' NISAR HUSSAIN KHAN, J.---Through instant petition, petitioner seeks cancellation of bail of respondent No,1, who was released on personal bond by Circle Officer Police Station Naurang District, Lakki Marwat, on 14-5-2012, in case No, 232 dated 26-4-2012, registered under sections 302/324/460/171/109/148/149, P.P.C. Read with Section 13 of the Arms Ordinance, Police Station Naurang District, Lakki Marwat.
2. Precisely stated facts of the case are that, Haji Gul Naib petitioner-complainant reported to local police that on the night of. Occurrence he along with his father Haji Ghulam Nabi, brothers Haji Muhammad Nawaz, Haji Nazif Khan, Haji Afnan, and son Hidayatullah, were asleep, in the respective rooms, situated within the common boundary wall. They woke up at some commotion at 1-00 a.m.
Complainant came out from the room and saw in the light of electric bulb, ten persons, dressed in Army uniform, armed with Kalashnikovs. Two out of them, overpowered his son Qudratullah. In the meanwhile, his brothers also woke up. The accused were speaking urdu were not from Army, but were Barkat Shah son of Aseel Khan, Zir Muhammad son of Barkat Shah, Muhammad son of unknown (nephew of Barkat Shah), Ghani Wazir son of unknown, residents of Miran Shah, who were personally known to him. Whereas, rest of the five persons, could not be identified. Qudratullah was overpowered by Zir Muhammad and Muhammad, whereas Hidayatullah son of the complainant was in the adjacent room, which was knocked by the accused, but he did not open. Accused fired at the door and window of his room and thereby broke the door. Due to firing, the accused themselves were terrified and made repeated firing. An accused, dressed in army uniform; armed with Kalashnikov, standing beside the room of Hidaytullah, was hit with the firing of his co-accused and fell down. The accused while making firing, fled away from the spot, through small gate of the house. The complainant party scaled over the roof top and informed the police and also made aerial firing. The accused decamped in a vehicle. The complainant party came near the injured accused, who succumbed to the injuries within moments. He was having a mobile and CNIC, from which he was identified to be Wasim Sajjad son of Mumtaz. Motive of the occurrence is a dispute over money and property business. On this report, the above mentioned F.I.R was registered.
3. It appears from the record that respondent Shah Qiaz was arrested and was released on his personal bond by Circle Officer/. Incharge of Investigation on 14-5-2012, against which this petition has been filed.
4. Learned counsel for the petitioner-complainant argued that respondent-accused is charged for facilitating the principal accused in a murder case; that statements of complainant and P.Ws.
Connect him with the commission of crime. He contended that learned Judicial Magistrate, did not discharge respondent-accused from the charge and his name has not been mentioned in Challan, submitted under section 173, Cr.P.C., either in Column No,2 or 3 and this omission of his name, is gross illegality on the part of I.O/S.H.O., hence, his personal bond is liable to be cancelled.
5. Conversely, learned counsel for respondent-accused argued that five accused have been charged by name in the F.I.R., out of whom, Niazullah was arrested and released on bail by the learned Additional Sessions Judge; that Muhammad Sharif co-accused was also charged for abetment and he is on bail, whereas, respondent has been charged in supplementary statement of the complainant, recorded after 14 days of the occurrence; that there is no evidence against respondent-accused, except the bald allegations of the complainant. So, he has rightly been released on personal bond by the Circle Officer.
6. Learned A.A.G. Argued that the I.O./S.H.O., has committed gross illegality by omitting the name of respondent from the final report, submitted under section 173, Cr.P.C., hence, his personal bond is liable to be cancelled.
7. I have heard the arguments of the learned counsel for the parties and learned A.A.-G. And have gone through the record with their valuable assistance.
8. The bare perusal of the F.I.R., divulges that respondent-accused Shah Qiaz, is not charged in the F.I.R. Although, record of the case and other circumstances, suggest that he was well known to complainant, prior to the occurrence. The alleged occurrence took place on 26-4-2012, whereas, Shah Qiaz respondent-accused, was charged in supplementary statement of complainant on 11- 5-2012, recorded under section 161, Cr.P.C. After 14 days of the occurrence, which too, is silent as to how he came to know about the involvement of respondent in the case,, nor did he disclose the source of information. Respondent was arrested by the police on the very next day of supplementary statement of complainant on 12- 5-2012, and he remained in police custody for 24 houRs, Thereafter, his one day police custody was obtained from learned Judicial Magistrate on 13-5-2012. During his custody, nothing incriminating was recovered from his possession or discovered on his pointation nor was any other incriminating evidence collected against him. On 14-5-2012, S.-I. Investigation Naurang, drafted application for judicial remand of respondent-accused, on which a cyclostyle order is written by someone, in urdu, not by the Judicial Magistrate himself, for remand of respondent-accused to Judicial Lockup and for his reproduction before the Court on 26-5-2012, which is not signed by any Judicial Magistrate, and rightly so, because it was not written by the Magistrate nor accused was produced before him.
It appears that before production of the accused before the Magistrate, the file was inspected by Circle Officer Investigation, who gave a note that "till the availability of solid evidence, I am not in a position to forward the file to Court". And then, on the same day, i,e, 14-5-2012, he, after consulting the record, released the respondent-accused on obtaining his personal bond. However, when final report under section 173, Cr.P.C., was submitted by S.H.O. Police Station Naurang, on 27-5-2012, the name of respondent-accused was not mentioned in the challan neither in column No,2 nor in column No,
3. Whereas, there is a reference in his report, overleaf the challan, about release of respondent-accused on his personal bond for lack and deficiency of evidence. However, in those remarks, he wrongly attributed those remarks to D.P.P. Instead of Circle Officer.
8(sic). The facts of the case discussed above, dearly suggest that except the belated supplementary statement of the complainant, that too not supported by any evidence, much less tangible, there is not an iota of evidence, which may prima facie connect the respondent-accused with the commission of crime of abetment. In such a situation, when there is no evidence or no reasonable ground to justify the forwarding of accused to Magistrate, the Investigating Officer or Incharge of the Police Station, may release such accused on execution of his personal bond with or without sureties and such Officer, would direct the accused to appear before the Court or the Magistrate, when so required. Thus, the Circle Officer, in the circumstances, was justified to release the respondent-accused on his personal bond, when after interrogation, during police custody and investigation of the case; he could not collect a tangible evidence to connect him with the commission of crime. However, he was not justified to omit his name from the respective column of the challan, without a specific order of the Magistrate for his discharge. Rather, the I.O./S.H.O., was legally obliged to put his name in final report/challan, whether in Column No,2 or 3, whatever, the case may be in his opinion, which is an illegality and it cannot be countenanced or cured even by the antidote of section 537, Cr.P.C.
9. For the reasons discussed above, the order of Circle Officer regarding release of respondent on personal bond, is maintained. However, by partially allowing this petition, the defective challan submitted by S.H.O., is quashed. Consequently, respondent No,2 and S.H.O. Concerned Police Station, are directed to re-submit challan by placing the respondent No,1, as an accused in respective Column No,2 or 3, whatever the case may be, in the circumstances of the case. This petition is disposed of accordingly.