1993 P Cr (PLP)

(f) Criminal Procedure Code (V of 1898)

Ss. 169 & 173

Section 169, Cr.P.C. is employed when the case is at the stage of police investigation

Law does not warrant that State or for that matter the complainant is legally required to challenge the order of release of an accused under S.169, Cr.P.C. without which Trial Court is incompetent to summon the said accused

Admission to bail by the police under 5.169, Cr.P.C. is purely a provisional arrangement and, therefore, if the Magistrate or the Sessions Court considers that the evidence does establish a prima facie case of a non-bailable offence against the accused there is nothing against summoning him to stand trial. Abdullah Jan Mirza for Petitioner. Muhammad Aslam Khan, A.A.-G. for the State. Qazi Muhammad Asif for the Complainant. Date of hearing: 9th January, 1993. The only proposition canvassed before me in this criminal revision is as under:-- "Whether the petitioner who had been placed in column No.2 of the report submitted under section 173, Cr.P.C. can be legally summoned by the learned Additional ,Sessions Judge as an accused to stand trial alongwith those mentioned in column 3 thereof." This controversy has arisen in the following circumstances: The case arises out of F.I.R. No.107, dated 31-12-1988 of Police. Station Nara, District Abbottabad under section 302/307, P.P.C. It had been alleged therein that Kala Khan complainant alongwith three others were sowing the wheat crop when in the meantime Bashir Ahmed and Muhammad Shafi emerged on the spot. Bashir Ahmed at the behest of Muhammad Shafi his co-accused, fired a shot at Mst. Safida Jan, as a result of which she was killed: Muhammad Hussain, Muhammad Miskin and Riasat P.Ws. were running away when the petitioner is alleged to have fired a shot which hit Riasat P.W. on his buttock. The investigation was subsequently entrusted to C.I.A. Police, as a result of which the petitioner was found to have been falsely implicated in the case. The Investigating Officer released the petitioner on his executing a bond. Nonetheless, the petitioner and another were mentioned in column 2 of the final report submitted under section 173, Cr.P.C. to the Magistrate. Under section 190(3), Cr.P.C. the Magistrate concerned took cognizance of the offences and sent up the. case for trial to the learned Sessions Judge, Abbottabad. On receipt of the file the learned Sessions Judge passed the While framing charge it transpired that accused Muhammad Ashraf alias Ashram, during the investigation was released under section 169, Cr.P.C. by the police despite fact that he is charged in the F.I.R. by name and for a specific role. Although, he is present today but he being not summoned formally, be summoned to stand trial before this Court for the date to be fixed. Put up the case for attendance of summoned accused, for framing of charge. F.Ws. at S.Nos.9 to 12 be summoned for 6-7-1992.

2. The petitioner has challenged the aforesaid order by way of this criminal revision.

3. Mr. Abdullah Jan Mirza, the learned counsel for the petitioner contended that the petitioner having been released, on furnishing his bond under section 169, Cr.P.C. could not be legally summoned by the learned Sessions Judge to stand his trial and thus the impugned order is not sustainable in law; that the release of the petitioner on furnishing bail bond under section 169, Cr.P.C. having neither been challenged by the complainant nor by the State, he could not be summoned as an accused person; that there was no reason for the learned Sessions Judge to have summoned the petitioner to stand trial and that, in any case, the order of the learned Sessions Judge was neither a speaking order nor backed by reasons and is thus vitiated. 4: Mr. Muhammad Aslam Khan, the learned A.A.-G. for the State, assisted by Oazi Muhammad Asif, learned counsel for the complainant, submitted and rightly so, that the learned counsel for the petitioner has misconceived the proposition in that notwithstanding his release, under section 169, Cr.P.C. by the Investigating Officer, the petitioner has been duly placed in column 2 of the report filed under section 173 of the Cr.P.C. and in consequence has been sent up under section 193(3) of Cr.P.C. and could be summoned by the Court of learned Sessions Judge. It was contended that the proposition is settled that an accused person who had been placed in column 2 can be summoned by the trial Court to stand trial. Reliance was placed on Khush Bakhtur Rehman and another v. The State 1985 S C M R 1314.

5. In this case the Investigating Officer has released the petitioner which was competently done by the Investigating Officer. The law is settled that the police has power to release a person in custody on his executing a bond with or without sureties, for his appearance before a Magistrate, if and when so required. Thus, section 169, Cr.P.C. in terms applies only to the accused of a case who has never been forwarded to a Magistrate and confined to the stage of investigation by the police. Consequently, reference by the police to the Magistrate is unnecessary. On receipt of a police report under section 173, Cr.P.C., the Magistrate can take cognizance of the case if he is competent to try it. On the other hand, if the Police Officer has released an accused person on his own bond with or without sureties to appear if required by the Magistrate, and has reported that there is no sufficient evidence or reasonable suspicion against him then the Magistrate would either confirm this order or would direct the appearance of the accused before him to stand trial. After the Magistrate has taken cognizance, under subsection (1) of section 190, Cr.P.C., of an offence triable exclusively by the Court of Session, he shall, without recording any evidence, send up the case to the Court of Session for trial including those who have been mentioned in column 2 of the report under section

173. Cr.P.C. The learned Sessions Judge may then summon the accused column 3 the report aforesaid but also those placed in column 2 thereof.

6. In the instant case, therefore, the leered Sessions Judge was competent to have summoned the petitioner notwithstanding the fact that he had been placed in column 2 of the challan. No exception can possibly be taken to this course adopted by the learned Sessions Judge.

7. The next contention of the learned counsel for the petitioner that the learned Sessions Judge has not passed a speaking order while summoning the petitioner placed in column 2 of the challan is equally fallacious. The learned Sessions Judge was not required to have passed a detailed order. I have not been convinced that the impugned order has been passed in routine without applying the judicial mind. The learned Sessions Judge has passed the impugned order with reasoning and does not suffer from any legal infirmity. The omission of the complainant or the Prosecuting Agency to challenged the order of release of an accused under section 169, Cr.P.C. would not debar the learned Sessions Judge to summon him to stand trial. Section 169, Cr.P.C., as stated earlier, is employed when the case is at the stage of investigation by the police. There is no warrant in law that the State or for that matter the complainant is legally required to challenge the said order without which the trial Court is incompetent to summon the said accused. The admission to bail by the police under section 169, Cr.P.C. is purely a provisional arrangement; and, therefore, if the Magistrate or the learned Sessions Judge considers that the evidence does establish a prima facie case of a non-bailable offence against the accused there is nothing against summoning him to stand trial.

8. For the foregoing reasons, no exception can be taken to the order passed by the learned Sessions Judge and, therefore, this petition is without substance which is accordingly dismissed. The record of the case shall be returned to the learned Sessions Judge expeditiously to enable him to proceed with the trial of the case. N.H.Q./.1435/P Revision dismissed.