1. YAHYA AFRIDI, J.---Yasir Khan son of Aziz-ur-Rehman, resident of Bandi Maira, Tehsil and District Abbottabad has through the instant petition under section 561-A Criminal Procedure Code, 1898 ("Cr.P.C.") sought that "on acceptance of the instant petition, the impugned order may graciously be set aside/quashed and the lower court be directed to order arrest of the accused and if they are entitled they be released on bail."
2. The brief and essential facts leading to the present petitions, in chronological order, are as follows:- 3-9-2010: that the present petitioner in an injured condition at 7-35 a.m. Lodged a report to Iltaf IHC, Police Post, DHQ, Hospital, Abbottabad that he was on his way to Abbottabad, when at about 7-00 a.m, he reached near Mohallah Karlati Jabri Road, Akbar son of Said Ali and Imtiaz son of Ajab were standing there; that Akbar Khan asked Imtiaz to kill Yasir, upon which Imtiaz fired at the petitioner with his 30 bore pistol, which hit him on his left leg and he was injured; that the case was registered against the accused-respondents vide F.I.R. No,219 under sections 324/54 of Pakistan Penal Code, 1860 ("P.P.C.") in Police Station Bagnotar.
2. 21-9-2010: Station House Officer ("S.H.O.") Police Station (P.S.") Bagnotar submitted the report/challan in the case to Judicial Magistrate-I, Abbottabad, .Wherein, he opined that ' Accused- respondents were found innocent during the investigation, mainly on the grounds of alibi of the accused respondents being with a member of the Parliament at Islamabad and that the injury caused was self-inflicted; therefore, the case was sought to be cancelled. Interestingly, the accused respondents were neither arrested nor were any bonds taken from them for their release and appearance, within the contemplation of section 169 of Cr.P.C.
3. 19-1-2011: that the learned Judicial Magistrate-I, Abbottabad disagreeing with the opinion of the S.H.O., was pleased to observe that; "In one's humble view, the version of the complainant is prima facie supported by MLC, statements of ocular account, namely. Saeed and Tauqeer and recovery of empty of .30 bore from the scene of crime, therefore, one is not inclined to cancel the case. Case file is returned to the concerned police station, with the direction to submit challan against the accused."
4. 1-2-2011: that the S.H.O. Re-submitted the challan in the case and, placed the accused in Column No,2 thereof and released the accused respondents on their submitting personal bonds.
5. 18-2-2011: that the learned Judicial Magistrate-I, Abbottabad forwarded challan for trial to the Sessions, within the contemplation of section 190(2), Cr.P.C. For trial, without passing any finding on the personal bonds executed by the accused respondents for their release by the investigation Police Officer.
6. 21-3-2011: The learned Sessions Judge, Abbottabad entrusted the case to the Additional Sessions Judge-VI, Abbottabad for trial.
7. 26-4-2011: that an application for acquittal was submitted by the accused under section 265-K, Cr.P.C.
8. 16-5-2011: that complainant submitted application seeking arrest of the accused in the case, as they did not get bail in accordance with law.
9. 6-6-2011: that after hearing the arguments of the learned counsel for the parties, the learned trial Court dismissed the said application filed by the complainant and passed the following order: The moot point for determination in the instant petitionis that whether this Colin is vested with the jurisdiction to cancel the bail granted to the accused by the police. The honourable Peshawar High Court, Peshawar, in its judgment reported as NLR 2007 page 37 has held as below:--- "Under section 497(5), Cr. P.C. a Court granting bail or the Court of Session or the High Court, can recall an order of grant of bail but where bail is granted by the police, that too on personal bonds, would not be amenable to jurisdiction under section 497(5), Cr.P.C. But to the jurisdiction of the High Court, either exercising inherent jurisdiction or jurisdiction vested in it under the Constitution."
10. This Court while seeking wisdom from the aforementioned judgment is of the opinion that this court is not vested with the jurisdiction to cancel the bail granted to the accused by the police.
11. In view of foregoing discussion, the application in hand stands dismissed.
3. The present petitioner being aggrieved of the aforementioned order dated 6-6-2011, impugned the same before this Court seeking to invoke the inherent powers under section 561-A of Cr.P.C. By filing the present petition.
4. Valuable arguments of the learned counsel for the parties heard and the available record of the case thoroughly considered.
5. Law recognizes the importance of the police officer to arrest a person suspected or involved in the commission of an offence. In this regard, the judicial consensus has developed not to interfere with the power and authority of the police officer to investigate any offence. Surely, the said judicial restraint is not maintained, which the exercise of authority by the police officer challenged is based on `mala fide', unlawful or without lawful authority.
6. Now canvassing the provisions provided in the Cr.P.C. Regarding the power and authority of a police officer to investigate and in that regard to arrest a person involved in an offence, it is but very clear and apparent that the legislature intended to provide a police officer with vast and independent authority to arrest but with inbuilt checks and balances on the said authority; on the administrative side by the Magistrates and superior police officers and on the judicial side by the superior Courts under its constitutional jurisdiction.
