FAROOQ HAIDER, J. Through this constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 197 , petitioner has challenged the vires of order No.7132/DSP/L SB, dated: 04.10.2021 passed by Deputy inspector General of Police, Investigation, Lahore (hereinafter to be referred as impugned order) whereby on application of accused dated: 04.09.2021, received in concerned office on 06.09.2021, investigation of case arising out of FIR No.200/2020, dated: 22.04.2020 registered under sections 354, 506 337-L(2), P.P.C., at Police Station: Race Course, District: Lahore (during investigation offence under section 337-F(i), P.P.C. was also added), has been transferred from Munawar ASI (Investigation) and entrusted to DSP/SDPO Baghbanpura Circle, Lahore. Relevant portion of the impugned order is reproduced:- "A meeting of 'District Standing Board constituted under Article 18(A) of Police Order 2002 was held on 30.09.21 in Masi' which case FIR No.200/20 dated 22.04.20 under sections 354/ 506-337-L(2), P.P.C., PS Race Course, Lahore, was placed on the application of accused Bilal for its consideration for its first change of investigation. The members of the board after due deliberation and consultation recommended for change the investigation of the case.
2. As recommended by the District Standing Board, in order to verify the facts through a senior officer the investigation of the case is hereby transferred from ASI/Inv Munawar and entrusted to DSP/SDPO Baghbanpura Circle, Lahore, by virtue of office, for expediting the same purely on merits and in accordance with law."
2. Brief facts are that Mst. Saira Fatima Sadozai (petitioner) got registered above-mentioned case through aforementioned first information report; after investigation, challan report was prepared by Station House Officer (concerned) under section 173, Cr.P.C., same was forwarded by learned Public Prosecutor (concerned) and sent to Court, which was put up before learned trial court on 28.10.2020; charge was framed on 14.06.2021 in the same; accused filed aforementioned application for "Re-Investigation" of the case before D.I.G. Police (Investigation), Lahore and impugned order was passed.
3. Learned counsel for the petitioner submits that after submission of challan report, taking cognizance by learned trial court, framing of the charge and summoning of the witnesses, investigation in the case cannot be transferred, therefore, impugned order is illegal and liable to be set aside.
4. Learned Prosecutor General Punjab assisted by Ms. Nuzhat Bashir, Mr. Usman Iqbal, learned Deputy Prosecutors General and Mr. Haroon-ur-Rasheed, learned Deputy District Public Prosecutor has supported the impugned order. Mr. Mudassar Elahi Warraich, learned Assistant Advocate General Punjab and Mr. Shaukat Rafiq Bajwa, Advocate for respondents Nos.6 to 9 have also supported the impugned order.
5. Arguments heard. Available record perused.
6. Investigation has been defined in section 4(1)(1) of Cr.P.C., which is reproduced:- "Investigation". "Investigation" includes all the proceedings 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 behath"
Purpose of 'Investigation" is to dig out the truth regarding crime/occurrence put up the same before the Court. Investigating Officer has to collect fact that such to collect the on record no enabling the entire relevant facts of the occurrence irrespective of the facts favour prosecution or accused; he is under obligation evidence honestly, justly and fairly for bringing the truth only to build up the case of complainant with evidence court to record conviction but also for reaching to a just and fair decision. If investigation is not conducted on merits then ultimately it causes frightful harm to the concept of fair trial guaranteed by Article 10- of the Constitution of Islamic Republic of Pakistan, 1973. Though in Cr.P.C., no express provision for making order regarding change or re- investigation is available yet same subject has been earlier dealt in the light of section 551, Cr.P.C. and under administrative control of police hierarchy. However, in Police Order, 2002, this subject was expressly dealt by Article 18 and now being dealt under Article 18A introduced through Punjab Police Order (Amendment) Act, 2013, which is reproduced:- "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.
(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 General 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."
(emphasis added)
7. Now question does arise that if after completion of investigation and sending challan report prepared under section 173, Cr.P.C. in the Court, it is felt or highlighted that during already conducted investigation, certain aspects regarding basic/constituting elements of the offence or version of the accused could not be investigated, new facts/better evidence or further information has become available which has direct/essential/vital nexus with alleged crime, proclaimed offender in the ease has been arrested and important piece of evidence like recovery of weapon of offence is to be collected and other allied matters to be investigated, defects of vital nature in already conducted investigation has been marked/detected/pointed out, already conducted investigation remained unsatisfactory due to non-availability of required evidence or through induction of false evidence due to corrupt behavior of investigating Officer (concerned), then, non- conducting of further or fresh/re-investigation would virtually amount to putting a seal on human error and with no opportunity to make amends although it be possible to do so. Police as state agency should be as much interested as any other agency concerned in the administration of justice, to find out the truth regarding clime and lay the whole facts before the Court. Statutory functions of police as investigating agency and Courts are complementary to each other without overlapping. The fact that previous investigation had yielded certain results not act as a hurdle or a deterrent for the police in reaching the truth if additional facts/circumstances are brought to light help in its discovery.
