2009 P Cr (PLP)

SYED YAHYA ZAHID GILANI, J.

Salman Aamer and Tanvir Iqbal alias Tahir were charged under sections 452/354/337-L(ii)/ 148/149, P.P.C., in case F.I.R. No.111, dated 14-3-2009 of Police Station Saddar, Bannu by Asim Khan complainant, with the allegations that the above named two accused along with five more persons entered in his home and- gave him beating with sticks. His sister Mst. Zakia Minhas came to rescue him but she was also belaboured. Motive for the occurrence was that the accused party was suspecting that the victim was actively assisting his cousin Arbab Khan, with whom the accused party had animosity over "visa".

2. Both the above named accused-petitioners initially obtained interim pre-arrest bail orders from Sessions Judge, Bannu but later on withdrew their petitions because the S.H.O., Police Station Saddar, Bannu was pleased to release them on furnishing personal bonds under section 169, Cr.P.C. It aggrieved the complainant who has moved the instant petition to agitate before this Court that the order and action of the S.H.O. Police Station Saddar Bannu (respondent No.4) is arbitrary, capricious and beyond the parameters of his powers vested under section 169, Cr.P.C.

3. I have heard arguments of learned counsel for the parties and have gone through the record.

4. There is a copy of 'note dated 12-4-2009' of the S.H.O. (respondent No.4) annexed with the petition wherein he has mentioned that the respondents-accused moved an application of their innocence before D.P.O., Bannu on which inquiry, was done and they were found innocent. This opinion of innocence is based on a few affidavits, but these affidavits have been challenged with counter-affidavits annexed with the petition.

5. A cursory glance over the prosecution, case would reveal that the occurrence allegedly took place at 20-10 p.m. and the report has been lodged within thirty minutes at police station situated at a distance of two kilometers. Five accused have been nominated with all clarity and two persons have been mentioned without name. There are allegations that' the accused entered the house of complainant to beat him at night hours and the medical evidence exists in support of the complainant's case. In these facts and circumstances, a cognizable case has been duly registered.

6. Learned counsel for the respondents took much time to convince this Court that S.H.O. of a police station, who is investigating the case, has ample powers under section 169, Cr.P.C. to release an accused on executing personal bond, but all this was a useless exercise because no one denies existence of such powers under section 169, Cr.P.C. The question for determination is that whether the S.H.O., respondent No.4, has exercised his powers within the limits of section 169, Cr.P.C. or not?

7. The law clearly lays down that such powers can be exercised when there is no sufficient evidence at the part of prosecution or reasonable ground or suspicion to justify the forwarding of an accused to a Magistrate. The criteria for exercise of the powers has been well-- explained in the cases decided by this Court. In this regard the case of Eisa Khan v. Nawab Khan and another PLD 2006 Pesh. 165, which is handed down by his Lordship Honourable the Chief Justice of this case, as well as the case of Shah Daraz Khan v. Muhammad Jabbar Khan PLD 2008 Pesh. 63 can be referred. Honourable apex Court has also approved the same criteria in various cases and in a most recent case Ajmeel Khan v. Abdur Rehman PLD 2009 SC 102(b), it has been guided that the release under section 169, Cr.P.C. can be carried out by the Investigating Officer if there is "deficient evidence" which is not the case in hand. As discussed above, the prosecution case is based on direct ocular testimony coupled with the medical evidence. Section 169, Cr.P.C. does not empower a Police Officer to carry out the process of preponderance of evidence, to prefer affidavits in favour of accused-respondents over the available volume of prosecution evidence in order to release him under section 169, Cr.P.C. Evaluation of two conflicting sets of evidence was not in his domain of powers vested under section 169, Cr.P.C. and release of an accused under his personal bond could only be valid in case the prosecution evidence was "deficient", as highlighted by Honourable apex Court. It is, therefore, concluded that the impugned order and action of respondent No.4 is unlawful being beyond the parameters of section 169, Cr.P.C. and as such without lawful authority and bereft of jurisdiction, enunciating miscarriage of justice and in such circumstances, the High Court has to interfere and pass appropriate orders to secure the ends of justice, as held in Shah Daraz's case (supra).

