MUHAMMAD IQBAL Versus State
ORDER
HAFIZ ABDUL REHMAN ANSARI, J.--- Through this constitutional petition, petitioner has called in question the order dated 26-10-2009 passed by respondent No.2, Additional Inspector-General of Police (Investigation), Punjab, Lahore, by which the police officer ordered the first change of investigation in case F.I.R. No.2090 dated 18-6-2009 under section 302, 34, P.P.C. Police Station Sarai Sidhu, District Khanewal.
2. Learned counsel for the petitioner submits that after thorough investigation report under section 173, Cr.P.C. has been submitted before the learned trial Court on 13-8-2009, on which learned trial Court has taken cognizance, charge has been framed against the accused arrayed in the report under section 173, Cr.P.C., even, four P.Ws. have got recorded their statements on 5-12-2009; at this stage fresh investigation as ordered by respondent No.2, A.I.G. Police, Punjab, for change of investigation vide order dated 26-10-2009 can prejudice the case of prosecution/complainant; that fresh investigation at this stage in the light of such order will hamper the trial of the case before the learned trial Court; learned counsel for the petitioner has prayed in the writ petition that order dated 26-10-2009 should be set aside; learned counsel makes reliance on case titled Muhammad Nazir Cheema v. Mazhar Javaid and others PLD 2007 SC 31, the ratio settled in this case is that after submission of challan before the learned trial Court fresh investigation cannot be commenced.
3. On the other hand, learned counsel for respondents Nos.5 and 6/accused argued that order passed by respondent No.2/A.I.G. Police on their application is valid order under section 18(6), Police Order, 2002; the investigation cannot be stopped, fresh investigation can be initiated after submission of report under section 173 Cr.P.C.; learned counsel makes reliance on case reported as Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373; further submits that case relied upon by the learned counsel for petitioner is not identical with the case in hand, which has different facts and that was an election case in which question of forged decree for contesting the election was involved while in the instant case question of murder of human being is involved; he further contended that judgment cited by the learned counsel for the petitioner is comprising of two Judges of Honourable Court while Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373 is the judgment comprising of three Honourable Judges of Supreme Court; further contended a judgment of the larger Bench of the Supreme Court would be preferred over the judgment of a smaller Bench of Supreme Court. Reliance in this regard is placed on case titled as Azmatullah through L.Rs v. Mst. Hameeda Bibi and others 2005 SCMR 1201.
4. I have heard the learned counsel for the parties and perused the record.
5. There is no bar to hold fresh investigation after submission of challan under section 173, Cr.P.C. if new material or evidence is collected by the Investigating Officer he will place the same before the learned trial Court it is upto the learned trial Court to consider the same. The argument of the learned counsel for respondent/complainant is convincing that fresh investigation can be commenced after submission of challan. In case titled the judgment of three Judges of the Supreme Court reported as Bahadur Khan v. Muhammad Azarn and 2 others 2006 SCMR 373, it is held that investigation can be made after submission of challan. In case titled Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31 it is observed by the Honourable Supreme Court that after submission of challan before the learned trial Court fresh investigation cannot be commenced whereas in the judgment titled Azmatullah through L.Rs v. Mst. Hameeda Bibi and others 2005 SCMR 1201, it is observed that the judgment of larger Bench of the Supreme Court will be preferred over the judgment of smaller Bench of Supreme Court. In the light of dictum laid down in the case titled as Azmatullah through L.Rs v. Mst. Hameeda Bibi and others 2005 SCMR 1201 being the judgment of larger Bench is followed. Although in the instant case report under section 173, Cr.P.C. is submitted before the learned trial Court, trial has commenced. Even, statement of some P.Ws. have been recorded as submitted by the learned counsel for the petitioner. Order passed by the respondent No.2, Additional Inspector General of Police (Investigation), Punjab, Lahore, dated 26-10-2009 is quite legal, just and in accordance with law. Respondent No.2, Additional Inspector General of Police (Investigation), Punjab, Lahore, has rightly exercised his power under Article 18(6) of the Police Order, 2002 and has passed this order which is assailed in this writ petition. There is no illegality in the order dated 26-10-2009 assailed in this writ petition. However, it is discretion of the learned trial Court to take into consideration any fresh material, which is collected by the Investigating Officer in the subsequent investigation made after submission of challan.
6. With the above observations this writ petition is disposed of.
N.H.Q./M-105/L Petition dismissed.