' SHAHZAD AKBAR KHAN, J.--- This. Criminal Miscellaneous Quashment Petition No,7 of 1998 under section 561-A, Cr.P.C. Has been instituted by Javed Rahman, complainant in case F.I.R. No,39, dated 11-3-1998 of Police Station Basia Khel, Bannu, whereby he has sought to challenge the release of respondents Nos.1 and 2 by respondent No,4 in exercise of his powers under section 169, Cr.P.C.
2. The background of the case, in synopsis, is that the petitioner lodged the abovementioned report under section 302/324/148/149, P.P.C., wherein respondents Nos.1 and 2 alongwith others were charged for committing the murders of Javed Iqbal, brother of the petitioner, and Sher Dar Ali son of Muhammad Ali. Respondents Nos.1 and 2, after the alleged commission of offence, obtained a transitory bails from the Court of learned Special Judge, Karak on 17-3-1998 who were directed to appear before the learned Special Judge, Bannu on 11-4-1998. Instead of appearing before the learned Special Judge, Bannu, the respondents again managed to obtain a transitory bail from the Court of Special Judge, Lakki on 11-4-1998, which was valid till 21-4-1998. In the said, order of transitory bail, they were directed to appear before the Special Judge, Bannu on 21-4-1998, During the said period, the respondents Nos.1 and 2 submitted an application to the Superintendent of Police, Bannu on 18-34998 demanding a fresh enquiry from some gazetted Police Officer and in the, same application, they requested for their release under section 169, Cr.P.C. The Superintendent of Police, Bannu referred the said application to respondent No,3 (D.S.P.
Headquarters) to enquire into the matter. An enquiry was conducted on the plea of alibi of respondents Nos.1 and 2, who, in their said application, had stated that respondent No,1 was present in village Koti Saadat, 5/6 miles away from the place of occurrence and in this respect ten persons have given affidavits, whereas respondent No,2 was said to be present in Sabzi Mandi in Bannu City from 7-00 a.m. For the whole day on the day of occurrence. It was also stated that thirty-one persons had given an affidavit about his innocent. On the point of alibi, the statements of about five persons as one set and statements of about ten persons as another set were recorded by the Investigating Officer. On the basis of statements of these procured persons, the D.S.P. Headquarters, Bannu (respondent No,3) recorded his opinion to the effect that respondents Nos.1 and 2 were innocent, they were not present on the spot at and before the time of occurrence and, as such, the respondents Nos.1 and 2 instead of appearing before the Court of Special Judge, Bannu, on 21-4-1998, they were released by police on bail on 18-4-1998 and the bail bonds lying on the file were attested by the S.H.O. Police Station Township, Bannu (respondent No,4 herein)
' Pir Liaqat Ali Shah, learned counsel appearing on behalf of the petitioner/complainant, contended that the Investigating Officer, during the course of investigation and on the instance of the accused has recorded the statements of some persons managed by respondents Nos.1 and 2 and they have recorded their statements in a stereo-type manner and has misused his powers by enlarging the respondents on the basis of statements procured by the respondents themselves which have no legal value and, as such, their release is contrary to the spirit, tenor and philosophy of section 169, Cr.P.C.
4. The learned counsel further contended that the respondents Nos.1 and 2 alongwith others are directly charged for the double murders in an occurrence of a broad daylight. Two eye-witnesses, namely, Noor Zali Khan and Hazrat Usman besides the petitioner (complainant) himself have squarely supported the case of prosecution. Respondent, Noor Daraz Khan, was equipped with a kalashnikov, while accused Muhammad Daraz Khan was equipped with a .30 bore pistol and recoveries of empties of kalashnikov and .30 bore pistol from the venue of occurrence is a circumstantial corroborative evidence. The medical evidence also supports the prosecution case and in such circumstances, respondent No,4 has exceeded his lawful authority by giving undue weight to the defence witnesses as against the direct ocular and circumstantial evidence of a high order and quality available against respondents 1 and 2. His syne submission was that firstly, the Investigating Officer should have not put the question of guilt or innocence of the accused/respondents to a popular referendum by recording the statements of the men of choice of the accused and if at all the investigation demanded so, the Investigating Officer after recording their statements, should have left the matter to the Court of law for evaluating the evidentiary and intrinsic value of the defence evidence, vis-a-vis, the evidence of prosecution. He relied on 1997 SCM R 1503, PLD 1985 SC 62, an unreported judgment of this Court in Criminal Miscellaneous (Quashment) No,26 of 1997, decided on 27-5-1999 and an unreported judgment of the Honourable Supreme Court of Pakistan in Criminal Petition No,137 of 1999, wherein the aforesaid judgment of this Court was maintained and leave to the petitioner was refused.
5. The learned counsel also vehemently argued that the conduct of respondents Nos.1 and 2 was virtually mockery of law, and thus, depreciable. Their conduct also fully demonstrate that they had no regard for law and very conveniently ignored the direction of Court from which they have been getting relief. During the transitory bail obtained twicely, they had been trying to manufacture the plea of alibi and were exerting their influence to procure the statements of people of their choice.
The learned counsel was also critical of the fact that the Investigating Officer had recording the statements not in an independent manner, but the statements of these people were recorded to whom a clear reference was given in the application of respondents Nos.1 and 2 addressed to the Superintendent of Police, Bannu. In these circumstances, the release of respondents Nos.1 and 2 under section 169, Cr.P.C. Was totally unwarranted, said the learned counsel.
