Stereo H C J D A 38.

Judgment Sheet
LAHORE HIGH COURT MULTAN BENCH
MULTAN
JUDICIAL DEPARTMENT

Writ Petition No.4994 of 2019

Aswad Iqbal. v. R.P.O., etc.

JUDGMENT

Date of hearing 23.04.2019

Petitioner by Mr. Mazhar Abbas Wasli, Advocate

Respondents by Rana Mehboob Ali, Advocate

State by Mr. Zulfiqar Ali Sidhu, Assistant

Advocate General with Abdul
Rehman ASI.

--------------
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 respondent 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 application 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.
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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.
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
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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 necessary 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 Magistrate 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 officers, who can generally investigate
an offence.
1. Officer Incharge of police station (Sec.156 Cr.P.C.)

2. Assistant Sub Inspector. (Rule 25(2) of Police

Rules, 1934).
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3. Officer superior to officer incharge of police

station. (Section 551 Cr.P.C.)

Certain other Provisions of Cr.P.C specify officers 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 officer not below the rank of sub inspector of
police. (Section 21/22 of CNSA. 1997)
4. An officer not below the rank of Inspector. (Section
19 of the Anti-Terrorism 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-officer 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-officer 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 the discovery and arrest of
the offenders. Any police officer may be so deputed under this
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Writ Petition No.4994-2019

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 officer 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 officer 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 Pakistan
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 3rd April, 2006.
According to Section 2(k) of the said Act,
“Prosecution” means the prosecution of a criminal case;
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Writ Petition No.4994-2019

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 unnecessary
delay, and, as soon as it is completed, the officer 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
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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 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 officer 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
Government, 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
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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 unnecessary 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
Magistrate within next three days. Thus, the provision containing words
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„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
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
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(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 station 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.
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Writ Petition No.4994-2019

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 makes clear that arrest of an accused is not a pre-condition for holding
an 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 respectively 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
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Writ Petition No.4994-2019

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
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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 polarization being in vogue in the country, this
vicious trend gained currency generating a sense of despondency amongst
the litigants. This practice also politicized the police, adversely affecting
their overall efficiency and performance in the field of investigation.
Realizing the adverse repercussions of whimsical exercise of discretion for
change of investigation by some of the superior police officers on the eye
blink of powerful quarters, The Police Order 2002 (Chief Executive’s
Order No. 22 of 2002) (hereinafter to be referred as „the Order‟) was
promulgated with the aim to reconstruct and regulate the police. The order
provides certain measures introducing structural reforms in the hierarchy of
the police service, besides a formal mechanism, streamlining the process for
the change of investigation. According to Article 18-A of the Order, contrary
to the previous practice, by way of change of investigation, inter alia the
numbers of investigations have been fixed. For ready, reference, the relevant
provision of Article 18-A of the Police Order, (Amendment, Act 2013
(XXI of 2013), 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
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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; 7 Inserted by the
Punjab Police Order (Amendment) Act 2013 (XXI of
2013).

(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.
15. The procedure, unambiguously, for transfer of Investigation, in case a
party is not satisfied with the quality of an investigation, or the conduct of
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any investigating officer has exhaustively been explained in article 18-A of

the Police Order, 2002.
For the 1st change of investigation, an application preferably in
writing by an aggrieved party, is to be submitted to the Head of District
Police. Within seven working days of filing of such application, the Head
of District Police has to place it before the District Standing Board, to be
constituted by him consisting of a Superintendent of Police as Chairperson
and two officers not below the rank of Deputy Superintendent of Police as
its members. The said Board will then give its opinion, in writing, consisting
of its recommendations. The Head of the District Police, while examining
the opinion so formed by the Board, after recording reasons, in writing, may
transfer investigation of a case from one investigating officer to some other
investigating officer or a team of investigating officers equal or higher than
the rank of previous investigating officer.

