2009 P Cr (PLP)

KAZIM ALI MALIK, J.

Ashfaq alias Shakoo, petitioner was arrested in a case F.I.R. No.451 dated 9-5-2008 under section 392, P.P.C. registered with Police Station Hanjarwal, Lahore and was declined bail by the learned trial Magistrate as well as a learned Additional Sessions Judge. He has prayed for his hail on facts and law.

2. Prosecution case set up in the F.I.R., in brief, is that on 1-5-2008 at 8-45 p.m. two unknown motorcyclists intercepted car of Zeshan Tariq, complainant in the lane of his house located in Canal View Housing Society, Lahore and snatched a cell phone at pistol point.

3. A perusal of the record would show that Muhammad Asir Hanif, S.H.O. Police Station Hanjarwal arrested Ashfaq alias Shakoo, petitioner and one Hegira in another case F.I.R. No.502 of 2008 under section 392, P.P.C. of the same police station and detained them in police lock-up. On the same day, the S.H.O. associated Zeshan Tariq, complainant with the investigation of the case in hand when he identified Ashfaq alias Shakoo, petitioner and aforesaid Hegira lodged in the police lock-up as the culprits of his case. The S.H.O. recorded statement of the complainant under section 161, Cr.P.C. regarding identification of the unknown robbers to the following effect:

In the light of the above said statement of the complainant, the S.H.O. interrogated the petitioner and Heera, co-accused when the petitioner allegedly made disclosure and led to the recovery of snatched cell phone from his residential house. On the basis of identification of the petitioner and his co-accused in the above said fashion and seizure of snatched cell phone, the S.H.O. arrested the petitioner and his co-accused in this case and challaned them to Court.

4. Learned counsel for the petitioner has contended that till date it is a case of no evidence qua the charge of- robbery. On the other hand, learned Law Officer opposed the bail application.

5. Admittedly and undoubtedly the robbers who snatched the cell phone from the complainant were not known to him previously. The S.H.O. adopted a novel procedure unwarranted in law while holding identification parade of the petitioner and his co-accused inside the police station. I have gone through the Cr.P.C., the Police Order, 2002, High Court Rules and Orders and the Police Rules and could not find any provision of law, which may authorize or allow the investigator to hold identification parade of an unknown accused inside the police station during his detention in police lock-up under his own supervision. The learned Law Officer also failed to quote any provision of law in support of the mode of identification parade in question. Under the law, S.H.O. was required to get detained the petitioner and his co-accused in judicial lock-up without wasting a single moment and without showing them to the complainant so that they could be put to the test of identification parade inside the jail under the direct supervision of a Magistrate deputed by the learned Sessions Judge. This Court fails to understand as to what were the circumstances which drove the S.H.O. to adopt a self-styled procedure of identification parade inside the police station over and above the law. No doubt, the subject of investigation comes within the exclusive domain of the police/investigating agency, but the Court of Law cannot allow the investigator to blindfold Administration of Criminal Justice. The system is standing on three pillars; i.e. (1) Investigation, (2) Prosecution and (3) Trial. For smooth functioning of the system these three pillars should be appropriately balanced within their respective allotted sphere. In the light of the provisions contained in Chapter XIV of the Code of Criminal Procedure, the investigation consists of spot inspection, ascertainment of facts and circumstances, apprehension of accused and collection of evidence. Prosecution means to bring on record material falling within the definition of evidence in support of the charge. Trial is judicial determination of the questions of guilt or innocence of the challaned accused. It is shocking to note that the S.H.O. failed to discharge the duty cast on him by the law. He destroyed the prosecution case at investigation stage and practically acquitted the petitioner and his co-accused of the charge of robbery while sitting in the police station by holding their identification parade in the police lock-up. In the circumstances, successful prosecution of the challaned accused is out of question because the prosecution is not possessed with an iota of legal evidence in support of the charge of robbery. Needless to add that identification of the petitioner and his co-accused by the complainant inside the police lock-up is neither relevant nor admissible in evidence. The S.H.O. who posed himself to be crime fighter and stickler for rule of law played havoc with the system. Need of the hour is to nip the evil in the bud. This is high time to dispel common impression amongst the masses that investigating agency is not amenable to law of the land. Supremacy of law cannot be achieved without elimination of the police-whim- factor in the administration of criminal justice. Without unqualified allegiance to the rule of law whimsy, defective, poor and dishonest investigation tainted with mala fide is not going to be of much help for improvement of the system. The way the S.H.O. destroyed this case provides a basis to say that either he did not have adequate knowledge of criminal law or he did so carelessly or for some consideration extraneous to record. Here I must say that without building checks on arbitrary exercise of powers by the investigating agency, the casual or motivated attitude of the investigators adverse to the cause of prosecution may prove a festering sore for the whole system. Fortunately, an opportunity to make good on lost prospects still exists provided the action and inaction by the subordinate Police Officers are scrutinized and supervised by the supervising officers with searching eye on top priority basis. With these observations the question of dishonest investigation is left to the judgment of the Inspector-General of Police, Punjab, Lahore.

6. Despite the above said state of affairs, I do not feel inclined to reward the petitioner with the discretionary relief of bail because he won the favour of S.H.O. through back door obviously by adopting some unholy devices. With these remarks I dismiss this bail petition.

7. A copy of this order along with the police file may be dispatched to the Inspector-General of Police, Punjab Lahore. By name under registered cover for an appropriate action on administrative side under intimation to the Deputy Registrar (1) of this Court. H.B.T./A-94/L Bail refused.