' SHER MUHAMMAD KHAN, J.---Petitioner herein has charged, respondents Nos.1 to 4 for firing at him vide F.I.R. No,88 dated 22-2-2009 Police Station, Naurang District Lakki Marwat. The petitioner reported the matter to Gulmar Jan Khan A.S.-I. Police Station Naurang in injured condition at Civil Hospital, Naurang, wherein he was medically examined after lodging the report. The injury sheet of the petitioner was also prepared and medical examination was also conducted wherein two bullet entry wounds were found of firearm on medial side of right leg (in middle) size 1/2 inch x 1/2 inch skin and muscle deep. Corresponding holes in shalwar were also found which was handed over to the police, probable duration of the injury was one-two hours. The Investigating Officer after registration of the case inspected the spot and recovered blood-stained earth from the spot where the petitioner had received the injury and eight empty shells of 7.62 bore from point No,2, where respondent Hayatullah Jan was shown to be present and one magazine of .30 bore pistol having one live cartridge was also recovered from the spot where respondent Saleemullah was shown to be present at the time of occurrence. Similarly, from the spot of Abdul Matin respondent also empty shell 7.62 bore was recovered. The FSL report regarding the empties, recovered from the spot reveals that the crime empties were fired from different 7.62 MM bore rifles. The occurrence was also stated to have been witnessed by Azam Khan and Muhammad Zahid Khan, cousin and son of the petitioner respectively.
2. Respondents Hayatullah Jan and Samiullah Jan, initially obtained pre-arrest bail from the Court of Sessions Judge, Lakki Marwat and later 'on submitted application to DSP Investigation, Lakki Marwat for investigation into their plea of alibi, who accordingly conducted inquiry on their application, without giving any notice to the petitioner and finally submitted his report for cancellation of the case.
3. The learned Magistrate also without giving an opportunity of hearing to petitioner and applying his independent mind agreed with the recommendations of the Investigating Officer and vide order dated 12-9-2009, filed the case.
4. The petitioner has impugned the above mentioned order passed by learned Judicial Magistrate through instant writ petition on the grounds that the same is against law, facts, justice, without lawful authority and jurisdiction.
5. Learned counsel for the petitioner argued that respondents are directly charged in the promptly lodged F.I.R., duly supported by eyewitnesses as well as recovery of blood-stained earth and empty shells from the spot. Medical report of the petitioner, corresponding holes found on the trouser of the petitioner and Arms Expert report in respect of the recovered empties, to the effect that the empties C-1 to C-8 were fired with different weapons of 7.62 bore, are sufficient material to connect respondents Nos. 1 to 4 with the crime. He next argued that the Investigating Officer has exceeded his jurisdiction and taken the job of the trial Court by scrutinizing the evidence available on the case file.
6. Learned counsel appearing on behalf of respondents argued that under section, 173 Cr.P.C. The Investigating Officer has ample powers to investigate, scrutinize and evaluate the authenticity, truthfulness and genuineness of the evidence of the prosecution. They next argued that the purpose of investigation will become useless and redundant if Investigation Officer is restrained from exercising his powers vested in him under Criminal Procedure Code and Police Rules. They further argued that the learned Magistrate and Investigating Officer have rightly expressed their opinion and exercised the powers vested in them under the law, which is based on solid reasons, therefore, cannot be considered illegal or without jurisdiction.
7. We have gone through the evidence collected by the Investigating Officer, in support of the case of petitioner as well as of respondents Nos.1 to 4 and have also given our thoughts to the legal aspect of the matter in the light of the Judgments relied upon by both the parties.
8. In the instant case the Investigating Officer has recommended cancellation of the case on the ground that respondent Abdul Matin and Inamullah were in Nowshera and Islamabad respectively on the day of occurrence, which fact was verified by the Incharge Investigation from concerned persons in Islamabad and Nowshera. The Arms Expert report, which in fact, is in consonance and in line with allegation of the prosecution has been misinterpreted in favour of defence in unique manner. The Arms Expert has opined that the eight empty shells of 7.62 bore C-1 to C-8 were fired from different weapons of 7.62 bore, which means that it were not fired by a single weapon but the Investigating Officer misinterpreted the same, in a manner that it were fired from eight different weapons. The Investigating Officer has also opined that medical report contradicts the report of petitioner for the reason that neither there is any exit wound found on the person of the petitioner nor any, bullet recovered from the body. According to him this gives support to suspicion that the injuries were self-inflected.
9. The learned Magistrate without going through the reasoning given by the Investigating Officer agreed with him and ordered to file the case. He did not quote any section of law which empowers him to pass an order for filing the case in such manner.
10. The Investigating Officer is not empowered to evaluate defence evidence of an accused and prefer it over prosecution evidence and then release him on personal bond by declaring him innocent.
11. Petitioners obtained pre-arrest bail from the Court of learned Sessions Judge, Lakki Marwat on 23-2-2009 which was later on withdrawn on 3-3-2009 after creating liaison with Investigating Officer and procuring favourable report. Such like conduct of the Investigating Officer has been declared illegal by this Court in case reported in PLD 2008 Pesh. 63 titled Shah Daraz Khan v.
Muhammad Jabbar Khan in the following words.
"Investigating Officer treating accused as innocent and releasing him under section 169, Cr.P.C. On his personal bonds. High Court on petition under section 561-A, Cr.P.C. Holding the action of Investigation Officer was perverse, arbitrary and capricious and against all norms of justice".
12. Opinion of the Investigating Officer would not make any accused person guilty or innocent as his job is only to collect some material and to place it before the competent Court, who can declare an accused guilty or innocent. In the instant case the Investigating Officer and the Judicial Magistrate have over stepped and usurped the powers of the trial Court which cannot be upheld by any standard of judicial scrutiny. The Investigating Officer in this case has assumed the role of the trial Judge. The plea of alibi is always subject to verification, investigation and authentication only by the trial Court. No one else is authorized to decide it in either way. Similar is the case of expert report and medical evidence. Without giving opportunity to the opposite side, the Investigating Officer has not only formed his opinion but also forwarded the same to Magistrate for releasing the respondent on personal bonds, such like practice can never be viewed with appreciation.
13. The Magistrate as well as the Investigating Officer at any stage did not issue notice to the petitioner and condemned him unheard.
14. The Magistrate while passing order has not discussed the relevant points and simply concurred on the findings of police without applying his own independent mind. The impugned order so passed is, therefore, not judicious. The Magistrate purportedly has acted in administrative capacity but even in that sphere of jurisdiction he was required to consider all aspect of the matter which he failed and thus committed illegality an gross miscarriage of justice.
15. We restrain ourselves to express our opinion on the veracity or authenticity of the evidence of prosecution or defence, lest it may prejudice case of either side, however, we are of firm opinion that the Investigating Officer and the Judicial Magistrate have exercised jurisdiction not vested in them and thus the proceedings conducted by the Investigating Officer and Order passed by the learned Magistrate are void, without lawful authority and of no legal effects.
16. Therefore, we accept this petition and remit the case file to the SP Investigation, Lakki Marwat, who should entrust the same to any other impartial Investigating Officer for conducting fair investigation. He is at liberty to collect evidence of prosecution or defence, if produced before him, and place the same on record. After that challan may be submitted before the competent trial Court, who is the proper and competent forum to decide the fate of the case in accordance with law after awarding full opportunity to either side.