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Official Citation: 2020 PLD 434
Court / Jurisdiction: Lahore High Court
Year of Decision: 2019
Decision Date: 2019-04-23
Parties: Aswa d Iqbal vs R.P.O., etc
This judicial decision was delivered by the Lahore High Court on 2019-04-23. The matter involves proceedings between Aswa d Iqbal and R.P.O., etc, officially reported as 2020 PLD 434. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as PLD 2020 Lahore 434
Court Name: Lahore High Court Judge(s): Anwaarul Haq Pannun Title: Aswa d Iqbal vs R.P.O., etc Case No.: Writ Petition No.4994 of 2019 Date of Judgment:2019-04-23 Reported As: PLD 2020 Lahore 434, 2019 LHC 2931 Result: petition dismissed
Judgment Anwaarul Haq Pannun, J. The petitioner, through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has challenged the vires of order dated 12.02.2019, passed by Respondent No.2/City Police Officer, Multan whereby , application filed by respond ent No.7, for second change of investigation of case FIR No.547 dated 30.06.2018, registered in respect of an offence under Section 365-B PPC, r at Police Station Seetal Mari, District Multan, has been allowed. 2. Briefly , the facts of the case are that respondent No.7 lodged the aforesaid criminal case against the petitioner and others. The investigation of the case, since could not be completed within fourteen days of registration of case, thus, the Station House Officer forwarded an interim report under Section 173 Cr.P.C before the learned trial court. Respondent No.7, feeling himself aggrieved of the investigation, moved an applica tion before respondent No.2 for transfer/change of the investigation and its entrustment to some other investigating officer, which was allowed vide impugned order and consequently , the same was entrusted to Yousaf Haroon DSP Headquarter , Multan, hence, this writ petition. 3. Learned counsel for the petitioner submits that after forwarding an interim report under Section 173 Cr.P.C by the Station House Officer, taking cognizance of the offence and framing of charge on 22.01.2019 by the learned trial court, order for the change of investigation could not be passed, hence the impugned order of change of investigation, being illegal, may be struck down. In order to fortify his contention, he has relied upon the case reported as Qari Muhammad Rafique vs. Additional Inspector General of Police (Inv.) Punjab and others (2014 SCMR 1499 ). 4. Conversely , learned Law Officer and learned counsel representing respondent No.7, have submitted that there is no legal bar on further investigation by way of its transfer . While relying on case reported as Raja Khurshid Ahmad Vs. Muhammad Bilal and others (2014 SCMR 474) they have opposed the above submissions made by learned counsel for the petitioner and have prayed for dismissal of the instant writ petition.
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5. The arguments advanced by the learned counsel for the parties have been heard and record perused. 6. It is felt that the subject under consideration requires reproduction of text of some relevant legal terms and provisions of Statutes to highlight their bearing on the instant case, hence the same are reproduced hereinafter in a chronology . 7. According to Ordinary Dictionary , word "investigation " means official examination of the facts about a situation, crime etc. However , in the legal parlance, the term investigation has been defined under section 4(l) of the Code of Criminal Procedure, 1898 (hereinafter called as "Code"), is reproduced as under:- "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 authorized by a Magistrate in this behalf. According to Law Dictionary by Dr . A R Biswas, Investigation generally consists of the following steps: (1) Proceedings to the spot; (2) ascertainment of the facts and 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 statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered neces sary for the investigation and to be produced at the time of trial, and (5) formation of the opinion as to whether on the materials collected there is a case to place the accused before a Magi strate for trial and, if so, taking the necessary steps for the same by the filing of a charge-sheet under Section 173. In Section 4(p) & 4(s) of Criminal Procedure Code, 1898, the terms Police Station and Station House Officer? have been defined as under: "4(s) "Police station" "police station" means any post or place declared, generally or specially, by the 1 [Provincial Government] to be a police station, and includes any local area specified by the 1 [Provincial Government] in this behalf." "4(p) "Officer incharge of a police station" "Officer incharge of a police station" includes, when the officer incharge of the police station is absent from the station house or unable from illness or other cause to perform his duties, the police officer present at the station house who is next in rank to such officer and is above the rank of constable or, when the 6 [Provincial Government] so directs, any other police officer so present." Perusal of relevant provisions of the Code of Criminal Procedure, 1898 and the Police Rules, 1934 , as given below , reveal that there are three classes of of ficers, who can generally investigate an of fence. 1. Officer Incharge of police station (Sec.156 Cr .P.C.) 2. Assistant Sub Inspector . (Rule 25(2) of Police Rules, 1934). 