2010 P Cr. L J 1137
Criminal Procedure Code (V of 1898)---
----Ss. 561-A, 161, 164 & 169---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-e-amd 'end attempt to commit qatl-e-amd---Cancellation of personal bond---Petition for---Plea of alibi---Effect---Petitioner/complainant had filed petition under S.561-A, Cr.P.C. for cancellation of personal bond of respondent/accused whereby he was released and declared innocent by the Investigating Officer--Investigating Officer in the case had recorded statements of six persons who stated that on relevant date accused was not present at place of occurrence as he on said date had gone to another place in connection with Fateha of father of his relative---Investigating Officer in circumstances had believed the statements, recorded under S.161, Cr.P.C. regarding the plea of alibi taken by accused---Investigating Officer could not release an accused on the basis of statements recorded under S.161, Cr.P.C. or under S.164, Cr.P.C., unless such statements were proved to be true by the court of competent jurisdiction---Plea of alibi was required to be proved through exhaustive evidence and not merely on the statements of few persons recorded under S.161, Cr.P.C.---Investigating Officer had acted upon the statements recorded under S.161, Cr.P.C. which was yet to be proved at trial stage and it had no evidentiary value---Evidence in the shape of F.I.R. lodged by the complainant who was eye-witness was not deficient, but was sufficient to connect accused with the commission of offence---Trial Court had the prerogative to declare any evidence sufficient or otherwise---Petition was allowed, impugned action of the Authority was declared null and void being illegal.
Muhammad Bashir v. S.H.O. Police Station Okara Cantt PLD 2007 SC 539; Shah Daraz Khan v. Muhammad Jabbar Khan and 2 others PLD 2008 Pesh. 63 and Eisa Khan v. Nawab Khan and another PLD 2006 Pesh. 165 ref.
Anwar-ul-Haq for Petitioner.
Sanaullah Shamim, D.A.-G. for Respondent.
Shah Hussain Khan for Respondent No.2.
MAMEEZ KHAN VS State2010 P Cr. L J 1137[Peshawar]Before Attaullah Khan, JMAMEEZ KHAN----PetitionerVersusTHE STATE and 2 others----RespondentsCriminal Miscellaneous Quashment Petition No.109 of 2009, decided on 12/04/2010.
ORDER
ATTAULLAH KHAN J.---Mameez Khan petitioner has filed this petition under section 561-A, Cr.P.C. for the cancellation of personal bond of Jan Baz Khan, accused/respondent, whereby he was released and declared innocent by the Sub-Inspector Investigation, Police Station Mandan vide order/report dated 17-5-2009 in case F.I.R. No.128 dated 6-5-2009 of Police Station Mandan, District Bannu, registered under sections 302/324/34, P.P.C.
2. The record reveals that the petitioner charged the accused/respondent No.2 along with his co-accused for the murder of Jamshed Khan and causing injuries to a passerby lady. During investigation, respondent No.2 submitted an application for pre-arrest bail and after getting interim relief, the application was withdrawn. Thereafter, he filed an application for re-investigation during which he got himself released on personal bond.
3. Learned counsel for the petitioner argued that the Investigating Officer has no power to bail out an accused on personal bond and by exercising powers, he has played the role of a Judge.
4. On the other hand, learned counsel for the accused/respondent argued that the respondent was charged for Lalkara only and no overt act has been attributed to him. He further submitted that the accused being innocent was rightly bailed out by the Investigating Officer.
5. I have carefully examined record of the case and anxiously considered the arguments advanced at the bar.
6. The record indicates that the Investigating Officer has released the respondent Jan Baz Khan on the basis of deficient evidence. The final report of the Investigating Officer is available on file. I have perused it. According to the finding of the Investigating Officer, the respondent Jan Baz Khan falsely implicated in the case because at the relevant time, he had gone to village Aimal Khel for offering Fateha of father of one Naimatullah. The record further reveals that the Investigating Officer has also recorded statements of some persons who have verified that Jan Baz Khan was present in Fateha of father of one Naimatullah at the relevant time. This report was made of the direction of Incharge Investigation, District Bannu. The record also indicates that in the earlier investigation, no such findings were given by the Investigating Agency. It further shows that immediately after the occurrence, the accused/respondent had absconded.
7. The question for determination in this particular case is whether the Investigating Officer has acted in accordance with the requirements of section 169, Cr.P.C. or not.
8. It is to be noted that the Investigating Officer after conducting investigation can release an accused on his executing a bond if there is no sufficient evidence available on record against the accused charged in the initial report. In this case, the Investigating Officer has recorded statements of six persons who have stated that on 6-5-2009 at about 10-00 a.m. till 3-00 p.m., the respondent was present in the house of Naimatullah in connection of Fateha of this father. It means that the Investigating Officer has believed the statements recorded under section 161, Cr.P.C. regarding the plea of alibi taken by the accused/respondent. It is a settled principle of law that an Investigating Officer cannot release an accused person on the basis of statements recorded under section 161, Cr.P.C. or even under section 164, Cr.P.C. unless such statements are proved to be true by the Court of competent jurisdiction. The plea of alibi is required to be proved through exhaustive evidence and not merely on the statement of few person recorded under section 161, Cr.P.C. If this practice is allowed to prevail, then every accused in criminal cases shall take plea of alibi, produce certain person before the Investigating Officer and after recording their statements in his favour, the Investigating Officer would release the accused on personal bond.
9. In the case in hand, the trial Court would have two sets of evidence. One in the shape of statement of eye witness who has charged this accused in the F.I.R. and the other in the shape of statement of six persons recorded under section 161, Cr.P.C. The Investigating Officer has acted upon the statement recorded under section 161, Cr.P.C. which is yet to be proved at trial stage and apparently it has no evidentiary value. Therefore, the evidence in the shape of F.I.R. lodged by the C complainant who is eye-witness is not deficient but sufficient to connect the accused/respondent with the commission of the offence. It is the trial Court who has the prerogative to declare any evidence sufficient or otherwise. Reliance in this connection may be placed on the dictum', handed down by the Apex Court in the case of Muhammad Bashir v. S.H.O. Police Station Okara Cantt. PLD 2007 SC 539, wherein it has been held that the impression that an Investigating Officer has the power to pronounce upon the guilt or innocence of an accused person was a grave misconception, because such an opinion expressed by an Investigating Officer was not even admissible in evidence at the trial stage. According to this judgment in criminal cases, the job of a Police Officer only is to collect evidence and to place the same along with other information before the competent Court. Wisdom in this respect can also be drawn from the cases reported as Shah Daraz Khan v. Muhammad Jabbar Khan and 2 others PLD 2008 Pesh. 63 and Eisa Khan v. Nawab Khan and another PLD 2006 Pesh. 165.
10. For what has been discussed above, this petition is allowed, the impugned action of respondent No.3 is declared null and void being illegal. The accused/respondent present in Court is taken into custody and sent to judicial lock-up to face trial. However, he is at liberty to move for post-arrest bail before the competent Court of law if so desired.
H.B.T./117/PPetition allowed.
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