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Petitioner: Abid Hussain VS Respondent: The State, etc
Court Name: Lahore High Court Judge(s): Muhammad Shan Gul Title: Abid Hussain vs The State, etc Case No.: W.P. No.5777 of 2020 Date of Judgment:2021-07-09 Reported As: 2022 P Cr.L J 83, 2021 LHC 2737 Result: Petition dismissed
JUDGMENT
JUDGMENT MUHAMMAD SHAN GUL, J. Through this judgment, this Court intends to decide the titled constitutional petition filed by the petitioner with the prayer to quash and set aside the order dated 08.1.2020 passed by Inspector General of Police, Punjab/respondent No.2 on the recommendation of respondents No.3 and 4 i.e. Addl. Inspector General (Investigation), Lahore and the Standing Review Board, whereby a third change of investigation has been ordered in crime report bearing F.I.R. No. 934/19 dated 13.5.2019 under sections 279, 427, 337-G PPC, P.S. Nawab Town, Lahore registered at the instance of respondent No.6 i.e. complainant, Rana Saeed Ahmad whose son Salman Saeed was badly injured in the incident. 2. The allegation contained in F.I.R. No.934/19 is to the effect that on 06.5.2019 at 3.30 p.m., Salman Saeed, the son of the complainant while riding his motorcycle and travelling to Thokar Niaz Beg was recklessly hit from behind by a car which dragged him on the road and then fled away. That the occurrence stood captured by the CCTV cameras. On account of the occurrence the left leg of Salman Saeed received multiple fracture injuries and that similar injuries were also sustained on the head and shoulder of Salman Saeed. 3. The initial investigation of the case was entrusted to Muhammad Akram, ASI who commenced his investigation by retrieving video recording from the CCTV cameras of Punjab Safe City Authority . Upon learning about the registration number of the car he identified the owner as one Major Shahzad Ahsan Kahoot, who was found to be present on border duty at the relevant time and, therefore, quite conveniently implicated his driver i.e. present petitioner before this Court Abid Hussain as the prime suspect and started investigation. An application for first change of investigation was submitted by the complainant side (complainants ' son) in which it was clearly mentioned that investigation of the case was not being conducted in accordance with law and that the actual culprits had not been identified or arrested by the Investigation Officer. The Standing Review Board discussed the issue in its meeting on 27.7.2019 and after due deliberations recommended the case for first change of
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investigation. The matter was marked to DSP, Nawan Kot vide order dated 29.7.2019. The complainant still remained unsatisfied with the conduct of investigation because according to him the police was trying to protect the alleged actual culprit, one Umar Azad Kahoot, and in his stead the police had conveniently nominated his driver Abid Hussain even when Abid Hussain had nothing to do with the occurrence and was not involved. The complainant side relied on the CCTV footage, call data record (CDR) and the presence of Umar Azad Kahoot within the precincts of the place of occurrence at the relevant time and, therefore, prayed, by means of an application to DIG (Investigation), Lahore for second change of investigation. The matter was again referred to the Standing Review Board, which, after due deliberations, recommended the case for second change of investigation in its meeting held on 26.9.2019 and the matter was referred to SP Organized Crime, CIA, Lahore on 10.10.2019 by way of second change of investigation. Interestingly, however, the SSP, Organized Crime stayed put and did not touch the investigation file because according to him charge had been framed in the matter by the trial court and on account of which he could not pursue the investigation. Since the conduct of the SSP in refusing to investigate brought the complainant back to the position where he was before the recommendation for second transfer of investigation, Saeed Ahmad complainant submitted another application for third change of investigation and the same was referred to the Standing Review Board. The Standing Review Board discussed in detail the merits of the case in its meeting held on 26.12.2019, summoned both parties who were adequately heard in the matter, heard the point of view of previous Investigation Officers in the case and thereafter recommended third change of investigation vide order dated 08.1.2020. Minutes of the meeting allowing the third change of investigation are reproduced hereunder:- "The meeting of the Board constituted for 3rd change of investigation was held on 26.12.2019. In the meeting, record of the case F.I.R. No. 934 dated 13.05.19 u/s 279/427/337-G PPC Police Station Nawab Town District Lahore was examined. Both the parties and the I.Os were also heard by the Board. The request for 3rd change of investigation was made by the complainant Saeed Ahmed. 