1. ' MUHAMMAD ROSHAN ESSANI, J.--- By this Constitutional petition, the petitioner Muhammad Hafeez Leghari has sought the following relief:--
(a) The Honourable Court may be pleased to declare the impugned order, dated 20-1-2000 passed by the learned Special Judge Anti-Terrorism Court, Mirpurkhas (respondent No,1) as void ab initio, illegal without jurisdiction, not to be acted upon, nullity in law and having been passed without any lawful authority.
(b) The Honourable Court may be pleased to declare that the learned Special Judge, Anti- Terrorism Court, Mirpurkhas (respondent No,1) has no jurisdiction to entertain any challan, initiate any proceedings, to try any case under sections 365, 220 and 506(ii), P.P.C. Or under any provisions contained in Anti-Terrorism Act, 1997 against the petitioner as a result of F.I.R. No,2 of 2000 registered at Town Police Station, Mirpurkhas.
(c) The Honourable Court may further be pleased to declare that the proceedings pending against the petitioner under sections 365, 220 and 506(ii), P.P.C. Initiated as per challan, dated 22nd January, 2000 as void ab initio, illegal, without jurisdiction, coram nonjudice and having been entertained/initiated without any lawful authority.
(d) Costs of the petition be borne by the respondents.
(e) Any other relief this Honourable Court deems fit and proper be granted to the petitioner."
2. ' The facts as disclosed in the petition are that petitioner was serving as Sub-Inspector of Police and he was posted as S.H.O. Settlite Town Police Station at Mirpurkhas. The Police Inspector Zulfiqar Ali Pathan, Incharge C.I.A. Center, Mirpurkhas lodged F.I.R. On 14-1-2000 at 11-30 p.m. At Town Police Station, Mirpurkhas. The said F.I.R. Was registered as Crime No,2 of 2000 under sections 364, 220, 506, 452, 114 and 109 read with section 34, P.P.C.
3. ' The brief facts as disclosed in the F.I.R. Lodged by complainant Zulfiqar Ali Pathan are that on 13-1- 2000 he was present at his house when he received telephonic message that Deputy Superintendent of Police, Mirpurkhas wanted to meet him. The complainant informed him that he had reached his residence about 5 minutes back and if so ordered, he would meet him (D.S.P.) at his office, whereupon operator informed him that D.S.P. Was coming to his house to meet him there.
4. ' It is further stated that at about 8-15 p.m. D.S.P., Mirpurkhas, Ghiasuddin Rashdi, S.H.O. Satellite Town Police Station, Hafeez Leghari (petitioner) accompanied with a boy aged about 13/14 years went to his house. The D.S.P. Was drunk. Immediately, on his arrival, he asked the complainant that he was under arrest and under his order, Hafeez Leghari (petitioner) wanted to arrest him but the complainant forbade him to obey illegal orders of D.S.P. Who was drunk at that time. The D.S.P., Mirpurkhas told the complainant that he (complainant) had recovered heroin within the limits of Settlite Town Police Station and he would be arrested as accused due to the recovery of the said heroin. The complainant was dragged out of Bungalow through a police constable under the orders of D.S.P. The D.S.P. Directed Hafeez Leghari (petitioner) to hand over pistol to him as he wanted to kill the complainant. Hafeez Leghari (petitioner) tried to give pistol to D.S.P. But in the meantime complainant started running towards the bungalow of D.I.-G. And police followed him in mobile to apprehend and to kill him, but the complainant succeeded in reaching the bungalow of D.I.-G. Of Police. The complainant then talked with the D.I.-G. On phone through operator. The D.I.-G.
5. Ordered D.S.P. Head Quarter for enquiry and report. The D.S.P. Head Quarter conducted enquiry and under the orders of the high ups of the department, the F.I.R. Stated hereinabove was registered in terms referred to hereinabove.
6. ' The case was investigated by the S.H.O. Town Police Station, Mirpurkhas (respondent No,2) and after investigation he was of the opinion that since the petitioner was only guilty for an offence punishable under sections 506(ii) and 504, P.P.C., he may be sent up to ordinary criminal Court instead of Special Judge, Anti-Terrorism Court.