3. Officer superior to officer incharge of police station. (Section 551 Cr .P.C.) Certain other Provisions of Cr .P.C specify of ficers of particular rank which are competent to investigate:- 1. Officer not below the rank of Superintendent of Police to investigate offence under section 295-C of P.P.C. (156- A Cr.P.C.) 2. Officer not below the rank of Superintendent of Police to investigate where a person is accused of an offence of Zina (Enforcement of Hadood) Ordinance, 1979. (156-B Cr .P.C) 3. An of ficer not below the rank of sub inspector of police. (Section 21/22 of CNSA. 1997) 4. An of ficer not below the rank of Inspector . (Section 19 of the Anti-T errorism Act, 1997) Under Section 156 of Code of Criminal Procedure, 1898 , any officer incharge of police station may, without the order of Magistrate, investigate any cognizable case occurring in his police station. Term "officer incharge of police station " has been defined in section 2(p) of Cr .P.C. as under:- "Officer incharge of a police-station ". Officer incharge of a police-station' includes, when the officer incharge of the police-station is absent from the station house or unable from illness or other cause to perform his duties, the police-of ficer present at the station house who is next in rank to such officer and is above the rank of constable or, when the Provincial Government so directs, any other police-of ficer so present. According to 25(2) of Chapter 25 of Police Rules, 1934 (1) An officer incharge of police station is empowered under section 157(1) of Cr.P.C. to depute a subordinate to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for
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the discovery and arrest of the offenders. Any police officer may be so deputed under this section but where a police officer under the rank of assistant sub inspector is deputed the investigation shall invariably be taken up and completed by the of ficer incharge of police station or an assistant sub inspector at the first opportunity . 551. Powers of superior officers of police: Police officers superior in rank to an officer incharge of a police station may exercise the same powers, throughout the local area to which they are appointed, as-may-be exercised by such of ficer within the limits of his station. 156A. Investigation of offence under Section 295C, Pakistan Penal Code. Notwithstanding anything contained in this Code, no police officer below the rank of a Superintendent of Police shall investigate the offence against any person alleged to have been committed by him under Section 295C of the Pakista n Penal code, 1860 (Act XLV of 1860). 156B. Investigation against a woman accused of the offence of zina.---Notwithstanding anything contained in this Code, where a person is accused of offence of zina under the Offence of zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979), no police officer below the rank of a Superintendent of Police shall investigate such officer nor shall such accused be arrested without permission of the court. Since the prosecutor has been assigned a proactive role in submission of report under Section 173 Cr.P.C, therefore, it will be appropriate to reproduce some relevant text from the statue etc. Term " Public Prosecutor ." has been defined in Section 4(t) of the Code in the following words "Public Prosecutor " means any person appointed under section 492, and includes any person acting under the directions of a Public Prosecutor and any person conducting a prosecution on behalf of the State in any High Court in the exercise of its original criminal jurisdiction." It may also be mentioned here that the term Prosecution' and Prosecutor' both have been defined in the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 (III of 2006) (hereinafter to be called as, Prosecution Act) promulgated on 3 April, 2006. According to Section 2(k) of the said Act, "Prosecution" means the prosecution of a criminal case; The word "prosecution" in its widest sense means: "The continuous following up through instrumentalities created by law, of a person accused of a public offence with a steady and fixed purpose of reaching a judicial determination of the guilt or innocence of the accused it consists of all the successive steps having relation to each other taken against the accused by the officers charges with the enforcement of criminal law , it contemplates proceedings judicially ." As per Section 2(l), Prosecutor" means the Prosecutor General, Additional Prosecutor General, Deputy Prosecutor General, District Public Prosecutor, Deputy District Public Prosecutor, Assistant District Public Prosecutor and a Public Prosecutor appointed under this Act and shall be deemed to be the public prosecutor under the Code; 8. The moot question, requiring its determination through the instant proceedings, is, whether the relevant designated authority under Police Order , 2002 can pass an order for change of investigation of a criminal case upon submission of interim report of investigation under Section 173 Cr.P.C by the S.H.O through the Public Prosecutor , when the Court, while taking cognizance, had already framed the charge against the accused?. The said question can be answered through a combined reading of various provisions of Code of Criminal Procedure 1898, Prosecution Act, promulgated on 3rd April 2006, Police Rules 1934 and Police Order , 2002. For ready reference, Section 173 Cr .P.C. is reproduced hereunder:- Report of police-officer (1) Every investigation under this Chapter shall be completed, without unnecessar y delay , and, as soon as it is completed, the of ficer incharge of the police-station shall, 1[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 Provincial Government, 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, andrd
