2018 PLP 1758 (MLD)

ABDULLAH BALOCH, J.

This judgment disposes of the Criminal Revision Petition No.134 of 2017 filed by the petitioner Muhammad Sadiq son of Muhammad Anwar, against the order dated 4th August 2017 (hereinafter referred, as "the impugned Order") passed by learned Sessions Judge, Killa Abdullah at Chaman (hereinafter referred as "the trial Court"), whereby despite discharge of the petitioner under Section 169, Cr.P.C. by the I.O., the trial Court issued summons to him for appearance.

2. Facts of the case are that on 24th July 2016 on the complaint of one Abdul Jabbar the FIR No.20/2016 was lodged at Levies Thana Saranan under Sections 324, 365, 504 and 506 read with Sections 511, 147, 148, 149, P.P.C., alleging therein that the petitioner Muhammad Sadiq through his Manager ( ) Abdul Qayyum accompanied by Muhammad Khan and Abdullah was demanding extortion amount/Bhatta of Rs.20,000,000/- and also extending threats for dire consequences, which was refused by the complainant, hence on the fateful day, the petitioner along with his companions intercepted their vehicles, snatched cash amount, mobile phones and other articles and kidnapped one of their companion Naqeebullah and took him with them to their Godown; when the complainant party went to the godown of the accused persons for recovery of the abductee Naqeebullah, the accused persons started indiscriminate firing, consequent upon which one Muhammad Ibrahim sustained injuries, while one of the accused persons' companion Abdul Rahim also sustained injuries due to their own firing and succumbed to the injuries; that due to firing made by Sailab, Shah Barat got injured and the complainant's driver namely Mamoor was kidnapped; that subsequently the abductee Naqeebullah was recovered by the levies, but the driver Mamoo is still in captivity of the accused persons. Thus, the instant FIR was lodged.

3. It is further averred in the petition that the instant FIR has been lodged just to minimize the gravity of FIR already lodged by the accused party against the complainant party, which was registered prior to instant FIR bearing No.19/2016, wherein due to attack of the accused party, Abdul Raheem was died due to firing of Abdul Ali, while Najeebullah was injured due to firing of accused Abdullah.

4. The Investigation of the case was carried out by the Levies Chaman and petitioner has taken the plea of alibi by producing some evidence at the relevant time, he was present at Lahore in connection with his business affairs and ultimately, the Investigating Officer of the case discharged him from the case by exercising his powers under Section 169, Cr.P.C. and mentioned his name in Column No.2 of the Challan and submitted the same in the trial Court. After perusal of record, the learned trial Court issued summons to the petitioner for appearance before it. The petitioner being aggrieved from issuance of summons, has filed this petition before this Court.

5. Learned counsel for the petitioner contended that he is innocent of the charge and was not at all present in the area at the relevant time. when the occurrence had taken place he was present in his house at Lahore and at the relevant time when the occurrence had taken place was present before the Special Court at Lahore, hence on coming to know about registration of instant false case, the petitioner produced the C.C.T.V. footage and other relevant material evidence before the Investigating Officer, who after conducting thorough examination has been pleased to discharge the petitioner from the case under Section 169, Cr.P.C. and placed his name in Colums No.2, but the trial Court by mis-exercising its authority and jurisdiction as well as by overlapping the authority of I.O. has issued summons to the petitioner for appearance before him; that calling of the petitioner by the trial Court, when he was discharged under Section 169, Cr.P.C. is not justified and requires interference of this Court.

6. Learned State Counsel assisted by the learned counsel for onmnlainant contended that the petitioner has been nominated in the FIR with specific role assigned to him and the Investigating Officer has discharged him during investigation on the plea of alibi, for which the I.O. has absolutely no authority or competence to ascertain the truthfulness or falsehood of the plea of alibi; that the petitioner has produced some evidence before the Investigating Officer showing his presence at some other place at the time when the occurrence had taken place, thus the said evidence is required to be tested/scrutinized during trial of the case and after acid test of cross-examination, the truthfulness of such evidence could be ascertained, thus at this pre-mature stage the I.O. has mis-exercised his powers and authority, not vested to it, thus the learned trial Court in exercise of legal jurisdiction and authority has rightly summoned the petitioner for appearance through impugned order, which otherwise is not open for interference by this Court.

7. Heard the learned counsel and perused the available record. Perusal of record reveals that cross FIRs have been registered by both the parties against each on the said date and at the same Levies station. However, the FIR No.20/2016 has been registered against the petitioner, whereby the petitioner along with his companions have been nominated in the FIR with specific role of firing. However, during investigation of the case, the I.O. has discharged him under Section 169, Cr.P.C.

8. The provisions of Section 169, Cr.P.C. empowers the I.O. to discharge any of the accused, if he comes to the conclusion that sufficient evidence or reasonable ground is not available to justify forwarding of accused to the trial Court, but simultaneously it has no powers to weigh the defence evidence. On receipt of Challan and after examination of the record, if the trial Court satisfies that there exists two sets of evidence from both the sides, the trial Court has powers to weigh both the sets of evidence on judicial scale by relying upon on the one set and to discard the other. In the case in hand, the learned trial court after assessing the material available on record has rightly summoned the accused placed in Column No.2, because the Investigating Officer by this exercising his powers and authority has discharged the petitioner from the case, who has specifically been nominated in the FIR with specific role and the I.O. incompetently weighed the alleged evidence produced by the petitioner. Such evidence is to be tested through trial and after acid test of cross-examination. According to settled principles of law, once the trial Court has come to the conclusion to summon any of the accused placed in column No.2 of the Challan, thereafter the said order of summoning the accused is not assailable as it is the sole discretion of the trial Court. The Chief Court of Gilgit-Baltistan in case of Rizwan Ali v. The State, reported in 2017 P.Cr.L.J. 1088, has held that, "If there is some incriminating evidence against an accused placed in column-2 of the challan, the trial Court's powers cannot be curtailed. ... As discussed above the powers of trial Court to summon an accused placed in column-2 are not under challenge and there is consensus that these powers are the sole discretion of the trial Court.".