7. ' Since the copy of F.I.R. Was despatched by the police to the Court of Special Judge, Anti-Terrorism Court, Mirpurkhas, the respondent No,2 submitted detailed report to the Special Judge, Anti- Terrorism Court, Mirpurkhas praying therein for the return of original F.I.R. So that the case against the petitioner be sent up under sections 504 and 506(ii), P.P.C. Before the concerned Court of law having jurisdiction in the matter. The Special Judge, Anti-Terrorism Court, Mirpurkhas, however, declined to grant this prayer and passed an order that the perusal of the statement of P.W. Abdul Lateef recorded under section 164, Cr.P.C. Made out a case under section 365, P.P.C., therefore, the request was turned down.
8. ' Being aggrieved by the order of the learned Special Judge, A.T.A. Court the petitioner preferred the present petition and sought the reliefs in terms stated hereinabove.
9. ' In pursuance of the notice respondent No,2 filed a reply supported by his affidavit with the statement of the learned Additional Advocate-General, Sindh.
10. ' The statement of respondent No,2 is reproduced hereinunder in extensor-- "(1) That I am the Investigating Officer of the above crime, and during the course of investigation I have submitted such report in respect of above crime before the Court of Honourable Special Judge, Anti-Terrorism Court, Mirpurkhas. The Honourable Special Judge has passed order on it on 20-1-2000 (copies already produced before this Honourable Court by the petitioner for kind perusal which are same).
(2) That thereafter in compliance of the above order, dated 20-1-2000 the undersigned submitted the challan of the above crime before the Court of Honourable Anti-Terrorism Court, Mirpurkhas with the following prayer--
(i) It is an admitted fact that Mr. Ghayasuddin Rashdi the then D.S.P., Mirpurkhas visited the residence of Inspector C.I.A., Mirpurkhas after informing him on telephone through the operator District Control Room, Mirpurkhas. The visit of the then D.S.P., Mirpurkhas was, therefore, a programme visit and not surprise visit, it appears from the statements brought on record.
(ii) It is an admitted fact that the solitary eye-witness of this case is the private servant of complainant and, therefore, he is an interested witness.
(iii) P.W. Abdul Lateef has categorically stated in his statement under section 164, Cr.P.C. That at the time of incident the complainant agreed to accompany with D.S.P., Ghayasuddin Rashidi and S.I.P.
11. Abdul Hafeez Leghari in Government vehicle with his own consent without any compulsion and, therefore, he was neither kidnapped nor abducted by anyone.
(iv) He sat in Government vehicle by the window side. Here too he was not under compulsion or under arrest.
(v) At the bungalow of D.S.P., Mirpurkhas he got down from the Government vehicle himself as per the statement of duty constables, who were at that time present at the bungalow of D.S.P., Mirpurkhas have categorically stated in their statements under section 161, Cr.P.C. That neither anyone misbehaved with him nor harassed/apprehended, but he himself got down from the Government vehicle and slowly walked towards the residence of D.I.-G.P., Mirpurkhas at his free will and wish. These P.Ws. Have also stated that nobody chased him towards the bungalow of Mirpurkhas. Moreover, the version of P.Ws. Abdul Lateef on this is hearsay narrated to him by the complainant.
(vi) From the ocular as well as circumstantial evidence so far brought on police record it transpires that accused S.I.P. Abdul Hafeez Leghari has misused his official authority as public servant and further issued threats of dire consequences to the complainant and, therefore, he has committed offence under sections 220 and 506(ii), P. P.0 . Only.
(vii) No ocular or circumstantial evidence has been brought on police record to support the allegation of complainant regarding his kidnapping for murder under section 364, P.P.C., therefore, no prima facie case under section 365, P.P.C. Or 364, P.P.C. Has been made out against any of the accused persons.
12. ' In the light of above facts and circumstances it is humbly prayed before the Honourable Court that this Honourable Court may be pleased to order under section 23 of Anti-Terrorism Act, 1997 for transfer of this case to the competent Court of law as offences under sections 220 and 506(ii), P.P.C. Are not the scheduled offences of the Anti-Terrorism Act, 1997.
13. ' That on 22-1-2000 the Honourable Special Judge, Anti-Terrorism Court, Mirpurkhas taken the cognizance on the police report and accepted the challan, and also registered the case as a Special Case."
14. ' We have heard Mr. Syed Madad Ali Shah learned Advocate on behalf of the petitioner and Mr. Mian Khan Malik learned Additional Advocate-General, Sindh on behalf of the State. The latter conceded to the prayer of the petitioner and did not support the impugned order. We have also perused the material placed on record.
