Through this Constitutional Petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the vires of order dated 02.02.2022 passed by Regional Police Officer (Multan Region), Multan for second change of investigation of case F.I.R. No. 521/2021 dated 09.08.2021 offences under sections 379 and 427, PPC registered at Police Station Gagoo, District V ehari.
2. It is inter alia contended by learned counsel for the petitioner that respondent No. 2 has passed the impugned order on wrong premises of law; that report under section 173, Cr.P.C. has already been submitted on 06.11.2021 before the court of competent jurisdiction; that despite issuance of bailable warrants of arrest accused/respondent No. 8 has not bothered to enter appearance before the learned trial court; that the conduct of accused/respondent No. 8 is amount to hoodwink the process of law; that it has been settled by now that after submission of report under section 173, Cr.P.C. and specially when the learned trial court has already taken cognizance by issuing process against the accused/responden t No. 8, then change of investigation is nullity in the eye of law; that respondent No. 8 has not challenged the basic Order passed by District Police Officer, Vehari for the first change of investigation because vide order No. 2197-2199 dated 08.12.2021 District Police Officer, Vehari has turned down the application of respondent No. 8 for the first change of investigation; that if the District Police Officer, Vehari has refused to accept the supplication for first change of investigation then under the law without setting aside the said order , the order for change of 2nd investigation cannot be passed.
3. Contrarily , learned Assistant Advocate General assisted by learned counsel for respondent No. 8 has argued that respondent No. 2 has passed a well-reasoned and speaking order which cannot be termed as illegal or unwarranted in any way; that investigation can be changed even after submission of report under section 173, Cr.P.C. Learned counsel for respondent No. 8 has placed reliance upon the case law reported as Raja Khurshid Ahmed vs. Muhammad Bilal and others (2014 SCMR 474). Lastly submitted that this petition has no force and the same may kindly be dismissed.
4. Arguments heard and record perused.
5. Facts in brief are that the petitioner got registered a criminal case against respo ndent Nos. 4, 8 and others vide F.I.R. No. 521 dated 09.08.2021 under sections 379 and 427, PPC at Police Station Gagoo, District Vehari, according to which, accused persons damaged the tractors of the petitioner and committed theft. It was averred that after registration of F.I.R., investigat ion was entrusted to respondent No. 7 who thoroughly investigated the matter and by declaring respondent No. 8 and his son namely Shakeel fully involved in the commission of crime as well as co-accused Muhammad Tariq, Noor Ahmad and Zahoor Ahmad innocen t prepared report under section 173, Cr.P.C. and submitted the same before the learned trial court on 16.11.2021, whereupon, proceedings were initiated by the court of competent jurisdiction who summoned the accused persons for 12.01.2022 to face the trial.
On 12.01.2022 respondent No. 8 and his co-accused did not appeared before the learned trial court whereupon the learned trial court issued bailable warrants of arrest against them for 16.03.202 2. Thereafter respondent No. 8 moved an application for first change of investigation before respondent No. 5/ District Police Officer, Vehari but respondent No. 5 rejected the request of respondent No. 8. Surprisingly , respondent No. 8 moved an application for 2nd change of investigation before respondent No. 2 who vide order dated 02.02.2022 changed the investigation of the case and the same was entrusted to respondent No.4. It was alleged that impugned order for the change of investigation dated 02.02.2022 after the submission of report under section 173, Cr.P.C. was illegal, void, abinitio and without lawful authority and liable to be set aside.
6. After registration of F.I.R. in terms of section 154, Cr.P.C. the investigation of a criminal case is to be conducted by the investigating officer in the light of section 156, Cr.P.C. The word 'investigat ion' has been defined in section 4(1), Cr .P.C. which reads as under:-
(l) "Investigation": -Investigation" includes all the proceed ings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.
