' Petitioner (Sabir A.I) complainant in the murder case of his brother, is aggrieved of the impugned order dated 2.4.2015, whereby, the Respondent No. 1/ the Inspector General of Police Punjab, Lahore by accepting the application moved on behalf of accused/Respondents No. 3 and 4 in terms of Article 18-A (3) of the Police Order 2002 approved the change of investigation in case FIR No. 702 dated 31.12.2013 registered at Police Station Thikriwala Faisalabad for the commission of offences under Section 302/34 PPC at the time when the trial had already commenced.
2. The learned counsel for the petitioner has argued that while the trial was in progress, the accused Respondents No. 3 and 4 did not have any legal justification to file an application for further change of investigation. The learned counsel for the petitioner/complainant has argued that the Honorable Supreme Court of Pakistan has lately observed that once the challan is in the Court, no application can be entertained by the police for the change of police investigation. And to substantiate his contentions, learned counsel relied upon (PLD 2007 SC 31) Muhammad Nasir Cheema vs. Mazhar Javed and others as well as on 2014 SCMR (SC) 1499 Qari Muhammad Rafiq vs. The Additional Inspector General of Police (Inv) Punjab and others.
3. Whereas, learned counsel for the respondents/accused while controverting the assertions of the learned counsel for the petitioner strenuously contends that there is no express restriction and specific embargo on the time and number of investigation. To supplement his arguments, learned counsel relied upon the judgment of the Honorable Supreme Court of Pakistan reported as (1972 SCMR 335) Muhammad Akbar vs. The State and another and (2014 SCMR 474) Raja Khurshid Ahmed vs. Muhammad Bilal and others. Besides, on the strength of the relevant provisions of Article 18-A(3) of the Police Order, 2002, learned counsel argued that investigation can be carried out at any stage of the proceedings. In this regard, he confronted the learned counsel for the petitioner that on 26.11.2014 when the trial was also very much in progress, change of investigation was effectuated on behalf of the complainant, hence, he stands precluded from raising any objection to the same steps being resorted to by the accused/respondents. He further contends that first and third investigation purportedly conducted by the police officers of the rank of Inspectors being junior to DSP was totally unwarranted and inconsequential. While the findings of innocence in the second investigation arrived at by the DSP being senior and superior police officer would prevail and be given precedence over the concurrent guilty findings given by the Inspectors in view of the explicit provisions of Articles 18-A(2) of the Police Order 2002 which envisages and mandates that subsequent investigation must necessarily be conducted by the superior police officer.
4. I have heard the learned counsels for the parties; have gone through the facts of the case and have also minutely examined the case law being referred to by the learned counsels in support of their respective contentions.
5. Currently the latest law and the authoritative verdict of the Honorable Supreme Court of Pakistan in point of time is the case reported as 2014 SCMR (SC) 1499 Qari Muhammad Rafiq vs. The Additional Inspector General of Police (Inv) Punjab and others. In this case three Honorable Judges of the Honorable Supreme Court upheld the earlier view already expressed by the Honorable Apex Court in the case reported as (PLD 2007 SC 31) Muhammad Nasir Cheema vs. Mazhar Javed and others holding that when the challan in question was already submitted in Court, the case is out of the domain of the concerned Station House Officer. Therefore, changing the investigation or ordering further investigation in the matter was an exercise unsustainable in law. It is also a settled principle and further fortified in (2006 SCMR 1637) Ata Ullah Khan and others vs. Mst. Surraya Parveen that judgment passed by the larger Bench of the Honorable Supreme Court was binding on the smaller Bench of the Honorable Supreme Court and all Courts of Pakistan.
6. Being guided and enlightened by the authoritative dictum of the Honorable Apex Court for resolution of the controversy subject matter of the captioned petition, this Court is left with no other option but to allow this petition with the consequence that the impugned order dated 2.4.2015 passed by the Inspector General of Police Punjab is hereby set aside being illegal and in violation of the dictum laid down by the Honorable Supreme Court of Pakistan. The Court seized of the trial is directed to proceed with the trial expeditiously and strictly in accordance with law.