15. ' The perusal of record shows that initially F.I.R. Was registered under sections 364, 220, 506(ii), 452, 114 and 109 read with section 34, P.P.C. Against the petitioner and other accused at Police Station Town Mirpurkhas. Since the section 364 was a scheduled offence, therefore, copy of F.I.R. Was sent by the Investigating Officer to the A.T.A. Court, Mirpurkhas. During the course of investigation it transpired that no scheduled offence was made out and according to the Investigating Officer only offences under sections 504 and 506(ii), P.P.C. Were made out against the petitioner, therefore, the Investigating Officer submitted detailed report before the A.T.A. Court, Mirpurkhas Division. The report is reproduced in toto hereinunder for sake of convenience:-- ' "In the Court of Special Judge, Anti-Terrorism Court, Mirpurkhas ' Special Court No,Ni1/2000 ' S.R. Abdul Hafeez Leghari and others ' under sections 364, 506(ii), 452, 109, 34, 220 and 114, P.P.C.
16. ' Cr.No,2 of 2000, Police Station Town.
17. SUBMISSION OF REPORT IN THE ABOVE CRIME ' It is prayed by the Incharge S.H.O. Police Station Town before this Honourable Court for favour of consideration and order on the following facts and grounds--
(1) That on 14-1-2000 at 23-30 hours complainant Inspector C.I.A., Mirpurkhas, Zulfiqar Ali Pathan lodged report as Crime No,2 of 2000 under sections 364, 506(ii), 452, 220, 114, 109 and 34, P.P.C. At Police Station Town, Mirpurkhas, that on or about 13-1-2000 at 20-15 hours above named accused S.H.O./S.I.P. Abdul Hafeez Leghari alongwith D.S.P./S.D.P.O., Mirpurkhas Mr. Ghayasuddin Rashdi and unknown servant trespassed his residential bungalow. S.H.O. Abdul Hafeez Leghari duly armed and threatened him for dire consequences took him away in the vehicle, fromwhere he dismounted and went away, such report was lodged in the book of 154, Cr.P.C. At a time, and undersigned started investigation. (copy of the F.I.R. Already submitted before the Honourable Court in compliance of section 157, Cr.P.C. For kind perusal.
(2) That on 15-1-2000 the undersigned visited the place of incident and prepared such memo. Of occurrence, and recorded the statement under section 161, Cr.P.C. Of P.W. Abdul Latif Jalbani, the only witness cited in the F.I.R., by the complainant, who disclosed in his statement under section 161, Cr.P.C. That on the night of incident there were talks between D.S.P., Mirpurkhas Mr. Ghayasuddin Rashdi and complainant Inspector, C.I.A. Zulfiqar Ali Pathan on wireless, and complainant informed him that D.S.P. Is coming, thereafter at about 20-15 hours he heard the bell and opened the door and saw D.S.P. Mr. Ghayasuddin Rashdi alongwith S.H.O. Satelite Town, Abdul Hafeez Leghari and younger boy of 13/14 years of age were present who then in the bungalow of Inspector, where there were exchange of hot words between S.H.O. Abdul Hafeez Leghari (present accused) and Inspector Zulfiqar Ali Pathan (present complainant), whereupon D.S.P., Mr. Ghayasuddin Rashdi prohibited them.
(3) That thereafter, D.S.P. Mr. Ghayasuddin Rashdi asked from Inspector C.I.A. (present complainant) the reason of annoyance, whereupon complainant replied him that he is not annoyed. Thereafter, D.S.P. Told him that S.H.O. Abdul Hafeez Leghari informed him you are using filthy language against him, at last Inspector offer them to accompany to the residence of D.S.P. For talking that Abdul Hafeez Leghari misdealing him in order to making adverse view against him (complainant). Thereafter, D.S.P. Mr. Ghyasuddin Rashdi satisfied himself and went outside.
18. Thereafter, accused Abdul Hafeez Laghari and Inspector Zulfiqar Ali Pathan (complainant) abused each after came out and set in the vehicle alongwith D.S.P. Where complainant asked them to accompany to the D.I.-G., Mirpurkhas for settlement of dispute, and went away in the vehicle.
(4) That thereafter, accused Abdul Hafeez Laghari was arrested in the above crime under memo.
