' NISAR HUSSAIN KHAN, J.---Through instant petition, petitioner Afsar Ali, seeks quashment of personal bond of respondent No,2, whereby he was released on bail by the Officer Incharge of Police Station Huvaid District, Bannu on, 28-6-2011.
2. Learned counsel for the petitioner filed C.M. No,2 of 2012, for impleadment of State in the panel of respondents and prayed for its acceptance. Learned D.A.-G., present in the Court, accepted the notice and has got no objection on the acceptance of the application. Thus, this CM is allowed and State be impleaded as respondent, in the instant quashment petition.
3. Brief facts of the case are that Afsar Ali petitioner filed an application under section 22-A(VI), Cr.P.C. Before the learned Justice of Peace on 16-7-2010, against Akhtar Ali Khan S.H.O., Police Station Huwaid Bannu and District Police Officer, Bannu, alleging therein that he belongs to District Bannu and is a businessm an by profession. He supplies different goods through vehicles, from North Waziristan Agency to District Bannu and Lakki Marwat. On 20-6-2010, as usual, at 5-00 p.m., he reached Bakka Khel, with loaded goods and found the road blocked, due to curfew, so he adopted the route of Huwaid for Bannu. When he reached on "Darcy Khula" within the jurisdiction of Police Station Huwaid, at 5-45 p.m., he found Akhtar Ali Khan S.H.O. With police party, who stopped him, along with the loaded goods and said that there are tea leaves in the goods, so he arrested him. On his personal search, the respondent S.H.O., snatched Rs,3,10,000 from him and then, set him free. The complainant requested for the return of snatched amount, but the S.H.O. Refused. On the next morning, the complainant again contacted the S.H.O. Concerned, to retrieve the snatched amount, on which he told that he has passed the said amount to D.P.O. Then petitioner, filed an application to D.P.O., upon which he was summoned on 28-6-2010, where the respondent-S.H.O., was also present. The D.P.O. Replied that he would take action on the instruction of High ups, as he has already submitted complaints to them and Hon'ble the Chief Justice of Pakistan. Thereafter, he sent another application to the Inspector-General Police, but no action has been taken thereon.
With these facts, he prayed for registration of case and for retrieval of his snatched amount.
4. On this application, learned Justice of Peace, vide order dated 30-7-2010, directed the S.H.O.
Concerned for registration of case, against Akhtar Ali Khan respondent No,2. This order of the Justice of Peace, was challenged by respondent No,2, before this Court at D.I. Khan Bench, vide Criminal Miscellaneous Quashment Petition No,96 of 2010, which was dismissed on 11-10-2010 and order of the Justice of Peace, was maintained, in compliance whereof, F.I.R. No,162, dated 22-10- 2010, was registered under sections 384/166/506, P.P.C. Against Akhtar Ali Khan respondent No, 2, in Police Station Hawaid District, Bannu.
5. The case was investigated by Police and report for cancellation of the case, was filed before the Judicial Magistrate on 18-11-2010, which was turned down, on 14-2-2011. In light of the order of the Magistrate and statements of P..Ws. Mamdullah Jan and Haji Noor Ali Shah, recorded on 18-1-2011 by the Investigating Officer, second report for cancellation of case, was submitted by him, which was also turned down, by the learned Judicial Magistrate on 15-6-2011. Thereafter, the Officer Incharge of Police Station, released the accused-respondent No,2, on his personal bond worth of Rs,1,00,000 and submitted complete challan against him, in the Court of learned Judicial Magistrate.
6. The petitioner seeks cancellation of bail of respondent, granted by the Officer Incharge of Police Station, by quashment of his personal bond, through the instant petition.
7. Learned counsel for the petitioner-complainant argued that the case was registered against respondent No,2, on the direction of learned Justice of Peace, while that order was maintained by this Court by dismissing the quashment petition of respondent No,2 and the order of the Justice of Peace, was maintained. He maintained that since, registration of the case, the respondent was not arrested by the police and report for cancellation of the case was twice turned down by the Magistrate and then, he has been released on his personal bond. He further contends that respondent No,2 has been placed in column No,3 of the challan, as a regular accused, but no regular proceedings of his arrest, have been made by the police and has illegally been released on his personal bond. In support of his submissions, he placed reliance on PLD 2006 Peshawar 165 and PLD 2008 Peshawar 63.
8. Learned counsel for the respondents argued that during investigation, no evidence worth consideration, was produced by the complainant in support of his application, due to which cancellation of the case was recommended by the I.O. In terms of section 169, Cr.P.C. Learned DAG contends that petitioner-complainant, is a professional smuggler, who has not been allowed by the respondents to smuggle illegal goods, that's why he has filed a false complaint against respondent No,2, just to pressurize him, who is honestly, stuck to his Official duties. He further maintained that the place of alleged occurrence is surrounded by so many shops. The I.O.
Recorded statements of all the shopkeepers, who totally controverted any such occurrence. He further maintained that there is no evidence on the file, except the bald allegations of the complainant-petitioner, which is tainted with mala fide. He contends that respondent is an honest and responsible Police Officer, who has wrongly been roped in a false case. He also referred to some F.I.Rs, registered against the petitioner regarding smuggling of goods, placed on file.
9. I have given my anxious consideration to the respective submissions of the learned counsel for the parties and learned DAG and have also gone through the record with their valuable assistance.
