' SYED AFSAR SHAH, J.---Through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has made a prayer for issuance of an appropriate writ directing respondents Nos.2 to 10 to suspend their orders/opinions with respect to placing the names of accused-respondents Nos. 11 and 12 in column No.2 of the Challan with adding prayer of taking them into custody and to proceed them in accordance with law.
2. The facts leading to the filing of instant petition, as spelt out from the record, are that on 25.07.2014 at about 18:10 hours Sher Ali, having a stamp of injury on his person, made a report to Zia-ul-Haq, ASI to the effect that on the day of occurrence he along with his cousin, Idrees, was riding on a motorbike and when reached to the crime venue, there accused-respondents Nos. 11 and 12 along with their co-accused, duly armed with deadly weapons, opened firing at them, resultantly, Idrees was hit, fell on the ground and died on the spot whereas he himself sustained injuries on his left arm axilla and chest. He has charged the accused-respondents Nos. 11 and 12 along with their co-accused for commission of the offence.
' After their involvement in the case, referred to above, the accused-respondents applied for their pre-arrest bail to the Court of learned Sessions Judge Charsadda which was initially allowed to them. They also moved an application for reinvestigation of the case regarding their innocence, resultantly, after declaring them innocent by the I.O., their names were placed in column No.2 of the Challan, where after, both the accused-respondents moved an application for withdrawal of their pre-arrest bail petition which was allowed by the learned Sessions Judge. The petitioner has impugned the opinion of the Investigating Officer whereby the names of the accused-respondents Nos. 11 and 12 have been placed in column No.2 of the challan. They have also made a prayer for taking them into custody and to proceed them in accordance with law.
3. It is the contention of learned counsel for the petitioner that reinvestigation conducted by the Investigating Agency and in pursuance of their opinion placing names of the accused/respondents in column No.2 of the challan is illegal and the result of mala fide. He further added that by declaring the respondents/accused innocent on the basis of highly controversial plea of alibi and deferring their arrest with no proper order of a competent court, the Investigating Officer has landed into the fields of error. He went on to say that this court is not denuded of the authority to see and assess, whether the material already on record was sufficient for the Investigating Officer to declare the respondents/accused innocent.
' As against that learned counsel for the respondents/accused argued that by placing names of the accused/respondents in column No.2 does not mean that they have been exonerated from the charge. He further added that this court is not supposed to take the role of Investigating Agency. In support of his arguments learned counsel placed reliance on a case law titled "Muhammad Hafeez v. Ms. Salma Bibi and 3 others" (PLD 2014 Peshawar 231).
4. It appears from the record, available on file, that in this case the occurrence took place on 25.07.2014 at about 17:45 hours whereas the report has been lodged on the same day at 18:10 hours.
Sher Ali is the complainant of the present case and he, in his first information report, had charged the accused-respondents Nos. 11 and 12 along with their co-accused for murder of the deceased, Idrees, and firing on him effectively. After their involvement in the case, the accused-respondents applied for their pre-arrest bail to the Court of learned Sessions Judge Charsadda which was initially allowed to them. At the same time, they also moved an application for re-investigation of the case as according to them they were implicated in the case falsely. In view of the application submitted by the accused-respondents regarding their innocence, a special investigation team was constituted for reinvestigation with direction to the officers concerned to submit their progress report to the DPO Charsadda for further proceedings at that end.
5. The Investigating Officer after recording statements in support of the application which the accused-respondents have submitted regarding their innocence and thereafter submitted their opinion to the District Public Prosecutor Charsadda. On receipt of the opinion/report of the Investigating Officer, the District Public Prosecutor opined as under:-- "What discussed above, if the investigation officer is satisfied from his investigation, so far regarding the innocence of the accused then the investigation officer may proceed under Section
169. Cr.P.0 or may put their names in column No.2 of the Challan or otherwise as the case may be ".
6. Thereafter, the names of the accused-respondents were placed in column No.2 of the Challan.
As stated earlier in the backdrop both the accused-respondents filed an application for withdrawal of their pre-arrest bail petition which was allowed accordingly.
7. By now it is more than settled that this court is not supposed to take the role of Investigation Agency. No doubt, the petitioner is aggrieved of the opinion given by the Investigating Officer but there is no bar on the trial Court to evaluate the material on record to see as to whether the Investigating Authority was justified in thinking that the accused-respondents were innocent on the bases of the said material. Of course, this can be done by the trial Court during the trial. The case is still under investigation as interim Challan has been submitted in the case and in view of the dicta laid down by the apex courts in the cases of "Shehnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another" PLD 1971 SC 677, "Brig: Imtiaz Ahmad V. Government of Pakistan through Secretary Interior Division and 2 others" 1994 SCM R 2142, "Muhammad Latif, ASI Police Station Sadar, Sheikhupura v. Sharifan Bibi and another" 1998 SCM R 666 and "Anwar Ahmad Khan v. The State" 1996 SCM R 24 the High Court has got no jurisdiction to intervene with any criminal case when it is in the phase of investigation.
8. There is no two opinions about the fact that by placing the names of the accused-respondents in column No.2 of the Challan they have not been exonerated from the charge. No doubt, the respondents/accused have been declared innocent as a result of reinvestigation but the case is not cancelled and the trial court has got the power to summon them notwithstanding the facts that they have been declared innocent or for that matter their names have been placed in column No.2 of the challan. Rel. 1985 SCM R 1314 and 1988 SCM R 1428. This being position of the case, the withdrawal of pre-arrest bail petition by the respondents/accused from the court of learned Sessions Judge, Charsadda is the result of misconception. As stated earlier, case against them has not been cancelled. They are still accused. How in the given position of the case they could go for withdrawal of the petition for the grant of bail.
10. The matter as it stands, respondents/accused No. 11 and 12 shall adhere to the proper fora for their bail within a fortnight of this order, failing which the law shall take its own course.
' This writ petition stands disposed of accordingly.