' Ishtiaq Hussain, respondent No,1, who is the sole accused in case: F.I.R. No, 184, registered at Police Station Gujjar Khan on 4-7-1989 under section 302/307 P.P.C., was granted bail by a learned Additional Sessions Judge at Rawalpindi, vide his order, dated 9-1-1990.
2. Mazhar Hussain petitioner, who is the complainant in the case, has made this application for the cancellation of the bail of the respondent.
3. The allegations in the F.I.R. Are that on 3-7-1989 at about 10-00 P.M. The petitioner accompanied by his cousin Mujahid Ali (deceased) and Tanveer Iqbal injured PW went to village Talkhalsa to attend the marriage of Mansha, brother of Ishtiaq Hussain, respondent No,
1. During the course of ceremony, when a video film was being prepared with the help of Mujahid Ali (deceased) and Tanveer Iqbal, injured PW, Ishtiaq Hussain respondent pulled out a carbine from his pocket and fired at the deceased, hitting him on his abdomen. Some of the pellets also hit Tanveer Iqbal PW who was standing nearby. Mujahid Ali, who was grievously injured, was removed to the District Headquarters Hopital, Rawalpindi, where he died on 4-7-1989.
' The motive for the crime was that Ishtiaq Hussain respondent, who was working as a driver on the Suzuki Van of Tanveer Iqbal PW, had the impression that he had been ousted from the employment by him at the .Instigation of Mujahid Ali (deceased).
' The matter Was reported to the police by the petitioner and the case was originally registered under section 302/307 PPC but during investigation, S.D.P.O. Gujjar Khan, substituted section 302 by section 304 PPC.
' It is argued on behalf of the petitioner that the occurrence took place in a function held in connection with the marriage of respondent's brother when a video film of a dance was also being prepared and it was a clear case of murder but the S.D.P.O., Gujjar Khan, making it a case of homicide not amounting to murder, arbitrarily and against the consistent advice of the District Prosecution Agency, substituted section 302, P.P.C. By section 304, P.P.C.
4. The learned Assistant Advocate-General is of the view that the S.D.P.O. Has no doubt come to the conclusion that it is a case under section 304 P.P.C. But his opinion is not binding on the Courts. He submits that he is not aware of the opinion given by the District Attorney but whatever has been stated by the learned counsel for the petitioner appears to be correct as there is an indication in the impugned order. In any case he supports the application for cancellation of bail. He is also of the view that the learned Additional Sessions Judge, while deciding the bail application, has unnecessarily gone deep into the merits of the case and he should not have done so.
5. The application has been opposed on behalf of Ishtiaq Hussain respondent. It is argued on his behalf that the marriage ceremony of the real brother of the respondent was being celebrated and a video film of a performance given by some artistes was being prepared and in these circumstances it was unimaginable that the respondent would intentionally kill Mujahid Ali (deceased) to spoil the marriage function of his brother, particularly when he knew that whatever he was doing was being picturised and it would be a valid proof against him. According to, the learned counsel, what had actually happened was that certain persons armed with different weapons were firing in the air out of joy, as is generally done at marriage parties, and a shot fired by someone happened to hit Mujahid Ali (deceased) and injure his companion Tanveer Iqbal PW by chance, as a result of which the former died in the hospital. He contends that it is the respondent and his other family members who immediately removed the injured to the hospital for providing them quick medical treatment and also donated their blood to save their lives. He submits that since the real assailants were not known, it is for that reason that the F.I.R. Was recorded a day later at 12-30 P.M. And Tanveer Iqbal injured P.W. Was also examined at 12-15 P.M.
On the following day. It is argued that the complainant was not present in the marriage assembly as also Azram PW and they were later set up as witnesses. According to the learned counsel, even the motive was concocted because the respondent had never been employed by Tanveer Iqbal PW as his van driver nor there was any enmity between the parties, rather the deceased and the respondents were good friends and for that reason the former accompanied by Tanveer Iqbal PW had come to attend the marriage ceremony.