19. Of arrest and his interrogation statement was recorded, who disclosed in his statement that he visited the D.S.P., Mirpurkhas Mr. Ghayasuddin Rashdi for purpose of Government work on the night of incident, from where they proceeded to the bungalow of Inspector C.I.A. Zulfiqar Ali Pathan alongwith D.S.P., Mirpurkhas and visited the same with the consent of complainant, where he used to reside with his private servant alone, where during the course of conversation exchange of hot words between Inspector C.I.A. Zulfiqar Ali Pathan (present complainant) and him upon the case registered at Police Station Satelite Town on 13-1-2000, and denied from the other allegations. He further disclosed his interrogation statement that complainant himself set in a vehicle for the settlement of the dispute to visit Mirpurkhas. Neither complainant was abducted nor he trespassed the house of complainant but they entered into the house with his permission or consent. He also stated that he never threatened him for dire consequences, on weapon point, nobody instigated him, and no planned was settled for the same he was in uniform, and Government pistol was with him, and he has not put him in danger of weapon/pistol, whereas alleged accused D.S.P.
20. Ghyasuddin Rashdi, S.D.P.O., Mirpurkhas disclosed in his statement under section 161, Cr.P.C. That on 13-1-2000 night S.H.O. Abdul Hafeez Laghari of Police Station, Satellite Town informed him that during the registration of case Crime No,6 of 2000 under section 9 Narcotic Act abusive language was used against him on telephone by complainant the accused Abdul Hafeez Laghari also told him that complainant asked him that he will tell the D.S.P. Mr. Ghayasuddin Rashdi that what is C.I.A.
21. Inspector, he also made such entry in daily diary of Police Station vide No,29 at 17-15 hours, thereafter, accused S.H.O. Abdul Hafeez Laghari came at the Bungalow, thereafter, D.S.P. Asked the location of complainant on wireless, and thereafter, in order to ascertain the facts of abusive language after confirmation of the location on wireless, arrived at the Bungalow of complainant with his consent alongwith S.H.O., Abdul Hafeez Laghari asked him about the above facts during the course of talking complainant himself suggested that the matter will be solved before D.I.-G., Mirpurkhas and voluntarily came and set in a vehicle and prior to arrival at the bungalow of D.S.P., Mirpurkhas dismounted from the vehicle and went away, and no other facts are true. While other accused persons namely P.C. Suleman, P.C. Ghulam Haider, LNK, Muhammad Aslam and unknown servant denied the allegations and stated that they are innocent. They disclosed that they have never abused the complainant or restrained him, and neither any talk took place between them and complainant, nor abducted him. They also stated that they have not issued threats for dire consequences to complainant, and not included in my place of any offence. Complainant gave their names in the F.I.R. Due to presence on duty at the bungalow of D.S.P./S.D.P.O., Mirpurkhas Mr. Ghayasuddin Rashdi and they are innocent.
(5) That thereafter P.W. Abdul Latif Jalbani was produced before the Court of learned S.D.M., Mirpurkhas for his statement under section 164, Cr.P.C. Which was recorded under section 164, Cr.P.C. (photo copy of the same is enclosed herewith) for kind perusal at Annexure A'.
(6) Furthermore, the statements of three chance witnesses/independent witness were also recorded by the undersigned wherein they stated that they have seen the complainant (accused were standing nearby the vehicle) near the bungalow of complainant and were talking with each other. Complainant was talking the accused that our dispute will be solved before D.I.-G., Mirpurkhas and set in the Government vehicle and went away. While the P.W. Available near the bungalow of D.S.P./S.D.P.O., Mirpurkhas have stated in his statement that they have seen the said Government vehicle, stopped nearby the bungalow and saw that complainant and D.S.P.