7. In order to appreciate the powers of a police officer to investigate an offence and in that regard arrest and release of an accused for the commission of an offence, we may trace the different stages through which a police officer has to proceed in investigating an offence; from the time he is informed or gains knowledge about the commission of the offence till he concludes the investigation by submitting his final report/ challan. For relevancy and clarity of the present issue, we shall trace the various stages relating to cognizable offence, such as section 324 of P.P.C., which is the subject-matter of the present petition. The various stages; in general, are as follows:- Stage-I: Information.
12. The S.H.O. Of the Police Station under section 154 of Cr.P.C. Has to reduce the information obtained or received regarding the commission of a cognizable offence into writing, which is known as the First Information Report ("F.I.R.").
13. Stage-II: Commencement of investigation.
14. As soon as the information of the cognizable offence is received by the S.H.O. Of the Police Station and F.I.R. Is registered, he is to proceed himself or to depute a subordinate police officer to the spot to investigate the facts and circumstances of the case and, if necessary, to take measures for the recovery and arrest of offender. Sections 156 and 157 of Cr.P.C. Clearly provide, in particular, the circumstances in which the police officer is to proceed, while each and every step taken by him in this regard is to be recorded in police 'diaries', as provided under section 172 of the Cr.P.C. And the enabling provisions of the Police Rules, 1934 ("Rules")
15. Stage-III: Arrest of an accused.
16. In order to investigate a criminal case, the S.H.O. Of a Police Station under section 54 of the Cr.P.C, may, arrest a person without warrants, inter alia, `when a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned'
17. ' On arresting the accused, the police officer-has to produce him before a Magistrate having jurisdiction in the case, within twenty-four hours of his arrest. In case, the arrest is being made by an officer, who is not the officer-incharge of the Police Station, within whose jurisdiction the said offence had taken place, then the accused has to be produced before the concerned S.H.O. Of the Police Station. But under no circumstances, a person arrested without warrant can be kept beyond the period of twenty-four hours, without him being produced before the Magistrate having jurisdiction in the matter; as is provided under sections 60 and 61 of the Cr.P.C. The only exception being, when the investigation in the case or the journey required time for producing the accused before the competent Magistrate cannot be completed within twenty four houRs, Even in such cases, the accused has to be produced before a Magistrate, who has to grant time to the officer who has the custody of an accused, to produce him before the competent Magistrate having jurisdiction in the matter, as is provided in section 167 of the Cr.P.C.
18. ' In cases, where the investigation cannot be concluded within twenty-four hours of the arrest of an accused, the officer investigating the case has to seek permission of a Magistrate for the police remand of the accused for a specified period. This period in ordinary criminal cases cannot be beyond a term exceeding fifteen days, as a whole. Surely, while granting physical remand/custody of the accused to the police, the Magistrate has to give reasons for the same. The procedure in this regard has been clearly provided in section 167 of Cr.P.C.
19. Stage-IV: Investigation. `Investigation' is the sole prerogative of the police, and as is provided under section 4(1) of Cr.P.C, it entails all steps taken by a police officer for collection of evidence, in connection with the commission of an offence. After concluding the investigation, the police officer has to record his final opinion/report/challan regarding the facts leading to the commission of the offence, 'inter alia' the involvement of each accused in the commission thereof and also produce before the Magistrate the recoveries made during the investigation; as is provided under sections 173 and 170 of Cr.P.C, respectively.
20. ' In case, the investigating officer concludes that a criminal case is made out and the person accused is involved in the commission of an offence, he is to submit `challan' before the Magistrate having jurisdiction to try the offence or to send the same for trial to the Sessions. There is no issue regarding the said situation.
21. ' Whereas, on the other hand, if the police officer concludes otherwise, he is to proceed as is provided under section 169 of Cr.P.C, which states as follows:-- if it appears to the officer incharge of the police station, or to the police officer, who investigates the case that there is insufficient evidence or reasonable ground or suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, or the said officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or send him for trial."
22. (emphasis provided)
23. The purport of the aforementioned section is essentially to render the police officer, the authority to release an accused, if he considers that no case is made out against him, on his furnishing a bond, with or without sureties, with direction to the released accused to appear as and when he is summoned to appear before the competent Magistrate. Once he is summoned and appears before the competent magistrate, the 'life' of the personal bond executed by the accused would 'end' and the same shall be subject to the further orders of the said magistrate, as is provided under subsection (3) of section 173 of Cr.P.C, which reads that:-- "whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit."
