SHAHNAWAZ TARIQ, J.---Through captioned Constitution Petition, petitioners have invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, and have sought the following reliefs:- a) That this Hon'ble Court may be pleased to direct respondents Nos,2 to 4 to provide protection to the petitioners and other family members from the cruel hand of the private respondents, as they have levelled false allegations against the petitioner No,1 and her husband, and tried to murder.them and also kicked out them from their houses. b)To direct the respondents Nos,3 and 4 not to create havoc and harassment against the petitioners party and their family members at the instance of private respondents. c)To direct the respondent No,3 to produce the private respondents before this Hon'ble Court and this Hon'ble Court may be pleased to specially enquire about the illegal acts of the respopdent No,5 and others who had levelled the false allegations of "Karap" against petitioner No,1 and her husband and also forcibly dispossessed them from village. d)To direct the respondent No,3 to record the 'statement of petitioner No,2 and further to take action against them according to law."
2. Relevant facts narrated in instant petition are that petitioner No,1, solemnized her love marriage with son of petitioner No,2 namely Manthar in the year 2010, and their Nikah was performed according to Shariat-e-Muhammadi. Private respondents became annoyed upon said marriage and declared them as Karo-Kari by holding a Jirgah. Subsequently, a FIR was registered regarding abduction of petitioner No,1, and she filed C.P No,809 of 2010 before this Court which was disposed of by directing the official respondents to provide protection to the spouse and also disposed of said FIR under cancel class. Allegedly, private respondents along with their associates continued their ill activities and they imposed penalty of Rs,14,00,000/- upon the petitioners party by holding Jirga under the command of respondent No,5 Wadero Sijawal Kosh, and further directed that petitioners to leave the village for 5 years, hence due to fear of their murder per decision of said Jirga, petitioners party paid fine amount to private respondents and others. It is further asserted that after completing said period, when petitioners party returned back to their village in order to reside there, respondent No,5 being high influential and Wadera of the village, demanded more amount of Rs,10,00,000/-, so that petitioners may be allowed to reside in their village, hence petitioners are not in position to reside in their village to pass their lives peacefully. It is also alleged that on 05.04.2016, petitioner No,2 along with other family members including Liaquat Ali and Dodai were present in their house at about 10 a.m. when. Private respondents along with their companions including Janib, Idress. Allah Wassayo, Ayub, Hafeez and others duly armed with deadly weapons entered into their house in order to commit the murder of petitioner No,1 and her husband but fortunately they were not present in their house at the moment, so they maltreated petitioner No,2 and other family members and occupied their houses and also took away 10 buffaloes, 100 wheat bags and other household articles and threatened them that if they are seen again in the village, they must be murdered or implicated in false criminal cases through local police. Petitioners approached respondent No,3 and narrated the highhandedness caused by private respondents regarding their illegal acts and occupation of their houses but due to influence of respondent No,5, respondent No,3 did not initiate any legal action nor provided them protection. Petitioners also approached respondent No,2 SSP Ghotki and requested to provide protection to their lives, liberty, honour and properties against the private respondents but all in vain.
3.Learned Counsel for petitioner files statement along with copy of FIR No,48 of 2016, under sections 364-A, 147, 148, 149, P.P.C. lodged by Mst. Mithul wife of Allah Wasayo Kosh on 15.05.2016 against petitioner No,2 and his other 13 close relatives, which is taken on record.
4.Learned counsel for petitioner contended that private respondents with the help of the area police have been causing serious harassment to the petitioners and their close relatives on one or other false pretext on account of love marriage of petitioner No,1 with the son of petitioner No,2; that respondents had lodged a false FIR for abduction, hence petitioner No,1 tiled Constitution Petition before the principal scat of this Court against the respondents, which was disposed of by this Court directing the official respondents to provide protection to the spouse and their family members; that private respondents held Jirga due to their annoyance and imposed fine of Rs,14,00,000/- upon petitioner party and further directed to leave their village for 5 years; that to save their lives, petitioners paid fine amount to respondents and left their village; that petitioners party again returned to their houses but private respondents particularly respondent No,5 Wadero Sijawal Kosh again imposed fine of Rs,10,00,000/- and dispossessed them from their house situated in village Rangpur, Taluka Ubauro, Distrkt Ghotki. Learned Counsel further emphasized that despite of issuance of directions by this Court to SSP Ghotki, SHO P.S. Wasti Jeewan Shah and SHO P.S. Ubauro to provide protection to petitioner party especially against private respondents, but respondent No,3 SHO Police Station Wasti Jeewan Shah who is in league with respondent No,5, has lodged a false FIR regarding abduction of minor Baby Amna daughter of respondent No,7 Dildar alias Dulo with ulterior motives; that official respondents have clearly violated the orders passed by this Court though official respondents are bound to provide them legal protection as envisaged under Articles 440 10 and 25 of the Constitution of Islamic Republic of Pakistan, 1973. Learned counsel lastly urged that Investigating Officer has not been conducting investigation honestly, hence DIG Police Sukkur may be directed to appoint Inspector Ghulam Ali Jumani to investigate the Crime No,48 of 2016 lodged at Police Station Wasti Jeewan Shah.
