ALTAF AHMAD MAKHDOOM Versus INSPECTOR GENERAL OF POLICE, PUNJAB

The absence of arbitrary power is the first postulate of rule of law upon which our whole constitutional edifice is based If the discretion is exercised without any principle or without any rule, it is a situation amounting to the antithesis of rule of law. 1

TARIQ SALEEM SHEIKH, J.---The Petitioner lodged FIR No.16/2021 dated 10.1.2021 under sections 337-F(vi), 365, 367, 392, 420, 468, 471, 109, 34, P.P.C. at Police Station Kot Momin, District Sargodha, against Respondent No.10 and others accusing them of kidnapping and torturing him and getting his thumb impressions on blank papers. The case was investigated by Maqbool Ahmad/ASI of Police Station Kot Momin who found that the accused had committed the alleged offences. The SHO of that police station verified his investigation. Respondent No.10 was dissatisfied with that investigation so he made an application to the District Police Officer. The latter referred the matter to the District Standing Board (DSB) and on its recommendation transferred the investigation of the case to Ghulam Jaffar DSP/SDPO, Shahpur, vide Office Order No. 512-14/CMO dated 6.3.2021. This officer not only found that the nominated accused were guilty but that Respondent No.9 had abetted the offence. This finding prompted Respondent No.10 to move the Regional Police Officer, Sargodha, for reinvestigation who placed the matter before the Regional Standing Board (RSB) and on its recommendation transferred the case to the Regional Investigation Branch, Sargodha, vide Office Order No. 12908/C dated 9.6.2021. Azhar Yaqoob/SP investigated again and endorsed the findings of Ghulam Jaffar DSP/SDPO. Thereupon, Respondent No.9 submitted an application to the Inspector General of Police for third change of investigation. The Standing Review Board (the Review Board ) considered the request in its meeting held on 11.8.2021 and on its recommendation the Inspector General accepted it vide Office Order No. 27349/Inv/HA dated 27.8.2021 and transferred the case to a panel comprising Syed Asad Muzaffar, SP (Investigation) and Khalid Abdul Bakar, DSP (Investigation). However, the latter was posted out upon which the panel was reconstituted and he was substituted with Nasir Mehmood, DSP (Investigation). Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution ), the Petitioner (Complainant of FIR No. 16/2021) has challenged Order dated 27.8.2021 (the Impugned Order ).

2. The counsel for the Petitioner contends that the case has been thoroughly investigated thrice at different levels and there is no justification for its reinvestigation. The Impugned Order is perverse and not sustainable. He further contends that the police have already submitted report under section 173 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the Code or Cr.P.C. ), before the court so at this stage the Review Board is not competent to issue the Impugned Order.

3. The Assistant Advocate General contends that the law neither prohibits reinvestigation nor further investigation of a criminal case. Mere submission of the report under section 173, Cr.P.C. does not bereave the police of that power. As regards the Impugned Order, the Law Officer contends that reinvestigation in this case is necessary to dig out the truth because the previous investigations are defective.

4. The counsel for Respondents Nos.9 and 10 have adopted the arguments of the Assistant Advocate General. They argue that the Review Board is a statutory body constituted under Article 18A of the Police Order 2002 and it consists of the Deputy Inspector General of Police and two other high rank officers. The Review Board examined case FIR No. 16/2021 in detail and after due deliberation recommended for the transfer of its investigation because it was not satisfied with the earlier proceedings. Thereafter, the Inspector General himself examined the whole matter before passing the Impugned Order. The learned counsel contend that further investigation of the case is necessary for justice and fair play.

Discussion

5. Section 4(l), Cr.P.C. defines the term investigation as follows:

(l) Investigation .--- Investigation includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.

