SHAHID HAMEED DAR, J.---The. petitioner, Tariq Aziz seeks post-arrest bail in case FIR No,16/2016, dated 6.5.2016, under sections 161, 165-A, 109, 468, 471 P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947, registered at Police Station ACE Headquarter, Lahore.
2. Imran Safdar, Deputy Registrar (Judl. Writ), Lahore High Court, Lahore got lodged the above said FIR with the allegation that:- "It has come to the notice of the authority that Nasir Mehmood Assistant and Muhammad Imran Shabbir, Data Entry Operator of this Court managed and prepared forged cause list qua the fixation of Writ Petitions Nos,32158/2013 and 6493/2014 before a particular Court for 02.05.2016 and received from Usman Qayyu m son of Capt. Retd. Abdul Qayyum resident of House No,9-XX, DHA, Lahore, a sum of Rs,5 lac as illegal gratification while Tariq Aziz Assistant, afterreceiving Rs,10,000/- as bribe from Usman Qayyum, petitioner, delivered the judicial files of the above writ petitions along with forged and fabricated cause list to the court associate of the concerned court the above named officials admitted the guilt as well as receipt of illegal gratification before the Additional Registrar (Judi.), who preliminary probed the matter and Mr. Muhammad Asghar, Additional Registrar (B&FM) during the Enquiry as well. The officials have been dismissed from service. The competent authority has directed the initiation of criminal proceedings against Nasir Mehmood, Tariq Aziz Assistants and Muhammad Imran Shabbir, Data Entry Operator by the Anti-Corruption Establishment for further probe and action in accordance with law."
3. After hearing the learned counsel for the parties and perusing the record, it is observed that the petitioner, who worked as an assistant, was dismissed from service forthwith, when he allegedly rendered a self-implicating statement before Mr. Muhammad Asghar, Additional Registrar (B&FM) to have received Rs,10,000/- as bribe from Usman Qayyum, the petitioner in Writ Petition No,32158/2013 and Writ Petition No,6493/2014, and carried judicial files thereof along with a forged and fabricated cause-list to,, the Court-Associate of the Court concerned, where both the matters were decided, the same day (2.5.2016). Learned Additional Prosecutor General Punjab has submitted that both the orders are still intact, though R.A.No,42/2016 and R.A.No,43/2016 have been filed there against, which are pending adjudication before the Hon'ble Chief Justice, Lahore High Court, Lahore. The recovery of Rs,10,000/- has allegedly been effected from the petitioner on 6.5.2016, which fact may be gathered from the contents of the FIR. The petitioner allegedly committed a condemnable act and paid the price for it, having lost the job in consequence thereof. He admittedly did not forge the fake cause-list nor could it be believed, in absence of any evidence contrary thereto, that he knew about its status of being fake.
4. He was arrested on 6.5.2016 and he has been in jail since then. The investigation of this case has progressed at snail's pace, as report under section 173, Cr.P.C. has not been submitted against the petitioner before the learned trial court up till now. This is a sheer abuse of the process of law.
Learned Law Officer and the investigating officer found themselves short of words in explaining the prosecution's sluggishness in this regard and submitted lukewarmly that challan of the case is under scrutiny of the prosecution branch. This is a flagrant violation of the law on the subject, which is not to be overlooked easily. The Hon'ble Supreme Court of Pakistan granted pre-arrest bail to Mian Tariq Aziz, an accused of offence under section 462(C), P.P.C. read with section 3/4 of the Explosives Substances Act, 1908, merely on the ground that "there is no provision in the Cr.P.C. which authorizes the Police to withhold the challan beyond 14 days on the ground that an accused was not arrested due to grant of bail. The petitioner remained on bail throughout and joined the investigation, therefore, non-submission of challan itself entitles the petitioner to the grant of anticipatory bail". This order was made on 7.8.2014 in Crl.Petition No,378 of 2014 an unreported case. In Hakim Mumtaz Ahmad's case, reported as PLD 2002 SC 590, the Hon'ble Supreme Court of Pakistan took serious view of the delay, generally caused in submission of challan under section 173, Cr.P.C. and observed as under:- "On completion of maximum period of police remand the accused becomes entitled for trial and every Investigating Officer is duty bound to complete interrogation of the accused within stipulated period and no unnecessary delay is tolerable in this behalf because after completion of investigation, challan is to be submitted before the Court of competent jurisdiction through the Public Prosecutor. As per section 344, Cr.P.C. it is the duty of the Police Officer to furnish justification for detention of accused in custody if challan under section 173, Cr. P. C. has not been filed and trial has not commenced, otherwise in absence of report of a police officer of challan, detention of the accused would be unjustified and against the provision of law.
