PLJ 2010 Cr.C. (
[D.I. Khan Bench]
Present:
Attaullah Khan, J.
MAMEEZ
KHAN--Petitioner
versus
STATE
and 2 others--Respondents
Crl. M. Q.P. No. 109 of 2009, decided on 12.4.2010.
Criminal
Procedure Code, 1898 (V of 1898)--
----S.
561-A--Cancellation of personal bond--Accused was released and declared
innocent--Application for re-investigation during which he got himself released
on personal bond--Investigating officer has released the accused on basis of
deficient evidence--No such findings were given by Investigating
Agency--Validity--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--Held:
Investigating officer cannot release an accused person on the basis of
statements recorded u/S. 161, Cr.P.C. or even u/S.
164, Cr.P.C. unless such statements are proved to be
true by the Court of competent jurisdiction--Petition was allowed. [Pp. 579 & 580] A & B
Plea
of Alibi--
----Investigating
officer would release the accused on personal bond--Believed the statements
recorded u/S. 161, Cr.P.C. regarding the plea of
alibi taken by the accused--Validity--Plea of alibi is required to be proved
through exhaustive evidence and merely on the statements of few persons
recorded u/S. 161, Cr.P.C.--If such practice is
allowed to prevail, then every accused in criminal cases would take plea of
alibi, produce certain persons before investigating officer and after recording
their statements in his favour, the investigating
officer would release the accused on personal bond. [P. 580] C
Criminal
Procedure Code, 1898 (V of 1898)--
----S.
161--Statement of eye-witnesses--Investigating Officer had acted upon the
statements recorded u/S. 161, Cr.P.C. which is yet to
be proved at trial stage and apparently it has no evidentiary value. [P. 580] D
Sufficient
Evidence--
----Evidence
in shape of FIR lodged by complainant who is eye-witness is not deficient but
sufficient to connect the accused with commission of the offence--It is trial
Court who has the prerogative to declare any evidence sufficient or otherwise. [P. 580] E
PLD 2007 SC 539, rel.
Power
of Investigating Officer--
----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 trial stage. [P. 580] F
Job
of Police Officer--
----The
Job of a police officer only is to collect evidence and to place the same alongwith other information before competent Court. [P. 580] G
PLD 2008 Pesh 63 & PLD 2006 Pesh 165, rel.
Mr.
Anwar-ul-Haq, Advocate for Petitioner.
Mr.
Sanaullah Shamim, DAG for
State.
Mr.
Shah Hussain Khan, Advocate for Respondent No. 2.
Date
of hearing: 12.4.2010.
Judgment
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 FIR No. 128 dated
6/5/2009 of Police Station Mandan, District Bannu,
registered under Sections 302/324/34 PPC.
2. The record reveals that the petitioner
charged the Accused/Respondent No. 2 alongwith 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 Investigation 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
has been falsely implicated in the case because at the elevant
time, he had gone to village Aimal Khel for offering Fateha of
father of one Naimatullah. The record further reveals
that the I.O. 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 at 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
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 the accused in the FIR and the other in the shape of statements of six
persons recorded under Section 161 Cr.P.C. The
Investigating Officer has acted upon the statements recorded under Section 161 Cr.P.C. which s yet to be proved at trial stage and
apparently it has no evidentiary value. Therefore, the evidence in the shape of
FIR lodged by the 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
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.
(R.A.) Petition
allowed.