' Vide F.I.R. 460 Police Station Saddar Bannu dated 26-10-1990 Akbar Zaman charged Bakhta Baz Khan and his brother Madar Ali and one Akbar Zaman son of Jannan for the murder of his son Rasool Zaman by firing in furtherance of their common intention under section 302/34, P.P.C. Ayaz Khan, A.S.I. Was deputed to inquire into the plea of alibi agitated by Bakhta Baz Khan and he certified that Bakhta Baz Khan remained admitted as indoor patient in the Khyber Teaching Hospital, Peshawar from 22-10-1990 to 27-10-1990. The S.H.O. Had sought the advice of the prosecution branch in the matter vis-a-vis the alibi plea of Bakhta Baz Khan. The Prosecution Inspector opined that if the investigating agency feels that Bakhta Baz Khan was innocent as verified and had not played any role in the commission of the offence, then he may be released after getting a personal bond of appearance. Accordingly, Bakhta Baz Khan was released on his executing a personal bond with sureties by the officer-in-charge of the police station on 18-11-1990.
Complainant approached the Illaqa Magistrate for cancellation of his bail who, however, dismissed his application and opined that the S.H.O. Had got statutory powers of releasing the accused on bond and if the complainant felt aggrieved he has to approach the learned Sessions Judge for his redress. The complainant had, therefore, approached the learned Sessions Judge for cancellation of the bail granted to Bakhta Baz Khan who by his order dated 9-2-1991, cancelled his bail under observations that the plea of alibi can be thrashed out at the trial stage and not at the bail stage.
2. Bakhta Baz Khan filed Criminal Miscellaneous No,39 of 1991 in the High Court for grant of bail under section 497/498, Cr.P.C. And later on also filed Criminal Miscellaneous No,63 of 1991 under section 439 read with section 561-A, Cr.P.C. For quashment of the order of the learned Sessions Judge, Bannu dated 9-2-1991 vide which he cancelled the bail of the petitioner. Madar Ali and Akbar Ramzan, co-accused, were refused bail by the Court of Magistrate and also the Court of Session and they made Criminal Miscellaneous No, 22/91 under section 497/498, Cr.P.C. For the grant of bail in this Court. I propose to dispose of the three matters by a joint order as follow:--
3. Mr. Zafar Abbas Zaidi, Advocate, represented the accused-petitioners, Mr. Sanaullah Khan Gandapur, Advocate, pleaded for the complainant and the learned Assistant Advocate-General represented the State. After hearing them at great length, it needs to be first ascertained if Bakhta Baz Khan accused-petitioner was released by the officer-in-charge of the police station on bond under section 169, Cr.P.C. After having found that there was not sufficient evidence or reasonable ground of suspicion to justify his forwarding to a Magistrate and had accordingly released him on bail or that the police officer had released him on bail under section 497(2), Cr.P.C. since it appeared to him during investigation that there was no reasonable ground for believing that he has committed a non-bailable offence and that there were sufficient grounds for further inquiry into his guilt. The impugned order of the officer-in-charge of the police station reports that Bakhta Baz petitioner had gone to Peshawar alongwith one Syed Farhat Ali Shah in connection with business that he fell seriously ill at Peshawar and was, therefore, admitted in Khyber Teaching Hospital, Peshawar on 22-10-1990 and that he remained admitted in the hospital as indoor patient from 22-10-1990 to 27-10-1990 and he was discharged from hospital on recovery on 27-10-1990 and that he was wrongly charged for the murder of the deceased on 26-10-1990. It was also stated that according to the opinion of the prosecution branch, the petitioner was to be released on personal bond and the case was to be further investigated, hence he was to release him on bond. The above order as couched in the language and terms would not fall under section 497(2), Cr.P.C. But would apparently be covered by section 169, Cr.P.C. Further, no practice as such is prevalent that an Investigation Officer would release the accused on bail directly charged for murder under section 497(2), Cr.P.C. At the stage of investigation. Subsection (3) of the section 497 ordains upon the officer or a Court releasing a person on bail under section 497(2), Cr.P.C. To record reasons for so doing. Under section 497(5), Cr.P.C. a bail granted under section 497 by a Court other than a High Court or the Court of Session can be cancelled by such Court. However, a High Court or a Court of Session may cancel the bail granted under the section by a police officer or Court during investigation, inquiry or trial. In this case, the learned Magistrate 1st Class has accordingly dismissed the bail cancellation applications for want of jurisdiction if Bakhta Baz Khan had been released under section 169, Cr.P.C. For want of submission of challan in the case and in case he was released on bail under section 497(2), Cr.P.C. The complainant was to approach the Court of Session and not his Court. One would readily approve the above orders of the learned Illaqa Magistrate. But herein it was found that the impugned order of the officer-in-charge of the police station of releasing Bakhta Baz petitioner on bond was falling under section 169, Cr.P.C. As such a question would arise if the learned Sessions Judge had the powers and jurisdiction to cancel his bail. In fact, the functions of police and those of the Courts are entirely different. The Courts cannot impeach upon the jurisdiction of the police by compelling them to change their opinion in conformity with their opinion. Section 169, Cr.P.C. Relates to case of insufficiency of evidence to sustain the trial of the accused or lack of reasonable grounds of suspicion to justify the forwarding of accused to a Court for trial and the function is to be performed by the officer in charge of the police station and none else. After submission of report, Court may order further investigation under section 156(3), Cr.P.C. Or may take cognizance of the case under section 190(1)(c), Cr.P.C. Or when a report is sent to him under section 173, Cr.P.C. He may either discharge the bond or order the re-arrest of the accused but the prerogative of the officer-in-charge of the police station in releasing the accused on bond under section 169, Cr.P.C. Is not to be interfered with by the Magistrate and for that matter, by the Sessions Judge and even the High Court in the absence of a report of police officer under section 173, Cr.P.C. Or taking of cognizance by the Court under section 190(1)(a), Cr.P.C. And till then the accused released on bond by the S.H.O. Shall not be disturbed.
Consequently, this Court shall in exercise of its inherent powers under section 561-A, Cr.P.C. Prevent the abuse of the process of Court by the Sessions Judge in cancelling the bond of Bakhta Baz accused petitioner and shall accordingly quash his orders and restore the bond of the accused- petitioner. He shall consequently be released forthwith if not wanted in any other case. In the content, this Court would also direct the officer-in-charge of the police station to expedite the completion of his investigation into the case so that the Courts are seized of the case at the earliest since primarily it is the function of the Courts to ultimately pronounce their verdict on truth or falsehood of allegations.
4. As far Madar Ali and Akbar Zaman, accused petitioners are concerned, Madar Ali has been charged to have commanded Bakhta Baz and Akbar Zaman to open fire at the deceased; that Bakhta Baz Khan opened fire at Rasool Zaman with Klashnikov, as a result he was hit and fell to the ground. Madar Ali and Akbar Zaman were charged for .Further indiscriminate firing at the deceased that as a result of their firing the deceased was also said to have been hit and met his death. The medical evidence was to report a single fire-arm inlet wound with corresponding exit wound and also a bullet was found in the clothes of the deceased. The case of the said accused-petitioners would, thus, fall under section 497(2), Cr.P.C. Since there would be necessitated further inquiry into their participation of the crime. They are accordingly released on bail on furnishing bonds in the sum of Rs,50,000 with two sureties each in the like amount to the satisfaction of Illaqa/Deputy Magistrate. Consequently, Criminal Miscellaneous No,63 of 1991 and Criminal Miscellaneous No,22 of 1991 are hereby allowed while Criminal Miscellaneous No,39 of 1991 has become infructuous and is dismissed.