MUHAMMAD SAJID MEHMOOD SETHI, J. Through instant petition, petitioner has challenged order dated 14.01.2022, passed by respondent No.3 / Deputy Inspector General (Investigation), Punjab, Lahore, whereby investigation of case FIR No.58 dated 05.02.2021, registered under Section 420/468/471 PPC, Police Station Hair, Lahore was transferred and entrusted to Investigation Branch Punjab, Lahore.
2. The above crime report was registered on the complaint of Respondent No.5. The crux of the allegations is that the proposed accused persons received a total amount of Rs.10,600,000/- (Rupees Ten Million & six lac) as consideration for purchase of plot by showing fake and fabricated sale deeds regarding plot measuring 10-Marla situated at Abadi Khuda Bakhsh Colony, Mauza Koharr, Tehsil & District Cantt. But later on, they did not transfer any plot in his name and also did not return his amount. (Detailed prosecution story is narrated in the FIR). Initially the investigation was being conducted by Sajid Ali, ASI of the same police station, who found three accused persons involved in the commission of offence but upon petitioner's application, investigation was changed and entrusted to Tariq Zafar, DSP, who found that proposed accused persons had not committed offences under Sections 468/471 PPC. Feeling aggrieved, respondent No.5 filed application for second change of investigation, which was declined by the Regional Standing Board vide order dated 16.09.2021, issued by Addl. Inspector General of Police, Lahore. Respondent No.5 preferred another application for another transfer / change of investigation and upon recommendation of the Standing Review Board, the investigation was transferred and entrusted to Investigation Branch Punjab, Lahore vide order dated 14.01.2022, passed by respondent No.3 / Deputy Inspector General of Police (Investigation) Punjab, Lahore. Hence, instant petition.
3. Learned counsel for petitioner submits that respondent No.3 had already declined change of investigation, hence, impugned order is the result of connivance with respondent No.5 just to harass petitioner and linger on the matter. He adds that regarding same occurrence, challan report under Section 173 Cr.P.C. and private complaint are pending before learned Illaqa Magistrate, thus, transfer of investigation could not have been ordered. He finally submits that impugned order is unsustainable in the eye of law in view of law laid down in Nur-Elahi v. The State & others (PLD 1966 Supreme Court 708), Qari Muhammad Rafique v. Additional Inspector- General of Police (Inv.), Punjab and others (2014 SCMR 1499) and Muhammad Naveed v.
Inspector-General of Police, Punjab and others (2019 PCr.LJ Note 130).
4. Learned Assistant Advocate General submits that no legal bar existed for re-investigation of a criminal case even after submission of report under Section 173 Cr.P.C. and before conclusion of trial by the Court. He has referred to Muhammad Akbar v. The State and another (1972 SCMR 335), Raja Khurshid Ahmed v. Muhammad Bilal and others (2014 SCMR 474), Abid Hussain v. The State through SHO, Police Station Nawab Town and others (2022 PCr.LJ 83) and judgment dated 21.03.2022, passed in W.P.No.21663 of 2021.
5. Arguments heard. Available record perused.
6. Before dilating upon the legal issues cropped up from respective contentions of the parties, brief factual matrix of the case is expedient to be visualized. As per record, FIR was lodged on 05.02.2021.
The Investigating Officer, namely Sajid Khan ASI, vide Police Diary No.14 dated 12.04.2021, found three persons namely Dilshad Akbar, Hasnain Dilshad Akbar and Mst. Shaheen Dilshad involved in the commission of alleged offence. Transfer of investigation for the first time was ordered on 07.06.2021 and the DSP, vide Police Diary No.32 dated 05.07.2021, recommended deletion of offence under Sections 468/471 PPC and found only one person Dilshad Akbar involved in the commission of offence under Section 420 PPC. Challan report u/s 173 Cr.P.C. was prepared on 18.07.2021 and submitted in the Court on 02.08.2021, which is pending adjudication before learned Judicial Magistrate Section-30, Lahore wherein formal charge was framed against accused Dilshad Akbar on 10.09.2021. Request for transfer of investigation, for second time, was declined on 16.09.2021, however, the complainant filed private complaint before concerned Illaqa Magistrate on 30.10.2021, which is pending adjudication. Pursuant to another request, transfer of investigation, for third time, was ordered on 14.01.2022, which is under challenge before this Court.
