' SH. HAKIM ALI, J.---Through this writ petition, extraordinary jurisdiction of this Court has been invoked with the following facts and circumstances, as narrated and stated by the learned counsel for the parties and found from the record of the case:-- ' On 8-11-2005 Abdul Wahid, the present writ petitioner, had lodged an F.I.R. No,333/2005 with Police Station Noshehra Jadid under sections 302/34 of the PPC. In the aforementioned report, Mahboob Ahmad and Nasrullah, respondents Nos.3 and 4 of the present writ petition, were attributed some role in the commission of the above noted offence. The Investigating Officer arrested both these accused on 18-12-2005 and got their remand from the concerned learned Magistrate, Ahmadpur East, which was granted to the police up till 22-12-2005. The next remand was obtained by the police from 23-12-2005 to 26-12-2005 and from 26-12-2005 to 28-12-2005 and then it was extended from 28-12-2005 to 31-12-2005. On 28-12-2005, the Investigating Officer formed the opinion that aforesaid accused (respondents Nos.3 and 4) were innocent and were not required during the investigation. So, availing his power under section 169 of the Cr. P.C, he proceeded to release both these respondents Nos.3 and 4 after obtaining bonds from them, requiring them to appear before the concerned competent Court as and when directed. On 2-12-2005, incomplete report under section 173 of the Cr.P.C. Before the .Concerned learned Magistrate was submitted which was to be forwarded to the learned Sessions Court. In the aforementioned report, respondents Nos.3 and 4 were not entered in Column No,2 or 3 of the aforesaid report. It has also been informed to this Court by the learned A.A.-G that complete challan/report under section 173 of the Cr.P.C. Has still not been submitted.
2. The writ petitioner, who is informant of the above mentioned F.I.R., has come to this Court for issuance of a direction to the Investigating Officer to submit report under section 173 of the Cr.P.C., displaying respondents Nos.3 and 4 as accused in Column No,2 or 3, as the case may be.
3. This prayer of the writ petitioner has been objected to and opposed by the learned counsel appearing on behalf of respondents Nos. 3 sand 4. According to learned counsel for respondents Nos.3 and 4, the police has got power to release the accused on his executing a bond, with or without surety. As per learned counsel for the respondents, this power has been exercised by the Investigating Officer and there is no illegality committed by the police. According to the learned counsel for the respondents as there was no sufficient evidence and there were no reasonable grounds of suspicion justifying forwarding of these two accused to a Magistrate, therefore, it was not incumbent upon the Investigating Officer to forward any report with regard to these accused (respondents Nos.3 and 4). Learned counsel has relied upon PLD 1971 SC 677 (Shahnaz Begum v.
The Hon'ble Judges of the High Court of Sindh and Balochistan and another), PLD 1978 Lahore 1325 (Muhammad Ali and t2 others v. District Magistrate, Faisalabad and 3 others), 1991 MLD 2564 (Madar Ali alias Muhammad Ali Khan and others v. The State), PLD 1994 SC 281 (Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others), 1994 SCMR 2142 (Brig. (Rctd.)
Imtiaz Ahmad v. Government of Pakistan through Secretary Interior Division, Islamabad and 2 others), 1995 PCr.LJ 549 (Afsar Khan v. Nawab Khan and 3 others), 2001 PCr.LJ 1571 (Haji Muhammad Sadiq v. Ilaqa Magistrate, Police Station Factory Area, Faisalabad and others), 2002 SCMR 63 (Safdar Ali v. Zafar Iqbal and others), PLD 2005 Lahore 85 (M. Ashraf and others v. The State).
4. Replying to it, petitioner's learned counsel has referred to 1996 PCr.LJ 1153 (Mukamil Shah v. The State), 1971 PCr.LJ 1164 (Haji Abdul Rahman v. Sultan and another), 1998 PCr.LJ 743 (Aziz-urRahman v. Kala Khan and another), 1996 PCr.LJ 1187 (Ghulam Qasim v. Nazir Ahmad and 3 others), 1996 MLD 891 (Muhammad Nasrullah v. Inspector General, Police, Punjab, Lahore and 3 others), 1999 PCr.LJ 469, 2001 PCr.LJ 1665 (Sujjat Ali v. The State and others), 1997 MLD 1430 (Nasrullah v. The State), 1991 MLD 2564 (Madar Ali alias Muhammad Ali Khan and others v. The State, 1999 PCr.LJ.
469. (Mastan Shah v. The State Additional Sessions Judge/Special Judge, Bannu and 2 others), NLR 2000 Criminal 604 (Muhammad Aksar v. Arshad, etc.) and 2000 PCr.LJ 1411 (Ghulam Shabbir v. The State).
5. To fully understand the controversy, reproduction of the relevant section i,e, section 169 of the Cr.P.C. Is necessary:- "169. Release of accused when evidence deficient. If, upon an investigation under this Chapter, it appears to the officer in charge of the police station, or to the police officer making the investigation that there is not sufficient evidence or reasonable ground or suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or [send] him for trial."
