' MRS. KHALIDA RACHID, J.--- The brief resume of the facts leading to the filing of the present Constitutional petition is as under:--
2. On 11-7-1998 at 11-00 hours a report vide F.I.R. No,378 under section 302/324/188, P.P.C. Read with section 13, Arms Ordinance was recorded in Police Station East Cantt., Peshawar by Syed Sikandar Shah (petitioner herein) wherein Muhammad Raza Shah, respondent No,8, alongwith Zahir Shah father of Raza Shah, one Majeed and Farhad were charged for the murder of his uncle Pir Rukhay, and one Jan Muhammad and ineffective firing at him inside the Court of the Senior Civil Judge, Peshawar. Out of all the accused, only Farhad was arrested on the spot alongwith the crime weapon while the remaining accused, all residents of Jamrud, Khyber Agency, decamped from the scene of occurrence. Warrants under section 204, Cr.P.C. Were obtained against them and necessary proceedings under section 87/88, Cr.P.C. Were initiated. Political Agent, Khyber Agency was also asked to help and facilitate the arrest of the said accused. Consequently, respondent accused Raza Shah and accused Zahir Shah succeeded in getting successive transitory bail orders from the Courts of Sessions Judge of different jurisdiction on different pretexts. Raza Shah accused-respondent vide Criminal Miscellaneous No,152 of 1998 obtained pre-arrest transit bail from Zilla Qazi, Daggar, District Buner on 14-7-1998, however, with the directions to appear before the competent Court on, 10-8-1998. After the expiry of the period of said transitory bail he succeeded in obtaining second pre-arrest transitory bail from the Additional Sessions Judge/ Azafi Zilla Qazi, Swat, concealing his earlier bail application moved before the Sessions Judge, Daggar.
He was once against allowed a transitory bail with the directions to appear before the Sessions Judge, Peshawar on a fixed date i,e, 5-9-1998. Upon expiry of transitory period Raza Shah respondent No,8, once again, for the third time moved transit bail application before the Court of Sessions Judge, Mardan suppressing the earlier bail applications. He was once again obliged with the transitory bail with the directions to appear before the Sessions Judge, Peshawar on a fixed date. Raza Shah respondent ultimately succeeded in obtaining pre-arrest bail from the Sessions Judge, Peshawar on 510-1998. Aggrieved of his successful pre-arrest bails in deceitful manner, the petitioner (complainant) moved an application under section 561-A, Cr.P.C. (Criminal Miscellaneous No,152 of 1998) before this Court for the quashment of aforesaid orders of the Sessions Judges for having been obtained by committing fraud on the Courts by suppressing material facts. The application was accordingly allowed by this Court vide order, dated 19-10-1998 with the following conclusion:- "In these circumstance these Criminal Miscellaneous Petitions are allowed and the Investigation Officer conducting investigation in case F.I.R. No,378, dated 11-7-1998 Police Station East Cantt., Peshawar is directed to proceed against the respondents in accordance with law. The Sessions Judge, Charsadda, with reference to his order, dated 20-7-1998 in T.B.B.A. No,420 of 1998, Acting Sessions Judge/Zilla Qazi, Buner with reference to his order, dated 14-7-1998 in T.B.B.A. No,52 of 1998, Additional Sessions Judge/Izafi Zilla Qazi, Swat- with reference to his order, dated 25-7-1998, in T.B.B.A. No,102 of 1998 and 13-8-1998 in respect of Muhammad Raza Shah and Sessions Judge, Mardan with reference to his order, dated 4-9-1998 in T.B.B.A. No,421 of 1998 and order, dated 8-9- 1998 in T.B.B.A. No,433 of 1998 to proceed against sureties for forfeiture of bail bonds in accordance with law and the office is directed to circulate a copy of this order amongst the Sessions Judges of the Province."
3. The pre-arrest bail application pending before the Sessions Judge, Peshawar, was kept on adjourning on one pretext or the other by the respondent Raza Shah from 5-10-1998.
4. After registration of the case, the local police of Police Station East Cana. Conducted the investigation prima facie connecting the accused including respondent No,8 in the commission of the offence. In the subsequent inquiry by C.I.A. Staff against Raza Shah respondent No,8, no final opinion was given.
5. Upon the direction of D.I.-G., Peshawar Range, dated 3-2-1999 the investigation was further entrusted to Range Inquiry Panel. The Investigating Officer of the Range Inquiry Panel completed the investigation and declared respondent Raza Shah as innocent and recommended for the release of the respondent-accused Raza Shah under section 169, Cr.P.C. Respondent-accused Raza Shah, in view of the recommendation/directions for discharge under section 169, Cr.P.C.