8. Thus there is no embargo on the transfer of investigation from one police officer to the other and to carry out further or fresh/re-investigation of the case even after submission of challan in the Court; in this regard, guidance has been sought from the case of "Muhammad Akbar v. The State and another" (1972 SCMR 335), "Aftab Ahmad v. Hassan Arshad and 10 others" (PLD 1987 Supreme Court 13), "Muhammad Yousaf v. The State and others" (2000 SCMR 453), "Muhammad Ashfaq v. Amir Zaman and others" (2004 SCMR 1924) and "Raja Khurshid Ahmed v. Muhammad Bilal and others" (2014 SCMR 474); furthermore, case of "Atta Muhammad v. Inspector General of Police, West Pakistan, Lahore and others" (PLD 1965 (W. P.) Lahore 734), "Alam Din v. The State" (PLD 1973 Lahore 304) and "Aswad Iqbal v. R.P.O. and others" (PLD 2020 Lahore 434) can also be advantageously referred.
Perusal of Article 18A(1) of Police Order, 2002, reveals that for dealing with application for change of investigation, two steps are necessary for District Police Officer i.e. (i) to get opinion from District Standing Board and (ii) after receipt of opinion from District Standing Board to give reasons in writing. Getting opinion from District Standing Board is inclusive and not conclusive. Therefore, opinion of District Standing Board cannot be made as a "sole" basis for change of investigation; District Police Officer is not bound to accept said opinion blindfoldly, rather after receipt of said opinion, he has to examine entire facts and then while giving express/valid reasons in writing to pass order regarding change of investigation or otherwise, as the case may be.
It goes without saying that under Chapter 25, Rule 55 of Police Rules, 1934 police file containing case diaries of the case is sent with challan to the Court because same can be used during trial of the case, as provided under section 172(2), Cr.P.C. Rule 25.55 of Police Rules, 1934 is reproduced:- "25.55. Files of case diaries.---(I) When a case is sent for trial the police station file of case diaries shall be forwarded with the challan to the magistrate, and on completion of the trial shall be returned to the police station for record.
(2) Such files when received back at the police station, also files of other cases in which the final report has been submitted, shall be filed at the Police Station in an annual bundle A in accordance with the serial number of their first information report.
(3) Copies of case diaries in pending cases shall be kept in files at the Police Station in a separate bundle B in accordance with the numbers of their information reports.
(4) A list shall be kept in each bundle A and B of all the files contained therein merely quoting the numbers of their first information reports. Should it be necessary to remove a file from the bundle the fact will be noted in the list."
(emphasis added)
Similarly Section: 172(2) Cr.P.C. is also reproduced:- "172. Diary of proceedings in investigation.---(2) Any Criminal Court may send for the police- diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police-officer who made the, to refresh his memory, or if the court uses them for the purpose of contradicting such police-officer, the provisions of the Evidence Act, 1872, section 161 or section 145, as the case may be, shall apply."
Therefore, if after submission of challan in the court and forwarding police file with the same, further or fresh/re-investigation is going to be ordered and police file is required then providing proper written intimation in this regard to the learned trial court is very much necessary.
Perusal of the impugned order reveals that D.1.G. Police (Investigation) after receipt of opinion of District Standing Board without mentioning the quality of already conducted investigation as well as conduct of first investigating officer and even without mentioning that which fact of the case has earlier not been seen/verified and now requires verification, transferred investigation through impugned order. Therefore, impugned order does not carry valid/express reasons in writing by D.I.G. Police (Investigation), Lahore, hence, same is not fulfilling spirit of Article 18A of Police Order, 2002 as well as section 24-A of the General Clauses Act, 1897 and thus not sustainable.
9. In view of above, impugned order is hereby set aside, matter is remanded to D.I.G. Police (Investigation), Lahore where application filed by accused for re-investigation shall be deemed as pending and E decided afresh through speaking order containing express reasons in writing, expeditiously.
10. It goes without saying that although power to pass order for change of investigation as well as fresh/re-investigation after submission of challan has been considered as "inherent" in Article 18A of Police Order, 2002 yet it is left to the Government (concerned) to see necessity/suitability of express legislation with respect to further, fresh or re-investigation after submission of challan in criminal case.
11. Registrar of this Court is directed to transmit a copy of this judgment to Law Secretary (concerned) as well as to the Inspector General of Police, Punjab, Lahore.
12. Petition sands disposed of accordingly.