' ROOH-UL-AMIN KHAN, J.---Through the instant application, petitioner Asal Mar Din, seeks quashment/cancellation of bail of respondent No.1 Farid Gul, who has been released on bail by the SHO Police Station Sabir Abad District Karak/respondent No.2 by obtaining his personal bond, in case F.I.R. No.82, dated 7-5-2013, registered under sections 337-F(i)(iv), 337-A(i)/34, P.P.C.
2. According to F.I.R., registered on the basis of Daily Diary No.30 on 3-5-2013 at 2125 hours, petitioner Asal Din reported to local police that on the eventful day, as usual, he after closing his shop was on his way to his home, when at 1900 hours, he reached "Dulat Algadda", respondent Farid Gul along with his co-accused Ubaid Ullah, having sticks and Axe in their hands, already present there, on seeing the petitioner, thrashed him with Axe and sticks, as a result he sustained injuries on his head and left hand. Motive is stated to be women dignity.
3. Learned counsel for the petitioner argued that respondent-accused Farid Gul is directly charged for inflicting injuries on the persons of the complainant, but the I.O./S.H.O. Released him on bail by obtaining his personal bond, which act of the S.H.O. Is in utter disregard of law as he was vested with no legal authority to release accused on his personal bond without any justification or lawful reason enshrined in section 169, Cr.P.C.
4. Conversely, learned counsel for the respondent-accused argued that respondent-accused is innocent and he has furnished his plea of alibi before the Investigating Officer which convinced him and he has rightly been released on his personal bond. He attacked the maintainability of instant petition on the ground that the order passed by the concerned S.H.O. Under section 169, Cr.P.C. Is administrative in nature, which cannot be challenged under section 561-A, Cr.P.C. He prayed that for outright dismissal of the petition in hand.
5. I have heard the exhaustive arguments of the learned counsel for the parties and have perused the record with their valuable assistance.
6. Perusal of F.I.R. Reveals that respondent-accused Farid Gul, along with his co-accused, is directly charged for thrashing/inflicting sticks and axe blows on the person of the complainant, as a result, he sustained injuries on his head and left hand. The injured complainant has been examined by the Medical Officer wherein the injuries sustained by him have been declared grievous and the kind of weapon has been given as blunt, which supports the version of the complainant. Complainant having the stamps of injuries on his person has furnished the ocular account of the incident and his statement has not been shattered by the defence as the trial is yet to be conducted and he has to face the test of cross-examination. During the investigation, the site plan has been prepared on the pointation of the complainant, wherein the respondent-accused has been shown actively participated in the incident. Bloodstained garments of the injured complainant have been sent to the FSL for Serologist opinion, which is in positive. In light of direct charge by the complainant, supported by circumstantial evidence and medical evidence, there is a prima facie case against the accused-respondent charged in the F.I.R.
7. There is no cavil with the proposition that Investigating Officer has no unbridled powers to release the accused, on bail on his own whims without considering the merits of the case. Where the prosecution evidence is confidence inspiring which appeals to reasons and defence put forth by accused is just fallacious and unreasonable, he cannot out-rightly release the accused on obtaining his personal bond. Rather the matter shall be left for the competent Court to decide the fate of accused. Whenever a flagrant misuse of authority by the Investigating Officer is brought to notice, the Court shall strike down such arbitrary action of police. However, each case is to be decided on its own merits.
8. It appears from the record that on 16-6-2013, respondent-accused was arrested and on the same date, was released by respondent No.2/S.H.O. Police Station Sabir Abad, by obtaining his personal bond. The release of accused-respondent, on obtaining his personal bond, by the SHO on his ipse dixit is not warranted under the law, particularly, in a case where the accused is directly charged in the F.I.R for actively participating in the incident and there is ocular and circumstantial evidence against him. When there is sufficient ocular and circumstantial evidence in support of prosecution case and some evidence in favour of the accused about his innocence, such controversy, can only be resolved by the competent Court of trial, after recording evidence.
