P L D 2008 Peshawar 63 (PLP)

SYED YAHYA ZAHID GILANI, J.

Complainant Shah Daraz nominated Muhammad Jabbar (and another) for Qatl-e-Amd of his son Akbar Nawaz, in case F.I.R. No.236, dated 2-11-2006, of Police Station Basia KM, District Bannu, under section 302/34, P.P.C. During the course of investigation, on 13-12-2006, Sardad Khan A.S.-I./I.O. released the accused Muhammad Jabbar, under section 169, Cr.P.C. declaring him innocent. The complainant so aggrieved, has impugned the said action in this petition to invoke the inherent jurisdiction of this Court under section 561-A, Cr.P.C. to get secured the ends of justice, by setting at naught the impugned action.

2. Brief facts and back ground of the petition is required to be highlighted at the onset: According to the aforesaid F.I.R. Muhammad Jabbar accused (respondent herein) and his brother Muhammad Israr (absconding accused) allegedly arrived on motorcycle, at 6-45 hours on 2-11-2006, duly armed with Klashnikovs, and fired at Akbar Nawaz, son of the complainant Shah Daraz, in the street, in front of his house, when the complainant was watching the incident besides the door of his Bhaittak and his second son Waheedullah watched the incident while coming out of the door of the house. According to site plan and recovery memos. blood was recovered from the place of occurrence, which was reported by the F.S.L. to be of human origin. Five empties from near the place of Muhammad Israr, absconding accused, and five empties from near the place of Muhammad Jabbar respondent-accused were taken in possession. There are multiple fire-arm wounds on the body of deceased as per Post-mortem report. Five bullets have been recovered from the stem of nearby Sheesham tree, in the line of fire, as indicated in the site plan. The report of the fire-arms expert has conveyed that the ten empties recovered from the spot were not fired from single weapon. The occurrence was witnessed by the complainant himself as well as his son Waheedulalh. The report has been lodged within 40 minutes of the occurrence, the distance between the place of occurrence and Police station being 6-7 kilometers. Motive for the occurrence was altercation, about three months prior to the occurrence.

3. In this background of the prosecution case, the respondent/accused Muhammad Jabbar applied for pre-arrest bail 4-12-2006, (after about a month of the occurrence) and withdrew the pre-arrest petition on 13-12-2006. On the same day Sardad Khan A.S.-I/ Investigating Officer, treating him to be innocent, released him under section 169; Cr.P.C. on his personal bond.

4. On record, there is legal opinion of A.P.P. that if the Investigating Officer is fully convinced and satisfied from the defence plea of accused Muhammad Jabbar, then he (the accused Muhammad Jabbar) can be placed in column No.2 of the challan and to be left at the mercy of trial court.

5. The note of A.S.-I. Sardad Khan dated nil, on the basis of which he has asked for the above mentioned legal opinion, contains the facts that the accused Muhammad Jababr has stated that he was on six days casual leave from 31-10-2006 and was at Peshawar for treatment of his father. Divisional Forest Officer, besides three other witnesses namely Yousaf, Yaqoob Nawaz and Alamgir have supported his plea. More over, one Muhammad Rahim alias Rahimi has given a statement (after about 19 days of the occurrence) that he was present on the spot at the time of occurrence and the assailants could not be recognized because they had muffled their faces. This was the material, which convinced Sardad Khan, A.S.-I. to declare Muhammad Jabbar respondent/accused innocent and release him on personal bond.

6. The certificates of the District Forest Officer dated 11-12-2006 mentions that the respondent/accused Muhammad Jabbar was on leave from 31-10-2006 to 5-11-2006, but the copy of leave application, order of the competent authority, and the register wherein the leave record is entered have not been obtained and placed on record by the Investigating Officer/A.S.-I. This is also a question of fact to be thrashed out that in spite of being on leave, the respondent/accused Muhammad Jabbar was at Peshawar or at Bannu, at the date and time of occurrence. In this behalf the statements .of three supporting witnesses are to be scrutinized. The defence witness Muhammad Rahim alias Rahimi, who has stated that he had witnessed the occurrence and that the assailants were muffled faced, was examined under section 164, Cr.P.C. on 21-11-2006, that is to say, after 19 days of the occurrence. Evidentiary value of his statement would also be a favorite target of scrutiny, during trial.

7. In, the above given facts and circumstances the complainant/petitioner has raised the question by personally addressing the court (because his counsel is on strike) that whether the law empowers an A.SA./Investigating Officer to ignore solid prosecution evidence and declare innocent a directly charged accused person, on the basis of sketchy defence evidence, to enlarge his on personal bond? He also contended that should there be no forum to check an arbitrary action of an Investigating Officer taken under section 169, Cr.P.C.?

8. Learned D.A.G. Mr. Tariq Aziz Baloch was also heard. He submitted that inherent powers of the High Court are meant to restrain the venues of injustice, starting from any where but touching the judicial system. He agreed that the action of the Investigating Officer/A.S.-I., impugned herein, was patently based on preponderance of evidence of two rival parties, which is the exclusive prerogative of a court and not of the Investigating Officer. According to his opinion, the impugned action is inviting interference of this court, in exercise of inherent jurisdiction, to secure the ends of justice.

