ATTAULLAH KHAN, J.--As per record a Criminal case under sections 3861427/430/447/506/148/149 PPC was registered against the 'accused/respondents vide F . I . R. No . 8 dated 8-1-2011 by petitioner/complainant namely Abdul Rashid Khan on his application submitted to District Police Officer, Bannu. During process of investigation the Investigation Officer released on bail under section 169 .Of the 'Cr.P.C, the accused/respondents mainly on the ground of alibi. This release under section 169, Cr.P.0 was challenged before the learned Additional Sessions Judge-II, Bannu in the petition for cancellation of bail, which was dismissed by learned Additional Sessions Judge-II, Bannu on 28-2-2011.
2. The above mentioned order of learned Additional. Session's Judge-II, Bannu as well as Investigating Officer has annoyed the petitioner, who impugned the same through instant criminal quahsment petition under section 561-A, Cr.P.C. For quashment of both the orders.
3. Learned counsel for the petitioner and private accused/respondents heard in length and perused the record in the light of which my discussion is as, under.
4. Learned counsel for the petitioner argued that the Investigating Officer has crossed his jurisdiction by granting bail because the evidence was not deficient. According to the learned counsel main ground prevailed with the Investigating Officer was the plea of alibi taken by the accused/respondents he relied upon the judgments of this Court in support of his case detailed below:--
1. Esa Khan v. Nawab Khan PLD 2006 Peshawar 165,
2. Shah Daraz Khan v. Muhammad Jabbar Khan and 2 others reported in PLD 2008 Peshawar 63 and
3. Mameez Khan v. The State and 2 others reported in 2010 PCr.LJ 1137.
5. On the other hand, learned counsel for the private respondents argued that there was no sufficient evidence against the accused/respondents, therefore, the Investigating Officer is justified in releasing them on personal bonds under section 169, Cr.P.C. He further submitted that the principle of cancellation of bail would apply in his case according to which the petitioner has to prove that either the accused/respondents are misusing the concession of bail or tampering with the evidence but none of these ingredients is available. He relied upon cases titled as Asfar Khan v.
Nawab Khan reported in 1995 PCr.LJ 549 and Basar Khan v. The State and another reported in 2009 PCr.LJ 964.
6. In this case while deciding the issue, provision of section 169, Cr.P.C. Is to be kept in mind. The said section empowers the Investigating Officer to release an accused if he finds that the evidence is not sufficient or there are lack of reasonable grounds to justify the connection of the accused with the offence. Main theme of the skid section is availability of sufficient or deficient evidence. This is the test on which the Investigation Officer has to form opinion about guilt or innocence of accused.
The Investigating Officer can only release an accused under section 169, Cr.P.C. If there is no sufficient evidence.
7. The Court has to examine as to whether the evidence collected by the Investigating Officer was sufficient or not. Question to be examined is that the main ground on which the accused/respondents were released which is plea of alibi. It is to be seen as to whether the plea of alibi comes within the definition of deficient evidence or not.#TE##
8. I would first discuss as to whether the evidence was not sufficient to connect the accused/respondents with the offence. I may refer the opinion of the Investigating Officer/summary on the challan. According to this opinion, he recorded the statements of accused in which they took the plea that at the time of occurrence they were not present on the spot. The Investigating Officer also held that section of law with which the accused/respondents are charged, are bailable. The record further reveals that the Investigating Officer has recorded the brief statements of nine accused. All of them have stated that they were not present on the spot. It means that the Investigating Officer believed their plea of alibi.
9. The question of release under section 169, Cr.P.0 and the plea of alibi has been discussed in the case of Dilda v. Safdar and 2 others 1990 PCr.LJ 158. The perusal of the said judgment reveals that High Court has not appreciated the release of bail on the plea of alibi. The relevant portion is reproduced below:-- "Let it be borne in mind that in exercise of his powers under section 169, Cr. P. C. a Policc Officer is to act with great care and caution, lest a guilty person may go scot free without facing his trial. It is only when 'there is no sufficient evidence' or 'reasonable ground of suspicion to justify the forwarding of accused to a Magistrate that he can undertake the exercise under the aforesaid provision. But 'insufficiency of evidence' or 'non-existence or reasonable ground' is ,one thing and evaluation of evidence forthcoming for and against the accused at the investigation stage, is another. In the latter case, he is not at all supposed to arrogate himself the functions of adjudication, in order to determine the nature of his offence and then to give a pre-trial verdict of the innocence of the accused, more particularly on the ground of such special plea as the one of alibi the onus of judicially proving whereof legally lies heavily on the accused. I am, therefore, clear in my mind that the course, the S.H.O. Muhammad Salim has followed, in the instant case, was not at all permissible under the law."
10. In this case also mainly the plea of alibi prevailed with the Investigating Officer. The learned counsel for the accused / respondent has also relied on the judgment reported in 2009 PCr.LJ 964. I have perused the said judgment. The. Said case is related to section 489-F, P.P.C. And different from the facts of the case in hand. In that case the bail was kept intact on the ground that the ingredients of section 489-F, P.P.C. Was not available. The relevant portion is reproduced below: "The present case is based on documentary evidence and even, after believing whole story of the complainant as true the case under section 489-F, P.P.C. Is not made out as I have mentioned hereinaboue."
11. It is further observed that:- "Due to lack of all three ingredients of section 489-F, PPC I do. Not see any-merit in this criminal miscellaneous application; furthermore, this appears to be a matter of civil dispute, therefore, the parties are at liberty to pursue their remedies before the competent Civil Court."