8. This Court is taking serious notice of steeply increasing tendency in District Bannu and Lakki Marwat where Police Officers are frequently misusing their power under section 169, Cr.P.C. by transgressing the legal parameters, obviously, due to extraneous reasons. The actions of Police Officers identical to the present one, even in Qatl- e-Amd cases, are being brought before this Court by the aggrieved complainant parties. In the aforesaid area of our jurisdiction, such a tendency is not new. Similar practice of ignoring the prima facie admissible prosecution evidence, exonerating accused on weak counter-plea and placing them in Column Na.2 by the Investigating Officers to facilitate their release on bail remained in vogue in the past too of which Honourable Mr. Justice Muhammad Bashir Khan Jehangiri, Judge of this Court as his Lordship then was, had to take a serious notice in the case of Shadi Khan v. Motiullah and another 1989 PCr.LJ 2253 and while cancelling the bail in spite of the fact that the accused-petitioner was placed in Colunm No.2 of the challan, the following observations were recorded in the judgment, the relevant passage of, which is reproduced below for ready reference:

"With utmost respect I would differ with the proposition canvassed at the Bar that if the Investigating Officer has found the accused innocent and placed him in Column No 2 of the challan then he would be entitled to bail as of right. In support of the plea for bail on behalf of the respondent, the only ground urged is that during the investigation he was found innocent by the police and placed in column No 2 because at the time of the alleged occurrence he was found in another village. The oral statements of some witnesses including that of Muhammad Ali Pawinda recorded long after the occurrence, to my mind are not enough to attract the benefit of Badiuzzaman's case referred to above. The respondent has been assigned in the F.I.R. an effective role in the murder of the deceased and the charge is supported by the statements recorded under section 161 Cr.P.C. The belated statement of Muhammad Ali Pawinda P.W. and others referred to above are not prima facie based on sound material as held in Muhammad Afzal v. Nazir Ahmad 1984 SCMR

429. It is not the single case from jurisdiction of Bannu District that such a plea has been advanced. In a number of cases I noticed a tendency that such a plea is advanced and relying in Badiuzzaman's case, the accused are being declared innocent and placed in Column No 2 of the challan. In my view, however, the opinion of the police qua the innocence of the respondent in this case is not based on sound material and, therefore, even if he has been placed in Column No. 2 of the challan, he would not be entitled to bail. On consideration of the entire material on the file and abscondence of the respondent for over eight months, I have formed the opinion that there are reasonable grounds for believing that the respondent has committed the offence with which he had been charged. (Note: underlining is mine)."

9. The matter did not end here and after a few years, Honourable Mr. Justice Muhammad Bashir Khan Jehangiri had to again take notice of the same tendency in another case Shahzar Khan v. State 1992 .PCr.LJ 394 (Peshawar) wherein the Investigating Officer had given opinion about the innocence of an accused on the basis of "secret information" and few weak statements of some interested persons favouring the accused. Relevant paragraph 6 of the judgment is quoted below for- ready reference:-- "I am inclined to agree with the learned Assistant Advocate-General that opinion of the Investigation Officer qua the innocence of the accused-petitioner is not binding on the Court because in the instant case such opinion has not been raised on the soundness of any material excepting few statements of the so-called elders of the village. The word used by the Investigation Officer in declaring the petitioner as innocent are (secret information). Obviously the statements of few interested persons in our society and the secret information is not a sufficient material for declaring a person as innocent for the charge of murder."

10. Concludingly, I am of the opinion that it is the sacred duty of this Court to check and discourage any tendency of the State functionaries to twist, misinterpret and misapply law to achieve their desired effects, which are actually undesirable under the law and principles of justice, being beyond the defined legal parameters of their vested powers and thereby ends of justice are in jeopardy. If this Court ignores such tendencies and activities, the obvious result would be injustice and anarchy, which can never be allowed.

11. Consequently, the petition is accepted, the impugned order and action of respondent No.4/S.H.O., Police Station Saddar Bannu is set at naught. The respondents-accused shall be arrested according to law. They shall be produced before the Judicial Magistrate for further necessary action according to law. However, if respondents-accused move post-arrest bail applications for their release, those shall be decided on merits in accordance with law and this judgment shall not have any adverse effect on their bail case. H.B.T./148/P Petition accepted.