10. The scanning of the record transpires that the instant F.I.R. No,162 was registered, on the written application of the petitioner, before the Justice of Peace. On registration of the F.I.R. It was investigated by S.P. Investigation, as per direction of the Justice of Peace, as senior Police Officer was charged as an accused. During the investigation, the Investigating officer has recorded the statements of shopkeepers namely Umar Ayaz son of Yousaf Khan, Syed Noor Shah son of Syed Sarwar Shah, Bayaz son of Naseebullah, Sameedullah son of Afsar Khan, Mujeeb Khan son of Habib Khan, Azam Khan son of Raees Khan, Gul Haider son of Rahim Khan, Nazar Ali son of Umar Ali and Shaista Khan son of Akram Ali, whose shops are situated around the alleged place of occurrence.
Whereas, the complainant on the other hand, has failed to produce any evidence, much less cogent, in support A of his case, which may substantiate his allegations. The I.O. Has also placed on record F.I.R. No,51, dated 5-7-2008, according to which three Datsuns, loaded with 42, 43, and 44 bags of Wheat, were being smuggled by Afsar Khan complainant-petitioner. Similarly, according to F.I.R. No,59 of 5-9-2009, three Datsun, loaded with 55 bags, each weighing 50 Kilograms Surgar, were nabbed by the police, which were being smuggled by Afsar Ali Khan, present petitioner.
11. Due to lack of the evidence, the police filed its report for cancellation of the case, which was turned down by the learned Magistrate, with the observation that second report be submitted, in light of statements of Mamdullah Jan and Haji Noor Ali Shah witnesses. In compliance with the order of the Magistrate, second report was submitted, which was also not acceded to, by the learned Magistrate. Thereafter, challan against the accused-respondent was filed under section 173, Cr.P.C.
12. This F.I.R. Was registered on 22-10-2006, while P.Ws. Mamdullah Jan and Haji Noor Ali Shah, appeared before the I.O. On 18-1-2011, for recording their statements, after a period of round about three months. The statement of Mamdullah Jan, who also happens to be the uncle of the complainant, is silent with regard to the occurrence whereas, Haji Noor Ali Shah has deposed a hearsay evidence. On the other hand, the case is registered under section 384/166/506, P.P.C., out of which sections 384 and 166, P.P.C., are non-cognizable and bailable, whereas in light of the allegations of complainant, in the original B complaint, only first part of section 506, P.P.C., may he attracted, which is also non-cognizable and bailable. In such cases, bail matters would be dealt with under section 496, Cr.P.C., which imposes obligation on the Court as well as the Incharge of Police Station, to release the person, so arrested, on bail and may also discharge him on his executing bond, without surety; if it thinks lit. The language of section 496, Cr.P.C. Is unambiguous, which clearly postulates that there is no need of any formal application for release of the accused on bail, in bailable offences. In the given factual background of the case, the Officer Incharge of the Police Station has committed no illegality while releasing the accused-respondent, on his personal bond, particularly, when he is a government servant and there is no probability of his absconsion, as well.
13. The case-law referred by the learned counsel for the petitioner is distinguishable on facts. In Essa Khan's case PLD 2006 Peshawar 165, the accused was directly charged for murder in. The F.I.R.
After registration of case, Essa Khan accused absconded due to which proceedings under sections 204 and 87, Cr.P.C. Were initiated against him. After his arrest, he was released on bail by the Officer Incharge of the Police Station, on his personal bond, merely on the basis of entries in police diary that he being a police driver was posted/serving with Chief Minister squad and according to the Security Chief of the Chief Minister Secretariat, the accused remained on duty on 26-6-2003 till 10 p.m. Without its verification, from the concerned Officer. Co-incidentally, said Essa Khan was also serving in the Police Department. In the reported case, not only the accused was directly charged for murder, being a cognizable offence, but there was a direct evidence of the eyewitnesses against him. So in light of that factual aspect of the case, this Court declared the obtaining of personal bond of the accused, as illegal. Likewise, in Shah Daraz Khan's case PLD 2008, Peshawar 63, complainant directly charged accused Muhammad Jabbar and another, for the murder of his son. While the occurrence was witnessed by the complainant Shah Daraz Khan and his other sons.
The F.I.R. Version was supported by the recoveries of blood from the place of occurrence, spent bullets from stem of nearby Shesham tree, falling in the line of fire, 5 empties from the place of accused Muhammad Jabbar and 5 empties from the place of his absconding co-accused. While, the report was lodged within 40 minutes of the occurrence. The I.O. While relying on the evidence of the accused, in support of his plea of alibi, declared him innocent and placed him in column No,2 of the challan, by releasing him on bail, on his personal bond. In light of this factual background, this Court held that the I.O. Has no jurisdiction to pass a pre-trial order of innocence in favour of an accused, who is directly charged for murder, when there is an ocular account of two eye- witnesses, supported by circumstantial evidence.
14. The facts of the instant case are altogether different from the cases referred (supra). In the instant case, the respondent-accused, is charged for bailable offences, as discussed earlier.
Besides that, there are two reports for cancellation of case, due to lack of evidence in support of allegation. The Officer Incharge of Police Station had got the powers to release the accused on bail, in bailable offences, on his personal bond, which has been exercised by him under section 496, Cr.P.C. And as such has committed no illegality, which may warrant interference of this Court.
15. Thus finding no merits, this petition is hereby dismissed.