SYED MUHAMMAD KAZIM RAZA SHAMSI, J.---Through this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the legality of an order dated 29-9-2012 passed by the Deputy Inspector General of Police (Investigations), Lahore, whereby Iqbal Shah DSP/SDPO, Sabzazar Circle, Lahore was deputed to re-investigate the case FIR No.16 dated 12-1-2011 registered under sections 302 & 337-J, P.P.C. With police station Wahdat Colony, Lahore.
2. Succinctly, facts of the case are that a married son of the petitioner namely Arsalan Nazir was found dead in his bedroom and his dead body was lying in the bathroom where his wife Mst. Safia Bibi was also sitting pretending to be semi unconscious. On the happening of this occurrence, FIR No.16/2011 was registered at the police station. Mst. Safia Bibi is the daughter of respondent No.3 Safdar Ali who was challaned by the police but did not recommend the prosecution of Zunaira Safdar and Nafeel Akhtar. Charge was framed against the lady on 17-3-2012.
3. Feeling dissatisfied with the investigations of the police, the petitioner filed a private criminal complaint against Mst. Safia Bibi, Mst. Zunaira Bibi and Nafeel Akhtar who were summoned by the learned trial court and were charge sheeted holding them responsible for the death of Arsalan Nazir. Subsequently, the petitioner came to know that respondent No.1 vide impugned order had changed the investigation of the said FIR and had deputed one Iqbal Shah DSP/SDPO to re- investigate the matter. As per version of the petitioner, he joined the investigations with the said Iqbal Shah DSP and informed that after submission of the challan in the court and taking of the cognizance by a court, the case cannot be reopened and re-investigated, upon which information, respondent No.2 the DSP/SDPO relieved the petitioner and promised to return the file to the concerned police station. In this connection, it is further pointed out that respondent No.3 had filed a petition before the learned Justice of Peace with the prayer that respondent No.2 be restrained from causing any harassm ent and in para 4 of that petition, it was admitted in clear words that after submission of the challan, a criminal case cannot be re-investigated. In this background, the impugned order has been assailed.
4. Learned counsel for the petitioner while submitting that after submission of challan in the court in terms of section 190, Cr.P.C. And taking cognizance by a court of law, the police has no jurisdiction to reopen the case and re-investigate the matter again so the impugned order suffers from inherent illegalities. In this connection, learned counsel has placed reliance upon the cases of Riaz Hussain and others v. The State (1986 SCMR 1934), Bahadur Khan v. Muhammad Azam and 2 others (2006 SCMR 373), Muhammad Nisar Cheema v. Mazhar Javed (PLD 2007 SC 31) and Liaquat Ali Virk v. Inspector General of Police, Lahore (PLD 2010 Lahore 224).
5. On the other hand, learned counsel for respondent No.3 submitted that the impugned order has already been implemented and Iqbal Shah DSP/SDPO has conducted investigations in the case which were duly joined by the petitioner and in his presence as well as in the presence of the respondents, the said police official had visited the place of occurrence. So now that order cannot be set at naught. In this respect, learned counsel for the respondent has referred to the police diary dated 4-5-2013 in which the presence of the petitioner and his witnesses have been marked and it is also noted in the presence of both the parties that the place of occurrence was visited. Learned counsel has also relied upon the cases of Muhammad Yousaf v. The State and others (2000 SCMR 453), Khalid Javed v. Board through Deputy Inspector General of Police (Investigation), Lahore and 5 others (PLD 2009 Lahore 101) and Muhammad Hafeez v. District Police Officer Narowal and 4 others (2010 YLR 3142), to say that even after submission, of the challan, the police has the authority to re-investigate the case and to submit final report in the court through the proper channel.
6. I have considered the submissions made by the learned counsel for the parties and while examining the record have also minutely gone through the judgments cited at the bar.