It is noteworthy that object of the investigation is to collect the evidence/material. It has been well settled by now that investigating officer has no authority to issue a certificate of guilt or innocence of an accused person because it is the prerogative of the learned trial court. The prime duty of the investigating officer is that he has to collect the evidence and produce the same before the court of competent jurisdiction in the shape of report under section 173, Cr.P.C. To understand and resolve the controversy between the parties in this case, it is expedient to have a glance over section 173, Cr .P.C. which is hereby reproduced as under for the purpose of facilitation:-
173. Report of police officer . 1 [(1) Every investigation under this Chapter shall be completed without unnecessary delay , and as soon as it is completed, the officer in charge of the police station shall 2 [,through the Public Prosecutor ,]
(a) forward to a Magistrate empowered to take cognizance of the offence on a police report a report, in the form prescribed by the 3 [Provincial Governme nt], setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and
(b) communicate, in such manner as may be prescribed by the 3 [Provincial Government], the action taken by him to the person, if any , by whom the information relating to the commission of the of fence was first given [:]2 2 [Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under section 154, the officer in charge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor , an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence.]
(2) Where a superior officer of police has been appointed under section 158, the report shall, in any cases in which the 1[Provincial Government] by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the of ficer in charge of the police station to make further investigation.
(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. 2 [(4) A copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial: Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to furnish it free of cost.] 3 [(5) Where the officer in charge of a police station forwards a report under subsection (1), he shall along with the report produce the witnesses in the case, except the public servants, and the Magistrate shall bind such witnesses for appearance before him or some other Court on the date fixed for trial.] The bare reading of above mentioned segment shows that every investigation shall be completed without any delay and, as early as possible, it will be completed the same shall be submitted before the court of competent jurisdiction through concerned quarter . Similarly , according to section 173 (1)(b), Cr.P.C. a period of 14 days from the date of registration of F.I.R. is given for the purpose of investigation and submission of report under section 173, Cr.P.C. and in case of non-completion of investigation, three more days can be given to the officer in charge of police station for the op-cit purpose. The wisdom can be derived from the bare reading of section 173, Cr.P.C. that investigating officer has no un-limited power to prolong the investigation with his own whish and whims, even otherwise, there was no reasoning to specify the period for the completion of investigation.
7. As per law, after submission of report under section 173, Cr.P.C. the court takes cognizance in the light of section 190, Cr .P.C. Section 190, Cr .P.C. defines the term 'cognizance' as infra:- [190. Cognizance of offences by Magistrates. [(1) All Magistrates of the first class, or any other Magistrate specially empowered by the Provincial Government on the recommendation of the High Court, may take cognizance of any of fence __
(a) upon receiving a complaint of facts which constitute such of fence;
(b) upon a report in writing of such facts made by any police of ficer;
(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion that such of fence has been committed which he may try or send to the Court of Sessions for trial.
I have noticed that cognizance means the application of mind by the learned trial court with respect to facts, new facts and ascertainment about the seriousness and evidentiary value of such facts. It has also been established that the learned trial court is competent to take cognizance of an offence in case of even negative report is submitted by the police. Learned trial court is under legal obligation to see each and every effect of the matter pertaining to its jurisdiction while taking cognizance of the offence and summoning of the accused placed in column No. 02 of the Challan.
8. I have noticed that already respondent No. 8 filed an application for the change of investigation before District Police Officer, Vehari (respondent No. 5) who after obtaining recommendations from District Standing Board turned down the request of respondent No. 8 for the first change of investigation. Being dissatisfied, respondent No. 8 applied for the second change of investigation before Regional Police Officer, Multan/ respondent No. 2, who passed the impugned order dated 02.02.2022 for the second change of investigation. I have also observed that respondent No. 8 has not challenged the order passed by District Police Officer Vehari for the first change of investigation. After going through the impugned order between the lines it transpir ed that Regional Police Officer/ respondent No. 2 has not set aside the order of District Police Officer, Vehari for first change of investigation which is still intact. Thus, in my humble view, without setting aside the order passed by District Police Officer, Vehari for the first change of investigation, the impugned order could not be passed. To better appreciate and resolve the controversy in hand, it is appropriate to go through the law on the subject for the change of investigation. Article 18(A) of Police Order , 2002 deals the situation, which is hereby described as under for ready reference:- "18A. T ransfer 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 investiga tion officer or a team of investigation officers of a rank equal to or higher than the rank of the previous investigation of ficer.
(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 of ficer or of ficers.
