' NASIR SAEED SHEIKH, J.---Muhammad Ishaq petitioner seeks bail after arrest in case F.I.R. No,106, dated 8-7-2009 for offences under sections 295-A and 295-C, P.P.C. Registered at Police Station City Talagang, District Chakwal.
2. The petitioner was arrested in the said case. He moved an application for being released on bail before the learned Additional Sessions Judge which bail was declined in the earlier round of litigation and ultimately the matter went up before the Supreme Court of Pakistan and vide order, dated 20-8-2009, the Hon'ble Supreme Court of Pakistan in Criminal Petition No,571 of 2009 refused the grant of bail while expressing an opinion that no case is made out for the grant of bail to the petitioner.
3. The learned counsel for the petitioner has placed on record an order, dated 11-12-2009 passed by Senior Superintendent of Police, Regional Investigation Branch, Rawalpindi to contend that on account of the order passed by the said police officer a fresh cause of action has arisen in favour of the petitioner as he has been exonerated by the said police officer in the order, dated 11-12-2009.
It appears that after disposal of the matter up-till the Supreme Court of Pakistan, the Senior Superintendent of Police, Regional Investigation Branch, Rawalpindi wrote down a detailed order, dated 11-12-2009 in which he has discussed the entire evidence collected by the police during the investigation/ reinvestigation of the case and recorded following findings:--
(1) "The subject F.I.R. Was registered by Asadullah Khan son of Muhammad Younis not by the concerned S.H.O. If it is a case of blasphemy, it would be better, the case should be registered by the concerned S.H.O. (2007 PCr.LJ 342), Lahore Mst. Sardaran Bibi v. The State).
(2) The evidence given to the local police in the form of recorded conversation was taken in a clandestine manner, which reflects that one sect has already planned to put up controversial questions to the accused, so that they can ignite his emotional feelings and pass any unwarranted remarks.
(3) There is nothing in the conversation which comes under the ambit of 295-C, P.P.C. The accused Mr. Ishaq did not utter any word which Nauz Billa insulted the dignity of the Prophet (S.A.W.) On one question he stated that why I should say Qaadianis as Kafir, it is their belief. This statement does not mean that he has insulted or passed any statement against the dignity of Prophet (SAW). The application of section 295-C, P.P.C. Is without logic and contrary to the evidence put forwarded by the complainant party.
(4) It was accused that Mr. Ishaq was given Sajda by his followers, The CD of a function was minutely observed. It is called Kodam Bosi, I will not go into the detail whether it is right or wrong but this practice is present in many area of the country. The investigator also collected some evidence of Kadam Bosi (kissing the feet) by some other people. The photograph of a religious leader Tahir- ul-Qadir is enclosed for ready reference where his feet was kissed by his follower. By taken into account, the action done by the accused in the subject case does not mean that he was given Sajda. Though, this practice has not been liked by the Wahabi Sect and that is reason that they declared it a Sajda.
(5) The accused in his entire conversation reiterated that I am nothing Allah is one. He is the Rub of East and the West. Allah has sent me from the West. The overall life of the accused was also taken into account in which he was realized as a believe of oneness of Allah and the last prophet-hood of Hazrat Muhammad (SAW).
(6) So far section 295-A, P.P.C. Is concerned, the accused did not insulted the religious feelings of other Sect/complainant. He time and gain reiterated that it is your belief. So the application of section 295-A, P.P.C. Also does not attract the evidence.
(7) Both the accused and complainant parties belong to different sects and schools of thought.
The accused party claims to the followers of Tariqat and have their own ways to please the Almighty Allah. The role of Murshid is more emphasized by them and that is why they give Tazeem to the Murshid. This practice is socially constructed belief but does not become illegal in the eyes of law.
(8) The local police does not decide the case on investigation purely considering the legal aspects of the case. Their decision was based on their preference to avoid law and order situation in the district.
4. While I was dictating the order, the learned counsel insisted that he may be allowed to withdraw the Criminal Miscellaneous. It is observed by the Court that the S.S.P. Has pre-empted the power of the criminal Court and passed a verdict of innocence of the accused and also expressed his opinion about in application of the offences charged on the acts of the accused by recording eight paragraphs, discussing the evidence collected by the prosecution, which power exclusively vests in the Courts of law and cannot be allowed to be exercised by a police officer, therefore, the request of the withdrawal of the Criminal Miscellaneous is not allowed. It is both appropriate and necessary that the order passed by the Senior Superintendent of Police and the indulgence undertaken by him in the matter be disapproved and the matter must be left to be decided by the Court of law.