6. According to Paul B. Weston et. al. , criminal investigation is a lawful search for people and things useful in reconstructing the circumstances of an illegal act or omission and the mental state accompanying it. It is probing from the known to the unknown, backward in time, and its goal is to determine truth as far as it can be discovered in any post-factum inquiry. 2 Section 4(l) Cr.P.C. terms those proceedings as investigation which are conducted for collection of evidence by a police officer or any person authorized by a magistrate (who is not a magistrate himself). It may, however, be pointed out that the duty of the police is limited to collection of evidence. The power to determine whether an accused is guilty vests with the courts.

7. Fair investigation is concomitant to the right to fair trial guaranteed under Article 10A of the Constitution. In Babubhai v. State of Gujrat and others [(2010) 12 SCC 254] the Supreme Court of India held that it is also a part of right to life and personal liberty and that investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law. In Vinay Tyagi v. Irshad Ali alias Deepak and others [(2013) 5 SCC 762] the Supreme Court explained that in criminal jurisprudence the expression fair and proper investigation connotes two things: firstly, that the investigation should be honest, unbiased and in accordance with law, and secondly, the entire emphasis should be to dig out the truth and bring it before the court of justice. Rule 25.2(3) of the Police Rules, 1934, embodies this principle. It is reproduced below for ready reference:

25.2 Power of investigating officers:

(1)

(2)

(3) It is 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.

8. Section 173, Cr.P.C. mandates that every investigation should be completed without unnecessary delay. It further states that as soon as it is done the officer in-charge of the police station shall forward a report (through the Public Prosecutor) in the prescribed form to the magistrate empowered to take cognizance of the offence. If the investigation is not finalized within 14 days from the date of registration of the FIR, the officer in-charge of the police station shall, within three days thereafter, forward an interim report (through the Public Prosecutor) to the magistrate in the prescribed form stating the result of the investigation made until then. The court should then immediately commence the trial unless there are reasons to postpone it. In Hakim Mumtaz Ahmed and another v. The State (PLD 2002 SC 590) the Hon ble Supreme Court of Pakistan held that the provisions of section 173, Cr.P.C. are mandatory as their non-compliance constitutes violation of Articles 4 and 9 of the Constitution.

9. Neither the Code nor the Police Rules, 1934, provide any procedure for transfer of investigation of a criminal case from one police officer to the other. This lacuna came to be exploited so when the Police Order 2002 was promulgated to reconstruct and regulate the police, 3 certain provisions were made to rectify the situation. Subsequently, the Police Order (Amendment) Act, 2013 (XXI of 2013), enacted Article 18A and introduced a new regime for transfer of investigation of criminal cases. The said Article reads:

18A. Transfer of investigation. ---(1) Within seven working days of the filing of an application, the Head of District Police may, after obtaining opinion of the District Standing Board and for reasons to be recorded in writing, transfer investigation of a case from the investigation officer to any other investigation officer or a team of investigation officers of a rank equal to or higher than the rank of the previous investigation officer.

(2) If the Head of District Police has decided an application for transfer of investigation, the Regional Police Officer may, within seven working days of the filing of an application, after obtaining opinion of the Regional Standing Board and for reasons to be recorded in writing, transfer investigation of a case from the investigation officer or a team of investigation officers to any other investigation officer or a team of investigation officers of a rank equal to or higher than the rank of the previous investigation officer or officers.

(3) If a Regional Police Officer has decided an application for transfer of an investigation, the Provincial Police Officer may, within thirty days of filing of an application, after obtaining opinion of a Standing Review Board, transfer investigation of a case to an investigation officer or a team of investigation officers of a rank equal to or higher than the rank of the previous investigation officer or officers.

(4) A case under investigation with a District Investigation Branch may only be transferred to another officer or a team of officers of the District Investigation Branch, Regional Investigation Branch or Provincial Investigation Branch.

(5) For the purpose of this Article

(a) District Standing Board means the District Standing Board constituted by the Head of District Police consisting of a Superintendent of Police as chairperson and two officers not below the rank of Deputy Superintendent of Police as members;

(b) Regional Standing Board means the Regional Standing Board constituted by the Regional Police Officer consisting of a Superintendent of Police as chairperson and two Superintendents of Police as members;

(c) Standing Review Board means the Standing Review Board constituted by the Provincial Police Officer consisting of a Deputy Inspector General of Police as chairperson and two officers not below the rank of Superintendent of Police as members; and

(d) reference to Head of District Police and Regional Police Officer in the case of Capital City District shall be construed to mean the Head of District Investigation Branch of the Capital City and the Capital City Police Officer, respectively.