For 2nd change of investigation, if the head of District Police, has

decided an application for transfer of application, an aggrieved party, has to
submit an application to the Regional Police Officer seeking change of
investigation. Within seven working days of filing of such application, the
Regional Police Officer has to place it before the Regional Standing Board,
to be constituted by him consisting of a Superintendent of Police as
Chairperson and two officers not below the rank of Superintendent of
Police as its members. The said Board will then give its opinion, in writing,
consisting of its recommendations. The Head of the Regional Police, after
examining the opinion so formed by the Board, after recording reasons, in
writing, may transfer investigating of a case from one investigating officer to
some other investigating officer or a team of investigating officers equal or
higher than the rank of previous investigating officer (s).

For the 3rd change of investigation, if the Regional Police Officer, has
decided an application for transfer of investigation, an aggrieved party, has
to submit an application to the Provincial Police Officer {to be appointed
under article 11 of Police Order 2002}. Within thirty days of filing of
such application, the Provincial Police Officer has to place it before the
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Standing Review Board, to be constituted by him, consisting of a Deputy

Inspector General of Police as Chairperson and two officers not below the
rank of Superintendent of Police as its members. The said Board will then
give its opinion, in writing, consisting of its recommendations. The Head of
the Standing Review Board, after examining the opinion so formed by the
Board, in writing, may transfer the investigating of a case from one
investigating officer to some other investigating officer or a team of
investigation equal or higher than the rank of previous investigating officer.
The perusal of article 18-A(3) of Police Order, 2002 makes it clear that
conspicuously the requirement for passing an order in writing for third
change of investigation is missing. Moreover, unlike the constitution of
District Standing Board and the Regional Standing Board by the requisite
authorities within a stipulated statutory period of seven working days of
filing of application for 1st & 2nd change of investigation, has also been
omitted in proviso 3 of the said Article. However, it may be stated that no
order can be passed in the air by any of the functionary of the State. Even in
absence of such requirement of passing an order in writing, it is expected
that while passing an order on the application for 3 rd change of investigation,
the Provincial Police Officer, shall keep under consideration the spirit of
section 24-A of General Clauses Act, 1897. It may be pointed out that in
case of Capital City District, a reference to Head of District Police and
Regional Police Officer shall be construed to be the Head of District
Investigation Branch of the Capital City and Capital City Police Officer
respectively.

The standing boards have a mandate to look into the faults of the
investigation conducted by previous Investigating Officers. The board
should give its opinion based on some reasons. The boards can also examine
the justification and bona fides of the applicant seeking change of
investigation. In the cases reported as Muhammad Ashfaq vs. Additional
Inspector General of Police (Investigation Punjab, Lahore and 3 others
(2013 P Cr. L J 920), Abdul Qayyum vs. D.P.O. and others (2016 P Cr. L J
618) some guidelines have been pronounced which are required to be
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Writ Petition No.4994-2019

fulfilled for making an application for change of investigation.

No crime should remain undetected nor any guilty person should
go scot free nor any innocent person should face the rigor of
prosecution.
16. Article 18-A of Police Order, 2002 when examined closely, it
explicitly set out no period of limitation after registration of a criminal case
for filing an application seeking transfer/change of investigation. It further
reveals that even if the investigation is changed, no outer time limit of period
has been fixed for its conclusion. It only provides that in case of filing of
applications seeking transfer of investigation by either of the parties to the
case, the respective authorities i.e. the Head of the District Police, the
Regional Police Officer and the Provincial Police Officer, shall within
stipulated statutory periods, on filing of such applications, constitute the
respective Standing Boards and after obtaining their opinions, have to pass
order, assigning reasons, in writing, for transfer of investigation. It may be
relevant to mention, as discussed above, that in case of third change of
investigation, the requisite time period within which, an opinion of the
relevant Review Board has to be obtained by the Provincial Police Officer
for passing the order for change of investigation, has been extended up to
thirty days. It may be important to mention that Article 18-A of Police
Order, 2002 more expressly allows holding of more than one investigations
and subsequent investigations through its formal change to be conducted by
an officer of equal or higher in rank than the previous investigating officer.
It also introduces the concept of investigation by Joint Investigation Team.
It may be observed that this concept of Joint Investigation will ensure
transparency in the investigation to be conducted by the experts having field
experience. It will improve the worth and level of investigation.
17. Diversification remained a constant feature of the universe. Allah
Almighty has created the man while bestowing upon him with a variety of
faculties. The human traits may be good or bad in their nature. The virtues
and vices go side by side. The criminals, with the rare exceptions, try to
escape from the punishment for the crime they have committed. In order to
achieve their object, they try to screen themselves off by adopting various
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Writ Petition No.4994-2019