2. Brief facts of the case and previous investigation are as under:- i. The complainant Saeed Ahmed stated that on 06.05.19, his son Salman Saeed was on way to Thokar Niaz Baig on motorcycle. At about 03.10 a.m. a rashly driven car hit his motorcycle. Resultantly, his son was critically injured. He received an information from mobile phone No.0333-7491074 and rushed to hospital. As per medical legal report, his leg was fractured and received injuries at different part of body. His mobile phone was missing. On this case was registered. ii. ASI Muhammad Akram conducted the investigation, visited the crime scene and recorded the statement of injured Salman Saeed and fulfilled the codal formalities. After receipt of MLC of injured person, section 337- A1.A2.F1.F6 PPC was added. I.O. got footage from Safe City authority about the accident. As per footage, car No.LEO-1 1 Model 14 was identified which was involved in the accident. The said vehicle is owned by Shehzad Hussain Kahoot. During investigation, all concerned joined the investigation. It revealed that at the time of accident, Abid Hussain driver driving the car. He obtained interim bail and joined the investi gation and gave his version that he is responsible for accident. During course of investigation, I.O declared the accused driver Abid Hussain guilty of the offence. iii. On the transfer of the I.O, Zulfiqar Ali Butt DSP/SDPO Circle Nawan Kot Lahore took up the investigation. Both the parties joined the investigation, cross examined and heard at length. During course of investigation, the accused Abid Hussain was declared guilty and challaned in the case. Later on, the bail of the accused Abid Hussain was confirmed by the court concerned. iv. On the transfer of the investigation, Mr. Iftikhar Asim Kamboh/SP Organized Crime CIA Lahore took up the investigation and did not conclude investigation with the observation that the case is subjudice in the court and charge has been framed on 27.09.19. Further investigation was not conducted on sole reasons. v. The charge has been framed on 27.09.19. 3. On perusal of the record, the Board has made following observations:- i. Cogent reasons have been given by the applicant for change of investigation. ii. Prima face investigation has been conducted unilaterally without associating all the concerned.
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iii. There is circumstantial and material evidence available on record, needs further probe to dig out the real facts and to ascertain the actual culprits involved in the incident. 4. Conclusion:- Recommended for 3rd change of investigation." 4. Aggrieved by the said order passed by Inspector General of Police, Punjab on the recommendation of Standing Review Board, the petitioner , Abid Hussai n, has approached this Court through the titled petition on the ground that since challan had been submitted and charge had been framed in the matter against him, the impugned order could not have been passed. On the initial date of hearing i.e. 31.1.2020, a learn ed Singe Judge while admitting the constitutional petition to regular hearing suspended the operation of the impugned order dated 08.1.2020 and since then no investigation whatsoever has taken place. 5. It can be noticed straightaway that from the very outset the complainant of the case has been clamoring about the police not identifying or associating the actual culprit involved in the matter . From the very beginning, it is the case of the complainant that one Umar Azad Kahoot who is son of a retied SSP of the Police (real brother of the owner of the car) is the actual culprit but the police in order to hide his identity and support him has conveniently sidelined him and made his driver i.e. petitioner before this Court, Abid Hussain, a scapegoat in the matter . Throughout, the complainant has urged the police to act on the basis of call data record (CDR) and the CCTV footage but according to him the police has refused to tow this line. It has been his case that while the initial investigating officer Muhammad Aslam as also one Zulifqar Butt DSP (who verified the investigation conducted by Muhammad Aslam and rubber stamped it) flatly refused to even consider his plea, let alone address it, since both of them had served under the command of the father of Umar Azad Kahoot, the SSP Organized Crime to whom the investigation was marked by way of second change of investigation refused to touch the file since in his opinion charge had been framed by the trial court. Therefore, no investigation whatsoever has taken place. The complainant has, therefore, maintained that ever since the registration of this case, the actual culprit who needed to be identified and made part of investigation has not even been remotely associated. 