5. From the facts and circumstances of the case, it is evident that Investigating Officer had arrested respondents Nos.3 and 4 and he had been requesting the learned Magistrate for authorization of the detention of the aforesaid accused through remand. After getting permission/authorization as envisaged under section 167 of the Cr.P.C., the Investigating Officer could not discharge such accused for all time to come. He could release the accused after their executing a bond with or A without sureties but cannot discharge them, who were earlier, detained with the Investigating Officer, by the permission of the learned Magistrate. The words of section 169 of the Cr.P.C. "release him on his executing a bond with or without sureties" cannot be expounded as having authorized or empowered the Investigating Officer to discharge the accused. The execution of a bond from such a person in custody at the time of release itself gives the intention of the Legislature that it was subject to the confirmation from the learned Magistrate, empowered to take cognizance of the offence of a police report and to try the accused or send him for trial. The words used after the above noted sentence, have not been used superfluously and irrelevantly. A person, who was in B custody of the Investigating Officer and for whose detention, Investigating Officer had been obtaining remands, cannot be released by him, by using power of section 169 of the Cr.P.C. In the shape and form of discharge. It was a release and not the discharge by him, which was conditioned with the execution of bond, with or without sureties. In other words, it was, in fact, binding down by the Investigating Officer with direction to accused to appear before a Magistrate, if and when so required by the aforesaid Magistrate. The requirement is to arise when a Magistrate is informed regarding the release of such detained accused and the learned Magistrate by application of judicial mind consider the presence of the accused a requirement to face the trial or to discharge him. The requirement of a Magistrate can take place when cognizance is made on a police report, which report is submitted under section 173 of the Cr.P.C. To a Magistrate. In other words, it was incumbent upon the Investigating Officer to submit his report to the learned concerned Magistrate that such and such accused who was detained and for whose authorization for detention (remand) was obtained by him, from the learned Magistrate, was released in such and such situation, by him after execution of a bond from such and such person. The law has not permitted the Investigating Officer to decide the fate of an accused permanently or for all time to come on his own will or wish. A person can be discharged under section 63 of the Cr.P.C. Only, which is couched in the following words:-- "63. Discharge of person apprehended.-No person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate."
7. The words used in clause (a)( subsection (1) of section 173 of the Cr.P.C. Are also important, wherein it has been mandatorily directed to the officer in charge of a police station to submit his report in which he has to state that "whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and if so whether with or without sureties". The words "has been released on his bond, and, if so whether with or without sureties" are worth- consideration, which provide that it is the officer in charge of a police station, who has to report to the learned Magistrate regarding the person, who was released on execution of a bond with or without sureties. These words in fact are referring to the situation and event of section 169 of the Cr.P.C. There is yLt another provision in the form of subsection(3) of section 173 of the Cr.P.C. Which is also reproduced for quick appreciation:-- "(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit."
From wordings of this subsection it becomes evident that an accused released on bond, with or without sureties, is not a person released for all times to come. In fact, it is a temporary release which has to be confirmed through an order of discharge from the learned Magistrate.
8. In fact, release of an accused under section 169 of the Cr.P.C. Is up till confirmation of the action of the Investigating Officer for the release of the accused and up till the discharge or order of the learned Magistrate as provided in section 173 of the Cr.P.C. In NLR 1991 Criminal 741 (Madar Ali alias Muhammad Ali Khan, etc. v. The State) it has not been held that report of release on bond shall not be submitted by the Investigating Officer to the learned Magistrate. In PLD 2005 Lah. 85 (M. Ashraf and others v. The State) my learned brother Khawaja Muhammad Sharif, J. Has clearly held that accused can be summoned by the learned trial Court, who had been held innocent and discharged by the police. This ruling goes against the version of respondents Nos. 3 and 4. PLD 1978 Lah. 1325 (Muhammad Ali and 12 others v. District Magistrate, Faisalabad and 3 others) and 2001 PCr.LJ 1571 (Haji Muhammad Sadiq v. Ilaqa Magistrate Police, Station Factory Area, Faisalabad and others), are not relevant to the proposition in question. The decision referred as 1995 PCr.LJ 549 (Afsar Khan v. Nawab Khan and 3 others) has also gone against the stand taken by the learned counsel for respondents Nos. 3 and 4 . In that decision it has been held that the person released on bond has to be placed in Column No,2 of the format of challan. Reference to the decision of the Hon'ble Supreme Court reported in PLD 1994 SC 281 (Malik Shaukat Ali Dogar and 12 others v.
Ghulam Qasim Khan Khakwani and others), is not helpful to the contention of the learned counsel for respondents Nos. 3 and 4 because there is no denial to the fact that during the investigation of the police, interference has not to be made so as to prejudice the case of an accused. There is also no cavil to the law laid down by the Hon'ble Supreme Court in 1994 SCMR 2142 (Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary Interior Division, Islamabad and 2 others) that High Court cannot assume the role of an investigator. In 2002 SCMR 63 (Safdar Ali v. Zafar Iqbal and others), it was held by the Hon'ble Supreme Court that Magistrate could take cognizance of an offence even in case of a negative report submitted by the police against the delinquents. The reference to PLD 1971 SC 677 (Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another) made by the learned counsel for respondents Nos. 3 and 4, is not relevant as it has not interpreted section 169 of the Cr.P.C. Or has decided any such proposition, which is involved in the instant case.
9. 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.
10. I am fortified for the above view by 1996 PCr.LJ 1153 (Mukamil Shah v. The State), 1998 PCr.LJ 743 (Aziz-ur-Rahman v. Kala Khan and another), 2001 P.CrLJ 1665 (Sujjat Ali v. The State and others), NLR 1998 Criminal 516 (Mastan Shah v. Additional Sessions Judge/Special Judge, Bannu and 2 others and 2000 PCr.LJ 1411 (Ghulam Shabbir v. The State).
11. Therefore, by accepting this writ petition, the Investigating Officer S.H.O. Is directed to place the names of respondents Nos. 3 and 4 in Column No,2 of the report to be submitted under section 173 of the Cr.P.C. To the learned concerned Magistrate. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.