22. Dismounted from the vehicle and went away on their ways voluntarily (copy of statements enclosed for kind perusal).
23. Complete brief of investigation
(1) It has been proved from the complaint of the complainant and his interested witness Abdul Latif Jalbani who is Working as a servant of complainant and used to reside with him since long as per his statement under sections 161, Cr.P.C. And 164, Cr.P.C. That complainant Inspector Zulfiqar Ali Pathan was neither abducted by anybody as alleged by accused persons for their ulterior motive, nor the trespassed his house, duly armed, no plan was constituted/or preplaned for the alleged offence, but in fact there were exchange of hot words and use of filthy language between alleged accused S.H.O. Police Station Satelite Town, Abdul Hafeez Laghari and complainant Inspector C.I.A., Mirpurkhas Zulfiqar Ali Pathan during the course of registration of Crime No,6 of 2000 under section 9, Narcotic, on telephone such note is also kept by alleged accused in the Daily Diary of Police Station Satellite Town. Wherein complainant also used unparliamentary language against D.S.P./S.D.P.O., Mirpurkhas Ghayasuddin Rashdi, and such facts/knowledge was also received to D.S.P., Mirpurkhas, who called the S.H.O. Satellite Town Abdul Hafeez Laghari to ascertain the facts and asked the location of complainant Inspector Zulfiqar Ali Pathan on wireless and accordingly got noted that they went to see him such note also available in the Log Book of control room, (copy of the same is enclosed herewith) for perusal as Annexure 'B'.
(2) Thereafter, S.I.P. Abdul Hafeez Laghari who was in uniform alongwith D.S.P., Mirpurkhas Ghyasuddin Rashdi both in Government vehicle arrived at the bungalow of complainant Inspector C.I.A. Zulfiqar Ali Pathan and rang the bell complainant who alone used to reside in Government bungalow alongwith his personal servant with his consent and permission went inside the bungalow of complainant in order to clarify the annoyance regarding above facts and during enquiry there were exchange of hot words between present accused Abdul Hafeez Laghari and complainant Inspector C.I.A. Zulfiqar Ali Pathan, whereupon D.S.P. Ghayasuddin Rashdi prohibited them not to quarrel and also told that no illegal acts will permit to them, during the course of incident both abused each other very emotionally i.e, S.H.O. Abdul Hafeez Laghari and Inspector C.I.A. Zulfiqar Ali Pathan. Thereafter, as per the version of complainant all three set in a vehicle of D.S.P., Mirpurkhas to accompany to the D.I.-G. For the settlement of dispute, and reached at the gate of the bungalow of D.S.P., Mirpurkhas from where complainant who set near the outside of vehicle, voluntarily dismounted from the vehicle without listing or telling anything or without any settlement went away, thereafter complainant Inspector Zulfiqar Ali Pathan after the expiry of whole night and whole day of 14-1-2000 dramatically afterthought and after consultation planned this darama and disclosed dramatically that alleged accused D.S.P., Mirpurkhas Ghayasuddin Rashdi, alongwith his under aged servant and D.S.H.O. Police Station Satellite Town Abdul Hafeez Laghari, duly armed tresspassed, according to preplanned offence accused Abdul Hafeez Laghari, threatened him for dire consequences, misused his legal powers, abducted him from his bungalow in order to kill him. Inspector C.I.A., complainant stated in his F.I.R. That alleged accused D.S.P.
24. Ghayasuddin Rashdi took him away in his bungalow and ordered the guard to confine him in a room while the eyewitnesses in his statement under section 164, Cr.P.C. Deposed that complainant told him that accused S.H.O. Police Station Satellite Town Abdul Hafeez Laghari ordered the guard to confine him in guard room.
25. ' Complainant also disclosed in his F.I.R. That the above named alleged accused persons abducted him on weapon point, while on the other hand eye-witness deposed in his statement under section 164, Cr.P.C. That D.S.P. Ghyasuddin Rashdi prohibited accused Abdul Hafeez Laghari and Inspector C.I.A. From any illegal act or any wrong done, and then D.S.P. Ghayasuddin Rashdi alone came out from the bungalow and set in a vehicle, thereafter accused Abdul Hafeez Laghari alongwith complainant Inspector Zulfiqar Ali Pathan came out and set in a vehicle and went away. Therefore, sections 364 and 365, P.P.C. Are not attracted the same will be applicable when the person was abducted forcibly, without his consent on any deceitful manner, with intent to kill him or confine him secretly with ulterior motive, and no other person have the knowledge of the same, however, D.S.P. Ghyasuddin Rashdi accordingly asked the location of the complainant and went to meet him such note also available.
26. ' Whether it is possible that accused persons after informing the complainant wants to abduct him.
27. But in fact the alleged accused persons visited the bungalow of complainant with his consent and permission in order to settle the dispute regarding unparliamentary attitude of complainant with the S.H.O. Abdul Hafeez Laghari of Police Station Satellite Town on the registration of Case Crime No,6 of 2000 subsequently alleged accused Abdul Hafeez Laghari during conversation threatened the complainant for dire consequences in spite of the prohibition of D.S.P. Ghyasuddin Rashdi due to the annoyance of the telephone talk, the accused instead of using legal way to report the matter to superior himself done wrongly and committed the offence fall under section 506(ii), P.P.C.