The police officer, how high so ever in rank he may be, cannot be permitted to exercise powers vested in and entrusted to a Court of law. The commands of law embodying and manifesting the principles of rule of law cannot be allowed to be frustrated or deviated by an anxious police functionary travelling beyond the limits prescribed for him by law.
5. The Hon'ble Supreme Court of Pakistan in the judgment reported as Muhammad Bashir v. Station House Officer, Okara Cantt and others (PLD 2007 SC 539) has laid down as follows:-- "It may be added that the police force was not a creation of the Code of Criminal Procedure but was a force initially established by the Police Act of 1861. The Code of Criminal Procedure only borrowed some, from amongst this force, and asked them to perform some of its functions. They had, therefore, no powers to go around doing things accordingly to their whims or desires in the matter of administration of justice in the fields of crimes. The powers enjoyed by the members of the police force were limited to the authority conferred on them by law. And it may be added that every step which the Cr.P.C. Permitted a police officer to take, was subject to scrutiny and control of some Court or Magistrate."
' In para. 17, the Hon'ble Supreme Court in the said judgment further laid down as follows:- "In the matter of ascertainment of the guilt or innocence of the persons accused of the commission of offences or in the matter of determination of the truth or otherwise of the allegations made in the said connection, the only power may the obligation cast on the police officers is to carry out the investigation of case, on their own if the offence be cognizable (sections 156, 157 and 174, Cr.P.C.) and with the permission of a Magistrate if the same be non-cognizable (section 155(2), Cr.P.C.).
And `investigation' as defined by section 4(1)(1) of the said Code, means only, the collection of evidence and no more. The impression that an Investigating Officer had any power or was even allowed to pronounce upon the guilt or innocence of an accused person was a grave misconception. In fact such an opinion expressed by a Investigating Officer was not even admissible in evidence at the trial being the opinion of a person who had never been held by the Courts of law to be an expert. Therefore, in any criminal proceedings, the job of a police officer only is to collect evidence and to place the same along with other information, before the competent Magistrate in the form of a report in terms of section 173, Cr.P.C. It would be evident from the provisions of section 63, Cr.P.C. That the fate of a person, though arrested by the police, was no longer in their hands but was at the mercy of a Magistrate and likewise the fate of an F.I.R. Though recorded by a police officer but once recorded, went beyond his control and it was then only a Magistrate who could cancel it (Rule 24.7 of the Police Rules of 1934).
' In para. 37 at page No,555 of the same judgment, Hon'ble Supreme Court of Pakistan laid down as follows:-- "We know that the prescribed forum for the determination of the correctness or falsity of the accusation levelled against some one was a Court of law and not a police man or even an Ex- officio Justice of the Peace irrespective of his rank and status."
6. It shall be also important to refer to Full Bench judgment announced by this Court reported as Khizar Hayat v. Inspector General to Police (Punjab) (PLD 2005 Lahore 470) where at page 482, the following principle of law was laid down:-- "The job of an Investigating Officer is not to satisfy the parties to the case or to render any opinion about guilt or innocence of an accused person but his duty is only to collect all the relevant evidence. In the reports to be submitted by the police in connection with investigation of a criminal case it can comment about sufficiency or otherwise of the evidence available against an accused persons but it cannot comment upon believability or otherwise of the evidence becoming available on record against such accused person. The question of believability or otherwise of such evidence is to be attended to by the relevant Magistrate or the trial Court."
7. The perusal of the paragraphs recorded by the S.S.P. In the order, dated 11-12-2009 shows that he has assumed powers of the Court to record his judgment conveying the innocence of the accused.
This Court disapproves the conduct of the S.S.P. As displayed by him in the order referred to above.
The order, dated 11-12-2009 passed by the S.S.P. Is thus declared illegal and without lawful authority.
Copy of this order be sent to I.G. Punjab for intimation and appropriate action.
8. This Criminal Miscellaneous has been moved after dismissal of bail application by the Hon'ble Supreme Court of Pakistan. The only fresh ground which has been urged by the learned counsel for the petitioner is order, dated 11-12-2009 passed by the Senior Superintendent of Police, Regional Investigation Branch, Rawalpindi and the ground so urged loses all is efficacy and recognition after the order, dated 11-12-2009 having been declared illegal and without lawful authority by this Court.
No other fresh ground is urged or so far available to the petitioner after dismissal of his bail application by the Hon'ble Supreme Court of Pakistan through Criminal Petition No, 571 of 2009. This Criminal Miscellaneous is dismissed in limine.
9. The learned counsel for the petitioner has informed that the challan in this case has already been submitted before the learned trial Court and the trial is about to commence. The learned trial Court shall not be influenced by the order passed by the S.S.P. In any manner in B view of all the above observations made by it and shall decide the matter in accordance with law.