1996 P Cr (PLP)

1995 PCr.LJ 22 rel. Muhammad Iqbal Khan Kundi for Petitioner. Mutiullah Khan Baloch for Respondent No.

1. Muhammad Khan Khakwani for the State. Date of hearing: 6th February, 1996. This order will dispose of two quashment Petitions Nos. 10 and 12 of 1995, as the same are the outcome of one and the same order of the learned Magistrate, dated 24-10-1995.

2. As a consequence of the impugned order, accused Nazir Ahmad was released by the Magistrate under section 169, Cr.P.C. which is under attack in Criminal Miscellaneous No.10 of 1995 on the ground that it is based without application of mind and without giving any reason in support thereof besides it being without jurisdiction. In Criminal Miscellaneous No. 12 of 1995 it has been prayed that F.I.R. No. 586, dated 17-12-1991 under section 406/420/471/468/ 149, P.P.C. registered at Police Station Cantt. D.I. Khan may be quashed as the subject-matter is sub judice before a Civil Court.

3. The prosecution has put complete challan in Court on 24-10-1993 and the Court while taking cognizance has passed the following order which is under challenge in both the petitions:-- "Complete challan put in Court today. As requested by the local police, the accused Nazir Ahmad is released under section 169, Cr.P.C. The remaining accused Tahir and Habibullah be summoned for 8-11-1993." In the instant case, accused Nazir Ahmad was arrested by the police on 17-12-1991 and was bailed out on 18-12-1991, meaning thereby that he was not in police custody on the day Le 24-10-1993, when his release was requested by the investigating agency.

4. Under section 169, Cr.P.C. an accused person under investigation can be released by the police in case there is no evidence against him, on his furnishing a bail bond to the effect that as and when required he shall appear before the Magistrate of competent jurisdiction to take cognizance in the case. It is clear that these powers can only be exercised by the police during the course of investigation when the accused is in police custody. The wisdom behind the provision of section 169, Cr.P.C. is that in case of insufficient evidence, the S.H.O. or Investigating Officer may release an accused person for the time being and a bond is taken for the reason that the said person will appear before the Magistrate as and when required, particularly at the time when the challan is submitted before the Magistrate competent to take cognizance. Only then the Magistrate shall apply his mind to the merits of the case and would see if cognizance of the offence be taken against such an accused who has already been released by the police. The Magistrate will come to know only from the fact that the accused would be placed in column No.2 of the formal challan. Taking of cognizance or otherwise is a matter of thorough judicial scrutiny and cannot be taken as it has been done by the Magistrate concerned in the case in hand. The impugned order does not show even a single word indicative of the fact of application of mind of the said Magistrate. He endorsed the release of the accused just because it was requested by the police. This act on the part of the Magistrate is against the judicial norms. His job was to competently supervise the investigation and he was not to become a Yes Man of the police. Therefore, it is declared that the impugned order of the Magistrate is bad in law and devoid of legal sanctity. Reference, in this context, can be made to 1990 PCr.LJ 158 and 1995 PCr.LJ 549.

5. As far Criminal Miscellaneous No. 12 of 1995 is concerned, it has been held in 1995 PCr.LJ 22 that where F.I.R. prima facie having disclosed a case against accused, prosecution could not be stifled by quashing the same simply because on the basis of pendency of civil proceedings between the parties, there being no bar in law to the simultaneous initiation or progress of civil and criminal proceedings.

6. In the light of the aforesaid discussion, the order of the Magistrate, dated 24-10-1993 is hereby quashed and the case is remitted back with the direction that he should proceed with the matter legally and apply his mind judicially.

7. The plea taken by the petitioner in Criminal Miscellaneous No. 12 of 1995 also requires evidence to be adduced. In case after recording some evidence the petitioner is able to establish the civil liability in the case, then of course, he can move the trial Court under section 249-A, Cr.P.C. for the quashment of proceedings.

8. Resultantly, both the petitions are disposed of in the above terms. N.H.Q./1920/P Order accordingly.