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(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given. [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 incharge 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 . (emphasis provided) (2) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the 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 incharge of the police-station to make further investigation. 9. The provision of Section 173 Cr.P.C, catering no ambiguity , contains a command in clear terms, that every investigation under this Chapter {Chapter XIV of Criminal Procedure Code, 1898 titled "Information to the Police and their Powers to Investigate"} shall be completed without unnecessary delay and as soon as it is completed , the officer incharge of the police station, through the Public Prosecutor shall forward a report to the Magistrate empowered to take cognizance of the offence on a police report. This report, shall be compiled, in the form prescribed by the Provincial Gove rnment, setting forth the names of the parties in it, the nature of the information and the names of the persons who appeared to be acquainted with the circumstances of the case. Under section 161 Cr.,P.C., the police officer making an investigation under this Chapter , has been vested with the power so as to examine orally any person supposed to be acquainted with the facts and circumstances of the case and the report shall also disclose the names of the accused arrested and forwarded in custody or released on bail on his bond and that whether the accused so released had submitted any surety or had been released without surety . The said provision further provides that in case the investigation is not completed within a period of 14 days from the date of recording of First Information Report under section 154 Cr.P.C., it casts a duty on the Station House Officer of the police station that he shall, within a period of three days of the expiration of such period {a period of 14 days } forward an interim report in the form prescribed by the Provincial Government in this behalf of the investigation through a Public Prosecutor , to the Magistrate, stating therein, the result of 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 . The scrutiny of the above provision, with a view to reply the question under consideration , makes it abundantly clear that it is the intention of the law that after its commencement, no unnece ssary delay should occasion in completing the investigation. However , in case the investigation is not completed within a period of 14 days, the Station House Officer is under a legal obligation to forward an interim report { According to Word & Phrases, word interim? means meanwhile; time intervening; interval between; belonging to an interim; done; made occurring for an interim or meantime; temporary . In a case reported as Abdul Qayyum vs. Niaz Muhammad and another (1992 SCMR 613), the word `interim' inter alia means one for the time being; one made in the meantime and until something is done; an interval of time between one event, process or period and another; belonging to or taking place during an interim; temporary; something done in the interim; a provincial arrangement adopted in the meanwhile; done, made, occurring etc. in or in the meantime; provisional} of investigation conducted till then, through Public Prosecutor to the Magistr ate within next three days. Thus, the provision containing words interim report? itself allows, enabling and authorizing the police officer to hold further investigation in a criminal case and places no bar in submission a report on the basis of subsequent investigation before the Court. The power of police has been expounded through a plethora of case law pronounced by the superior courts holding that there exists no bar for further investigation and on submission of report based on subsequently collected incriminating material. 10. Let us now examine the relevant provision of The Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 which are also relevant to the question under discussion and is reproduced
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below:- Section 9. Conduct of prosecution .- (1) The Prosecutors shall be responsible for the conduct of prosecution on behalf of the Government. (2)................. (3)....................... (4) A police report under section 173 of the Code including a report of cancellation of the first information report or a request for discharge of a suspect or an accused shall be submitted to a Court through the Prosecutor appointed under this Act. (5) The Prosecutor shall scrutinize the report or the request and may- (a) return the same within three days to the officer incharge of police station or investigation officer, as the case may be, if he finds the same to be defective, for removal of such defects as may be identified by him; or (b) if it is fit for submission, file it before the Court of competent jurisdiction. (6) On receipt of an interim police report under section 173 of the Code, the Prosecutor shall - (a) examine the reasons assigned for the delay in the completion of investigation and if he considers the reasons compelling, request the Court for the postponement of trial and in case investigation is not completed within reasonable time, request the Court for commencement of trial; and (b) in cases where reasons assigned for delay in the completion of investigation are not compelling, request the Court for commencement of trial on the basis of the evidence available on record. (7) The Prosecutor shall submit, in writing, to the Magistrate or the Court, the result of his assessment as to the available evidence and applicability of offences against all or any of the accused as per facts and circumstances of the case and the Magistrate or the Court shall give due consideration to such submission. 