12. So the case-law mentioned above is of no help to accused/ respondents. Another case relied upon is reported in 1995 PCr.LJ 549. I have also perused this case. Facts of this case are again different and is, therefore, of no help to the accused/respondents because the accused released in the said case was declared illegal. This judgment is against the Accused/Respondents. :The relevant portion is reproduced below:-- "The release of two accused in the instant murder case solely by the police, is a procedure not known to the Criminal Procedure Code and was never the aim and intention of the law-maker. On the aforesaid two fold grounds the impugned order is void in law. Dildar v. Safdar of our own High Court cited as 1990 PCr.LJ 158 is a verdict in support of what has been discussed above."
13. As far as the evidence available against the accused is concerned, if it is deficient or not sufficient to connect the accused with the commission of offence the accused may be released under section 169, Cr.P.C. By the Investigating Officer. If it is otherwise then the Investigating Officer has no power under section 169, Cr.P.C. I may produce the principle laid down by this Court in case reported in 2010 PCr.LJ 1137 as below:- "It is to be noted that the Investigating Officer after conducing 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 6-5-2009 at about 10-00 a.m. Till 3-00 p.m., the respondent was not present in the house of Naimatullah in connection of Fateha of his father. It means that the Investigating Officer has believed the statements, recorded under section 161, Cr. P.
C. Regarding the plea of alibi taken by, the accused/respondent. It is a settled principle of law that an Investigating Officer cannot. Release an accused person on the basis of statements recorded under section 161, Cr.P.C. Or even under section 164, Cr. P. C. Unless such statements are proved to be true by the Court of competent jurisdiction. The plea of alibi is required to be proved through exhaustive evidence and not merely on the statement of few persons recorded under section 161, Cr.P. C. If this practice is allowed to prevail, then every accused in criminal cases shall take plea of alibi, produce certain person before the Investigating Officer and after recording their statements in his favour, the Investigating Officer would release the accused on personal bond."
14. In the above case the release on the plea of alibi was not appreciated and it was also held that the same was not deficient.
15. Similar view has been taken in PLD 2008 Peshawar 63. In the said case the Court also not appreciated the release of the accused by Investigating Officer under section 169, Cr.P.C. On the basis of plea of alibi by holding that it was the job of the Court to evaluate the said evidence. The Court, in the reported case, after reproducing the 'provision of section 169, Cr.P.C. Has held that:- "The plane reading of above quoted section clarifies that this section simply empowers an Investigating Officer, to release the person in custody, on his executing a bond, if the Investigating Officer, reaches to the conclusion that "there is no sufficient evidence" or "reasonable ground of suspicion" to justify the forwarding of the accused to a Magistrate.
The words "there is no sufficient evidence" or "a reasonable ground of suspicion are not ambiguous at all. The Investigating Officer can release an accused person in his custody when sufficient evidence is lacking or there is want of reasonable grounds of suspicion against the accused. This empowerment is not identifiable to the power of preponderance of evidence to be exercised by trial Court. When there is a set of prosecution evidence and on the other hand there is another set - of defence evidence. The trial Courts are empowered to weigh both sets of evidence on judicial scale to rely on one and discard the other. The theme of section 169,. Cr. P. C, does not admit any such power of the Investigating Officer to evaluate defence evidence of an accused and prefer it over the prosecution evidence to declare him innocent."
16. It is further held that:- "I have contemplated over the set of evidence available to prosecution, which has been discussed in para. 2 above as well as the set of defence evidence of the respondent/accused Muhammad Jabbar. The evidence available to prosecution is altogether "sufficient evidence" in ordinary meaning of the words used in section 169, Cr. P. C. Likewise, the set of defence evidence discussed in para. 5 above is not volume of prosecution evidence. I, therefore, safely concluded that the Investigating Officer Sardad Khan A. S.I. Has travelled beyond the scope of his jurisdiction under section 169, Cr. P. C because he could not brush aside the sufficient prosecution evidence available on record."
17. In this case as stated above, the only evidence before the Investigating Officer regarding the plea of alibi was the statements of accused/respondents which he believed without any further inquiry into the said fact. If this tendency is encouraged then almost all the accused in the criminal cases would take the plea of alibi by simply stating that he was not present on the spot. Even normally if an accused is apprehended in a criminal case he tells always the police that he is innocent and was not present on the scene of occurrence at the relevant time. Whether the plea of alibi is true and worth consideration, is the job of. Trial Court and not of the police. The application submitted for registration of case by petitioner/complainant contains certain allegations which prima facie connect accused with the offence. In this case some of the accused are also absconder.
18. In my opinion, keeping in view the above. Discussion the evidence was not deficient. It is also one of the grounds for the release of accused/respondents under section 169, Cr.P.C. That the offences are bailable.. One part of section 506, P.P.C. Is not bailable. So this ground is also not genuine.
19. In short the plea of alibi cannot be ground of release of bail unless further evidence is deficient.
One of the accused/respondent is police official which speaks volumes of ulterior motive on the part of Investigating Officer.
20. Keeping in view the above discussion the impugned orders being illegal are quashed but in the interest of justice and to provide fair opportunity of hearing to the accused/respondents the release order shall remain intact till the decision by Court of competent jurisdiction on bail petition to be submitted by the accused/respondents. The accused/respondents are directed to file the bail petition in the relevant Court of competent jurisdiction within ten (10) days and in case ,of their failure the release order shall stand cancelled.