' ROOH-UL-AMIN KHAN, J.---Through instant petition, petitioner seeks quashment of action of the S.H.O./respondent No,2, whereby accused-respondent Faraz Ahmad, was straightaway released/discharged and deleted/omitted his name from the challan in case F.I.R No,742, dated 9- 9-2011, registered under sections 337-F(iv)/452/148/149, P.P.C. At Police Station City Bannu, without his arrest.
2. Learned counsel for petitioner argued that respondent Faraz Ahmad is directly charged for the commission of cognizable offence along with his co-accused, but respondent No,2/S.H.O. Police Station City Bannu, has released/acquitted him of the charges, which is sheer abuse of the powers, as the SHO/I.O. Has no lawful authority to release/acquit an accused, without any justification or lawful reason. Learned counsel contended that under section 169, Cr.P.C. The I.O. May release an accused person on bail with or without sureties, in case of deficient evidence and to place him in column No,2 of the challan, but under no law the S.H.O. Was authorized to release/acquit the accused straightaway without arrest and without placing- his name in column No,2 of the challan, as it is the sole job of the Court.
3. Conversely, learned counsel for respondent No,5 (Faraz Ahmad) argued that his client appeared before the District Police Officer and submitted application regarding his innocence, as a consequence whereof, statements of the witnesses were recorded and he was squarely found innocent, as such he was exonerated from the charges.
4. I have heard the arguments and have gone through the record.
5. It appears from the record that initially the occurrence was reported by complainant Attiq ur Rehman in injured condition in emergency room of Civil Hospital Bannu, which was incorporated in Daily Diary No,31 dated 30-8-2011, on which inquiry was conducted and ultimately F.I.R. Mentioned above was registered. According to report of the complainant, on the eventful night he along with his son Ahmad Ali after offering "Ishha prayer" when entered their house, saw accused Aftab Ali, duly armed with Topak, Faraz (respondent No,5), Waqar, duly armed with pistols and Shehzad, empty handed, thrashing his wife Mst. Naseem Begun with fists, kicks and butts of their rifles. The accused on seeing the complainant and his son also criminally intimidated them; as a consequence, the complainant and his wife sustained injuries. The occurrence is stated to have witnessed by his neighbours. A rifle allegedly fallen down from accused Aftab was taken into possession by the complainant and handed over to the police. Motive for the occurrence is women dispute.
6. The perusal of F.I.R transpires that Faraz Ahmad respondent is directly charged in the F.I.R, for thrashing the complainant, and his wife. It was the sole job of the trial Court to determine the role of the accused-respondent and his criminal liability, after recording evidence. The Investigating Officer or Incharge of Police Station, had been empowered under section 169, Cr.P.C. Only to release an accused on bail by obtaining his personal bond, if it was found that the evidence against the accused is deficient or there was lack of reasonable grounds to justify the connection of accused with offence. The theme of the section ibid, does not permit the Investigating Officer to evaluate defence evidence of an accused and prefer it over the direct evidence collected by prosecution, for declaring innocence of the accused. Any evidence produced by the accused in defence, shall not be given such an iron strength to stultify the ample ocular prosecution evidence. In the case in hand, the only evidence i,e, plea of alibi has been considered by the Investigating, Officer, and on the strength of certain affidavits, the accused was exonerated and acquitted instead of release on bail. The Station House Officer, playing the role of Court even did not bother to place the accused- respondent in any column of the challan. Even the opinion of the D.P.P., being a law knowing person, overleaf the final report under section 173, Cr.P.C. Is astonishing and in sheer violation of the law wherein he has opined as follow:-- "I agree with investigation and forward the instant challan to Court for trial. The name of accused Faraz is rightly excluded from the list of accused".
