2001 P Cr (PLP)

Shad Muhammad Khan for Petitioner. Sabir Hussain Tanoli and Abdullah Jan Mirza for Respondents Nos. 1 to

3. Date of hearing: 23rd June, 2000. Shujjat Ali, the petitioner made a report to Additional S.H.O. Police Station Saddar Mansehra which was reduced into writing in the shape of Murasila and was sent to Police Station Saddar which culminated into registration of case vide F.I.R. No.372, dated 13‑8‑1998 in the Police Station Saddar, Mansehra. After registration of case, the Investigating Officer inspected the spot, prepared site plan, and during the site inspection recovered three spent bullets from inside the house near the main gate and two empties of .30 bore from the spot on 13‑8‑1998. Accused Habib‑ur Rehman produced his licensed pistol which was taken into possession by Investigating Officer on 19‑8‑1998. The pistol alongwith empties were sent to Fire‑arm Expert, the result received was positive. The Investigating Officer also recorded statement of Shakeel under section. 161, Cr.P.C. who .supported the case. After completion of investigation the S.H.O. of the concerned police station finding sufficient evidence against the accused submitted complete challan in the competent Court on 4‑9‑1998

2. The accused submitted an application to the D.S.P. Headquarter who himself visited the spot, made inquiry from various persons and directed the S.H.O. of the concerned police station to cancel the case. On his direction the S.H.O. accordingly recommended the case for cancellation, who placed the relevant documents before the learned Judicial Magistrate who passed an order for cancellation of case on 17‑3‑1999 and proceedings under section 182, P.P.C. were initiated against the petitioner. The petitioner has now challenged the said order, dated 17‑3‑1999 through petition in‑hand.

3. Mr. Shad Muhammad Khan, Advocate, the learned counsel representing the petitioner argued that eye‑witness Shakeel's statement coupled with recovery of empties from spot, recovery of pistol produced by accused and positive report of Fire‑arm Expert fully support the case of prosecution and that there is ample evidence available on record which was collected by the Investigating Officer and it was on the basis of the said evidence that the S.H.O. submitted challan against the accused.

4. On the other hand, Mr. Abdullah Jan Mirza, Advocate the learned counsel representing the respondents Nos.2 to 4 argued that there is no ocular evidence in the case. The Investigating Officer had only found two empties near the gate and Haji Muhammad Younas one of the witnesses in his statement recorded under section 161, Cr.P.C. stated that he had seen Shakeel the servant of the complainant firing at the gate. The D.S.P. after thorough inquiry bad opined that the case against the respondents Nos.2 to 4 was fabricated. The recovered empties and pistol were sent to Expert together and the report of the Fire‑arm Expert was not reliable. The statement of Shakeel is not reliable because he is servant of the complainant and the house of Shakeel is situated quite away from the place of occurrence and the house of complainant is not visible from the house of Shakeel.

5. I have heard the arguments of the learned counsel for the parties and perused the record.

6. It is on record, that Jaffar Shah, Investigating Officer had collected sufficient, material during the investigation. He has not only recovered three spent bullets inside the gate but also found two empties outside the gate and three holes in the gate. He also seized 30 bore pistol on 19‑8‑1998 from Habibur Rehman who produced the same alongwith the licence. The recovered empties and the pistol was sent to Fire‑arms Expert who submitted the report, dated 21‑9‑1998 and the report of the Fire‑arms Expert is in positive. It was on the basis of the said evidence available on record against the accused that the S.H.O. had sent complete challan on 4‑9‑1998. On application given by one of the accused, the D.S.P. conducted inquiry. His inquiry report shows that he evalued the evidence collected by the Investigating Officer and discussed the same in his report which amounts to adjudication of the case. In exercise of powers under section 169, Cr.P.C. a Police Officer is to act with great care and caution, lest a guilty person may go scot‑free without facing his trial. It is only when there is no sufficient evidence or reasonable grounds of suspicion to justify the forwarding of accused to competent Court that he can undertake the exercise under the aforesaid provisions but "insufficiency of evidence" or "non‑existence of reasonable ground" is one thing and evaluation of evidence forthcoming, for and against the accused, at the investigation stage, is another. In the later case, he is not at all supposed to arrogate himself the functions of adjudication in order to determine the nature of his offence and then to give a pre‑trial verdict of the innocence of the accused. The record of the case shows that the learned Judicial Magistrate has also acted quite arbitrarily inasmuch as before passing the impugned order he had not cared to have gone through the record of the case with such prudence as his judicial office demanded of him. He appears to have failed to apply his conscious mind to the facts of the case and the evidence collected by the Investigation Officer. His order is a non‑speaking order and no reason was given by him for cancellation of case.

7. I have no hesitation in holding that the impugned order, dated 17‑3‑1999 passed by learned Judicial Magistrate is misconceived in facts as also in law and is liable to be set aside. Resultantly, this petition is accepted. The impugned order is set aside and the prosecution is directed to put the challan of the case in Court against accused to face trial of the offence for which the accused‑respondents are charged. H.B.T./281/P Petition accepted.