10. In order to carry out the mandate of Article 18A, supra , and to further streamline the procedure, the Inspector General of Police, Punjab, has issued Standard Operating Instructions (SOPs) vide Memo No. 15013-96/Inv/HC dated 24.4.2014 which is reproduced below for ready reference:

11. The question as to whether investigation can be changed or, to put it in another way, whether a case can be reinvestigated or further investigated after the submission of final report under section 173, Cr.P.C. (and, more particularly after the accused is/are indicted) is quite contentious. There are two seemingly irreconcilable streams of decisions on this point. Let s start with Atta Muhammad v. Inspector-General of Police, West Pakistan, Lahore and others [PLD 1965 (W.P.) Lahore 734] . In that case a Division Bench of this Court held that there is no legal bar on reinvestigation even after the submission of final report under section 173, Cr.P.C. The Court reasoned:

The first investigation may be utterly unsatisfactory for many reasons. It may be due to non-availability of the evidence, or the successful induction of false evidence during the investigation or, the reason may be, the corrupt behaviour of the police officers concerned. To say that the same police officers or their superiors on receipt of further information or on the availability of better evidence cannot revive the investigation already done, leading to a contrary or a varied result, would virtually amount to putting a seal on human errors and frailties once committed, whether by design or by inadvertence, with no opportunity to make amends, although it be possible to do so.

12. In Muhammad Akbar v. The State and another (1972 SCMR 335) the Hon ble Supreme Court of Pakistan 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 own initiative or on the direction of the superior police officer.

13. The apex Court approvingly cited the above-mentioned two cases in Aftab Ahmad v. Hassan Arshad and 10 others (PLD 1987 SC 13) and later followed this view in Muhammad Yousaf v. The State and others (2000 SCMR 453); Hakim Mumtaz Ahmed and another v. The State (PLD 2002 SC 590); Muhammad Ashfaq v. Amir Zaman and others (2004 SCMR 1924); Bahadur Khan v. Muhammad Azam and 2 others (2006 SCMR 373) and Raja Khurshid Ahmed v. Muhammad Bilal and others (2014 SCMR 474) . Bahadur Khan , however, placed a rider that reinvestigation cannot be done after the case has been decided by the trial court. 4

14. The second chain in which the Hon ble Supreme Court took a different view commences with Riaz Hussain and others v. The State (1986 SCMR 1934) . A learned three-member Bench held: The system of reinvestigation in criminal cases is a recent innovation which is always taken up at the instance of influential people and favourable reports obtained. This in no way assists the courts in coming to a correct conclusion, it rather creates more complications to the court administering justice. We, therefore, disapprove this system altogether. In Muhammad Nasir Cheema v. Mazhar Javaid and others (PLD 2007 SC 31) the Court held that changing the investigation or directing further investigation in the case after submission of report under section 173 Cr.P.C. is an exercise unsustainable in law. This case was subsequently relied upon in Qari Muhammad Rafique v. Additional Inspector-General of Police (Inv.), Punjab and others (2014 SCMR 1499) to dismiss a petition for leave to appeal against the order of the High Court which had disapproved change of investigation after the accused s indictment.

15. The reported judgments of the various High Courts in the country are also divergent on the point in issue. The decisions vary on account of an individual judge s preference for the chain of authorities mentioned above. I need not refer to them as it would unnecessarily burden this opinion.

16. It is trite that where there is conflict between the judgments of the Hon ble Supreme Court the one rendered by the Larger Bench prevails. 5 This Court is obligated to follow the dictum laid down in Muhammad Akbar v. The State (1972 SCMR 335) because that decision was handed down by a 4-member Bench while all others have come from Benches of low numeric strength. In Abid Hussain v. The State and others (2022 PCr.LJ 83) a Single Judge of this Court has also ruled that Muhammad Akbar is the binding authority.

