' This is a petition under section 561-A, Cr.P.C. Whereby the order of the S.D.M., Lakki Marwat, dated 11-12-1993 is sought to be quashed as utterly unlawful, void and without jurisdiction.
2. The consequences of the impugned order, in short, were that out of the three accused of F.I.R.
No,362, dated 25-9-1992 of Police Station Naurang registered under section 302/324/34, P.P.C.
Namely, Taj Malook, Nawab Khan and Khurshid, the last two were released under section 169, Cr.P.C.
Upon the report of the Investigating Officer. The proceedings are challenged to be mala fide as well because the charge against the three accused was strongly supported by two eye-witnesses, one of whom was injured as well.
3. From a close perusal of section 169, Cr.P.C. One can easily make out that an accused person under investigation can be released by the police in case there is no evidence against him but on his furnishing a bail bond to the effect that as and when and if required he shall appear before the Magistrate who is competent to take cognizance of the matter. One thing is quite clear that such power can be exercised by the police only during the period when the accused is in police custody.
In the instant case the impugned order was obtained from the Magistrate at quite a late stage when there was no question of releasing the accused as they were not in police custody. In the second C eventuality, if the accused is in judicial lock-up only a Magistrate or Court can release him in any way. The order lacks propriety on this ground.
4. The idea underlying the provisions of section 169, Cr.P.C. Is that in case of insufficiency of evidence the police i,e, the S.H.O. Or the Investigating Officer may release a person for the time being and a bail bond is taken for the reason that an accused may appear before the Magistrate whenever required particularly at the time when a report under section 173, Cr.P.C. (challan) is D submitted before a Magistrate competent to take cognizance. It is only then that the Magistrate shall apply his mind to the merits of the case and would see if cognizance of the offence be taken against such accused who has already been released by the police. This he would come to know only through the fact that such accused would be placed in column No,2 of format of challan.
Taking of cognizance or otherwise is a matter of thorough judicial scrutiny and cannot be done as it has been done by the S.D.M., Lakki in the instant case where not a single word is written to indicate his application of mind. He endorsed the release of the accused simply because it was opined by the police. This is highly unjust and rather amounts to acting the police way. The job of an Ilaqa Magistrate is to competently supervise the investigation and not to say "yes" blindly to whatever is forwarded by the police. The release of two accused in the instant murder case solely by the police, is a procedure not known to the Criminal Procedure Code and was never the aim and intention of the lawmaker. On the aforesaid two-fold grounds the impugned order is void in law.
Dildar v. Safdar of our own High Court cited as 1990 P Cr. L J 158 is a verdict in support of what has been discussed above.
5. The learned Sessions Judge also did not take favourable notice at the time when the case was forwarded to him for trial. So far as his taking cognizance qua Nawab Khan and Khurshid is concerned, it was not possible because they were not at all accused forwarded before him. If they had been placed in column No,2 of the challan, the Court of Session would have equally been bound to exercise complete application of mind. Anyhow, in a connected bail petition the learned Sessions Judge declined to take action on the ground that as the trial had commenced, he should not exercise the discretion.
6. As the release of Nawab Khan and Khurshid is utterly illegal and an abuse of law, therefore, the impugned order is set aside and the case is sent back to the police for placing Nawab Khan and Khurshid in column No,2 of the challan whereafter it be forwarded to the Ilaqa Magistrate for proceeding in accordance with law.