5.While controverting the above submissions, learned Counsel for respondents contended that neither respondents have caused any kind of harassment nor they intend to do so in future; that neither respondents have held any Jirga in past nor imposed fine upon petitioner No,2 nor dispossessed them from their house and the husband of petitioner No,1 is a criminal person and instant petition has been filed only to cause harassment, however, he extended no objection for transfer of investigation of subject crime to. Inspector Ghulam Ali Jumani.
6.Learned AAG files statement of respondent No,3 SHO P.S. Wasti Jeewan Shah along with copies of FIRs Nos,36/2007, 53/2010, 34/2012, 47/2014, 32/2002, 33/2011, 95/2013, 110/2015, 63/2007 and 48/2016, lodged against the husband of petitioner namely Manthar and other close relatives, which are taken on record, and copy supplied to learned counsel for petitioners.-Learned AAG also extended no objection for transfer of investigation as suggested by both the parties.
7.Perusal of material available on record reflects that petitioners through instant Constitution Petition have prayed to direct respondent No,2 SSP Ghotki, respondent No,3 SHO P.S. Wasti Jeewan Shah and respondent No,4 SHO P.S. Ubauro to provide protection to the petitioners, their family members and their houses against the private respondents. Indeed, petitioner No,1 Mst. Sharma has contracted love marriage with Manthar Ali Kosh son of petitioner No,2 in the year, 2010 and she also sworn her affidavit of free will and their Nikah was performed on 30.07.2010 as per injunctions of Islam. It is further averred that private respondents became annoyed upon the marriage of petitioner No,1 and issued serious threats and lodged FIR, whereupon petitioner No,1 filed Constitution Petition No,809 of 2010 before this Court at principal Seat Karachi and same was disposed vide order dated on 17.08.2010 by directing the official respondents to provide protection to the spouse against private respondents. Conversely, private respondents allegedly held Jirga and imposed fine of Rs,14,00,000/- upon the petitioner party and also directed them to leave their village for the period of 5 years and due to fear of their lives, petitioners paid Rs,14,00,000/- as fine and also left their village. Allegedly, after completing the period of 5 years, petitioners party again returned to their houses but respondents 5 to 10 imposed further fine of Rs,10,00,000/- and also issued threats for dire-consequences in case of non-payment of fine amount and also drove them out from their houses.
8.Section 4(i), Cr.P.C. provides a mechanism for conducting investigation of a crime registered with police station, to collect evidence to adjudge and scan the authenticity of the set of allegations leveled in the FIR and it facilities the Investigating Officer to submit final report before the concerned Magistrate. Arrest of accused is a part of the investigation process for which availability of tangible iota of evidence is essential. Investigating Officer should not conduct the process of investigation in the mode of judicial proceedings, as he is not conferred upon such legal authority to conclude the investigation by determining the question of guilt or innocence of accused. It is prerogative of the concerned Magistrate to decide the fate of summary report submitted by examining entire material prudently. During the process of investigation, Investigating Officer should not be influenced from either of the parties linked with the offence while conducting the investigation of the case, if it is prima facie reflected that investigating Officer has not been conducting investigation of the crime in transparent and impartial manners and in strictly within the parameters of law, investigation of the crime must be assigned to another honest and competent police officer in order to ensure transparency to meet the ends of justice. Under the Criminal Procedure Code, investigation consists generally of the following steps; (1) Proceedings to the spot (2) Ascertainment of the facts/circumstances of the case (3) Discovery and arrest of the suspected offender (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statement in to writing, if the officer thinks fit (b) the searching of places of seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and is so taking the necessary steps for the same by filing of charge-sheet under S. 173. The Scheme of the Code also shows that while it is permissible for an officer in charge of a police station to depute some subordinate officer to conduct some of these steps in the investigation, the responsibility for every one of these steps is that of the person in the situation of the officer incharge of the police station, it having been clearly provided in S. 168, Cr.P.C. that when a subordinate officer makes an investigation he should report the result to the officer incharge of the police station. Reliance is placed on the case of H.N. Rishbud and another v. State od Delhi (AIR 1955 SC 196).