17. There is another reason to support the principle laid down in Muhammad Akbar s case , supra . If any embargo is placed on investigation after the framing of charge, it would make Article 18A of the Police Order 2002 redundant which cannot be permitted. Reference in this regard may be advantageously made to Aswad Iqbal v. R.P.O. and others (PLD 2020 Lahore 434).

18. Even though reinvestigation or further investigation is permissible, subject to Article 18A of the Police Order 2002, it does not mean that it can be ordered in routine. In Bahadur Khan v. Muhammad Azam and 2 others (2006 SCMR 373) , as adumbrated above, the Hon ble Supreme Court held that it cannot be done after the case has been decided by the trial court. In Abdul Aziz v. S.P. (C.I.A.), Sargodha and 2 others (PLD 1997 Lahore 24) it was held that reinvestigation should be allowed only if some new evidence comes to light or there is some other justification for it. It cannot be undertaken to oblige a particular party or for some other ulterior motive. Similarly, in Abid Hussain v. The State and others (2022 PCr.LJ 83) it was held that such an order can also be passed if the previous investigations have been conducted unilaterally without associating the actual culprit involved and without trying to identify and ascertain the person responsible for committing the crime. The police does not have an unfettered power in this respect and reinvestigation or further investigation may only be carried out if some further material relating to the case is required or if the previous investigation is mala fide or in excess of jurisdiction.

19. The administrative authorities must exercise their powers in accordance with law. Where a statute empowering an administrative authority contains a provision of appeal, revision or review, it is statutory and can be availed of by an aggrieved party. The superior authority or the authority which had decided the matter will exercise such statutory power and grant an appropriate relief to the applicant. 6 If it comes to discretion, every authority, whether original, appellate or revisional, must exercise it reasonably and fairly. The courts may set aside an action in exercise of the power of judicial review if it is arbitrary, discriminatory, irrational, unreasonable or perverse.

20. The term arbitrary has no precise definition. In Kumari Shrilekha Vidyarthi and others v. State of U.P. and others (AIR 1991 SC 537) the Supreme Court of India held that the question as to whether an act is arbitrary or otherwise has to be determined with reference to the facts or circumstances of each case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. In East Coast Railway and another v. Mahadev Appa Rao and others (AIR 2010 SC 2794) the Supreme Court further explained that arbitrariness in the making of an order by an authority may manifest itself in different forms. Non-application of mind is one of them. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained renders the order arbitrary and unsustainable.

21. The importance of giving reasons by the administrative authorities was also highlighted by Lord Justice Elias in Mrs. Karen Louise Oakley v. South Cambridgeshire District Council, [2017] EWCA Civ 71 . He observed:

There are powerful reasons why it is desirable for administrative bodies to give reasons for their decisions. They include improving the quality of decisions by focusing the mind of the decision-making body and thereby increasing the likelihood that the decision will be lawfully made; promoting public confidence in the decision-making process; providing, or at least facilitating, the opportunity for those affected to consider whether the decision was lawfully reached, thereby facilitating the process of judicial review or the exercise of any right of appeal; and respecting the individual s interest in understanding and perhaps thereby more readily accepting why a decision affecting him has been made.

He further said:

There are certain categories of cases where the courts have required reasons to be given at common law, although the jurisprudence is relatively under-developed, perhaps because statutory requirements are so common. Apart from cases where fairness requires it, or a particular decision is aberrant, the duty has also been imposed where the failure to give reasons may frustrate a right of appeal, because without reasons a party will not know whether there is an appealable ground or not and where a party has a legitimate expectation that reasons will be given.