strategies. Needless to observe that a police investigation officer has been

placed under an obligation to find out the truth of the matter under his
investigation. He has been cautioned not to commit himself to any view
about the involvement or otherwise of a person accused of an offence pre-
maturely. The wicked criminals, at sometimes, camouflage their identity in
order to save themselves from their criminal liability by adopting innovating
mechanism. The arrest of the accused is not a pre-condition for holding
investigation. Realizing diversity in criminal cases, a principle for criminal
dispensation of justice has been established by the superior Courts of the
country that each and every criminal case is to be decided on its own
peculiar facts and circumstances. Due to complications involved in detecting
the real culprits, the delay may contribute towards the completion of
investigation within the initial stipulated period of 14 days. The variety in
modes of crime and unforeseen complications might have been weighed
with the legislature for not placing any bar on further investigation. The
Prosecution Act also does not provide any specific time period in clear cut
terms for conclusion of the investigation. It only mention that if the
Prosecutor is of the opinion that the investigation cannot be completed
within a reasonable time, he shall request the Court for commencement of
trial. It can safely be concluded that nowhere in the laws, relating to subject
of investigation/reinvestigation, any limitation for conclusion of the
investigation has been provided.
18. The specific issue under discussion can also be viewed from another
angle. Section 173 Cr.P.C. contains a command that every investigation
under this Chapter shall be completed without any unnecessary delay, and as
soon as it is completed the officer incharge of the police station, through the
Public Prosecutor, forward a report to the court empowered to take
cognizance of the offence of a police report. In case, where 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., the officer incharge of the
police station, within three days of the expiration of said period, forward to
the Magistrate through the Public Prosecutor, and the court shall commence
the trial on the basis of such interim report unless for the reasons to be
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Writ Petition No.4994-2019

