SYED HUSSAIN MAZHAR KALEEM, J.--- The above titled revision petition is directed against the order of District Court of Criminal Jurisdiction, Mirpur, dated 14-3-2007, whereby the accused non- petitioner was allowed bail.
2. Brief facts leading to the background of the revision petition are that a case under section 12, Z.H.A. Was registered against the non-petitioner and others at Police Station, Chaksawari on the complaint of Naveed Hussain. It was reported that complainant a student of 9th Class was a resident of Khanaabad. On 4-3-2007 at about 9-45 p.m. Rashid Iqbal son of Muhammad Iqbal who was going to Mera Bani to the house of his sister meet the complainant and asked him to accompany. While on their way back when arrived at the place of occurrence Sarfraz son of Khadim Hussain, Shamraiz son of Allah Ditta and Shahzad son of Qurban Hussain stopped their motorcycle. They caught the complainant and .Started beating Rashid Iqbal who left the place of occurrence. Shahzad and Shamraiz accused forcibly took the complainant in a "Kassi", took off his Shalwar and committed sodomy while Sarfraz had been asking them not to do so. Shahzad and Shamraiz accused asked the complainant not to disclose anyone about the incident otherwise he would be killed.
3. After arrest, the accused non-petitioner applied for bail before District Court of Criminal Jurisdiction, Mirpur which was allowed through the impugned order. Hence this revision petition.
4. Learned counsel for the petitioner argued that the non-petitioner was attributed to have committed offence under section 12, Z.H.A. According to the F.I.R. He took the victim at the place of occurrence on the motorcycle of Shamraiz accused where he was subjected to unnatural lust. The non-petitioner was designer of the occurrence and prima facie he was connected with the offence punishable with death or rigorous imprisonment which may extend to 25 years. He submitted that in view of the role played in the occurrence the non-petitioner was not entitled to the concession of bail. The trial Court failed to appreciate the material on record in a judicial fashion and committed a serious legal error while passing the impugned order, therefore, by accepting the revision petition the bail allowed to the accused non-petitioner may be cancelled.
5. On the other hand, it was argued that the accused non-petitioner was resident of Sector F/2, Mirpur and was not known to other accused persons. He was alleged for taking the complainant to the place of occurrence but there was no evidence indicating that it was in his knowledge that they will be stopped by the accused persons and the complainant would be subjected to sodomy.
According to the learned counsel he was also a victim as he was beaten by the other accused person. The learned counsel submitted that there is nothing on record to connect the non- petitioner with the alleged offence and it cannot be said at this stage that the trial Court has committed any error while allowing bail to him, therefore, the revision petition may be dismissed.
6. I have heard the learned counsel for the parties and gone through the record of the case.
7. It is worth-mentioning that after registration of the case Shahzad Ahmad, Shamraiz and Sarfraz accused applied for pre-arrest bail before District Court of Criminal Jurisdiction, Mirpur which was allowed to the extent of Sarfraz while the same was declined to Shahzad and Shamraiz accused through the order passed on 26-3-2007. After their arrest they applied under section 497, Cr.P.C.
But were again refused through the order, dated 2-4-2007.
8. A perusal of the aforesaid order shows that the Court was satisfied that there was a prima facie case existing against the accused on the basis of material collected by the prosecution. The Court considered the statements of Sheraz son of Punnun, Mazhar son of Abdur Rashid, Zahoor son of Haji Rehmat, Ch. Sajid Ali son of Abdul Qayyum and Muhammad Arfat son of Muhammad Siddique. The Court also took notice of dishonest investigation in the case with the observation that in such-like cases nobody would like to accept the humiliation to charge the others.
9. A perusal of the police diary shows that police filed a report under section 173, Cr.P.C. Before Magistrate stating therein that allegation of sodomy against Shahzad and Shamraiz accused was not proved as it was not supported by medical report thus, the evidence was not sufficient to constitute the offence, therefore, the accused detained in judicial lock-up, Mirpur may be released.
The Magistrate agreeing with the report for cancellation of the case passed an order whereby they were released from custody..
10. It would be useful to mention that after investigation if it appears to the Officer Incharge of the police station or to a Police Officer making investigation that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of accused to a Magistrate or Court such officer shall if such person is in custody release him on executing a bond to appear as and when required before Magistrate or Court empowered to take cognizance of the offence on a police report and to try the accused or send him for trial under section 169, Cr.P.C.
11. A careful study of the provisions of law dealing the aforesaid situation reveals that after registration of a case in cognizable offences the police after investigation can submit its report under section 173, Cr.P.C.. To a Magistrate/Court empowered to take cognizance of the offence, which is not binding on the Magistrate or the Court, therefore, notwithstanding the recommendations of the Investigating Officer regarding cancellation of case, it may decline to cancel the case and to proceed as provided under section 190 and summon the accused to face trial. It may also be stated that the Magistrate or the Court has not to agree with the police report blindly and pass the order of discharge of an accused in a whimsical and arbitrary manner. Order on such report is an administrative one. When a Magistrate concurs with or refuses to agree with the police report submitted to him the order though is administrative in nature but has to be passed in a judicial fashion.
12. In the present case the police submitted a report for cancellation of the case to a Magistrate who was not empowered to take cognizance of offence charged against the accused i.e. 12, Z.H.A.
Section 173 of the Cr.P.C. Provides that suoh report could only be submitted before a Court or Magistrate empowered to take cognizance of the offence, therefore, proceedings taken by the police after investigation were clearly against the provisions of law. It would be important to mention that in case of disagreeing with the report the Magistrate could not proceed for being incompetent to take cognizance. Proceedings undertaken by the police and the order passed by the Magistrate were illegal and deserved to be set aside, therefore, order is passed accordingly.
13. After examining the police diary in the backgrounds of the observations made by the District Court of Criminal Jurisdiction, it is felt justifiable that a direction may be issued to the concerned Incharge of the investigation for a action in law, while exercising jurisdiction under section 561-A, Cr.P.C. The relevant provisions of law provide that in order to secure the ends of justice or to prevent abuse of the process, this Court should interfere under it inherent powers as mandatory provisions of law were overlooked. It would be relevant to mention that Investigating Officer in spite of evidence on record recommended the case for its cancellation before a Magistrate not empowered to take cognizance of the offence.
14. So far the case of Rashid Iqbal is concerned, it was argued by the learned counsel for the petitioner that the accused non-petitioner hatched a conspiracy and took the complainant at the place of occurrence on the motorcycle of Shamraiz accused. A careful consideration of the impugned order shows that the point was not considered by the trial. Court while deciding the application for bail. Therefore, keeping in view the facts and over all circumstances of the case it is felt expedient to remand the matter to the trial Court which shall hear, the arguments on the application for grant of bail afresh and decide the same in accordance with law, however, till disposal of the matter the order of bail already passed in favour of the non-petitioner by the Court below shall remain intact. The parties are directed to appear before District Court of Criminal Jurisdiction, Mirpur on 30-4-2007.
' The revision petition stands disposed of as indicated above.