6. S.D.P.O, Gujjar Khan, who is the main Investigating Officer in this case, giving his views about the investigation, states that the respondent fired two shots from his carbine and both were not visible in the video film being prepared though the sound of both the shots stood duly recorded therein.
According to him, the respondent fired the first shot from the carbine when the camera had not yet been focused at him but when he fired the second shot, by that time he had come in the focus though the carbine was not visible as he was reloading and holding it near or below the level of his umbilicus and he was in the focus above the stomach level. In his opinion, the carbine went off during the process of reloading, accidentally or carelessly, hitting the deceased and his companion who were helping the cameraman by holding the switch-board and the flash-light and since it was not his intentional act, for that reason he substituted section 302 P.P.C. By section 304 P.P.C.
7. I do not find much substance in the contention of the learned counsel for the respondent that a number of persons were firing in a mirthful mood and somebody's shot hit the deceased and his companion. The prosecution is in possession of a better item of proof in the form of a video film which can prove helpful in fixing liability, besides other evidence. Thus there is a prima facie case against the respondent or there are reasonable grounds to believe that he committed the offence.
8. The next question is: whether he apparently committed an offence punishable under sections 302 and 307, P.P.C. Or under sections 304 and 337 P.P.C. So far as this Court is concerned, it would refrain from expressing a definite opinion at this stage lest it might prejudice the case of either party at the trial. Tentatively I am of the view that even if it was a case under sections 304 and 337, P.P.C, as asserted by the learned counsel for the respondent and by the S.D.P.O., even then it was not a fit case for the grant of bail and the learned Additional Sessions Judge erred in granting bail to the respondent, more so after resorting to deeper appreciation of relevant facts.
9. Lastly, a good deal of controversy exists between the District Prosecution Agency represented by the District Attorney and the police right upto the level of D.I.-G., Rawalpindi Range, as to which offence did the accused commit and to which Court he should be sent up for trial. The former, who also has the support of Legal Branch of the Police, is of the opinion that the accused committed an offence under sections 302 and 307 P.P.C. While the police, excepting D.S.P, Rawalpindi, who supports the prosecution side, is of the view that he committed an offence punishable under sections 304, 337 P.P.C. In this stalemate even the challan has not yet been submitted though the investigation seems to have completed long ago. Both the sides know or should have known that in this respect the opinion of neither of them was binding on the Courts and the time and energy they were spending in this exercise was not worthwhile. Anyhow, since both the sides appear to be at loggerheads and such like instances are nowa-days common almost in every district, the controversy needs to be set at rest for good in the larger interest of public service and better administration of criminal justice, by referring to the relevant provisions of law which, to my mind, are being overlooked in the anxiety of each side's gaining supremacy over the other.
10. Vide Notification No, Legis: 4-32/84, dated 28th February, 1985, issued by the Punjab Law Department, the Governor of the Punjab, in exercise of the powers conferred on him by Art. 139 of the Constitution of Islamic Republic of Pakistan, 1973, was pleased to add Chapter 5-A to the Punjab Law Department Manual, 1934, laying down the duties and functions of the District Prosecution Agency. Paragraph 5-A.1 relates to its composition. It consists of the District Attorney, being the head of the Agency, Deputy District Attorneys and Assistant District Attorneys. Paragraph 5-A.2 lays down that charge-sheets and reports under section 173 Cr.P.C. Received from the police are to be thoroughly scrutinised by an officer of the Agency in order to ensure that they are complete in every respect and no omission or defect in investigation remains uncertified or unexplained. After carrying out scrutiny that officer has to prepare memo. In Form No, 27.1(3) of the Punjab Police Rules, 1934, and submit the record to the Incharge of the Agency (District Attorney) and to explain the case to him and take his orders as to whether the case is to be put into the Court or it is to be withheld for further police action. It is the duty of the District Attorney to satisfy himself that the case is presented to the Court in the best possible manner, and all material evidence is produced, including the evidence calculated to rebut probable line of defence.
