' The petitioner/complainant is aggrieved of the complete challan submitted by Investigating Officer wherein the accused/respondent No,1 was not mentioned in either of the column of challan and discharged him under section 169, Cr.P.C.
2. The petitioner/complainant vide F.I.R. No,202, dated 14-7-1996 lodged a report in Police Station Naurang, District Lakki Marwat disclosing therein that on the same day, he alongwith his brothers Hafizullah (deceased), Kifaitullah, his first cousin Syed Afzal, were on their way to meet one Khan Malook, a Contractor of road construction. On reaching the place of occurrence, the accused/respondent No,1 in the company of his first cousin Mumtaz raised an alarm that "today they will get the revenge of their brother" and simultaneously opened fire at them with their respective weapons of Mark IV 303 bore, hitting Hafizullah who died on the spot. The complainant and his other companion being unarmed escaped from the venue of occurrence. The occurrence was witnessed by the aforesaid companion of the complainant and the motive for the occurrence was disclosed as previously blood feud enmity.
3. The record reveals that the accused/respondent No,1 got an ad interim bail from the Court of Additional Sessions Judge, Lakki Marwat on the following day of occurrence. The petition for bail before arrest was fixed for 28-7-1996 when the accused/respondent No,1 absented himself and the ad interim bail granted to him was recalled. No action was taken against him by the Investigating Officer and in his absence certain statements of the person in support of alibi in favour of accused/respondent No,1 were recorded and on the basis of those statements the accused/respondent was discharged under section 169, Cr.P.C. However, a personal bond with surety of one person for appearance in Court was obtained. The Investigating Officer submitted complete challan in the case against Mumtaz Khan an absconding accused and the accused/respondent No,1 was not mentioned in any of the column of the said challan.
4. The learned counsel for the petitioner contended that the accused/respondent No,1 is directed charged in the F.I.R. For effective firing at the deceased in broad daylight occurrence. The version of complainant has got support of ocular evidence as well as the recovery of empties of 303 bore from the place wherefrom the accused/respondent No,1 had fired at the deceased. The defence witnesses in support of alibi are not trustworthy and the Investigating Officer was not competent under the law to discharge the accused on the basis of defence evidence. Even if the Investigating Officer had come to the conclusion that the defence evidence was reliable and trustworthy viz-a- viz the ocular evidence, he should have placed him in column No,2 of the challan so that the trial Court could summon him, if need be. In support of his contention he relied upon Dildar v. Safdar and others 1990 PCr.LJ 158, wherein it was held as under:-- "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 abovequoted 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 consistent with the weight of evidence clearly 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."
5. The learned counsel also referred to Afsar Khan v. Nawab Khan and others 1995 PCr. LJ 549, wherein it was held as follows:-- "The idea underlying the provision 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 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 form 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 in written to indicate his application of mind."
6. At the strength of provision contained in section 169, Cr.P.C. And the dictum laid down in the aforementioned judgments, he prayed for that the Investigating Officer be ordered to place accused-respondent No,1 in column No,2 of the complete challan and the personal bond obtained by the Investigating Officer be set aside and the accused-respondent No,1 be given to judicial custody.
7. The learned counsel for the accused/respondent No,1 contended that in the cited judgments the discharge order was passed by Magistrate and under the inherent powers of this Court are limited to give effect to an order under this Code or to prevent the abuse of the process of the Court. But in the instant case, the petitioner is seeking the indulgence of this Court against the order passed by Investigating Officer under section 169, Cr.P.C. The learned counsel is of the view that the moment the Investigating Officer arrives at a conclusion that no sufficient evidence or reasonable grounds of suspicion to justify the forwarding of accused to a Court for trial exist, he shall release the accused on executing bond by him, if in custody, for his appearance before the Court empowered to take cognizance of the offence if and when so required. The learned counsel prayed for dismissal of the petition being not maintainable under section 561-A, Cr.P.C. The learned State Counsel supported the learned counsel for the petitioner.
8. After hearing the learned counsel for the parties and going through the law on the subject and the judgments, cited at the Bar, there is no ambiguity in the wording of section 561-A, Cr.P.C.
Whereunder this Court could pass any order to secure the ends of justice. In the instant case there is similar evidence duly corroborated by recoveries from the spot and circumstantial evidence.
Without going into deep appraisal of the prosecution case or plea of defence set up by accused/respondent No,1 and the evidence in support thereof, the Investigating Officer was not competent to exclude accused/respondent No,1 from the challan submitted to the Court. What he was competent to do was to place the accused/respondent No,1 in column No,2 of the complete challan if he was satisfied from the statements in support of alibi. In this view of the matter, I partly accept this petition for quashment and direct the S.H.O. Police Station Naurang, District Lakki Marwat to resubmit complete challan in the case mentioning the accused/respondent No,1 in column No,2 therein. The petitioner would set at liberty to move the trial Court after taking cognizance for cancellation the surety bond of accused/respondent No,1 obtained by the Investigating Officer.
' This petition is partially allowed in the above terms.