6. The counsel for the petitioner contends that F.I.R. No. 934/19 was registered on 13.5.2019. That a report under section 173 Cr.P.C. was submitted in the trial court on 13.9.2019 and the trial court took cognizance by way of framing of charge on 27.9.2019. That first change of investigation was ordered on 29.7.2019 while second change of investigation was ordered on 10.10.201 9 and now a third change of investigation has been ordered on 08.1.2020 and the same has been marked to one Tariq Azeem, DSP Investigation Branch, Punjab. He submits that the order passed by Inspector General of Police is in gross defiance of the law laid down by the Hon'ble Supreme Court of Pakistan in "Qari Muhammad Rafique v. Additional Inspector General of Police (INV.), Punjab and others" (2014 SCMR 1499 ) which deprecates transfer of investigation or reinvestigation after framing of charge. Adds that trial on the judicial side is being hampered by successive attempts of the complainant to get and have his way on the administrative side. Further submits that change of investigation can only be ordered if there are cogent and sound grounds and not otherwise. Also objects that by way of the impugned order , investigation for third time has been marked to a DSP even when secon d change of investigation had resulted in the matter being marked to an SSP and, that Article 18-A(3) of Police Order, 2002 stands offended since if at all the transfer had to take place, the investigation should have been marked to a similarly placed or a higher placed officer and not a DSP. He has also relied on "Asif Ali v. Province of Sindh through Chief Secretary Government of Sindh Secretariat Karachi and 10 others" (2016 P.Cr.LJ 1484), "Riaz Hussain and others v. The State" (1986 SCMR 1934) and "Muhammad Nasir Cheema v. Mazhar Javaid and others" (PLD 2007 SC 31) to submit that transfer of investigation, change of investigation, further investigation or even reinvestigation cannot be ordered after framing of charge. 7. On the other hand, the counsel for the respondent (complainant) has laid great emphasis on the fact that the argument about the multiple investigations crumbles and falls to the ground when considered in the context of the facts of the case. He submits that while the initial Investigation Officer Muhammad Aslam and the DSP, Nawan Kot who verified his investigation, conducted the investigation in a unilateral manner without paying any heed or importance to the cries of the complainant, and on the basis of which investigatio n, charge has been framed, the
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SSP Organized crime did not touch the file and hence there was no further investigation and it is only through order dated 08.1.2020 that the complainant managed to bring the actual picture before the Standing Review Board and it is only now that the investigation may be conducted in a proper , legally sanctioned and judicially acknowledged manner . Complains that on account of interim relief granted by this Court, the investigative process stands halted ever since January this year which is statutorily deplorable on account of Section 56-E of the Specific Relief Act, 1877. He submits that had the Investigation Officer bothered to collate the CCTV footage with the call data record, it would have transpired that it is actually Umar Azad Kahoot who was responsible for the hit and run incident and that his driver Abid Hussain, the petitioner , had chosen to become a scapegoat only offering himself as a martyr instead of his master . He submits that there is no legal bar in the Code of Criminal Procedure for an investigation to take place even after submission of challan or for that matter after framing of charg e. Adds, that the argument that there can be no investigation after framing of charge is nave and misplaced because it fails to take into account trite law contained in "Aswad Iqbal v. R.P.O. and others" (PLD 2020 Lahore 434) and is offensive to and falls foul of Article 18-A of the Police Order, 2002 and renders it redundant. He submits that genuine concerns of the complainant based on the correct premise have so far not been attended to by any Investigation Officer, therefore, the Standing Review Board approved and the Inspector General of Police agreed to an investigation after framing of charge. Further states that the Review Board itself has acknowledged that not only did the complainant highlight cogent reasons for change of investigation but that all previous investigations had been conducted in a unilateral perfunctory manner without bothering to take into account material and circumstantial evidence that could have led to ascertainment of the actual culprit involved in the matter. 