11. Paragraph 5-A.2 says that notwithstanding the provisions of para. 5-A.1 above, the Superintendent of Police, as head of District Police, may cause the internal scrutiny of a case, as laid down in rule 27.1(3) of the Punjab Police Rules, 1934. This rule forms part of Chapter XXVII of the said Rules wherein rules 27.1 to 27.39 were substituted/amended by Notification No,953/Legal, dated 1-3-1985, issued by the Inspector-General of Police, Punjab, under section 12 of the Police Act, 1961. Rule 27.1(3) ibid provides that although primarily it will be the function of the District Prosecution Agency to finally scrutinize the charge-sheets and reports under section 173 Cr.P.C. Of a case, yet District Superintendent of Police may, in a case of important nature, cause the internal scrutiny through the Legal Branch of his office but despite this internal scrutiny the final scrutiny of the case shall still be the function and responsibility of the District Prosecution Agency.
12. The above reference to the relevant provisions of law leaves no room for doubt that the duty of the police remains confined only to the registration of a case and to carry out its investigation. On its completion they are to draw up charge sheets and reports under section 173 Cr.P.C. And submit the same to the District Prosecution Agency which is responsible for putting the case into the Court concerned in the best possible manner. Prior to the submission of the charge-sheets and reports under section 173 Cr.P.C. To the District Prosecution Agency, the District Superintendent of Police may cause a case of important nature scrutinized from his own Legal Branch, generally headed by a D.S.P. (Legal), but such scrutiny is meant for his own guidance and it has no binding effect for the District Prosecution Agency in which the District Attorney has a final say in the matter, including the nature of the offence allegedly committed by an accused and the Court which is to try him. No police officer, howsoever senior he may be, can therefore impose his views either on the basis of his own assessm ent of the circumstances of the case, or on the basis of any advice tendered to him by the Legal Branch of the District Police Office, on the District Prosecution Agency, regarding any aspect of the case, including the nature of the offence committed by an accused, as in the instant case. In this case, if the S.D.P.O., Gujjar Khan, during the course of investigation, or any higher police officer on the completion of investigation, formed an opinion that the accused caused the death of Mujahid Ali accidentally or negligently, having no element of mens rea, the proper course for him was to say in the report drawn up by him under section 173, Cr.P.C. And leave the matter to the discretion of the District Attorney, instead of joining issues with him by making it a matter of prestige and trying to impose his will on him. He could not do so and whatever he did was in violation of law as contained in para 5-A.2 of the Law Department Manual, 1934 and rule 27.1(3) of the Punjab Police Rules, 1934.
13. It has also been noticed that, as in the instant case, some times in a controversy like the present one, the District Magistrate also intervenes and proceeds to give decisions and instructions. In the scheme of things he does not figure and since he is not a legal expert, he has nothing to do with it.
He should, therefore, avoid interfering in such like matters.
14. For various reasons stated above, the application for the cancellation of bail of Ishtiaq Hussain accused is accepted and the impugned order, dated 9-1-1990, passed by the learned Additional Sessions Judge, Rawalpindi, is recalled. S.D.P.O., Gujjar Khan is directed to immediately submit the charge-sheet and the report under section 173 Cr.P.C. to the District Attorney for scrutiny and he is directed to put the same in the Court concerned after carrying out necessary scrutiny. If he decides to put the same in the Court of Sessions through the Ilaqa Magistrate, then the learned Sessions Judge, Rawalpindi, shall either try the case himself or entrust the same to some Additional Sessions Judge, other than the one who dealt with the bail application of the accused.
15. A copy of this order shall be sent to the Secretary, Law Department, Government of the Punjab, Lahore, for circulation amongst all concerned for information and necessary action.