7. From the respective contentions of the parties, the core issues for determination by this Court are: Whether power to transfer investigation within the contemplation of Article 18A of the Police Order, 2002 has any limitations? Whether there is any bar to pass an order for transfer of investigation, re-investigation or further investigation? Whether pendency of private complaint limits the scope of re-investigation or further investigation?
8. The prevailing procedure regarding transfer of investigation has been set out in Section 18A of the Police Order, 2002 (enacted by way of the Police Order (Amendment) Act, 2013, which for ready reference is reproduced hereunder:- "18-A. Transfer of investigation.- (1) Within seven working days of the filing of an application, the Head of District Police may, after obtaining opinion of the District Standing Board and for reasons to be recorded in writing, transfer investigation of a case from the investigation officer to any other investigation officer or a team of investigation officers of a rank equal to or higher than the rank of the previous investigation officer.
(2) If the Head of District Police has decided an application for transfer of investigation, the Regional Police Officer may, within seven working days of the filing of an application, after obtaining opinion of the Regional Standing Board and for reasons to be recorded in writing, transfer investigation of a case from the investigation officer or a team of investigation officers to any other investigation officer or a team of investigation officers of a rank equal to or higher than the rank of the previous investigation officer or officers.
(3) If a Regional Police Officer has decided an application for transfer of an investigation, the Provincial Police Officer may, within thirty days of filing of an application, after obtaining opinion of a Standing Review Board, transfer investigation of a case to an investigation officer or a team of investigation officers of a rank equal to or higher than the rank of the previous investigation officer or officers.
(4) A case under investigation with a District Investigation Branch may only be transferred to another officer or a team of officers of the District Investigation Branch, Regional Investigation Branch or Provincial Investigation Branch."
It is evident from perusal of above provision that there are three police hierarchies bestowed with the power to transfer investigation i.e. the Head of District Police, the Regional Police Officer and the Provincial Police Officer. It is notable that transfer of investigation is not a matter of routine or simple compliance of afore-referred provision of law instead it is ordered if some further material relevant to the case is required and to find out the truth for advancement of the cause of justice, not to oblige one party to the detriment of the other for some ulterior motive. Before making such order, troubles of parties in producing their witnesses / evidence time and again should also be kept in mind. Such power is not unfettered rather qualified by certain contingencies and pre- requisites, inter-alia, discovery of some new event or evidence, previous investigation being unilateral, based on malafide, excess of jurisdiction, having serious flaw(s) or unsatisfactory for some reasons etc. The Court is also under legal obligation to see the legality and validity of repeated transfers of investigation in the light of peculiar facts and circumstances of each case.
Reference can be made to Abdul Aziz v. S.P. (C.I.A.), Sargodha and 2 others (PLD 1997 Lahore 24), Muhammad Ashfaq v. Additional Inspector-General of Police (Investigation) Punjab, Lahore and 3 others (2013 PCr.LJ 920), Zeeshan Mustafa Lashari and another v. Province of Sindh through Chief Secretary and 5 others (2016 YLR Note 37), Wali Muhammad v. P.O. Sindh through Secretary Home Department and 8 others (2018 PCr.LJ Note 105) and Abid Hussain v. The State through SHO, Police Station Nawab Town and others (2022 PCr.LJ 83).
The merits of impugned order for transfer of investigation are not seriously contested before this Court, therefore, no remarks are being passed in this regard rather legality and validity of impugned order having been passed during pendency of criminal trial pursuant to report under Section 173 Cr.P.C. as well as private complaint has been questioned, which is thrashed out in coming paragraphs.
9. The next question is to determine as to whether there is any time limitation applicable to pass order for transfer of investigation. There is no direct provision in Criminal Law of Pakistan, which provides time limitation or places such embargo to pass an order for transfer of investigation in terms of Article 18A of the Police Order, 2002, however, learned counsel for parties have referred certain judgments in favour and against application of limitation over such orders.
