1999 PLP 2456 (SCMR)

MUNAWAR AHMED MIRZA, J.

This petition for leave to appeal is directed against judgment dated 23-6-1998 passed by Peshawar High Court, Branch Registry, Dera Ismail Khan in Cr. M.B.No.87 of 1998.

2. Petitioner Muhammad Zaman son of Umar Daraz on 19th February, 1998 around 8-15 a.m. reported to Police Post Ramak concerning incident of robbery committed in his house on the preceding night. Complainant Muhammad Zaman informed that on 18th February, 1998 at 8-34 p.m. when he alongwith his wife Mst. Mumtaz Begum were watching T.V. Drama; four accused armed with pistols committed lurking house trespass and robbed away the property detailed in the report. The culprits had also forcibly obtained signatures of complainant on two cheques from his Cheque Book maintained in National Bank, Rammak Branch. According to contents of report, the culprits while carrying away articles had tied up complainant and his wife with ropes on their respective cots. However, by constant struggle the, complainant during morning hours eventually succeeded in untying the rope. On the basis of written report forwarded by Incharge Police Post Rammak, F.I.R. No.28 was registered on the morning of 19-2-1998 with Police Station Paroa, District Dera Ismail Khan.

3. During investigation accused Riaz and respondent Ghulam Shabbir were apprehended on 18-3-1998. Co-accused Riaz gave confessional statement before Judicial Magistrate, D.I. Khan on 20-3-1998. It is the case of prosecution that one Klashinikov was recovered from the control and possession of respondent Ghulam Shabbir on the day of his arrest. Thereafter, on the basis of available material section 395, P.P.C. was also included amongst the offences being investigated against the accused.

4. Respondent Ghulam Shabbir on 12-4-1998 submitted an application before Additional Sessions Judge, D.I. Khan praying for his release on Bail. The request in that behalf was rejected for lack of jurisdiction and merits vide order, dated 23rd April, 1998. Respondent Ghulam Shabbir aggrieved from above order preferred a petition under section 5-A(8), Suppression of Terrorist Activities Act, 1975 read with section 497/498, Cr.P.C. before Peshawar High Court at D.I. Khan. Learned Division Bench after hearing arguments granted bail to respondent in connection with offences arising out of F.I.R. No.28 of Police. Station Paroa, by means of order, dated 23rd June, 1998.

5. The above order has been assailed before this Court by complainant Muhammad Zaman through present petition for leave to appeal seeking cancellation of bail granted to respondent Ghulam Shabbir.

6. Mr. Salim Dil Khan, Advocate Supreme Court for petitioner, Mr. Abdul Aziz Khan Kundi, Advocate Supreme Court for respondent No. l and Mr. Imtiaz Ali, Additional Advocate-General, N.-W.F.P., addressed the arguments. Investigating Officer was also present alongwith record in pursuance of earlier order of this Court, dated 12th July, 1999.

7. It was mainly contended by learned counsel for petitioner that original application for bail was submitted before Additional Sessions Judge, D.I. Khan, who had no jurisdiction, therefore, petition before High Court was not competent. He stressed that instead of granting bail, Peshawar High Court ought to have directed respondent to approach Court of competent jurisdiction on the principle enunciated in case Akhtar Zaman v. Balqiaz Khan (1997 PCr.LJ 957). Learned Additional Advocate-General also supported the stand taken by learned counsel for petitioner.

8. Mr. Abdul Aziz Khan Kundi, Advocate Supreme Court for respondent, maintained that impugned order was competently passed and did not suffer from any legal defect. He also pointed out that trial in this case has already commenced, therefore, if petitioner has any grievance it can be agitated before trial court at appropriate stage.

9. We may observe that respondent had assailed order of Additional Sessions Judge, D.I. Khan, before Peshawar High Court by submitting a petition within the purview of section 5-A(8) of S.T.A. Act, 1975. This petition was heard and decided by Division Bench at D.I. Khan as contemplated by relevant law. Therefore, in our considered opinion, objection with regard to jurisdictional defect is purely of technical nature and totally inconsequential. Reference to aforequoted report in the peculiar circumstances of instant case is inapt.

10. Now adverting to other aspects, we may notice that trial has already commenced, therefore, without commenting on merits, to avoid adverse effects on either side, suffice it to observe that petitioner shall be at liberty to move trial Court for cancellation of bail granted to respondent, if substantial evidence is brought on record against aim.

11. It is, however, disquieting to note that the investigation conducted in this case leaves much to be desired, bringing to focus, gross inefficiency and glaring investigative lapses. In the course of investigation, apart from other acts of omissions and commission; a Klashnikov was alleged to have been recovered from the possession of Ghulam Shabbir, nonetheless entire record is conspicuously blank qua the legal cover which ought to have been taken to its logical conclusion and surprisingly process was abandoned half way. We are, however, abstaining to make further observations lest it. may adversely affect either party in the course of trial. However, while deciding the main case on merits trial Court can take note of implications of such investigation. It is high time that the higher authorities in police hierarchy should adopt remedial measures to take serious notice of deficient investigative steps which are rempant and ensure suitable action for grave acts of omission and commission against those who are intimately found responsible for negligent or mala fide conduct; to avoid such recurrences. For the foregoing discussion and subject to above observations we find no merit in this petition, which is accordingly dismissed. Thus leave to appeal is declined. N.H.Q.//M-358/S ?????????????????????????????????????????????????????? ??????????? Leave refused.