Withdrew his pre-arrest bail application pending before the Additional Sessions Judge, Peshawar on 19-2-1999. The application was not only entertained in the absence of Raza Shah but also the B.B.A. Was ordered to be dismissed as withdrawn by the learned Additional Sessions Judge. The petitioner aggrieved of the investigation of Range Inquiry Panel on the ground that Raza Shah respondent is directly charged in the promptly lodged F.I.R. For double murder inside the Court of Senior Civil Judge, Peshawar and that soon after the occurrence, he went into hiding and consequently, succeeded in obtaining transit pre-arrest bail orders for four times from the Courts of different jurisdiction fraudulently without disclosing the proceedings of previous application is enough to reasonably connect the respondent Raza Shah with commission of offence. It was insisted by the learned counsel that Raza Shah respondent was never taken into custody for a single day and has not joined the investigation, therefore, the investigation conducted by the local police has rightly connected the petitioner with the commission of offence and that subsequent investigation by Range Inquiry Panel without the association of the respondent with the prosecution is based on fraud, collusion and undue influence of respondent accused Muhammad Raza Shah alias Raza Shah. It was lastly argued that the Range Inquiry Panel has no authority, whatsoever, to recommend for the discharge of respondent under section 169, Cr.P.C. As he had fraudulently obtained his bail orders from the different Courts.
6. Mr. K.M.A. Samdani, Advocate engaged by Raza Shah respondent-accused when rose to advance his arguments, he was restrained as his client Raza Shah did not appear before this Court in defiance of non-bailable warrants issued against him. In this context, reference may be made to 1991 SCM R 1 and PLD 1956 FC 53. However, out of the courtesy, we allowed him to assist the Court with the facts and background of the case.
' We may not forget to mention here that this Court vide order, dated 22-4-1999 had restricted the respondents to take any action on the application under section 169, Cr.P.C. For the discharge of Raza Shah respondent No,8. The said order was assailed before the Supreme Court in Criminal Petition No,34-P of 1999, but the leave was not granted.
7. We have heard the learned counsel at some length. We would not dilate upon the merits of the case lest our observations may not prejudice the case of either party at the trial. However, to discuss the legal aspect of the case qua section 169, Cr.P.C. It will be appropriate to reproduce the relevant section, which reads .As under:-- "169. 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."
8. The main thrust of section 169, Cr.P.C. Is that an Investigating Officer, during the course of investigation, can release an accused person from custody, if he thinks that the accused is innocent due to lack of sufficient evidence connecting him with the crime, with an undertaking to appear before the Magistrate competent to take cognizance. In other words, powers under section 169, Cr.P.C. Can only be exercised by the police during the course of investigation when accused is in their custody. Therefore, the custody of the accused, as such, is a condition precedent for invoking provisions under section 169, Cr.P.C. Respondent-accused Raza Shah admittedly is fugitive from law and the Courts, hence section 169, Cr.P.C. Could not be pressed into service in case of absconding accused. It is nowhere provided that the Police Officer is empowered to recommend/discharge him from the offence. At the most, the Police Officer can place him in column No,2 of the challan and once the challan is submitted to the Court under section 173, Cr.P.C., the provision of section 169 cannot be invoked. After the submission of the challan the duty of the Magistrate commences who, if competent, takes cognizance of the offence. If the offence is exclusively triable by the Court of Sessions, he shall send the case to the Court of Sessions including the accused mentioned in column number 2 of the challan under section 173, Cr.P.C. The trial Judge, after the application of his judicial mind and considering all the available evidence would either discharge him under section 173(3), Cr.P.C. Or charge him under section 245-D, Cr.P.C.
And when he decides to proceed with the trial and again if at any stage of the trial, the Court is of the view that the charge is groundless and there is no probability of conviction of the accused for the offence charged with, he could be acquitted under section 249-A, Cr.P.C. Or 265-K, Cr.P.C. As the case may be.
9. Coming to the investigation of Range Inquiry Panel declaring respondent Muhammad Raza Shah alias Raza Shah to be innocent, it may be mentioned here that investigation would not value much as the respondent accused has already been placed at column No,2 of the challan and the Court, taking cognizance has liberty and capability to look into the evidence qua guilt and innocence, after examining all the material and available evidence, forming his own independent opinion. The Court is not bound to follow and act on the report of the investigation conducted by the Range Inquiry Panel.
10. In the result this writ petition is accepted, the proceedings under section 169, Cr.P.C. Are set aside and the prosecution is directed to submit the challan in the Court of competent jurisdiction as early as possible. Parties to bear their own costs.