6. On the contrary, the learned counsel for respondents 1 and 2 submitted that the police was lawfully within its power to conduct the investigation according to their own manner to unearth the true position. The law does not permit to place any restraint on the investigation of a criminal matter in the hands of the Investigating Officer and there should be no interference from judiciary to choke the investigation process.' According to the learned counsel, a large number of local people have given evidence from which the innocence of the accused/respondents Nos.1 and 2 was mirrored. He very forcefully relied upon a judgment of a Division Bench of this Court reported 1999 PCr.LJ 469 and simultaneously argued that in presence of the view taken by an equal Bench of this Court, it is obligatory that either the said judgment should be followed, or in case this Bench is going to form a different view, then in view of the judgment of the Honourable Supreme Court 'of Pakistan reported in PLD 1995 SC 423, the matter should be referred to a larger Bench.
7. We have anxiously heard the rival .Contentions of both the adversaries and perused the record.
The main stay of the arguments of the learned counsel for the accused/respondents was the judgment of this Court reported in 1999 PCr.LJ 469 and he expressed his anxiety that in case there is likelihood of forming a controversy view to the said judgment, then the matter be referred to the Honourable Chief Justice of this Court for constituting a larger Bench. We would like to make it clear that we have no mind to form any divergent view on the subject which has been dealt with in the said judgment. We have also no intention to interpret section 169, Cr.P.C. In a manner which should deprive or curtail the legitimate powers vested in the Incharge of the Police Station or in the Police Officer making the investigation. In order to appreciate the controversy in issue, section 169, Cr.P.C.
Is reproduced below:-- "Release of accused when evidence deficient.--- 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 not sufficient evidence or reasonable ground of 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 to try the accused or send him for trial."
' It is crystal clear from the bare reading of this section that if upon investigation it appears to the Officer-in-Charge of the Police Station or to the Police Officer making the investigation that there is not sufficient evidence or reasonable grounds of suspicion to justify the forwarding of the accused to a Magistrate, then such Officer shall, if such person is in custody, release him on his executing a bond with or without sureties and in this regard the learned Division Bench of this Court in the above referred case in paragraph No,14 of the judgement observed thus:-- "However, it shall not escape unnoticed that resort to the provisions of section 169, Cr.P.C. By the Investigating Officer during the investigation or re-investigation has become a frequent phenomenon which requires to be discouraged and a serious notice should be taken by the superior Police Officer including the Superintendent of Police and Deputy Inspector-General concerned in the interest of justice by having a strict observance over the investigation so that the said discretionary powers of the Investigating Officer are not misused in any way, nor exercised blindly without any valid and legal basis."
8. The above passage of the judgment very truely portrays the underlying object and philosophy embodied in section 169, Cr.P.C.
9. The powers under section 169, Cr.P.C. Can only be exercised when it appears to the Police Officer that there is not sufficient evidence or reasonable grounds of suspicion to justify the forwarding of the accused to the Magistrate. Thus, the pre-requisite of this section indispensably is that there should be insufficient evidence. In the instant case, it may be observed1 with our concern, that the accused/respondents are directly charged in the F.I.R. The occurrence is of a broad daylight and there are eye-witnesses to it. The medical report, prima facie, is supportive to the prosecution version. The recoveries of empties of kalashnikov, .30 bore pistol and the bloodstained earth are the evidence of circumstantial nature which, in no manner, can be termed as a deficient evidence. The respondent No,4 has recorded the statements of certain procured persons and that too, on the instance and choice of the accused/respondents Nos.1 and 2, as in their application, there is a very clear reference to the statements of those persons. The Investigating Officer, in this case, has virtually pre-empted the function of the Court of law. The Investigating Officer was not justified in overweighing the statements of defence witnesses, viz-a-vis the evidence of prosecution referred above to outweigh the same.
10. In our system of administration of criminal justice, all the three organs of the State, i,e, Legislature, Judiciary and Executive, are objectively supportive to each other in matter of carrying out their functions in their respective domains and they are not supposed to have an overlapping course. .... In the instant case, after recording the statements of the defence witnesses, the Investigating Officer should have left the matter to the Court for assessing and evaluating the evidentiary and intrinsic value of the evidence of both the sides. More particularly when, in the instant case, respondents Nos.1 and 2 were at their liberty under the umbrella of law given to them by the learned Special Judges. It may also be observed that the Investigating Officer was not oblivious of the fact that the respondents were released on the transit bail.
11. It is important t6 note that respondents Nos.1 and 2 were not in custody at the time when they were given the benefit of section 169, Cr.P.C.
12. We have also been observing that in cases of very serious nature like the instant one, this has become a common feature in the territorial jurisdiction of this Bench that after the commission of the offences, applications are made by the accused for recording statements of public witnesses in their defence and after recording such statements, it is observed, that the Investigating Officer frequently release the accused having resort to the provisions of section 169, Cr.P.C. In this regard, the concerned Police Officers must keep himself alive to the restraining condition embodied in section 169, Cr.P.C. Relating to the release of the accused and this qualifying condition is that when there is not sufficient evidence, or reasonable grounds of suspicion to justify the forwarding of the accused to a Magistrate. Such a legal constraint must be looked at objectively and not in a fanciful manner. In the instant case, we feel that the case of the accused/respondents was not covered by the abovementioned qualifying condition and, as such, the release of respondents Nos.1 and 2 on bail by the Investigating Officer was patently unwarranted, and more so when they were under the protective bail granted by a competent Court of law.
13. In the above circumstances, we are obliged to hold that the respondents Nos.1 and 2 were released by the Investigating Officer in an unwarranted manner.
14. Resultantly, we accept this quashment petition and declare the I release on bail of accused/respondents Nos.1 and 2 as illegal, who are present in Court, may be taken into custody and remanded to judicial lockup. However, they shall be at liberty to apply for bail before the proper forum.