(3) If a Regional Police Officer has decided an application for transfer of an investigation, the Provincial Police Officer may, 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 of ficers.
(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.
(5) For the purpose of this Article-
(a) 'District Standing Board' means the District Standing Board constituted by the Head of District Police consisting of a Superintendent of Police as chairperson and two officers not below the rank of Deputy Superintendent of Police as members;
(b) 'Regional Standing Board' means the Regional Standing Board constituted by the Regional Police Officer consisting of a Superintendent of Police as chairperson and two Superintendents of Police as members;
(c) 'Standing Review Board' means the Standing Review Board constituted by the Provincial Police Officer consisting of a Deputy Inspector Gene ral of Police as chairperson and two officers not below the rank of Superintendent of Police as members; and
(d) reference to Head of District Police and Regional Police Officer in the case of Capital City District shall be construed to mean the Head of District Investigation Branch of the Capital City and the Capital City Police Officer, respectively .
After going through the supra mentioned provisions of law, it is evident that while issuing an order for the change of investigation the competent officer is duty bound and under legal obligation to give reasons in writing for passing order for transfer of investigation.
The word 'reason' has been defined in Oxford Advanced Learner 's Dictionar y which is replicated infra for facilitation:- Reason a cause or an explanation for that has happened or that has done; or explanation, grounds, basis, excuse, motive justification pretext; or the process of thinking about things in a logical way, opinions and ideas that are based on logical thinking. What is the reasoning behind this decision.
Similarly , word 'reason' has been defined in KJ AIYAR Judicial Dictionary 16th Edition which is hereby reproduced for further reference:- Reason Reasons are the links between the materials on which certain conclusions are based and the actual conclusions.
More so, in case titled as Muhammad Babar vs. Senior Special Magistrate, Recovery , FTR, Faisalabad and two others ( 2001 YLR 1293 ), the 'word reasoning' has been defined as under:- "It will be worthwhile to refer the definiti on of word 'reason' and the term 'reaso nable' as given in Blacks Law Dictionary; Sixth Edition, Centenial Edition (1891-1991 as under:- Reason. A faculty of the mind by which it is distinguishes truth from falsehood, good from evil, and which enables the possessor to deduce inference from facts or from propositions. Also an inducement, motive or ground for action, as in the phrase 'reasons for an appeal'.
Reasonable. Fair, proper , just, moderate, suitable under the circumstances. Fit and appropriate to the end in view.
Having the faculty of reason, rational; governed by reason; under the influence of 1 reason; agreeable to reason.
Thinking, speaking or acting according to the dictates of reason. Not immoderate or excessive, being synonymous with rational honest, equitable, fair , suitable, moderate, tolerable.
9. Adverting to the moot point of this case whether after submission of report under section 173, Cr.P.C. investigation of criminal case can be changed or not? It is observed in this conte xt that when court of competent jurisdiction has taken cognizance then it is sole prerogative of the learned trial court to adjudicate upon the matter after recording and evaluating the evidence. When the police has already submitted a report under section 173, Cr.P.C. and learned trial court has also issued bailable warrants of arrest of respondent No. 8 and his co-accused vide order dated 12.01.2022 then there was no occasion for respondent No.2 to pass the impugned order for the change of investigation.
Insofar as the case law Raja Khurshid Ahmed vs. Muhammad Bilal and others (2014 SCMR 474) referred to by learned counsel for respondent No. 8, is concerned, I am of the humble view that the same has been passed by two honorable members Bench, whereas, on the same point in case titled as Qari Muhammad Rafique vs. Additional Inspector General of Police (Inv.) Punjab and others (2014 SCMR 1499 ), the decision was handed down by three honorable members Bench who disapproved this system altogether by relying on the case law reported as Muhammad Nasir Cheema vs. Mazhar Javaid and others (PLD 2007 SC 31) wherein it was held that changing the investigation or directing further investigation in the case after submission of report under section 173, Cr .P.C. is an exercise unsustainable.