28. Whereupon complainant dramatically and wrongly stated and lodged the present F.I.R.
29. Consequently the offence under section 506(ii), P.P.C. Constituted against accused Abdul Hafeez Laghari.
30. ' That no any evidence or proof against any other accused persons available on record to connect them with the commission of the above crime under section 506(ii), P:P.C. Complainant Inspector Zulfiqar Ali Pathan felt very dishonour that a Sub-Inspector of Police S.H.O. Abdul Hafeez Laghari accompanied with D.S.P. Mirpurkhas Ghayasuddin Rashdi as he is Inspector and failed to bear the attitude of alleged accused Abdul Hafeez Laghari, and wrongly implicated the other accused persons deputed for guard duty and his servant to whom the undersigned Incharge released under section 169, Cr.P.C. And pray for permission to such release.
31. Conclusion and opinion in the light of investigation ' Respected Sir, ' In the light of whole investigation conducted by the undersigned till date only accused Abdul Hafeez Laghari is guilty of an offence punishable under section 506(ii), P.P.C. As per evidence on record of only eye-witness and under section 504, P.P.C. As he alone threatened the complainant and gave slaps to the servant of complainant Abdul Latif Jalbani, and sufficient evidence against him is available to challan him before the Court of law under sections 504 and 506(ii), P.P.C.
32. ' It is, therefore, prayed that the sections 364, 365, 452, 220, 114 and 34, P.P.C. May kindly be deleted from the F.I.R. Or present case, in the light of above position and submission from the gist of investigation, as the above offence automatically deleted in the interest of justice.
33. ' It is, further prayed that when the offence under sections 364 and 365, P.P.C. Has not been proved and deleted with your honours permission, which are the scheduled offences, except the above all the sections are triable by the ordinary Court of law and out of/or beyond the jurisdiction of the Honourable Court.
34. ' It is, therefore, prayed that the original F.I.R. May very kindly be returned with the permission to challan the alleged accused Abdul Hafeez Laghari under sections 504, 506(ii), P.P.C. Before the ordinary Court of law having jurisdiction for adjudication, in the best interest of justice.
35. ' Mirpurkhas (Sd.) 20-1-2000 ' Dated ___________________________________ Station House Officer ' Town Police Station Mirpurkhas"
36. ' The learned Special Judge, A.T.A. Court, Mirpurkhas on receipt of the report herein passed the following impugned order:- "ORDER ' From perusal of the 164, Cr.P.C. Statement of P.W. Abdul Latif, at least offence against S.H.O. Abdul Hafeez Laghari under section 365, P.P.C. Is made out, This application, therefore, is rejected.
(2) From perusal of the F.I.R. And statement of 164, Cr.P.C. Of P.W. Latif D.S.P. Ghayasuddin is said to be drunk at the relevant time. Therefore, write to the D.M. For enquiry in this matter and for appropriate legal action in this matter with intimation to the Court.
37. (Sd.) 20-1-2000 Judge."
38. ' It will be pertinent to refer to the relevant provisions of the Code of Criminal Procedure, 1898 regarding information to the police and their powers to investigate and wisdom of the Legislature by promulgating the same.
39. The main purpose of section 154, Cr.P.C. Is to give information of a cognizable offence to the S.H.O.
40. And to set the machinery of law into motion. The fate of the accused nominated in the F.I.R. Cannot be solely decided on the allegations made in the F.I.R. And F.I.R. Cannot be treated as a substantive piece of evidence. It is only meant for corroboration or contradiction. Merely by making allegation against a person with regard to commission of a particular offence does not make a person accused of that allegation, until and unless some evidence connecting him with alleged crime is collected by the Investigating Agency.
41. ' The section 156, Cr.P.C. Postulates that when an F.I.R. With regard to a cognizable case is registered duty is cast upon the police to investigate into the alleged offence. The power to investigate is not limited to the extent of offence mentioned in the F.I.R. but it extends to the finding of culpability of the accused nominated in the F.I.R. And thereof whatever offence he is found guilty and is no bar to the investigation by the police even after the submission of charge-sheet under section 173, Cr.P.C.