9. The Investigating Officer has mainly based his conclusion of discharge of the petitioner on the basis of some CCTV footage produced before him by the petitioner and he has taken the plea that he was present in Lahore at the relevant time. Be that as it may, as discussed above the I.O. has absolutely no powers to weigh the defence evidence qua the prosecution evidence rather it is the sole discretion of the trial Court and the Investigating Officer while conducting the investigation of the matter cannot assume the charge of a trial Judge. Besides, the authenticity of the CCTV footage and the supporting documents are required to be controverted by the complainant party after the acid test of cross-examination, thus considering such evidence at this pre-mature stage amounts to abuse of process of law, because it was not the stage to consider the plea of alibi of an accused, as if once such kind of plea of alibi are taken into consideration at investigation stage, it will become precedent for all the criminal cases to be determined by the Investigating Officer. Even otherwise, there exists the ocular evidence of injured witnesses as well as the medical evidence and circumstantial evidence, which are implicating the petitioner with the commission of crime and they have specifically mentioned the presence and participation of the petitioner in the crime, thus such evidence that is to be produced in the trial Court cannot be assessed and brushed aside by the I.O. by using his powers under Section 169, Cr.P.C., as the said powers are subject to judicial determination of the trial Court, because if the I.O. has been given such absolute powers, it amounts to overlapping the jurisdiction and powers of the trial Court. It has never remained the scheme of Section 169, Cr.P.C. to give the powers of trial judge to an I.O. to decide the plea of alibi of an under investigation accused, when otherwise sufficient incriminatory evidence is available on record regarding his presence and participation in the crime. Reliance in this regard is placed on the case of Hazar Khan v. State, reported in 2013 PCr.LJ 1892 (Sindh). Relevant portion is reproduced herein below:-- "The submissions of learned State Counsel that the I/O. has released the applicants during investigation under section 169, Cr.P.C. by relying upon the plea of alibi taken by the applicants, has not been controverted by the counsel for the applicants rather he has admitted that at the time of alleged incident the applicants were available at there respective posting places, such proof was produced before the I/O. The law does not permit the I/O. to let-off any accused against whom sufficient evidence has been produced by the complainant merely on the plea of alibi as the evaluation of two conflicting sets of evidence i.e. prosecution evidence and the defence plea is not in his domain of powers vested under section 169, Cr.P.C. and release of an accused could only be valid in case the prosecution evidence is "deficient", otherwise it is the exclusive jurisdiction of trial Court conferred the ample powers to decide the guilt or innocence of any person brought before the trial Court with certain charges, as such the release of applicants by Investigating Officer under section 169, Cr.P.C. giving the preference to the defence plea of alibi over the prosecution evidence based upon ocular testimony supported by medical evidence, is unlawful being beyond the parameters of Section 169, Cr.P.C." "So, the crux is that after a person is arrested and detained by the police, he can be released on execution of a bond, with or without sureties, by, the Investigating Officer when he finds against the accused no sufficient evidence, no reasonable ground or no suspicion to justify for his forwarding to a Magistrate in custody. But it would be the duty of the Investigating Officer, to report all these facts, by placing the name of that accused in Column No.2 of the report under section 173 of the Cr.P.C. Extraordinary powers conferred upon the Investigating Officer to release on bond an accused person, are open to judicial scrutiny. If the Investigating Officer is allowed absolute power, without judicial determination of scrutiny from a competent Court; it would be an interference into the jurisdiction and realm of the Courts, who have been granted and conferred the powers to adjudicate the innocence or guilt of a person and to convict, discharge or acquit. Section 169 cannot be propounded in such a manner so as to grant such powers of learned Magistrate/Court to an Investigating Officer to determine the innocence or guilt of the person involved in a case and to declare such a person innocent through his order of release. The determination of innocence or guilt lies with the learned Magistrate/Court It is purely an interim arrangement/relief to a person who in the opinion of the Investigating Officer is an innocent, and against whom no evidence has been brought by the prosecutor/informant. If power of discharge in the form and under the pretext of release is considered to lie with the police officer, it would be a disastrous interpretation of law for the safe criminal administration of justice."

10. Even otherwise, the petitioner can approach the trial Court for his acquittal from the charge prior to recording evidence and if the trial Court found the prosecution evidence deficient, it has ample powers under Section 249-A read with section 265-K, Cr.P.C. to acquit the petitioner. When the court reaches at the conclusion that it would be sheer futile exercise to linger on the case which shall not culminate on conviction, the Court may exercise such powers as there is no clog of time on exercise of inherent powers by the Court, which could be used at any stage. Reliance in this regard is placed on the case of Muhammad Arastu v. The State, reported in 2014 PCr.LJ

802. Relevant portion is reproduced herein below:-- "

9. Suffice is to say that the provision of section 265-K, Cr.P.C. is meant to prevent the rigors of a prolong trial, when it is apparent from the record, that there is no probability of the accused being convicted of the offence charged with, the trial Court can exercise judicial discretion in a fit and appropriate case but such power not intended to be exercised arbitrarily. When the court reaches at the conclusion that it would be sheer futile exercise to linger on the case which shall not culminate on conviction, the court may exercise such powers as there is no clog of time on exercise of inherent powers by the court, which could be used at any stage." For the foregoing reasons discussed hereinabove, the petition being devoid of merits is herby dismissed. HBT/37/Bal Petition dismissed.