). In the case of Bahadur Khan Vs. Muhammad Azam and 2 others (2006 SCMR 373) it was held that in view of provisions of Section 173 Cr.P.C. no legal bar existed for reinvestigation of a criminal case even after submission of final report under Section 173 Cr.P.C. and the police could carry out the fresh investigation and submit its report to the Court but this would not mean that in a case in which earlier after completion of investigation challan was submitted for trial of an offence, on which the accused have been tried and the case was finally decided up to the level of the High Court or by this Court as the case may be, to entertain the subsequent challan submitted as result of the reinvestigation or further investigation of the case by the police on the happening of a subsequent incident.
(iii) In the case of Khizar Hayyat (PLD 2005 Lahore 470) trend of getting a fresh investigation of a criminal case conducted after submission of challan and taking cognizance of the trial Court was disapproved except in cases where any particular material piece of evidence shown to have been missed out by the Investigating Officer and yet to be collected by the police.
7. In the light of the above referred dictums it is crystal clear that door of the investigation is not completely closed after submission of report under Section 173 Cr.P.C. rather it was kept open perhaps to serve the ends of justice in appropriate cases in order to furnish relevant piece of evidence regarding probable innocence or guilt of an accused especially at the early stage of the trial.
8. In the instant case, admittedly prosecution has not yet opened its evidence. No P.Ws. is recorded till date, therefore, impugned order passed by the Additional Inspector General Police Investigation Branch, Punjab/Respondent No. 1 in exercise of his powers in terms of Article 18(6) of Police Order
(ibid) does not suffer from any illegality or misuse of any authority. In the peculiar circumstances of this case I do not see any reason to interfere in the impugned order. This writ petition, therefore, is not maintainable and dismissed in limine.