The petitioner, Manzoor Ahmad, seeks direction for Constitution of Board under Article 18 of the Police Order, 2002 for transfer of investigation in case FIR No, 60 dated 23.03.2011 registered under Sections 452/34, PPC at Police Station Jalalpur Sharif District Jhelum besides further prayer for setting aside report of inquiry conducted by the Deputy Superintendent of Police (Legal) on 03.05.2011.
2. Brief facts of the case are that according to demarcation conducted by the revenue authorities 9 marlas of land of Safdar Ali, complainant of the FIR No, 60 registered under Sections 452/337 F(i)/337-F(v)/334 at Police Station Jalalpur Sharif District Jhelum, falls in the land possessed by Haji Fazal Hussain, who on 23.03.2011 at about 5.30 P.M. armed with da.nda, Muhammad Akbar son of Manzoor armed with hatchet and Masood son of Manzoor, armed with danda came to his house and said that if he agrees to have consideration of his land at the rate of Rs,5,000/- per marla, he is ready to pay otherwise he would neither leave the land nor pay the amount. This resulted into exchange of hot words whereupon Haji Fazal Hussain, Muhammad Akbar and Masood Ahmed inflicted injuries with the respective weapons on the different parts of his (Safdar Ali) body. All the three accused chased the complainant and by entering into his house gave him beating.
3. Malik Afzaal, Assistant Sub-Inspector, Respondent No, 4 completed investigation and later on receiving final result of injuries kept under observation, Sections 337-F(v)/337-L(ii)/148/149, PPC were added.
4. Fazal Ahmed, accused party in the FIR, on 22.03.2011 approached the Station House Officer, Police Station Jalalpur Sharif District Jhelum with a written application stating therein that at about 6.30 P.M. Amjad son of Yaqoob came there and by extending abuses said that he would posess his haveli tomorrow and on his forbidding to extend abuses, he flared up and raised lalkara that Fazal Ahmed would not let off whereupon Fakhar armed with danda, Shaukat, Zafar, Ali Raza, Zeshan, Kamran, Naveed-ul-Hasan, Ali, Raja Yaqoob, Raja Safdar and Iftikhar Haider with his gunman chased to beat Fazal Ahmed who entered in his house to avoid fear of beating but the accused persons trespassed and gave him and women sever beating of kicks and fists resulting into registration of cross-version to the FIR under Sections 337-F(v)/337-L(ii)/147/149, PPC on receipt of medico legal report of Fazal Ahmed, injured against the complainant party. Fazal Ahmed also filed petition under Sections 22-A/22-B of Cr.P.C. which was disposed of on 28.03.2011 with the direction to Respondent No, 1 to proceed in the matter strictly in accordance with law as the cross-version had been registered.
5. On 18.05.2011 this Court directed submission of report from Respondent No, 1 who submitted the same vide Memo. No, 6581/M dated 18.06.2011 besides narrating the above averments in the report in the last it is stated that Zafar Ali also moved an application before Respondent No, 1 showing lack of confidence upon the Investigating Officer whereupon the Deputy Superintendent of Police (Legal) was deputed to conduct discrete enquiry. Safdar Ali and Fakhar Ali of first complainant party for the FIR and Fazal Ahmed, Masood Ahmed and Muhammad Akbar, accused in cross- version were found guilty while the other have been let off in investigation. Fazal Ahmed, complainant of cross-version also approached the Regional Police Officer for transfer of investigation which was directed to be placed before the District Standing Board.
6. Learned counsel for the petitioner argues that the investigation conducted by the Deputy Superintendent of Police (Legal) is without any law and the only Article deals with the investigation in the Police Order, 2002 is Article 18 where the Deputy Superintendent of Police (Legal) has no power to conduct investigation. Further submits that the District Police Officer has no power to delegate power for change of investigation to any other police officer as he himself does not possess the power to change the investigation. He relies on Muhammad Farooq Khan Versus The State (PLJ Cr.0 (Karachi) 195 (D.B.), Mirza Jahangeer Baig Versus D.I.G. of Police, Gujranwala Range and 7 others (PLJ 2007 Cr.C, (Lahore) 758) and Aziz Ahmad Versus Provincial Police Officer (I.G.P), Punjab Lahore and 6 others (PLD 2005 Lahore 185) and (2006 M LD 501) to argue that such investigation is without legal authority and therefore, is liable to be set aside.
7. Learned Assistant Advocate General Punjab assisted by the learned counsel for complainant in the FIR opposed the prayer by submitting that the investigation cannot be changed after submission of challan in the Court. Further adds that vide order dated 29.06.2011, the District Standing Board unanimously disapproved the change of first investigation as challan has already been submitted in the cross version, therefore, the petitioner has alternative remedy by filing of an appeal.
8. I have heard the learned counsel for the parties as well as learned Assistant Advocate General and perused the record.
9. The arguments advanced by the learned counsel for the parties have brought two propositions; whether the investigation conducted by the Deputy Superintendent of Police (Legal) is without lawful authority and whether the District Police Officer-Respondent No, 1 has any authority to further delegate a power which he himself does not possess. The only Article which deals with transfer of investigation is Article 18 of the Police Order and bare perusal of the same leads to an irresistible conclusion that the investigation can only be changed by the Board constituted under the said provision comprising of Senior Superintendent of Police and two Superintendents of Police; one being Incharge of the investigation of the concerned district. Therefore, this Court is of the considered view that the report/investigation conducted by the Deputy Superintendent of Police (Legal) is without lawful authority and is hereby declared so.
10. So far as the delegation of. powers by the District Police Officer for transfer of investigation is concerned, as under Article 18(5) of the Police Order, 2002, the I 'strict Police Officer himself has no power to interfere with the process of investigation, therefore, no question for its further delegation can possibly arisen in respect of investigation.
11. For what has been discussed above, this petition is allowed in view of the above terms.