In cases reported as Qari Muhammad Rafique v. Additional Inspector General of Police (Inv.), Punjab (2014 SCMR 1499) and Muhammad Nasir Cheema v. Mazhar Javaid and others (PLD 2007 Supreme Court 31), the Hon'ble Supreme Court has observed that order for transfer of investigation at a belated stage when challan had already been submitted in Court, charge had been framed and trial had commenced, is unsustainable in the eye of law. This dictum has been followed by this Court in cases reported as Liaqat Ali Virk v. Inspector General of Punjab Police, Lahore and 8 others (PLD 2010 Lahore 224), Munir Ahmad v. Additional Inspector General of Police, Punjab and 6 others (2016 MLD 2039), Zafar Ali v. Regional Police Officer and 3 others (2017 YLR 1703), Muhammad Idrees v. Regional Police Office, Sheikhupura and others (2019 PCr.LJ Note 105) and Muhammad Naveed v. Inspector-General of Police, Punjab and others (2019 P Cr.LJ Note 130).
Conversely, in Muhammad Akbar v. The State and another (1972 SCMR 335), Muhammad Yousaf v. The State and others (2000 SCMR 453), Muhammad Ashfaq v. Amir Zaman and others (2004 SCMR 1924), Bahadur Khan v. Muhammad Azam and 2 others (2006 SCMR 373) and Raja Khurshid Ahmed v. Muhammad Bilal and others (2014 SCMR 474), followed by High Courts in Muhammad Hafeez v. District Police Officer Narowal and 4 others (2010 YLR 3142), Muhammad Mazhar v. Additional I.G. Police Investigation Branch Punjab Lahore and 3 others (2011 YLR 2463), Muhammad Gulfan v. Regional Police Officer, Sheikhhupura Range, Lahore and 7 others (2012 PCr.LJ 1493), Abdul Hakeem v. Shaban and 9 others (2017 YLR 1488), Abid Hussain v. The State through SHO, Police Station Nawab Town and others (2022 PCr.LJ 83), judgment dated 21.03.2022, passed in W.P.No.21663 of 2021 and so many other cases, the Hon'ble superior Courts of the country are of the view that nothing bars the Investigating Officer to collect all the relevant evidence pertaining to allegation levelled regarding the crime in issue so as to dig out the truth enabling and facilitating the Court to administer justice between the litigants. The door of investigation is not closed after submission of report under Section 173 Cr.P.C. and re-investigation can be conducted even if the Court has taken cognizance of the case, as all these events cannot be made basis for the stoppage of the investigation.
10. From the survey of above referred case-law, relevant provisions of the Code of Criminal Procedure, 1898 and the Police Order, 2002, this Court is of the view that there is no encumbrance for police to conduct re-investigation or further investigation of a case even if an earlier report under Section 173 Cr.P.C. has been submitted before the Court and the Court has taken cognizance of the matter. Equally, police is competent to re-investigate and to submit fresh challan on the basis of subsequent investigation. However, transfer of investigation would be regulated by Article 18A of the Police Order, 2002. The only impediment in this regard is that re-investigation or further investigation is not permissible after conclusion of trial of the criminal case.
11. The other pivotal question is whether re-investigation or further investigation can be conducted during pendency of private complaint. Needless to say that where challan and private complaint regarding same alleged occurrence are pending before the same Court, the private complaint is to be taken up first for trial and trial of challan case would depend upon the fate of trial in private complaint. The rationale behind such practice / procedure is that in case of conviction in private complaint, the prosecution may opt to withdraw challan case and if trial of private complaint results in acquittal, trial in challan case may proceed and material available in first trial may be used in second trial as per law. It is also observed that if the parties are equipped with evidence which was either not available at the time of first investigation or according to them was not taken into consideration properly, they may produce the same in private complaint. This observation is taking guidance from dictum laid down by the Hon'ble Supreme Court in Nur-Elahi v. The State (PLD 1966 Supreme Court 708), operative part whereof is reproduced hereunder:- "After considering all aspects of the matter, we hold that a fair procedure would be for the learned trial Judge to take up the complaint case first for trial. During that case the learned trial Judge may call the witnesses mentioned in the Police challan, if they were not already examined on behalf of the complainant, as Court witnesses under section 540-A of the Criminal Procedure Code, so that they can be cross-examined by both the parties. This will enable the Court to have the whole relevant evidence in cluded in one trial and a decision could be arrived at after a proper consideration of the entire material relied on by the parties. The accused persons would in addition obviously have the right to adduce defence evidence if they so choose. If that trial results in a conviction, it will be for the Public Prosecutor to consider whether or not he should withdraw from the prosecution, with the permission of the Court, under section 494 of the Code of Criminal Procedure, in the Police challan case. It would be easy for him to take such a decision after the whole evidence has been thrashed out in the first trial. If the first case ends in an acquittal, he might still have to consider whether the Police version has not been so seriously damaged by what has been brought out in the first trial, as to justify withdrawal of the prosecution. Otherwise the second trial would be allowed to proceed to its normal conclusion and the parties would have the advantage of utilizing the material placed on the record of the earlier trial, by way of cross- examination of the relevant witnesses as permitted by law.
