Briefly the facts are that Ghulam Jeelani (Respondent No, 4) got lodged an FIR No, 176/2011 on 06.05.2011 under Sections 302/34/109, PPC at Police Station Makhdoom Rasheed, Multan, alleging that the present petitioner and others inflicted injuries to Khizar Hayat who succumbed to these injuries. During investigation the present petitioner and Muhammad Usman were declared innocent and report under Section 173, Cr.P.C. was submitted only to the extent of Muhammad Hashim and Safdar Hussain co-accused. However, on the application of Respondent No, 4/complainant the learned trial Court also summoned the petitioner and Muhammad Usman to face trial vide order dated 06.01.2012. After this summoning order, Respondent No, 4/complainant filed an application before the Additional Inspector General of Police (Investigation) Punjab, Lahore for change of investigation and ultimately pursuant to letter/order dated 13.03.2012 the investigation has been entrusted to RIB Multan Region, Multan.
2. The above letter/order dated 13.03.2012 with regard to transfer of investigation, has been assailed through the instant writ petition, on the, ground that the final report under Section 173, Cr.P.C. had already been submitted by the police before the Court concerned, wherein, although the present petitioner and one co-accused namely Muhammad Usman were not cited us accused, but subsequently on the application of Respondent No, 4/complainant these two were also summoned by the learned trial Court to face the trial, as such, the cognizance has been taken by the learned trial Court, attempt on the part of respondent/complainant for re-investigation of the case was not tenable in law. The learned counsel contended that during investigation the complainant produced all the witnesses before the Investigating Officer and after complete and thorough investigation the petitioner and Muhammad Usman were declared innocent and others were sent to Court; even the persons declared innocent by the I.O. have been summoned by the trial Court; all the material is available before the Court of trial, application of Respondent No, 4/complainant to the extent, of summoning of accused of Section 109, PPC has already been dismissed, therefore, the impugned order of transfer of investigation is not backed by any law. In support of his submissions learned counsel for the petitioner placed reliance on the case 'Muhammad Nasir Cheema versus Mazhar Javaid and others" (PLD 2007 SC 31), 'Muhammad Ashfaq versus Amir Zaman and others" (2004 SCMR 1924) and "Liaqat Ali Virk versus Inspector General of Police, Lahore and 8 others" (PLD 2010 Lahore 224).
3. The learned Assistant Advocate General assisted by learned counsel for Respondent No, 4/complainant opposed this application by contending that re-investigation of a criminal case even after submission of final report under Section 173, Cr.P.C. was not barred by any law therefore, the order of Respondent No, 1/Additional Inspector General of Police (Investigation) Punjab, Lahore, does not violate any provision of law.
4. I have heard the arguments of learned counsel for the parties and perused the available record with their assistance.
5. There is no dispute that in the light of verdict by Hon'ble Supreme Court of Pakistan in the case "Bahadur Khan versus Muhammad Azam" (2006 SCMR 373), no legal bar existe for re-investigation of a criminal case even after submission of final report under Section 173, Cr.P.C. but in the same judgment the apex Court held that "System of re-investigation 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 Court in coming to a correct conclusion, rather they create more complications in the way of administration of justice--Such system of re-investigation and successive investigations, therefore, was disapproved". The above reproduced observation of the apex Court disapproving the process of repeated investigations had made it obligatory for the Court to consider each case in its own peculiar perspective and re-investigation may not be allowed in every case.
6. Here in this case it is no where the claim of Respondent No, 4/complainant that during investigation the Investigating Officer did not record the statement of an witnesses, wrongly entered the statement of any of the witness under Section 161, Cr.P.C., either the Respondent No, 4/ complainant himself omitted to produce any document before the Investigating Officer or the Investigating Officer did not consider such material before making_ his final opinion, or that report under Section 173, Cr.P.C., was in any way defective as it did not car all 'the material tendered by the complainant at the time of invention any of the above is alleged by the complainant pointing serious flaw in the investigation, which otherwise is not attributable to him alone it' ma not justified to allow re-investigation of the case during subsistence of earlier report under Section 173, Cr.P.C., whereupon, the learned trial Court has not only taken cognizance by framing of the charge but had also summoned the accused who had been declared innocent during the first investigation erupt of the complainant desiring summoning, of the co-accused with the allegation of having hatched conspiracy, has been turned down. Reliance is placed on the case 'Muhammad Nasir Cheema versus Mazhar javaid and others" (PLD 2007 SC 31), wherein the Hon'bIe Supreme Court settled the guidelines by holding that "As investigation report (challan) had already reached trial Court, where trial had already commenced, changing of investigation or ordering further investigation matter thereafter was an exercise unsustainable in law." In this context the judgment of Hon'ble supreme Court of Pakistan in the case "Muhammad Ashfaq versus Amir Zaman and others" (2004 SCMR 1924) further clarifies the position, wherein it has been conclusively held that "Apprehension of the complainant was misconceived as trial Court could proceed with the trial on the basis of the report already submitted under S.173, Cr.P.C--Trial Court was not bound by the opinion given in the final report or expressed in the report being 'submitted pursuant to re-investigation and it was always the judicial consideration of the material collected by police which weighed with the Court while issuing process. " In the light of above reproduced judgment of the, apex. Court, the order of Respondent No, 1/Additional Inspector General of Police (Investigation) Punjab Lahore would be a futile effort, as the trial Court has to proceed with the trial on the basis of the report already submitted under Section 173, Cr.P.C., whereupon, the cognizance has already been taken by it and charge has been framed. Consequently, this writ is allowed, the order/letter dated 13.3.2012 passed by Respondent No, 1/Additional Inspector General of Police (Investigation) Punjab Lahore is hereby set-aside.