recorded, the court decides that the trial should not so commence. The
provision containing word „interim report‟ allows, while placing no bar on
the police officer, to hold further investigation in the criminal case. It
permits submission of a report before the Court on the basis of a subsequent
investigation. The above said provisions, in verbatim leave no doubt to point
out that after submission of report under Section 173 Cr.P.C., it is the sole
and exclusive domain and discretion of the court for commencement of trial
or its postponement. Section 9 (6)(a) & (b) of the Punjab Criminal
Prosecution Service (Constitution, Functions & Powers) Act, 2006 explains
powers and function of the Public Prosecutor. 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” 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, yet 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. It may
be observed that under Section 173 Cr.P.C., before promulgation of
Prosecution Act 2006, the role of the prosecutor was no more than a
postman. However, on the promulgation of act ibid, the prosecutor apart
from his powers mentioned in section 9 of the Act, has to perform his
statutory functions after examining the report under Section 173 Cr.P.C by
way of making a request before the Court either for the commencement or
postponement of the trial. It may be observed here that on making of such
request by the prosecutor, the Court has to consider it while applying its
judicial mind, in the peculiar facts and circumstances of the case. It may not
be out of place to mention here that the Court or the magistrate, without
losing sight of the interest of justice, shall be the final arbiter to examine the
reasonability of request so made by the prosecutor. It is also observed that
even in presence of compelling reasons for non-conclusion of investigation,
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the Court while rejecting the request of the prosecutor for the postponement
of the trial, for the reasons to be recorded, may commence the trial. The
close scrutiny of provision of sub section (6) of section 9 of the Prosecution
Act, 2006 clearly points out the above mentioned three eventualities. It is
thus observed that the forming of opinion by the prosecutor and making of
his request before the trial Court, is quite in line with the command for filing
of an interim report under Section 173 Cr.P.C, due to its non-completion
within a statutory period of 14 days.
19. Article 18-A of Police Order, 2002 when examined, it explicitly set
out no period of limitation for filing of applications seeking any change of
investigations after its commencement from the stage of registration of a
criminal case under Section 154 Cr.P.C., only the statutory period of seven
days has been provided in the said Article in order to pass an order by the
relevant authority for the change of first and second change of investigation.
This period however, in case of third change of investigation has been fixed
as thirty days. It may be held that even after passing of the order for change
of investigation no outer time line has been prescribed for completion or
conclusion of investigation. This is perhaps to enable the investigating
officer to find out the truth of the matter under his investigation. The
submission of report under section 173 Cr.P.C. and commencement of trial
thus creates no bar to pass an order for the change of investigation in terms
of Article 18-A of the Police Order, 2002. In case a contrary view is taken, it
would tantamount to defeat the object of Article ibid leading to its
redundancy. Needless to say that the opinion of the investigating officer is
neither admissible in evidence nor binding upon the courts. The proposed
evidence, collected through investigation, on is transformation into real
evidence in a Court of law only matters for deciding a case.
20. Before the promulgation of the Prosecution Act, as observed
hereinabove, forwarding of an interim report under Section 173 Cr.P.C., the
court itself has to decide either to commence the trial or to postpone it. On
promulgation of the Act ibid, the proactive role for prosecutor has been
envisaged. He after examining the compelling reasons (compiled by the
Station House Officer or the Investigating Officer) for delay in completion
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of investigation, shall make his own opinion about the reasonability of the
compelling reasons for non-completion of the investigation. If he is of the
view that the reasons for non-completion of the investigation, prima facie
are virtually compelling, he shall make request to the Court for
postponement of the trial. However, in case, he forms his opinion that
despite availability of the reasons, the investigation cannot be completed
within a reasonable time or there appears to be no reason for con-completion
of investigation, the Prosecutor shall make a request to the Court or the
Magistrate for commencement of the trial. Needless to observe that a court
shall have to make its own decision, after applying its judicial mind while
considering the request of the Prosecutor and facts and circumstances of the
case. 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 the 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 the
conflicting laws while interpreting them and a harmony beween the laws
must be created. The above object duly advanced through the legal
provisions has well been explained in the case reported as Raja Khursheed
Ahmad vs. Muhammad Bilal and others (2014 SCMR 474) wherein it has
been held as under:-
“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)
Similarly there is no cavil to the proposition that a Court of law is not
bound by the Ipsi Dixit of the police authorities and rather should
formulate its own independent views irrespective of the investigation
whether or not to charge the accused with a particular crime. Seen in this
view of the matter, perhaps no exception can be taken to the Judgment of
the learned High Court which has held as such i.e. that a charge under
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section 380, P.P.C. can also be framed against the accused if sufficient
material is placed on the record which would convince the learned trial
Court to do so. However this aspect does not debar the police authorities
from carrying out further investigation in the case. In this regard reference
can be made to Article 18(6) of the Police Order, 2002 (Supra). The
correspondence placed on record tends to show that firstly the Additional
Inspector General, Investigation Branch, Punjab had not agreed with the
findings of the Board for re-investigation vide letter dated 23-12-2011.
Thereafter the Capital City Police Officer, Rawalpindi vide his letter dated
10-2-2012 addressed to the Additional Inspector-General insisted for the
first change of investigation which was again resisted by the latter Vide
his reply dated 20-2-2012. Yet again vide letter dared 15-3-2012 the
Capital City Police Officer insisted on his earlier views and finally vide
letter dated 24-3-2012, the Additional Inspector-General relented and
agreed to the change of investigation. Consequently we are of the view
that the matter has not been thoroughly examined at the level of the police
officials concerned and perhaps due to pulls and pressures the first change
of investigation has been ordered.”

21. The learned counsel for the petitioner has failed to point out any
defect in exercise of powers by respondent No.2 for passing the impugned
order of first change of investigation on the request of respondent No.7.
Therefore, for what has been discussed hereinabove, the instant writ petition
being without merits, stands dismissed.

(Anwaarul Haq Pannun)

Judge

Approved for reporting

Judge

*Yasin*