This procedure is being suggested to avoid a difficulty that might otherwise confront the complainant. If the Police challan is taken up first for trial, the complainant would be under a handicap in so far as he would not be in a position to cross examine the witnesses for the prosecution.
Another difficulty may arise in respect of conducting the case on behalf of the complainant in the first trial. Normally, of course, under the law, the Public Prosecutor is to be in charge of the case, even if the trial is based on a private complaint. The Public Prosecutor, however, in the social circumstances of the case, could permit the complainant's counsel to conduct they proceedings on his behalf under his directions. Alternatively and that may meet the situation more adequately, Government in the' interest of justice, could notify the complainant's counsel, as a special Public Prosecutor, for the conduct of that case alone. This would ensure full justice to the complainant and he would not be left with any sense of grievance. He is at present challenging the bona fides of the Police investigation We, therefore, allow the appeal and direct that the trials will be taken up by the Judge in accordance with the observations made above."
In a subsequent judgment reported as Muhammad Rafique v. Muhammad Rafique and another (PLD 1983 Supreme Court 426), the Hon'ble Supreme Court emphasized to follow the procedure of trial in private complaint and challan case as enunciated in the case of Nur-Elahi supra. Similar view was also reiterated by august Supreme Court in case reported as Niaz Ahmed v. Hasrat Mahmood and others (PLD 2016 Supreme Court 70), relevant part whereof is reproduced hereunder:- "3.... The law is equally settled on the point that where the same party lodging the FIR also institutes a private complaint containing the same allegations against the same set of accused persons then the trial court is to hold a trial in the complaint case first and in the meanwhile the Challan case is to be kept dormant awaiting the fate of the trial in the complaint case and a reference in this respect may be made to the cases of Nur Elahi v. The State, etc. (PLD 1966 SC 708), Zulfiqar Ali Bhutto v. The State (PLD 1979 SC 53), Syed Muhammad Hussain Shah v. Abdul Hamid and 5 others (1981 SCMR 361), Mumtaz and others v. Mansoor Ahmed and another (1984 SCMR 221), Rashid Ahmad v. Asghar Ali and others (PLD 1986 SC 737) and Aziz-ur-Rehman v. The State (PLD 1987 Lahore 245)..."
12. From the guidance and steering thoughts gathered from afore-noted verdicts, it is observed that when challan case and private complaint are pending before a Court, trial in private complaint shall be carried out and concluded in the first instance and proceedings in challan case shall remain dormant, which may commence thereafter, if need be. Likewise, re-investigation or further investigation by police shall not be carried out during pendency of private complaint as it would not serve any useful purpose rather it would tantamount to deviate from the law settled by the august Supreme Court and increase agony and troubles of parties to produce evidence / witnesses time and again before different forums. However, re-investigation or further investigation within the contemplation of Article 18A of the Police Order, 2002 may be conducted after conclusion of proceedings in private complaint depending upon the fate of the trial.
13. As a sequel to above discussion, instant petition is allowed in the manner that re-investigation pursuant to impugned order dated 14.01.2022, passed by respondent No.3 / Deputy Inspector General (Investigation), Punjab, Lahore, shall not be conducted till conclusion of trial in the private complaint.