2013 P Cr (PLP)

FAROOQ ALI CHANNA, J.

Through the instant criminal miscellaneous application, the applicants have challenged the order dated 18-9-2010 passed by the IInd Civil Judge and J.M. Ubauro, impleading the applicants as accused to face the charge of Crime No.244 of 2010 of P.S. Ubauro under sections 302, 337-A(i), A(ii), L(2), 147, 148, 149, P.P.C., lodged by the complainant Farzand Ali nominating the present applicants along with other co-accused in the F.I.R. Mr. Ali Raza Kalwar learned counsel for the applicants has contended that during the investigation the applicants were found innocent, and were released under section 169, Cr.P.C. Learned counsel has further contended that the learned Magistrate has passed a non-speaking order without assigning the reasons of taking the cognizance of offence against the applicants as such the impugned order is illegal and liable to be set aside. He has relied upon the case of Zafrullah and another v. The State and another PLD 2012 Sindh 406 and Syed Paryal Shah v. Bebram Ali 3 others 2012 PCr.LJ

189. Learned D.P.-G. has contended that the applicants have been nominated in the F.I.R. with the specific role assigned to each of them and the Investigating Officer has released the applicants during investigation without placing their names in Column No. 2 of challan by considering the plea of alibi raised by the applicants before the I/O for which the I/O was not competent to decide the innocence or otherwise of any person on the plea of alibi. Before touching to the merits and legal status of the impugned order, it would be appropriate to reproduce the impugned order which reads as under:-- "The perusal of material placed on record suggests that accused dropped under section 169 of Cr.P.C. are also nominated in the F.I.R. along with above mentioned co-accused as well as implicated by witnesses mentioned in F.I.R. with specific allegations in commission of crime hence in such circumstances sufficient ocular account is available on record connecting them in commission of crime which cannot be ignored at this stage hence in such position and relying upon the case-law reported in 2002 SCMR 63 cognizance of offence is taken under section 190 of Cr.P.C. and accused dropped under section 169 of Cr.P.C. are also joined to face the trial along with co-accused, order accordingly." The perusal of above order reveals that while passing the impugned order the learned Judicial Magistrate has considered material/evidence collected during investigation connecting the applicants in commission of crime, the same cannot be ignored merely on defence plea taken by accused before I/O. 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. It has been held in a matter reported as Abdul Wahid v. The State and others PLD 2007 Lahore 65, as under:-- "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." For the reasons discussed above and the dicta laid down by the apex Court, I am of the view that the impugned order passed by the Judicial Magistrate is not suffering from any illegality, infirmity or without jurisdiction, as such needs no interference of this Court. This criminal miscellaneous application is dismissed. MWA/H-1/K Application dismissed.