8. He has also seriously questioned the locus standi of the petitioner in coming to this Court because according to him the petitioner only stands to gain from the order under challenge and it is indeed mind-boggling as to why a person who is facing trial and risks being convicted will object to an investigation that could lead to him getting away scot free and which could save him from the rigors of a criminal trial. He submits that the conduct of the petitioner is indeed questionable, reeks of malice and is definitely rooted in ulteriors. In answer to the objection of the petitioner about investigation being marked to a DSP who is not higher in rank to an SSP, he submits that since the SSP did not touch the case file and did not conduct any investigation and since earlier a DSP had investigated the matter , therefore, there was nothing legally wrong or objectionable in transferring investigation to a similarly placed DSP. He adds that the SSP Organized Crime never called any parties and never set the investigative process into motion and only made an observation about staying his hands. He has relied on "Muhammad Akbar v. The State" (1972 SCMR 335), "Raja Khurshid Ahmed v. Muhammad Bilal and others" (2014 SCMR 474), "Bahadur Khan v. Muhammad Azam and 2 others" (2006 SCMR 373), "Aftab Ahmad v. Hassan Arshad and 10 others" (PLD 1987 SC 13) and "Atta Muhammad v. Inspector-General of Police, West Pakistan, Lahore and others" (PLD 1965 (W.P.) Lahore 734) to canvass that there is no legal bar for an investigation to take place after submissi on of challan, after framing of charge or for that matter till conclusion of trial. He submits that the only point at which an investigation cannot be ordered is the point of culmination of trial and not before. In answer to the petitioners' objection about why the complainant has not pursued the remedy of a private complaint, the counsel for the complainant submits that since the entire evidence consisting of call data record as also CCTV footage is in the possession of the police and since is it not willing to part with it, the complainant on account of no fault of his own was not in a position to file a private complaint and that even otherwise in the presence of the Police Order 2020, his request for investigation was backed by statutory law and was not novel. 9. Ever since 1972, Hon'ble Apex Court of the country has been of the opinion that the police may reinvestigate a case and there is nothing in the Code of Criminal Procedure to prevent an Invest igating Officer from submitting a subsequent report in supersession of his earlier one. In "Muhammad Akbar v . The State " (1972 SCMR 335 ):- "We agree with the observations of the learned Judge of the High Court that there is nothing in the Code of Criminal Procedure to prevent the Investigating Officer from submitting a subsequent report in supersession of his earlier one, eithe r on his own initiative or on the direction of the superior Police Officer."
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10. Subsequently a two member bench of Hon'ble Apex Court in "Aftab Ahmad v. Hassan Arshad and 10 others" (PLD 1987 SC 13) after discussing the then existing case law on the subject and referring to Muhamm ad Akbar case (supra) observed that "as the point raised by the learned counsel regarding the competency of subsequent investigation after the submission of the first report under section 173, Cr. P. C. stands resolved , we do not consider it proper to grant leave to appeal to examine the same point again". Relevant except of discussion is given below:- "The law on the first point raised by the learned counsel, is settled. The first case coming to our notice in which the previous law was also discussed is Muhammad Niwaz v. The Crown (48 Cr.LJ 774) wherein a Division Bench of the Lahore High Court held that the number of investigations into a crime by a police officer is not limited by law and when one has been completed, another may be begun on further information received., And this was also possible even after the submission of the challan report, when the Court has already taken cognizance of the case. This Court also in Muhammad Akbar v. The State and another (1972 SCMR 335) held that there is nothing in the Code of Criminal Procedure to prevent the Investigating, Officer from submitting a subsequent report in supersession of his earlier one either on his initiative or on the direction of the superior police officer.` There are other cases also. See : Noor Nabi Agha v. The State (PLD 1972 Kar. 292), Muhammad Hayat v. The Chief Settlement and Rehabilitation Commissioner and another (PLD 1970 Lab. 679), Alam Din v. The State (PLD 1973 Lab. 304)-in this case also previous case law was discussed and reliance was placed on very weighty observations in this behalf made in Atta Muhammad v. Inspector-General of Police, West Pakistan Lahore and others (PLD 1965 (W. P.) Lab. 734), no reason has been advanced for us to differ with these observations Muhammad Khan and others v. Inspector-General, Police, Punjab, etc. (PLD 1976 Lab. 574) and Muhammad Khan v. Inspector-General of Police, Punjab, Civil Secretariat, Lahore and 2 others (PLD 1978 Lab. 731). Previous law was again discussed in the last mentioned case. 11. In the case reported as "Muhammad Yousaf v. The State and others" (2000 SCMR 453) a two member bench of Hon'ble Apex Court while relying on a judgment of this Court reported as (PLD 1965 (W.P) Lahore 734) observed that:- "7..........................However , we may add that since there is no legal bar on the re-investigation of the case, even after the submission of final report under section 173, Cr.P.C., the police may carry out fresh investigation and submit its report to the Court." 