' The petitioner, Ghulam Rasool, being aggrieved of the release of respondent No,1 by respondent No,2 under section 169, Cr.P.C. Has filed the instant application under section 561-A, Cr.P.C. For abashment of the personal bond obtained by respondent No,2, being illegal and without jurisdiction.
2. The short background of the instant case is that on 26-4-1999 on the report of Abdur Rashid complainant, a case under section 302/34/420/202, P.P.C. Read with section 13 of Arms Ordinance was registered. In the said report, the complainant claimed that he was informed by Saeed Akhtar, his brother-in-law, that his servant, Khizar Hayat, was murdered by Ahmad Saeed, respondent No,1, along with two others. The motive divulged by the complainant was a property dispute between the complainant and the present respondent No,l. It was also stated in the F.I.R. That besides Saeed Akhtar, Allah Nawaz son of Sadiq had also witnessed the occurrence.
3. On the third day of the occurrence, i,e, 28-4-1999, the matter took totally a different turn when accused Safdar Hussain voluntarily appeared before the Investigating Officer and recorded his statement, wherein he incurred the responsibility of murder of the deceased Safdar Hussain. In his statement, he disclosed that on the night of occurrence, being a night of 'Moharram', he along with his brothers Mazhar Abbas and Tahir Abbas had gone to attend the "Majlis-e-eza', while his aged and deaf father along with his young unmarried sister, namely, Fouzia, were present in the house.
When he came back to his house, he saw the deceased molesting the chastity of his young sister in her bed-room who was crying resisting the immoral action of the deceased, who was equipped with a Kalashnikov which on seeing him was aimed at him and was commanded by the deceased to remain silent. The accused Safdar Hussain was apprehending the danger of being killed by the deceased, therefore, he fired with his pistol with which he was hit on his head and died. The offence was said to have been committed to save the honour of his sister and his life as well.
4, The version of accused Safdar Hussain was further augmented by the statement of his sister Fouzia and his father Muhammad Hassan Shah, whose statements were recorded under sections 161 and 164, Cr.P.C. The statement of Allah Nawaz, who was cited as an eye-witness by the complainant in the F.I.R., was also recorded on 4-5-1999 by the Senior Civil Judge/Judicial Magistrate D.I. Khan, wherein he unequivocally stated that he had not seen the occurrence, nor he was present on the spot. In this view of the circumstances, the S.H.O./respondent No,2, while exercising powers under section 169, Cr.P.C. Released respondent No,1 on his personal bond with one surety on 5-5-1999.
5. The learned counsel appearing on behalf of the petitioner has contended that the Investigating Officer had exceeded his lawful powers by releasing the respondent No,1 under section 169, Cr.P.C.
As he was nominated in the F.I.R. For the murder of Hizer Hayat. He further contended that there was sufficient evidence against respondent No,1 and, as such, his case could not be covered by the provisions of section 169, Cr.P.C. He still further contended that the Investigating Officer had not shown the arrest of respondent No,1 before releasing him under the abovementioned section of law. According to the learned counsel, the arrest of the accused is a legal pre-requisite before releasing an accused person under this section.
6. In order to appreciate the contention of the learned counsel for the petitioner, section 169, Cr.P.C.
Is reproduced as below:--- "If, upon an investigation under this chapter, it appears to the Officer-in-Charge of the police station or to the Police Officer making the investigation that there is no sufficient evidence or reasonable ground or suspicion to justify the forwarding of the accused to a Magistrate, such officer shall if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and try the accused or send him for trial."
7. The learned counsel appearing on behalf of the respondent, while repelling the contentions of the learned counsel for the petitioner, has submitted that the nomination of the respondent No,1 in the F.I.R. Is the obvious demonstration of the malice and the ill-feeling residing in the mind of the complainant Abdur Rashid, as there was admittedly a property dispute between the complainant and the respondent, and because of this motive, the complainant had involved the respondent in the instant case. He explained that there was no motive for the respondent to kill the deceased. He also contended that after appearance of accused Safdar Hussain and recording his statement by the police, the truth of the matter was surfaced and reality came to the light. He also argued that Safdar Hussain was in no way related to the respondent, therefore, it cannot be conceived that he would have incurred the responsibility of committing murder of the deceased and there was no reason for him to have substituted himself for the respondent. It was also equally impossible that accused Safdar Hussain should have stigmatized the future of his unmarried young sister for the sake of the respondent. There is no gain saying that such a stigma in our society not only reduces the lady to an object of contempt and ridicule, but also it destroys the honour of the family. He also referred to the statement of Allah Nawaz who denied to have seen the occurrence, which is a total negations of the version of the complainant.