24. Stage-V: Cognizance of offence.
25. ' Once the 'challan' of a case is put before the magistrate, he is required to conduct an enquiry, without recording of evidence, by reviewing the evidence collected by the police officer, during the investigation of the offence and thereafter form an opinion to either discharge the bond and sureties as opined by the police or to proceed against the released accused, if 'prima facie' a triable case is made out.
26. ' In both the situations, the magistrate has to pass an order in writing qua the bond and sureties furnished by the accused and the fate of the case.
27. In case the challan' of a case triable by the Sessions is put before a Magistrate, who is not competent to take cognizance of the - offence itself, he would under subsection (3) of section 190 of Cr.P.C, refer the same to the Sessions.
28. In case, the police and even the referring magistrate have opined for the cancellation of the case, the Sessions, after taking cognizance of the case under section 193 of the Cr.P.C, would have the authority to carry out another 'enquiry', without recording of evidence, by reviewing the evidence collected by the police and pass an order in writing qua the bond and sureties furnished by the accused and the fate of the case. This authority of the Sessions to again enter into another 'enquiry' has been clearly validated by the apex Court in Muhammad Ramzan's case (PLD 2010 SC 585).
29. Thus, the Sessions would be competent to order the trial of a person for an offence, even if there is a negative opinion of both the police and the referring magistrate.
30. ' It would be pertinent to note that the apex Court in Mehr Khan's Case (1984 SCMR 267) has gone to the extent and to have Termed the said 'enquiry' to be carried out by both the magistrate and/or the Sessions to be an 'enquiry' as provided under sections 4(k) of the Cr.P.C.
31. ' The rationale behind all this is to ensure that there should be 'checks and balances' upon the above authority of the police and also for the decision of the magistrate to be purposeful and not mechanical.
32. Moreover, the aforementioned 'enquiry' carried out by the magistrate and the decision so rendered thereafter regarding the discharge of bonds or the fate of the case are 'administrative' orders and not 'judicial' in nature, as recently held by the august Supreme Court, in Sher Muhammad Unar's Case (PLD 2012 SC 179).
33. "The finding of guilt or innocence by the police at the investigation stage is not a finding in trial culminating in conviction or acquittal and therefore the principle of double jeopardy cannot be invoked by the petitioneRs, Even if when an accused is discharged by the Magistrate/trial Court, the consequence would be that he is discharged from his bond at a stage when his custody is no longer required by the investigating agency. But such an order is only an executive order passed at the investigating stage when the case has yet to go for trial. Nevertheless, the Court can still try him if some fresh material is brought before it. Petitioners were not even discharged by the trial.
34. The order of discharge based on police report cannot be equated with acquittal. The Court is not bound by such a finding of innocence reflected in the final report submitted under section 173, Cr.P.C. And it can still summon the accused."(Emphasis provided)
8. In view of the legal discourse stated herein above, it would be pertinent to point out certain glaring irregularities, if not illegalities, arising out of the actions and inactions of the police officer investigating and the worthy Magistrate in proceeding with the present matter. Needless to mention, the petitioner has not challenged the same in the instant petition and the findings of this Court would have no bearing upon the outcome of the present case, as the case has now proceeded for trial. However, the observations of this Court on the same are as follows: Firstly, the action of the police not to arrest the accused respondents, when the challan was first placed before the magistrate for a cognizable offence registered in the F.I.R., without obtaining any bonds from them, as envisaged under section 169 of Cr.P.C, was clearly in derogation of clear mandate of law; Secondly, the worthy Magistrate, while passing orders dated 19-1-2011 had before him the challan submitted by the investigating officer and it could differ with the opinion of the police officer investigating the case and sent the case for trial to the Sessions, but he could not render any directions to the police regarding the culpability of the accused respondents to be incorporated in the challan to be resubmitted. The provisions of subsection (3) of section 173 of Cr.P.C. Are clear in its contents. The magistrate could confirm the opinion of the police in the discharge of the bonds of the accused respondents or differ with the opinion of the police and refer the case to the Sessions under subsection (2) of section 190 of Cr.P.C. The apex Court in Naseer's case (2011 SCM R 1433) his very eloquently discussed the matter in terms that:-- No power vests with the court including a High Court to override the said legal provision and to direct the police, either not to submit the said report or to submit the said report in a particular manner i,e, against certain persons as the Court desires or only with regard to such offences as the Court wishes."
35. Thirdly, the investigating officer after the opinion rendered by the Magistrate was not competent to accept any bond from the accused respondents. This ought to have been done by the investigating officer prior to the submission of the `challan'; and, Finally, the worthy Magistrate once he received the resubmitted challan', passed a mechanical order dated 18-2-2011, without application of mind, and with no finding in writing, as is required under section 173(3) of Cr.P.C.
9. Now moving on to the legal issues, which have been challenged by the present petitioner and are crucial for the determination of the present case, are as follows:-- Firstly, 'whether the decision of the police officer releasing an accused under section 169 of Cr. P.