9. Delay in submission of challan/ police report under section 173, Cr. P.C. has beennoticed invariably in the criminal cases, despite the fact that section 173 of the Code of Criminal Procedure has been amended by Act XXV of 1992 whereby a facility has been extended to the Investigating Agency for submitting interim report the period of 3 days from the completion of period of 14 days of the police remand but instead of deriving benefit from this provision of law, the Police Authorities including S.H. Os. and high-ups up to the rank of Senior Superintendent of Police never bothered to comply with this mandatory provision of law.
10.Undoubtedly section 173, Cr.P.C. was amended vide Act XXV of 1992 with a view to improve performance of the Police Department and simultaneously to stop the police from adopting protracted investigation process for one of the other pretext but the police authorities had in fact rendered the provisions of section 173, Cr.P.C. ineffective by not following its spirit. In this behalf it is to be noted that unconvincing delaying tactics are adopted by the concerned investigating officers as it has exactly happened in the instant case because the then Superintendent of Police Mandi Bahauddin who is supposed to be incharge of criminal cases as per rule 53, Chapter 5 of the Punjab Law Department Manual, 1938 failed to furnish reasons for not submitting the challan before the Court through Public Prosecutor as per the provisions of section 173, Cr.P.C. Similarly Public Prosecutor who is also the In charge of District Prosecution Agency in terms of rule 5-A.2, Chapter 5- A of the Punjab Law Department Manual 1934 could not satisfy the Court for not submitting the challan/police, report final or interim within the stipulated time.
11.It may be noted that in the case of Mazhar Hussain v. lshtiaq Hussain and another (PLD 1990 Lahore 249) it has been held that primarily it will be the function of the District Prosecution Agency to finally scrutinize the charge-sheet or report under section 173, Cr. P.C. of a case and on receipt of report from the police submit the same before the Court concerned. On having seen the conduct of the Investigating Agency and District Prosecution Agency we are of the opinion that in absence of good working relations between both the agencies it is not possible to strictly adhere to the provisions of section 173, Cr.P.C. but on account of non-cooperation between both the agencies no one has suffered except the accused/petitioner who remained in detention without trial for a considerable period as it has been noted hereinabove. In this regard, the Court which had been granting judicial remand of the petitioner in terms of section 344, Cr.P.C. would also equally responsible for the delay in commencement of trial case because it had insisted hard upon police to comply with the provisions of section 173, Cr. P. C. or to face consequence for keeping the accused in custody there was no reason that concerned S.H.O/Investigating Officer had not put up challan against the accused. It is a general practice that we do point out weaknesses in the system but don't bother to discharge the duty cast upon the functionaries seized with the matter. We are sure that if the provisions of section 173, Cr.P.C. are complied with in letter and spirit the delay in submission of challan and completion of trial in criminal cases can conveniently be controlled."
It was further observed by the apex court in paragraph 26 of the afore-referred judgment that:- "26. We have discussed the significance and implications of non-submission of challan under section 173(1), Cr.P.C. and non-commencement of trial under section 344, Cr.P.C. hereinabove at length with a view to achieve the object for which provisions of law have been promulgated as, it has been held by this Court in the case of Imtiaz Ahmad v. The State (PLD 1997 SC 545).
Therefore, to ensure strict compliance of section 173(1), Cr. P.C. in future, we propose to pass following order in exercise of our jurisdiction under Article 187(1) read with Article 189 of the Constitution of Islamic Republic of Pakistan:- (1) Cr.P.L.A. No,236 of 2001 filed by Hakim Mumtaz Ahmad is converted into appeal and allowed.
As a consequence whereof the interim bail granted to him vide order, dated 26th November 2001 is confirmed."
The legality of the petitioner's detention, in the wake of non-submission of challan against him, may be looked at inquisitively. He is in jail for about a year now and commencement of his trial is still a far-fetched idea. He is no more needed by the police for the purpose of further investigation or any recovery etc. The offence, he is confronted with, is not covered by the prohibitory clause of section 497(1), Cr.P.C. His continued incarceration may not be of any consequence to the prosecution case. No one can be left to rot in jail for an indefinite period of time, only to satisfy the grudge of the complainant.
4. Therefore, this application is accepted and the petitioner is admitted to post-arrest bail subject to furnishing bail bonds in the sum of Rs,1,00,000/- (one lac) with two sureties each in the like amount to the satisfaction of the learned trial Court.