9. The provisions of section 169, Cr.P.C. Simply empowered an Investigating Officer to release the person in custody, on his executing a bond, if the Investigating Officer, would reach the conclusion that sufficient evidence or reasonable ground was not available to justify forwarding of accused to a Magistrate. The words "there was not sufficient evidence" or "reasonable grounds of suspicion" in the section ibid, are not ambiguous, at all. Investigating Officer can release an accused in his custody when sufficient evidence was lacking or there were no reasonable grounds of suspicion against accused. The said power is not identical to the power of preponderance of evidence to be exercised by the trial Court. When there is a set of prosecution evidence on one side and defence evidence on the other, the trial Court is 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. Did not admit any such power of Investigating Officer to evaluate defence evidence of an accused and prefer it over the prosecution evidence to declare him innocent. Evidence available to prosecution in the case is altogether "sufficient evidence" in ordinary meaning of the words used in the section ibid. Keeping in view the evidence collected during investigation in the case against the respondent-accused, it can safely be concluded that the S.H.O./Investigating Officer had 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.
10. It is noted with great concern that in majority of criminal cases, there is rampant exercise of power of releasing accused by obtaining personal bond, on the part of the I.Os, without any rhyme or reason. It has been noted that in cases there is direct prosecution evidence, in form of ocular account corroborated by circumstantial evidence such as recoveries, medical reports etc but I.Os.
Record some statements in favour of accused and on the basis thereof; set the accused free on his/their personal bonds, without caring about the limits of their powers and the nature of accusation in the case. A legal provision of section 169, Cr.P.C. Is flagrantly being misused by the I.Os/SHOs on their own whims and wishes, due to which the genuine cases become shady. The law has not given unfettered powers to the I.O. To release an accused on bail without assigning any reason.- It also came to notice that superior hierarchy of the police also does not take care of such misdeeds of the Investigating Officers.
11. The arguments of the learned counsel for the respondent-accused that order passed by the Police Officer under section 169, Cr.P.C., is administrative in nature and not amenable to jurisdiction of this Court under section 561-A, Cr.P.C. Is flimsy, unimpressive and unpersuasive. The purpose of section ibid is to provide substantial justice in case of unforeseen eventualities, for which, no provision is available in the Criminal Procedure Code. Section 561-A, Cr.P.C. Is coached in the following words:-- "Saving of inherent power of High Court.---Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code; or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
' The bare reading of section 561-A, Cr.P.C. Empowers the High Court to give effect to any order passed under the Criminal Procedure Code. Admittedly, the impugned order has been passed under section 169, Cr.P.C. Moreso, it is evident from record that after commission of the offence, the accused-respondent went into hiding and remained fugitive from law, thus, was proceeded under sections 204 and 87, Cr.P.C. Undisputedly, issuance of warrant under section 204, Cr.P.C., is part of judicial proceeding commenced before the Magistrate and after taking cognizance of the case by the Magistrate, the Police Officer, is not vested with the power to bypass the competent Court. In the instant case, the Police Officer while taking personal bond and releasing the accused- respondent, has pre-empt the powers and jurisdiction of the Magistrate, which amounts to flagrant violation of law and abuse of process of the Court. The High Court in exercise of its inherent jurisdiction under section 561-A, Cr.P.C., has ample power to set aside even an administrative order passed under the Criminal Procedure Code, if found arbitrary, fanciful, capricious or passed in colourful exercise of power.
12. For what has been discussed above, while exercising the jurisdiction under section 561-A, Cr.P.C.
This Court is constrained to hold that the order of the SHO releasing respondent-accused Farid Gul is not sustainable, which is hereby quashed and the bail of the respondent stands cancelled.
However, he is granted interim bail for a period of 15 days subject to his furnish bail bond in the sum of Rs.1,00,000 with two sureties each in the like amount to the satisfaction of the Additional Registrar of this Court and in the meantime, he may approach for his release/grant of bail. Needless to mention that the above observations are tentative in nature and the Courts below would not be influenced by any observation of this Court, made in the instant order while dealing with the bail matter of the respondent-accused. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.