' In an injured state, Dildar petitioner-complainant while in Civil Hospital Havelian, made a report at 12-15 hours on 25-6-1987 wherein he charged the respondent Safdar along with his co-accused Akhtar Khan and Fiaz for causing him injuries by sharp-edged, fire-arm and blunt-edged weapons respectively. Consequently a case was registered vide F.I.R. No,31, dated 25-6-1987 in Police Station Nara, District Abbottabad. Accused-respondent No,1 Safdar appears to have filed an application for bail before arrest before the learned Sessions Judge Abbottabad which was rejected vide his order, dated 26-9-1987. The same day, he was taken into custody. His efforts in this behalf also proved abortive when his bail application after arrest was first rejected by the learned Sessions Judge, Abbottabad on 11-10-1987 and later, alongwith those of his co-accused Akhtar Khan and Fiaz, was rejected by this Court vide an order dated 6-12-1987. Incidently before the learned Additional Sessions Judge as also this Court, one of the grounds pressed into service qua Safdar accused-respondent was, his plea of alibi to the effect that he was arrested on the day of occurrence at 11-00 a.m. In Rawalpindi in a case under section 13 of the Arms Ordinance. The plea was, however, repelled by holding that it can be taken into consideration at the trial when the necessary evidence is recorded in the case. The three accused, including respondent Safdar, then approached the Supreme Court by way of a joint criminal petition for leave to appeal wherein again the plea of alibi was raised for respondent Safdar. However, by an order dated 31-1-1988, while his two co-accused were admitted to bail, the concession was declined to accused Safdar.
2. It appears that on 14-3-1988 S.H.O., Police Station Nara, made an application purportedly under section 169, Cr.P.C. To Mr. Ehsanullah Khan Magistrate, 1st Class, Abbottabad for the release of respondent No,1, which request was acceded to by learned Magistrate vide his impugned order, dated 26-3-1988 and he was released on furnishing bail bond in the sum of Rs,50,000 with two sureties in the like amount.
3. Dildar complainant-petitioner has invoked the inherent powers of this Court under section 561-A, Cr.P.C. For quashing the impugned order of Mr. Ehsanullah Khan, Magistrate.
4. I have heard Mr. Abdullah Jan Mirza, Advocate learned counsel for the petitioner, Mr. Ghulam Mujtaba Khan Jadoon, Advocate learned counsel for the respondent and Mr. Muhammad Aslam Khan, Assistant Advocate-General for the State.
5. It is contended on behalf of the petitioner that there exist no material on the record for the Investigating Officer for initiating the withdrawal of the case against respondent No,1 on the plea of alibi in the face of the evidence of injured complainant as also the evidence of disinterested and independent witnesses; more particularly when not only the Sessions Judge, Abbottabad but also the High Court as well as the Supreme Court have rejected the plea of alibi for the purpose of bail even. The Assistant Advocate-General supported the petition.
6. On the other hand, the learned counsel for the respondent No,1 raised an objection to the maintainability of the instant petition on the ground that for his remedy, there exists a provision in law where under the petitioner could file a complaint against respondent No,1 and as such the inherent powers of High Court under section 561-A, Cr.P.C. Can neither be invoked by, nor exercised in favour of the petitioner.
7. I have given my serious consideration to the submissions made by the learned counsel in support of their respective pleas.
8. Reference to record reveals that initially, on the conclusion of the investigation, the then Investigating Officer charge-sheeted all the accused including respondent No,1 to the Court to face their trial vide a challan dated 20-12-1987. During scrutiny of the case in the prosecution branch, the P.S.I. Concerned opined to investigate the plea of alibi raised by respondent No,1. Thereupon Muhammad Salim S.H.O., who had succeeded the earlier Investigating Officer, investigated this aspect of the case and eventually made an application on 14-3-1988 to Mr. Ehsanullah Khan, Magistrate 1st Class, Abbottabad for releasing the respondent No,1 inter alia on the ground of his plea of alibi. This application was acceded to under section 169, Cr.P.C., as is given out in the application as well as the impugned order of the learned Magistrate, dated 26-3-1988.
9. Strangely enough there appears no reference whatsoever of the orders of this Court or that of the Supreme Court passed on the bail applications moved from time to time by respondent No,1 either in the note of the P.S.I. Who scrutinized the case on 10-2-1988 or during the subsequent investigation of the case or, for that matter, the prosecution branch headed by a Prosecution Deputy Superintendent of Police.