22. In the context of Article 18A of the Police Order 2002, the DSB, RSB and the Review Board are obligated to formulate their recommendations in such a manner that it shows that they have duly examined the case file and considered the material placed before them. The Inspector General s SOPs dated 24.4.2014 also cast this duty on the DSB and RSB but, in view of the law discussed above, the Review Board has the same obligation.

23. Article 18A expressly requires the Heads of the District Police and the Regional Police Officers to record reasons when the recommendations of the DSB and the RSB, as the case may be, are placed before them. This statutory duty would not be discharged by simply reproducing those recommendations. The order must demonstrate due application of mind by them otherwise it would be regarded arbitrary and struck down. In Emperor v. Sibnath Banerji and others (AIR 1945 PC 156) the order of preventive detention was quashed because the Home Secretary had issued it in routine on the recommendation of the police without applying his own mind to the material placed in his hand and satisfying himself that such an order was necessary. In Barium Chemicals Ltd. and another v. Sh. A. J. Rana and others (AIR 1972 SC 591) , the Foreign Exchange Regulation Act empowered the Central Government wherever it considers necessary and expedient to obtain and examine for the purpose of the Act, any information, book or other document in the possession of any person, and to require him by an order in writing to furnish the same to it. The Supreme Court of India held that the order would be quashed if it was passed without careful thinking and proper application of mind.

24. In the light of the jurisprudence discussed above, the principles discussed in the preceding paragraph would also apply to the Provincial Police Officer even though Article 18A of the Police Order 2002 does not expressly provide for them.

The case on hand

25. According to the report submitted by Respondent No.1, the Review Board recommended for transfer of investigation on the following grounds:

(i) Cogent reasons have been given by the applicant for change of investigation.

(ii) Prima facie , previous investigations have been conducted unilaterally without ascertaining the facts and circumstances of the case.

(iii) There is circumstantial and material evidence available on record which needs further probe to dig out the real facts.

26. The Review Board s recommendations are vague and it has not made any effort to substantiate them. I asked the Assistant Advocate General to produce the minutes of the Review Board for my perusal in the chambers which he did. Astonishingly there is no discussion to justify reinvestigation.

27. Respondent No.1 was obligated to examine the case himself when the Review Board s recommendations were placed before him but he seems to have rubber-stamped them. The Impugned Order does not reflect any application of mind.

28. Admittedly, this case has been investigated thrice at different levels. The first investigation was conducted by Maqbool Ahmad/ASI of Police Station Kot Momin who found that the nominated accused had committed the alleged offences. The second probe was undertaken by Jaffar/DSP who confirmed that not only the said accused were involved in the occurrence but also that Respondent No.9 had abetted it. The third investigation was carried out by Azhar Yaqoob/SP who endorsed the findings of Jaffar/DSP. Respondents Nos.9 and 10 were duly associated in the proceedings and all the evidence that they or the complainant party (the Petitioner s side) wanted to produce has been brought on the record. The Assistant Advocate General and the counsel for Respondents Nos.9 and 10 have failed to give even one good reason why another investigation is required. Respondent No.1 has concurred with the Review Board mechanically without applying his independent mind which was mandatory.

29. In view of the above, the Impugned Order dated 27.8.2021 cannot be sustained. Therefore, this petition is accepted and it is set aside.

SA/A-65/L Petition allowed.

1 Som Raj and others v. State of Haryana and others (AIR 1990 SC 1176).

2 Criminal Investigation : Basic Perspectives

3 Preamble of the Police Order 2002.

4 This holding was reaffirmed in Raja Khurshid Ahmed v. Muhammad Bilal and others (2014 SCMR 474).

5 Fazal Muhammad Chaudhari v. Ch. Khadim Hussain and 3 others (1997 SCMR 1368); Sardar Muhammad Nawaz v. Mst. Firdous Begum (2008 SCMR 404); Chairman, State Life Insurance Corporation and others v. Humayun Irfan and 2 others (2010 SCMR 1495) and National Bank of Pakistan v. Nasim Arif Abbasi and others (2011 SCMR 446).

6 C.K. Thakker, Administrative Law, Second Edition, p. 710.