7. The moot point involved in the case in hand is whether after submission of final report under section 173, Cr.P.C. In the court, upon which the court has taken cognizance, investigations in the state case can be changed. In this connection, it is observed that after investigating the case and submission of final report, the police is left with no authority to re-investigate the matter once again. All the evidence collected by it is A placed before the court for determination of innocence or guilt of an accused person. Here another question arises, if an aggrieved person i.e. The complainant does not feel satisfied with the police investigations and he files a private criminal complaint in respect of the same occurrence, what effect would be on the merits of that complaint, if the police after re-investigating the case reaches at a different conclusion than the one it had already given while submitting the final report in the court, answer to this question simply is that the investigation of the police would have no bearing upon the merits of private criminal complaint which is to be B decided by the court of law independently without being influenced by the investigations. The Hon'ble Supreme Court in the case of Riaz Hussain (Supra), cited by learned counsel for the petitioner, has observed in clear terms in the following words:- "that System of re-investigation in criminal cases, a recent innovation always taken up at instance of influential people and favourable reports obtained in no way assists Courts in coming to correct conclusion, it rather creates more complications to the court administering the justice. We, therefore; disapproved this system altogether."
8. Similarly, in the case of Muhammad Nisar Cheema (supra) it has been observed: "that an investigation report (challan) has already reached in the trial court where trial had already commenced, change of investigation or ordering further investigation in the matter thereafter was an exercise unsustainable in law".
9. In the case of Bahadur Khan (supra) again while approving the case of Riaz Hussain (supra), the Apex Court has disapproved the system of reinvestigation and successive investigations. This court in the case of Liaquat Ali Virk (supra), while following the rule laid down in the case of Muhammad Nisar Cheema (supra) had also set aside the order for change of investigations, which were conducted after submission of challan and commencement of trial.
10. Although in the case of Muhammad Yousaf (supra) the Apex Court had observed: "that no legal bar existed on re-investigation of case even after submission of final report under section 173, Cr.P.C. And police could carry out fresh investigation and submit its report to the court" but in the later view taken by the Apex Court in the case of Muhammad Nisar Cheema (supra), this observation was not authenticated so the view of the Supreme Court later in time would prevail as observed in the case of Amir Masih (2013 SCMR 1059). Same is the position with the cases of Khalid Javed and Muhammad Hafeez (supra) which judgments after categoric view of the Supreme Court cannot be relied upon for holding that second investigation could be conducted even after submission of the challan and commencement of trial.
11. Adverting back to the merits of the instant case, it is on the record that even in the State case after submission of final report, the court had taken cognizance and trial was commenced in which case the accused Mst. Safia Bibi had filed an application under section 265-K Cr.P.C. Seeking her acquittal from the charge which was dismissed by learned trial court on 22-2-2012 and the revision petition filed against the said order was withdrawn. Till that time, the order for change of investigation was not passed, thereafter a private criminal complaint was filed by the petitioner in which on 11-3-2013, formal charge was framed against the respondents of the case. This progress in the trial brings me to the conclusion that the court had already progressed in the trial in the state case when the application for change of investigation was not even in its inception.
12. It is also very astonishing to note how the respondents can wriggle out of his version which he had given in para 4 of a petition filed under section 22-A and 22-B Cr.P.C. Seeking a direction to respondent No.2 Iqbal Shah restraining him for causing any harassment to the petitioner and his family members. The petitioner in that application was Safdar Ali now respondent No.3. An extract of para 4 is reproduced hereunder for ready reference:-- "That on 20-12-2012, respondent No.2 called petitioner and her afore-mentioned daughters and nephew in the police station for investigation of the said case FIR No.16/11 by stating that the investigation has been entrusted to him by the higher authorities. The petitioner asked the said respondent that the case is sub-judice before the competent court of law and fixed for evidence and in the given situation no further investigation is required but he did not accept the genuine request of the petitioner. (emphasis provided)."
13. This statement has not been negated by respondent No.3 nor he could negate the same as the application was filed at his instance which also bears his signatures. When respondent No.3 is also of the view that during the commencement of a trial, investigation cannot be changed and the petitioner is also of the same view then maintaining the order dated 29-9-2012 would not be in the fitness of things. The impugned order thus is ineffective and has no bearing upon the merits the private criminal complaint being tried by the learned trial court nor the investigations which were initiated upon this order, although disputed by the petitioner, could change the fate of the case so for administering the safe criminal justice to the parties, the order impugned is liable to be set aside.
14. For the foregoing reasons, this petition is allowed and the order dated 29-9-2012 passed by respondent No.1 is set aside with further observation that the investigations carried out by Iqbal Shah DSP/SDPO on the basis of this order were coram non judice and would have no C bearing upon the merits of the case. The learned trial court shall decide the private complaint lodged by the petitioner independently without being influenced from subsequent investigations conducted by respondent No.2 Iqbal "SDPO.