9. Adverting to the merits of the case, vide orders dated 28.04.2016 and 11.05.2016, respondent No,2 SSP Ghotki and respondent No,3 SHO P.S. Wasti Jeewan Shah were directed to provide protection to the lives and properties of both petitioners as well their family members against private respondents, as there are serious allegations of their murder on account of 'Karap' and dispossession from their houses. On 11.05.2016, when this matter was taken-up, both above official respondents failed to provide any tangible evidence regarding providing protection to the petitioners, and they alleged same allegations against the private respondents and favouring of the official respondents. Consequently, respondent No,2 SSP Ghotki and respondent No,3 S.H.O P.S. Wasti Jeewan Shah and respondent No,4 S.H.O P.S. Ubauro were again directed to provide protection to the petitioner and copy of the order was transmitted to the official respondents for compliance. Today, petitioners have vehemently agitated the plea of causing harassment against private respondents and also shown the photographs of their houses already available on the record and hostile demeanor of the official respondents and also filed copy of FIR No,48 of 2016, under sections 364-A, 147, 148, 149, P.P.C., lodged by Mst. Mithul, mother of respondent No,7 Dildar alias Dilo which reflects that same was lodged under the order dated 13.05.2016, passed by learned Sessions Judge/Justice of Peace Ghotki. Considering the above cripple circumstances, commission of the alleged offence by the petitioner party is not convincing the prudent mind, when they are already under serious threats of the private respondents and dispossessed from their houses. In the case of Bahadur Khan v. Muhammad Azam (2006 SCM R 373), the honourable Supreme Court has observed that no bar exists for reinvestigation of a criminal case even after submission of final report under section 173, Cr.P.C. Police can carry out 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 had been tried and the case was finally decided upto the level of High Court. In the case of Atta Muhammad v. Inspector General of Police, West Pakistan and others (PLD 1965 (W.P) Lahore 734), it was observed as follows:-- "There is no statutory prohibition in the Code of Criminal Procedure for the police not to embark on a fresh investigation of the case after the conclusion of the first and the submission of the final report whatever the defects in the first investigation or the flaws in the final report given in the wake of it, that might subsequently be detected. The first investigation may be utterly unsatisfactory for many reasons. It may be due to non-availability of the evidence, or the successful induction of false evidence during the investigation or the reason may be, the corrupt behavior of the police officers concerned. To say that the same police officers or their superiors on receipt of further information or on the availability of better evidence cannot revive the investigation already done, leading to a contrary or a varied result, would virtually amount to putting a seal on human errors and frailties once committed, whether by design or by inadvertence, with no opportunity to make amends, although it be possible to do so. The police, as an agency of the State, should be as much interested as any other agency concerned in the administration of justice to find out the truth in respect of crime and lay the whole facts bare for determination by the competent Tribunals as honestly and correctly as possible. The statutory functions of the police and the Courts in this respect are complementary to each other and do not overlap. The fact that the previous investigation has yielded certain results should not act as a hurdle or a deterrent for the police in reaching the truth if additional facts and additional circumstances brought to light help in its discovery. The Magistrate himself does not have the legal powers to direct a further investigation by the police after he himself has taken cognizance of the case and has himself launched an inquiry or trial; but there is no bar for the police to pursue its own investigations and submit their result to the Court to find the guilt or innocence of the accused persons before it becomes too late."
10. Indeed, there are serious allegations against private respondents regarding causing of grave harassm ent to the petitioners and their familymembers with the utmost support of SHO P.S. Wasti Jiwan Shah, and failure of SSP Ghotki and SHO PS Wasti Jiwan Shah to provide protection to the petitioners, despite of clear directions by this Court. Conversely, the maladministration and abuse of powers by the area police at the behest of respondent No,5 being wadero of the village, and an influential 'person of the locality, could not be ruled out. The averments of FIR reflects that complainant lady directly approached the Justice of Peace by alleging the abduction of minor baby namely Amna by the 14 nominated accused persons belonging to the petitioners party which from the face of it demonstrates mala fide on the part of respondents. Consequently, it would be appropriate that subject crime should be investigated honestly and fairly to adjudged the allegations through any honest and senior officer of the police, as present Investigating Officer is posted under the sub-ordination of SHO concerned against serious allegations have been leveled.
11. Considering the allegations of false implication with ulterior motives against the respondents and to remove the cloud of the highhandedness allegedly caused to the petitioners, and in order to maintain the transparency and all fairness, when there is no legal impediment for transfer of the investigation of the crime, and neither interim nor final report has been submitted by the Investigating Officer, this Court to meet the ends of justice, can issue direction for transfer of investigation from one police officer to another police officer. Consequently, DIG Police Sukkur is directed to assign investigation of Crime No,48 of 2016, under sections 364-A, 147, 148, 149, P.P.C. lodged at Police Station Wasti Jeewan Shah by complainant Mst. Mithul to Inspector Ghulam Ali Jumani and also extended all the possible facilities to him, so that Investigating Officer may investigate the crime fairly, honestly and properly. Investigating Officer is directed to submit summary report before concerned Magistrate who will pass an appropriate order. Copy of summary report may also be filed before this Court. Investigating Officer is further directed not to cause arrest of the nominated accused in FIR No,48 of 2016 until collection of any tangible and sound iota of evidence against them. In the meanwhile, respondent No,2 SSP Ghotki, and respondent No,3 SHO P.S Wasti Jeewan Shah are directed to ensure the protection of petitioners, their family members and properties strictly in accordance with law. Copy of this order may be transmitted to DIGP Sukkur and learned AAG for information and compliance. To come-up on 02.06.2016 at 9.00 a.m. for further order.