10. It has been well settled by now that public functionaries are duty bound to decide the matters in accordance with law after application of his own indep endent mind which should be a speaking order in the light of section 24-A of the General Clauses Act, 1897. Section 24-A of the Act Ibid reads as under:- "24-A Exercise of Power under enactments
(1) Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority , office or person such power shall be exercised reasonably , fairly, justly and for the advancement of the purposes of the enactment;
(2) The authority , office or person making any order or issuing any direction under the powers conferred by or under any enactment shall so far as necessary or appropriate give reasons for making the order or as the case may be for issuing the direction and shall provide a copy of the order or as the case may be the direction to the person af fected prejudicially .
Similar question has already been taken up by this Court in the case titled as Abdul Sattar vs. Additional Inspector-General of police (investigation), Punjab, Lahore and 2 others (PLD 2008 Lahore 557) wherein it has been held as under:- "No doubt, it is envisaged that ultimate order is passed by respondent No.1 as being over all head of the investigation but the interpretation assumed by respondent No.1 is alien to law if the recommendations of the Board was of no worth and was of no value then there was no need to enact for the provision, for constitution of Board, for change of investigation and said interpretation, in my view, is an effort to defeat the wisdom of legislature, which has provided a mechanism to avoid the multiplicity of investigations. However , if the Board had not passed any speaking order or had not given any cogent or solid reasoning for change of investigation, then respondent No.1 should have referred the matter to the District Standing Board for its reconsideration for speaking order as provided under section 24-A of the General Clauses Act, which envisaged that each and every authority is bound to pass speaking and well-reasoning order . If the interpretation of respondent No.1 is accepted and ultimate change is left at his discretion and he is given authority to brush aside the recommendation of District Standing Board just on his wishes and whims, then the provisions of Article 18(6) ibid become redundant. In my view the legislation in its wisdom has bestowed upon him an office of Post Master if the very recommendation for change of investigation is well-reasoned and speaking one then respondent No.1 is bound to change the investigation, otherwise, the District Standing Board can be asked for reconsideration as observed above."
Similar view has also been reiterated in the case titled as Muhammad Shoaib vs. The State and three others (2006 YLR 2694 ).
11. Another important aspect of this case is that when the order passed by the Regional Police Officer, Multan for the change of investigation is unwarranted by the law then this Court has ample power to interfere and set aside the same as observed in the cases reported as Anwar Ahmad Khan vs. The State (1996 SCMR 24), Raja Rustam Ali Khan vs. Muhammad Hanif ( 1997 SCMR 2008 ) wherein it has been held at page No. 2012 as under:- "It would, therefore, be seen that if an investigation is launched mala fide by the Investigating Agencies, the same is open to correction by invoking the constitutional jurisdiction of the High Court under Article 199 of the Constitution."
12. The accumulative affect of supra mentioned discussion is that respondent No. 2 has passed the impugned order dated 02.02.2022 without applying its sagacious and independent mind while ignoring the case on the subject reported as Qari Muhammad Rafique vs. Additional Inspector General of Police (Inv.) Punjab and others (2014 SCMR 1499 ) and Muhammad Nasir Cheema vs. Mazhar Javaid and others (PLD 2007 SC 31).
Resultantly , instant petition is hereby accepted and the impugned order dated 02.02.2022 passed by Regional Police Officer (Multan Region), Multan is declared to be illegal and unwarranted and the same is, hereby , set aside . No order as to costs.
6. After registration of case investigation was conducted by Aamir Hussain Kazmi, ASI who declared accused Muhammad Tariq, Noor Ahmad and Zahoor Ahmad innocent in this case, whereas, Muhammad Anwar (respondent No. 8) as well as one Shakeel Ahmad were found involved in commission of crime. Report under section 173, Cr.P.C. was prepared on 16.03.2021 vide case diary No. 12 and the same was submitted through Road Certificate No. 1385 dated 02.11.2021 in the court of competent jurisdiction. The learned Magistrate section 30, Multan issued summons in the name of accused persons mentioned in report under section 173, Cr.P.C. on 06.11.2021 for the date of 12.01.2022. On 12.01.2022 the accused persons did not appear before the learned trial court and the learned trial court issued bailable warrants of arrest to the tune of Rs. 30,000/- for 16.03.2022. During proceedings of the case before the court of competent jurisdiction respondent No.2 passed the impugned order which has been assailed through the present writ petition.