In such state of affairs, the act of the S.H.O. Followed by the opinion of the D.P.P., is highly deplorable, which cannot be countenanced on any ground whatsoever. It is noted with great concern that in the instant case the S.H.O. Without caring about the limits of his powers and the nature of accusation in the case released/discharged the accused-respondent, and that too, without his arrest. In this way, the legal provision of section 169, Cr.P.C. Has flagrantly been misused by the S.H.O. On his own whims and wishes. The Law has not given unfettered powers to the Investigating Officer to even release an accused on bail without assigning any. Reason. If this tendency is encouraged, then almost all accused in the criminal cases would come with a defence plea and the Station House Officer or Investigating Officer would acquit and exonerate them without sending their cases to competent Court of law. In my humble view weighment and evaluation of the evidence is the sole job of the Court and not of the police. I have noted and it also appears from the record that superior hierarchy of the police i,e, the District Police Officer, also does not take care of the misdeeds of the Investigating Officer/S.H.O., as the accused-respondent appeared before him and moved an application qua his innocence, on which he ordered "fair and impartial inquiry, but did not bother to arrest him, who was by then an accused of a cognizable offence. Moreso, the S.H.O. Has even not bothered to place the accused respondent in any column of the challan but himself exercising the power of the trial court, straightaway released rather acquitted/exonerated him from the charge without obtaining his personal bond.
7. Although, section 169, Cr.P.C. Empowers the Officer Incharge of the Police Station or the Investigating Officer to release accused on executing his bond with or without sureties, when there is no sufficient evidence or reasonable ground or suspicion to justify the forwarding of accused to the Magistrate. The bare reading of the section suggests that the S.H.O. Has not been empowered to acquit/exonerate the accused from the charges. The S.H.O. Has not given any reason to justify the release of respondent-accused. Section 169, Cr.P.C. Enunciates that if it appears to the officer Incharge of the police station or to the police officer making the investigation that evidence, is deficient or there exist 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. The phrase "if such person is in custody and released" is of worth significance which connotes that the person to be so released on account of deficient evidence must be in custody of police. The word "custody" generally means a state of being confined, detainment, detention or holding by the police. Likewise, the word "release" means to free or liberate, to let go, to discharge, unfasten, unfetter etc. In criminal legal terminology, release means to set free from restraint, confinement, prison, Jail, custody of police.
8. From the above meanings of word "custody" and "release" it is manifest that for release, a person must be in custody of the police and without arrest or custody, there would be no order of release or discharge. In the case in hand, the accused-respondent has approached the police highups and then has appeared before the I.O. With his defence plea, but was not arrested for the reason best known to the Investigating Officer. Even then, he has been discharged without any bond, which is violative and against the scheme of section 169, Cr.P.C. Police Officer is not supposed to arrogate to himself the function of adjudication in order to determine the nature of offence and to give pretrial verdict of innocence of the accused. While exercising powers under section 169, Gr.P.C.
He has to act with great care and caution, lest a guilty person should be scot free without facing trial.
9. In the entire section ibid, there is no word to indicate straightaway acquittal or exoneration of the accused person from the charge. Rather, it is the sole domain of the Court. The words "release him on his executing a bond with or without sureties" cannot be expounded as having authorized or empowered investigation officer to discharge accused. Release of an accused under this section is after confirmation of the action of the I.O. For the release of accused and uptill discharge or order of Magistrate as provided in section 173, Cr.P.C. When a person is arrested and detained by the police, he can be released on execution of a bond with or without sureties by the I.O. When he would find no sufficient evidence, no reasonable ground or no suspicion to justify for his forwarding to a Magistrate and it would be the duty of concerned Officer to report all those facts, by placing his name in column No,2 of the report under section 173, Cr.P.C. Which power shall also remain open to judicial scrutiny. The S.H.O., without considering the merits of the case and requirement of law, has violated the statutory provision of section 169, Cr.P.C. In a haphazard manner. Such flagrant misuse of authority and abuse of powers, on the part of the S.H.O. Cannot be countenanced by any means.
10. Learned Deputy Advocate-General, District Public Prosecutor and the Station House Officer of the concerned Police Station, present in the Court, when confronted with the act of the then S.H.O.
Police Station City Bannu and opinion/approval of the D.P.P., they fairly and frankly conceded that the challan is incomplete and that the action of the then S.H.O. By not placing the name of respondent No,5 in the challan is illegal. In view of the above, this petition is allowed and the act of the S.H.O./respondent No,2 and approval of D.P.P. Viz. Releasing/ discharging the respondent- accused is hereby set aside. The respondents are directed to act strictly in accordance with law and procedure.