9. The respondent/accused Muhammad Jabbar was also heard, who stated that he is innocent, and he has furnished his plea of alibi before the Investigating Officer, which convinced him and he has rightly been released on his personal bond. He prayed that this petition may be rejected and the complainant may be directed to file a private complaint.

10. I have curiously studied section 169, Cr.P.C. It is reproduced below for ready reference:-- "Release of accused when evidence deficient.--If upon an investigation under this chapter, it appears to the officer-in charge of the police-station or to the police officer making the investigation that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall if such persons is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police-report and to try the accused or send him for trial." The plane reading of above quoted section clarifies that this section simply empowers an Investigating Officer, to release the person in custody, on his executing a bond, if the Investigating Officer, reaches to the conclusion that "there is no sufficient evidence" or "reasonable ground of suspicion" to justify the forwarding of the accused to a Magistrate.

11. The words "there is not sufficient evidence" or "a reasonable ground of suspicion" are not ambiguous at all. The Investigating Officer can release an accused person in his custody when sufficient evidence is lacking or there is want of reasonable grounds of suspicion against the accused. This empowerment is not identical to the power of preponderance of evidence to be exercised by trial court. When there is a set of prosecution evidence and on the other hand there is another set of defence evidence. The trial courts are empowered to weigh both sets of evidence on judicial scale to rely on one and discard the other. The theme of section 169, Cr.P.C. does not admit any such power of the Investigating Officer to evaluate defence evidence of an accused, and prefer it over the prosecution evidence, to declare him innocent.

12. I have contemplated over the set of evidence available to prosecution, which has been discussed in para. 2 above as well as the set of defence evidence of the respondent/accused Muhammad Jabbar. The evidence available to prosecution is altogether "sufficient evidence" in ordinary meaning of the words used in section 169, Cr.P.C. Likewise, the set of defence evidence discussed in para. 5 above is not possessing such a cast iron strength to straightaway stultify the volume of prosecution evidence. I, therefore, safely concluded that the Investigating Officer Sardad Khan A.S.-I. has travelled beyond the scope of his jurisdiction under section 169, Cr.P.C. because he could not brush aside the sufficient prosecution evidence available on record.

13. The next question important for consideration is that whether section 561-A, Cr.P.C. allows this court to exercise inherent powers to check the impugned action. There is an impression that the impugned action was an administrative action and it is not interfereable by this court even under the inherent powers. Before I proceed ahead, S.561-A, Cr.P.C. is quoted below for ready reference: "Saving of inherent power of High Court.

Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code; or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

14. Basically section 561-A, Cr.P.C. does not create or bestow any new power on the High Court. The inherent power described in it is the existing integral power that can never be segregated from it.

15. Hon'ble Supreme Court' of Pakistan has long before laid down the following rule regarding inherent powers under section 561-A, Cr.P.C., in the case "Umar Daraz Ali v. Manzoor Ahmed and another". "It is, no doubt, true that where express provision is made in the Code itself for a particular purpose, recourse cannot be had to the inherent jurisdiction to achieve the same purpose, but at the same time it has to be pointed out that the inherent power of the High Court is of a very wide and indefinable nature and in exercise of this power the High Court can make all such order which may be necessary to do real and substantial justice and prevent abuse of the process of the court, subject only to the limitation that it cannot override an express provision of the Code." (1969 SCMR page 325). So the inherent power under section 561-A, Cr.P.C. is wide enough and the limiting parameter is "the justice".

16. Investigation carried out under the provisions of criminal Procedure Code, 1898 is the pre-requisite of the trial of criminal cases in courts. Although it is a subservient process, but integral -inceptive part of the main judicial process that accomplishes in court in shape of trial. As such, being- immensely related to the process of the court, abusive exercise of jurisdiction under section 169, Cr.P.C. by the Investigating Officer transgressing the norms of justice, is challengeable before the High Court under section 561-A, Cr.P.C. for exercise of corrective inherent jurisdiction, where ever it is necessary and justified.

17. The action of the Investigating Officer/A.S.-I., impugned herein, is extremely arbitrary and reeking mala fide, because he has ignored the prosecution case as if he was blind folded towards it, and microscopically focused on defence plea to extend benefit to respondent/accused.

18. I do not accept the plea of the accused respondent that in view of the impugned action of the Investigating Officer the complainant may be directed to file a private complaint. If the impugned action of the Investigating Officer was not perverse, arbitrary and capricious, this plea could have force. But in the prevailing circumstances it would amount to unlawfully depriving the complainant of his legitimate right to avail state sponsored prosecution.

19. I am therefore, constrained to accept this petition and in exercise of powers under section 561-A, Cr.P.C. set aside the impugned action of the Investigating Officer. The accused/respondent Muhammad Jabbar is present in court. His personal bail bond submitted to the Investigating Officer is cancelled. He is directed to be taken in custody for further necessary action according to law. However, this order shall not intervene in any manner if he applies for bail under section 497, Cr.P.C. and his such applications shall be decided on merits, in accordance with law. H.B.T./16/P Petition accepted. ***