42. The wisdom behind enacting the section 156, Cr.P.C. Appears to be to elucidate the truth and to submit the same before the Court having jurisdiction by way of acceptable and admissible evidence. The object of the investigation is not ultimate conviction. The rule of caution is that the investigation must be honest and impartial and in no way it should be arbitrary or capricious or whimsical. There should be no fabrication of evidence and truth is to be sorted out by way of discovering the matter connected with the alleged offences.
43. ' In the case of Emperor v. Khawaja Nazir Ahmed AIR 1945 P.0 18 followed in the case of Shahnaz Begum v. Honourable Judges of High Court of Sindh and Balochistan reported in PLD 1971 SC 677 and in the case of Wali Muhammad v. Haq Nawaz PLD 1971 SC 717 (sic) it was observed that during the course of investigation, police has complete domain over the case and in a cognizable offence even High Court has no power to interfere with such investigation.
44. Thus, to issue a direction for conducting the investigation in a particular manner and direction and submit challan under a particular provision of law is contrary to well-settled principles.
45. The section 157, Cr.P.C. Empowers the Incharge of Police Station not to investigate a case if he finds that there is no sufficient reason for such investigation. He has to only send the reasons to the concerned Magistrate and notify the same to the informant.
46. ' The statement of a witness under section 164, Cr.P.C. Is a step towards collection of evidence during the course of investigation and not receiving the evidence. It cannot be considered at a higher pedestal than this. It is well-settled that the statement under section 164, Cr.P.C. Is also meant for corroboration or contradiction if recorded in absence of the accused. The statement of witness under section 164, Cr.P.C. Could only be acted upon as a substantive piece of evidence if it was recorded in presence of the accused after sufficient notice and proper opportunity for cross- examination was given to such accused. The evidentiary value of statement under section 164, Cr.P.C. Depends upon the peculiar facts and circumstances of each case.
47. ' The section 169, Cr.P.C. Postulates that during the course of investigation if it transpires to the Incharge of Police Station that the evidence collected was deficient, the Incharge Officer could release the accused. The words "sufficient proof" in the section connotes that the Investigating Officer is competent to weight, assess and evaluate the material collected by him during the course of investigation and if, he finds that accused was falsely involved or there was no sufficient evidence against him he could release him. The section 173, Cr.P.C. Empowers the Investigating Officer to send up the accused to stand trial.
48. ' In the case of Mastan Shah v. Additional Sessions Judge/Special Judge, Bannu reported in 1999 PCr.LJ 469 it was held that the point for determination before the Court was whether Investigating Officer while investigating the scheduled offence was competent to exercise the powers under section 169, Cr.P.C. For releasing an accused person against whom the evidence was deficient or there exists no reasonable ground to forward him to the Magistrate and whether the Special Court can control the course of investigation at preliminary stage.
49. It was observed that none of provisions of S.T.A. Act, 1975 either' expressly or impliedly oust the authority of the Investigating Officer conferred upon him by the provisions of Chapter 14 of the Cr.P.C. No separate machinery has been provided for the investigation of scheduled offences and, therefore, the powers/authority of Police/Investigating Officer is one and the same for the investigating scheduled offences, as well. The Investigating Officer undisputedly/undeniably has discretionary powers under section 169, Cr.P.C. In releasing an accused on bond during the course of investigation before the submission of challan. This is an interim relief made permissible under the law to an innocent person which of course will have to stand the test of judicial scrutiny made by the trial Court at a proper stage, after taking cognizance of the case.
50. ' It was further observed that our criminal system of justice has three well-demarcated phases, i.e, Investigation, Enquiry and Trial. All the three phases possess special characteristics and distinct features and each one is related to a well-defined forum. To ensure the smooth running of the system, one should not interfere into specified and well-defined sphere of jurisdiction of other to prevent over stepping and undue interference. But the high ups in hierarchy of Investigating Agency should keep watch over the investigation so that the said discretionary powers of the Investigating Officer or not misused in any way.
51. The upshot of the above discussion is that since the Investigating Agency itself was of the view that no scheduled offence was committed the proper course for the Court was to return the F.I.R. To the police for presenting it i.e, charge-sheet before competent Court having jurisdiction in the matter.
52. The learned trial Judge is accordingly directed to return the same to the investigating police for presenting it before the competent Court having jurisdiction in this case.
53. ' By our short order, dated 1-2-2000 we have allowed the present petition and above are the detailed reasons for the same.