10. Whether this omission is intentional or inadvertent, the fact remains that in the F.I.R., a charge, in unequivocal terms, is levelled against respondent No,1 by the petitioner-complainant for severing off his nose by means of a sharp-edged weapon which is supported not only by the ocular witnesses but also by the medical evidence.
11. The point that requires examination, in such a situation is as to whether the plea of alibi could have been given so much importance, at this stage of the case, as to have prompted the.
Investigating Officer to exercise his powers under section 169, Cr.P.C. And to initiate proceedings in order to get respondent No,1 released without facing his trial or and substantiating his plea of alibi during the same.
12. True, under section 169, Cr.P.C. The S.H.O. Can release an accused on his executing a bond, with or without sureties, if it appears to him that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate. Similarly under section 173(3), Cr.P.C. a Magistrate is empowered to make such order for the discharge of such bond whenever it appears from the report forwarded under this section that the accused has been released on his bond. Yet, without entering into the controversy as to which of the above-quoted provisions of the Criminal Procedure Code, would cover the questioned act of S.H.O., as also of the Magistrate; the circumstances of this case clearly suggest that the act of releasing the respondent No,1, before the commencement of his trial and recording of any evidence whatsoever, was not consistent with the weight of evidence already brought on the record against him more so in view of the well-settled proposition of law that in hurt cases the statement of victim, duly supported by medical evidence, is normally considered sufficient to warrant conviction. Reliance in this regard may be placed on a decision of this Court State v. Abdur Rashid reported in PLD 1989 Pesh.
19.
13. Let it be borne in mind that in exercise of his powers under section 169, Cr.P.C., a Police Officer is to act with great care and caution, lest a guilty person may go scot free without facing his trial. It is only when 'there is no sufficient evidence' or 'reasonable ground of suspicion to justify the forwarding of accused to a Magistrate' that he can undertake the exercise under the aforesaid provision. But 'insufficiency of evidence' or 'non-existence or reasonable ground' is one thing and evaluation of evidence forthcoming, for and against the accused, at the instigation stage, is another. In the latter case, he is not at all supposed to arrogate himself the functions of adjudication, in order to determine the nature of his offence and then to give a pre-trial verdict of the innocence of the accused, more particularly on the ground of such special plea as the one of alibi the onus of judicially proving where of legally lies heavily on the accused. I am, therefore, clear in my mind that the course, the S.H.O. Muhammad Salim has followed, in the instant case, was not at all permissible under the law.
14. In the same wake of events, I am to regretfully observe that the learned Magistrate too has acted quite arbitrarily inasmuch as before passing the impugned order, he did not care to have gone through the record of the case with such prudence as his judicial office demanded of him. He appears to have failed to apply his conscious mind to the facts of the case and the evidence gathered thus far during the investigation and instead, toed the line so illfoundedly and unscrupulously drawn by the S.H.O. For, the learned Magistrate has adopted the same reasoning as were mentioned in the application and obviously subscribed thereto rather mechanically.
15. Viewing the instant case in the perspective of the foregoing discussion, I have no hesitation in holding that the impugned order of the learned Magistrate, releasing the respondent No,1, is misconceived in fact as also in law and is liable to be set aside.
16. Regarding the objection of the learned counsel for the respondent on the maintainability of this petition under section 561-A, Cr.P.C., it is true that where express provision is made in the Code itself for a particular purpose, recourse cannot be had to the inherent jurisdiction in order to achieve the same purpose but, as has been held by the Supreme Court in Shahkot Bus Service v. State and another reported in 1969 SCMR 325: "It has to be pointed out that the inherent power of the High Court is a very wide and of indefinable nature and, in exercise of its power, the High Court can make all such orders which may be necessary to do real and substantial justice and prevent abuse of the process of Court, subject only to the limitation that it cannot override an express provision of the Code."
' I am further of the view that to secure the ends of justice, it is the foremost duty of this Court, in exercise of its inherent power under section 561-A, Cr.P.C., to interfere with and strike down such orders as appear to it illegal, arbitrary or unfair.
17. In the instant case, I have arrived at an inescapable conclusion that the impugned order is neither in conformity with the facts of the case nor permissible under the law and as such merits interference in exercise of inherent jurisdiction of this Court.
18. Resultantly this petition is accepted, the impugned order releasing the accused-respondent Safdar is hereby recalled and I hereby order that he may be arraigned as an accused person in column 3 of the challan, along with his co-accused, to face his trial for the offence(s) he is charged with. After recording some evidence, he can apply to the trial Court, if so advised, for his release on bail.