12. Thereafter , a three member bench of Hon'ble Supreme Court in "Muhammad Ashfaq v. Amir Zaman and others" (2004 SCMR 1924 ) while referring to Aftab Ahmad' s case (supra) reiterated the same view in the following terms:- "3........................... There is nothing in the Criminal Procedure Code, which debars the police to re-investigate a case to unearth the truth. The law stands settled by this Court long ago, which had been reiterated in Aftab Ahmad v. Hassan Arshad and 10 others PLD 1987 SC 13." 13. Likewise, a three member bench of Hon'ble Supreme Court once again in "Bahadur Khan v. Muhammad Azam and 2 others " (2006 SCMR 373) while referring to previous case law reiterated the same view by observing that:- "It is well-settled proposition of the law as also held consistently in the reported judgments of this Court and those cited by the learned Advocate-on-Record, in view of the provision of section 173, Cr.P.C. that no legal bar existed for reinvestigation of a criminal case even after submission of final report under section 173, Cr.P.C. and the police could carry out the fresh investigation and submit its report to the Court." 14. In the case reported as "Raja Khurshid Ahmed v. Muhammad Bilal and others" (2014 SCMR 474), a two member bench of Hon'ble Supreme Court observed about reinvestigation in the following words:- "It would be seen that as per settled law, there is no bar to the reinvestigation of a criminal case and the police authorities are at liberty to file a supplementary challan even after submission of the final report under section 173, Cr.P.C. However this cannot be done after the case has been disposed of by the learned trial Court (see Bahadur Khan (Supra)."
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In a recent case, reported as "Aswad Iqbal v. R.P.O. and others " (PLD 2020 Lahore 434), the court relied on "Raja Khurshid Ahmed v. Muhammad Bilal and others" (2014 SCMR 474) and held at para 20: If the argument of learned counsel for the petitioner that after framing of the charge, no order for change of investigation can be passed by the relevant authorities designated under the Order , is accepted, it would tantamount to rendering Article 18-A of the Police Order , 2002 to be redundant. Redundancy of one piece of legislation by way of its interpretation with the other is neither desired nor approved. It is always desired that efforts must be made to create harmony even amongst conflicting laws while interpreting them and a harmony between the laws must be created. The above object duly advanced through legal provisions has been well explained in the case reported as "Raja Khursheed Ahmad v . Muhammad Bilal and others " (2014 SCMR 474 ). 15. In the case reported as "Sohail Jiwani v. Ghulam Qadir Thebo" (2016 PCr.LJ 107 Sindh) , a division bench of Hon'ble Sindh High Court observed that:- "6.....................There seems no prohibition either in the Cr.P.C. or under Police Rules, 1934, whereby, there would have been placed a bar or restriction on further investigation or reinvestigation of a criminal case in respect of a cognizable offence. In the cases, relied upon by the learned counsel for the petitioner, we are of the humble view that though such practice of reinvestigating matters by the Police after submission of challan before the competent Court at the instance of Chief Minister or any other political influential person has been disapproved, however, only in cases, where such reinvestigation is based on mala fides and has been conducted at the behest of some influential persons either to involve an innocent person into a false case or to give undue benefit to an accused person, who has been charged with a cognizable offence and there is sufficient material and evidence available with the prosecution." 16. On the other hand, judgments reported as "Qari Muhammad Rafique v. Additional Inspector General of Police (Inv.), Punjab " (2014 SCMR 1499 ), "Muhammad Nasir Cheema v. Mazhar Javaid and others " (PLD 2007 Supreme Court 31), "Riaz Hussain and others v. The State " (1986 SCMR 1934 ), "Muhammad Idrees v. Regional Police Officer, Sheikhupura etc." (PLJ 2019 Lahore 502), "Muhammad Naveed v. I.G. of Police, Punjab, etc." (PLJ 2019 Lahore 531), "Munir Ahmad v. Additional Inspector General of Police, Punjab and 6 others " (2016 MLD 2039 ), and similar such High Court judgments hold that when trial had commenced after framing of charge, transfer of investigation, reinvestigation or any further investigation was not permissible at such a belated stage. 17. In "Qari Muhammad Rafique v. Additional Inspector General of Police (Inv.), Punjab" (2014 SCMR 1499) a three member bench of Hon'ble Supreme Court while relying on a judgment reported as "Muhammad Nasir Cheema v. Mazhar Javaid and others" (PLD 2007 Supreme Court 31) (wherein it was held that changing the investigation or ordering further…
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