11. Bare perusal of subsection (4) of Section 9 of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, envisages that a report "under section 173 Cr.P.C." including "a report of cancellation of First Information Report " or a "request" for discharge of suspect or accused, be submitted to a court through a Prosecutor . Subsection (5) of the Act ibid further reveals that it authorizes the Prosecutor to scrutinize the above mentioned "report " or the "request " and permit him, who may, within three days, return the same, if he finds the same to be defective {report or request} to the officer incharge of the police statio n or investigation officer, as the case may be, for removal of defects, he had identified. It goes to disclose further that in case the Prosecutor finds no defect or fault in the report rather finds it fit for submission, he shall, as required under subsection 5, place it before the court of competent jurisdiction. Sub-section (6) of Section 9 of the Act ibid provides that on receipt of interim police report under section 173 Cr.P.C., (i) the Prosecutor shall "examine the reasons assigned " for "the delay in completion of investigation" obviously given by SHO and if he considers the "reasons to be compelling ", he "shall request " the court for the postponement of trial. (ii) In case, the Prosecutor , after examining the reasons, considers that despite reasons, still the investigation cannot be completed within a reasonable time, he shall request the court for commencement of trial and in case, (iii) reasons assigned for delay in completion of investigation are not compelling, he shall request the court for commencement of trial on the basis of evidence available on record. 12. The role of Investigating Officer is very pivotal in the hierarchy of the system for dispensation of criminal Justice. Rules 25.2, Chapter 25 of the Police Rules, 1934, for ready reference, is reproduced as under:- 25.2 Power of investigating officers .- (1)........................ (2)........................ (3) It is the duty of an investigating officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person. 13. The above-quoted rule of Police Rules, 1934 casts a duty upon investigating officer to find out the truth of the matter under investigation. It also make s clear that arrest of an accused is not a pre-condition for holding an
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investigation. The investigating officer shall not pre-maturely commit himself to any view of facts for or against any person allegedly connected with the crime under investigation. The police officer or any other person, especially empowered by a Magistrate, has been vested with the power while discharging his official obligations, to have his visual touch with the crime scene. He may examine orally any person supposed to be acquainted with the facts and circumstances of the case under investigation and may also record his statement while complying with the requirements of law in discharge of his official duty. The person under examination of the police officer conducting investigation is bound by law to answer the questions so put to him except those questions which would have a tendency to expose him to a criminal charge or forfeiture. There is a judicial consensus that investigation is the name of proceedings and process to be conducted and undertaken respectivel y by the investigating officer to collect evidence in respect of a crime or the offence alleged. The investigation consists of certain steps to be taken gradually facilitating the collection of evidence. The steps to be taken in a chronology have been enumerated in Chapter 25 of Police Rules, 1934 which are statutory rules having force of law. The investigation being foundational proceedings for raising a super structure for the prosecution of a person accused of the commission of an offence for its placement before the Court of law for deciding the case. These steps must be taken fairly without fear, favour or bias against any party. Investigation must be conducted while keeping in view the object for achieving the philosophical idea behind formation of a criminal justice system consisting of various rungs in a ladder leading to its eternal destination known as dispensation of justice. It may be relevant that while conducting investigating, the investigating officer must collect the evidence at its earliest available opportunity without wasting any time. The delay in collection of evidence, unless explained satisfactorily, sheds its negative repercussion upon the cases in the courts. Needless to observe that it is not the domain of an investigating officer to pronounce guilt or innocence of an accused as it is the exclusive domain of the courts being final arbiter in this regard. Neglect, lethargy , lure, greed, persuasions, venom and malafide , despite their disapproval by the society, are the inherent human weaknesses and the enactment of various penal laws is the proof of realization of this eternal human trait. 14. Before the promulgation of Police Order 2002 (Chief Executive's Order No. 22 of 2002) under the law in force, neither any specific provision, empowering a particular authority nor any statutory mechanism, providing procedure for change of investigation of a criminal case from one police officer to another was available. The superior officers of the Police Department, in view of their positions in the official hierarchy, while exercising their general administrative powers, used to pass orders for change of investigations of criminal cases. Mostly, the persons wielding influence including the political personalities, while exploiting their positions used to get passed the orders for change of investigations of criminal cases from the superior officers for entrustment of the same with the investigating officer of their choice to get favourable results/opinions. This unhealthy trend and tendency caused disappointment and dissatisfaction amongst the criminal litigants with increasing possibilities, defeating the object of fair and impartial investigation into crimes. Ultimately , this practice caused a sense of injustice at the very stage of investigation amongst the people concerned. Needless to say that in view of sharp parochial political…
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