36. C. Is justicible before the High Court under section 56I-A, Cr.P.C'; This matter was given a judicial pronouncement by the Privy Council, way back in Kh. Nazir Ahmad's case (AIR 1945 PC 18), wherein it was held that:- "Just as it is essential that everyone accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance' that the judiciary should not interfere with the police in the matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police under section 154 and 156 to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would as their Lordship think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court under section 561-A. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always of course, subject to the right of the Court to intervene in an appropriate case when moved under section 491, Criminal Procedure Code, to give direction in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then."
37. (Emphasis provided)
38. ' The 'ratio decidendi' of the aforementioned judgment was approved by the apex Court in Ghulam Muhammad's Case (PLD 1967 SC 317), Shanaz Begum's Case (PLD 1971 SC 677), Khawaja Fazal Karim's case (PLD 1976 SC 461) and Brig. Imtiaz's Case (1994 SCM R 2142). Though there were certain cases in which, the superior Courts have allowed interference in police investigation under the inherent jurisdiction under section 561-A of Cr.P.C, but more recently the apex Court in Hayatullah Khan's Case (2011 SCM R 1354) held that:--- "The High Court has no power under section 561-A of the Cr. P.C. To interfere with police investigations into criminal offences. In the case of Ghulam Muhammad v. Muzammal Khan (PLD 1967 SC 317) section 561-A, Cr.P.C., "can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute." If an investigation is launched mala fide or is clearly beyond the jurisdiction of the investigating agencies concerned then it may be possible for the action of the investigating agencies to be corrected by a proper proceeding either under Article 98 of the Constitution of 1962 or under the provisions of section 491 of the Criminal Procedure Code, if the applicant is in the latter case in detention, but not by invoking the inherent power under section 561-A of the Criminal Procedure Code." (Emphasis provided)
39. Thus, the judicial pronouncements, discussed herein above, have clearly laid down that the inherent jurisdiction of this Court under section 561-A of Cr.P.C. Cannot be exercised to judicially correct an action or inaction of a police officer during investigation of a criminal offence. The High Court may exercise its constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to entertain such matter. However, the said authority of the High Court is scarcely exercised and that too in cases, where the impugned actions or inactions of the police authority is `mala fide' or 'without lawful authority'. The underline principle behind the said judicial restraint to interfere into investigation carried out by a police officer is to preserve the 'tracheotomy of power' between the three organs of the State; legislature, executive and the judiciary.
40. Thus, in view of the legal deliberations discussed hereinabove, this Court reaffirms that the inherent powers of this Court vested under J section 561-A, Cr.P.C. Ought not to be exercised to correct any illegality committed by a police officer during investigation.
41. Secondly, whether the Sessions was competent to judicially interfere in the decision of the police officer to release an accused under section 169 of Cr.P.C.; In this regard, this Court is in complete accord with the impugned decision of the Sessions that it was not vested with powers under section 497(5) of Cr.P.C. To cancel the release order of an accused passed by a police officer.
42. 'However, it would not be correct to totally oust the jurisdiction K of the Sessions to order arrest of an accused released by a police officer under section 169 of Cr.P.C. In this regard, some of the circumstances include, when the Sessions may order the arrest of such a released accused, if he on being summoned under section 204 of Cr.P.C. Or he absents to appear during the trial may lead to the issuance of warrant of arrest by the Sessions; the Court may order the arrest of released accused during the trial, if it finds that the prosecution witnesses are being pressurized or threatened to render their testimony or the process of the Court is being abused or threatened; in case of certain later developments or bias or mala fide, which require re-investigation, and the same cannot be carried out without the arrest of the released accused fearing interference in a fair investigation therein, that the Sessions may order the arrest of the released accused. It would be pertinent to note that re-investigation after the submission of `challan' and during the trial of the offence, though disapproved, yet is not legally barred, as elaborately explained in Bahadur Khan's Case (2006 SCM R 373).
43. Thirdly, whether this Court can direct the Sessions to seek the bail of the released accused. In the present case, the Sessions has already taken cognizance of the offence and the released accused respondents are before it. In this scenario, it would not be appropriate for this Court to assume the role of a trial Court and render directions, when there has been no clear abuse of the process of any Court or otherwise to secure the ends of justice. However, it would not be out of place to point out that the personal bonds for appearance executed by the accused respondents under section 169 of Cr.P.C. Have expired on 18-2-2012, when the matter was referred by the worthy magistrate to Sessions. In view of above, it is for the trial Court to proceed with the matter keeping in view deliberations, stated hereinabove.
10. This Court, at this stage, does not find any challenged action of the Sessions/trial Court to be abuse the process of the Court, which would warrant the invocation of inherent powers of this Court to secure the ends of justice, as provided under section 561-A of Cr.P.C.
11. Accordingly, for the reasons stated hereinabove, this petition is disposed of in the above terms.