8. The site plan in the instant case was also prepared at the instance of P.W. Fouzia and the Investigating Officer had recovered from the room inside the house of Safdar Hussain a Kalashnikov and shoes statedly belonging to the deceased and the crime pistol stately belonging to the accused Safdar Hussain, which according to the learned counsel, goes a long way to support the version of accused Safdar Hussain.
9. I have examined the rival arguments of both the parties and gone through the record of the case with their able assistance. The arguments of the learned counsel for the petitioner are two-fold, Firstly; that there was sufficient evidence available against the respondent No,1 and, Secondly; that the said respondent No,1 was not formally arrested by the Investigating Officer before he was released on the strength of his bond. So far as the first contention of the learned counsel for the petitioner is concerned, I may observe that the version advanced by the complainant was materially crossed by the statement of accused Safdar Hussain, who accepted the commission of the murder of the deceased Hizar Hayat and his version was squarely supported by the statements of Mst. Fouzia and Muhammad Hassan Shah, and contrary to it, the version of the complainant was blackened by the statement of P.W. Allah Nawaz. He was cited by the complainant as an eye- witness, but in the Court he totally expressed his ignorance and has rather denied the witnessing of the occurrence. The occurrence was shown to have taken place inside the house of accused Safdar Hussain and the recovery of various articles mentioned above leads to a prima facie inference that the occurrence took place in the house of accused Safdar Hussain in the manner and circumstances narrated by him. Respondent No,2, i,e, the Investigating Officer, being an active agent of the prosecution, has to forward his case for the judicial scrutiny to the Court with a definite version, which is more plausible and appears to be more akin to the reality. In the instant case, the Investigating Officer on the basis of the data collected by him, was apparently justified in choosing a version which prima facie appeared to be more probable and in consonance with the circumstances of the case. Thus, the exercise of his reasons which resultantly led him to the exercise of his powers under section 169, Cr.P.C. Do not appear to be fanciful or perverse.
10. So far as the second contention of the learned counsel for the petitioner is concerned, the relevant words used in section r69, Cr.P.C. Are "such Officer shall if such person is in custody, release him on his executing a bond, with or without sureties". The word used in the section is "custody", which cannot be equated with the word "arrest" and for the purpose of satisfying the conditions of this section and the word "custody", it is not essentially needed that the accused shall be formally arrested or handcuffed. It would be sufficient compliance of the section if the accused appears and yields before such police officer who had a direct surveillance or control over the corpus of the accused. In this respect, I have the privilege to draw wisdom from the case of Muhammad Yaqoob v. The State reported in 1992 SCMR page 1983, wherein their Lordships while referring to the case of Hakam Khuda Yar v. Emperor (AIR 1940 Lahore 129), has observed in the following words:--- "Bhide and Din Muhammad, H., while dealing inter alia with the above question, have held that 'police custody does not necessarily mean custody after formal arrest and it also includes 'some form of police surveillance and restriction on the movements of the person concerned by the police'.
11. Thus, in view of the above dictum of the Honorable Supreme Court, I am clear in my mind that the second contention of the learned counsel for the petitioner has also got no force, because the accused while appearing before the police and recording his statement and admitting the commission of the offence was very much under the surveillance and control of the police, which virtually satisfy the condition of being in custody of the police.
12. I, therefore, in view of the above discussion, hold that the release of respondent No,1 by respondent No,2 under section 169, Cr.P.C. Does not bear the imprint of any illegality, perversity or fancifulness and thus, the exercise of his powers under the above provision of law are neither unlawful, nor without jurisdiction. Consequently, this abashment application fails and is dismissed accordingly.