' IFTIKHAR MUHAMMAD CHAUDHRY, J.--- Petitioners have instituted instant petition for leave to appeal being aggrieved from the judgment, dated 15th July, 2004 passed by Lahore High Court, Lahore, who while disposing of the Bail Application No,4130/B of 2004, filed by one Mushtaq Ahmed, has directed for registration of case against them. Relevant paras.Therefrom are reproduced hereinbelow:-- "4. It is borne out from the investigation of a Senior Police Officer that Muhammad Riaz, S.-I. Faryad Khan, A.S.-I.And Muhammad Arshad, Constable had planted huge quantity of Charas upon Muhammad Akram, Ali Raza and Sakhawat nominated in the F.I.R. And had prepared their recovery memos. Which were to be used in evidence in a case which carries an offence under section 194, P.P.C. As well as section 26 of C.N.S.A. The D.P.O., Narowal is directed to register a case against the said culprits and they shall be taken into custody and the challan against them will be submitted within a fortnight.
5. D.I.-G., Gujranwala will hold an enquiry into this matter thatwhen Muhammad Nawaz, D.S.P. Had submitted his investigation report to D.P.O., Narowal, why the requisite legal action was not taken immediately and why this case was left hanging on two contradictory prosecution versions and will submit his final report and the action initiated to this Court within two weeks."
2. Facts giving rise to instant petition are that on 13th February, 2004, police party comprising of ten police officials, headed by Muhammad Riaz S.-I. Conducted a raid in the graveyard adjacent to the Railway Line, Sialkot, in pursuance of spy information that three culprits, sitting in the graveyard, have huge quantity of "Charas" in their possession. Consequently, on seeing the police party they attempted to escape and out of them two culprits namely Muhammad Akram and Ali Raza were apprehended whereas third accused namely Sakhawat alias Nikka son of Allah Rakhah succeeded in making his escape good, while throwing away a shopper bag, which contained two kilograms of "Charas" which was taken into possession. Whereas, from the personal search of Muhammad Akram one Kilogram of "Charas" was recovered from right side of his "Naifa of Shalwar". Similarly, one Kilogram of "Charas" each was recovered from left and right side pocket of Ali Raza, weighing two kilograms 10 grams "Charas: from each kilogram. Was separated for its examination by the office of Chemical Examiner. Accordingly all these three accused persons were booked for the offence under section 9(c) of the Control of Narcotics Substances 'Act, 1997- (hereinafter referred to as "the Act, 1997").
3. It so happened that during the investigation of the case, one Muhammad Hanif son of Muhammad Ali moved an application dated 18th February, 2004, alleging that police has falsely involved the accused persons in the commission of the offence and in fact the "Charas" has been recovered from one Mushtaq Ahmed. Accordingly, in pursuance of such allegation respondent No,3 Mr. Muhammad Nawaz, D.S.P. (Headquarters) was entrusted investigation of the case, during course whereof he got recorded the statements of different persons and ultimately opined that case has been registered by Muhammad Riaz S.-I. Against the accused persons on account of some personal vendetta. After conclusion of the investigation, D.S.P. (Headquarters) recommended for discharge of Muhammad Akram as he was found innocent by him whereas directed arrest of Mushtaq Ahmed, who was main culprit.
4. It is important to note that on the basis of investigation report of the D.S.P. (Headquarters), S.H.O.
Police Station Narowal City approached the Court of competent jurisdiction for the discharge of accused already challaned but request so made by the police was declined in the following terms:-- "Police has prayed for discharge of accused. Already challan hasbeen submitted which has been presented before worthy Sessions Judge. When accused is nominated in F.I.R. And challan has been submitted, no grounds are available for discharge of accused. Hence request made by police for discharge of accused is rejected-. However, police may submit judgment .... The trial Court for sake of ...."
' In the meantime, Mushtaq Ahmed was also arrested. Statedly, he filed Cr. Misc. Application for his release on bail before the Lahore High Court, Lahore, which has been accepted by means of impugned judgment, dated 15th July, 2004, wherein learned High Court, while granting bail to Mushtaq Ahmed, passed directions for registration of the case against petitioners under section 194, P.P.C. Read with section 26 of the Act, 1997 and respondent No,1 Deputy Inspector-General of Police, Gujranwala was also directed to conduct inquiry against respondent No,2, D.P.O., Narowal. As such instant petition for leave to appeal has been filed.
5. Learned counsel appearing for petitioners contended that:--
(a) Learned High Court, without affording opportunity of hearing to petitioners, may have not directed registration of case against them under section 194, P.P.C. Read with section 26 of the Act, 1997, therefore, impugned judgment, being in violation of principles of natural justice deserved to beset aside.
(b) The allegation of fabricating evidence could only be proved against the petitioners after trial of the accused persons, who are involved in the case and cognizance of such offence can only be taken on the complaint of the Court before whom fabricated evidence has been produced, in terms of section 476 read with section 195, Cr.P.C.
(c) Petitioners have not conducted investigation because they have stood witnesses in the recovery of the `Charas', as such, prima facie, they are not involved in the offences under section 194, P.P.C. Read with section 26 of the Act, 1997.
6. On the other hand, learned Assistant Advocate-General, when confronted with the above contentions of petitioners' counsel, stated that he is not in a position to support the impugned judgment.
7. We have heard the learned counsel for the parties and have also gone through the impugned judgment carefully. Prima facie, we are of the opinion that offence under section 194, P.P.C.
Regarding giving or fabricating false evidence with intent to procure conviction can only be established after conducting trial of the accused persons. For convenience section 194, P.P.C. Is reproduced hereinbelow:-- "194. Giving or fabricating false evidence with intent to procureconviction of capital offence.
Whoever gives or fabricates false evidence,, intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence which is capital by any law for the time being in force, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine: ' If innocent person be thereby convicted and executed and if an innocent person be convicted and executed in consequence of such false evidence, the person who gives such false evidence shall be punished either with death or the punishment hereinbefore described."
8. It is equally important to note that learned High Court, prima facie, had no jurisdiction to take cognizance, directly, of the offence allegedly committed under section 194, P.P.C. By the petitioners, in view of the provisions of section 476 read with 'section 195, Cr.P.C. Because according to the provisions of latter law, cognizance of a complaint covering the violation of section 194, P.P.C. Can only be taken on the complaint in writing of the Court before whom such fabricated evidence was produced for the putpose of procuring sentence. For convenience section 195(b), Cr.P.C. Is reproduced hereinbelow:--- [195.--- "No Court shall take cognizance---
(a) .......................................................................................................
(b) of any offence punishable under any of the following sections of the same Code, namely sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, on the complaint in writing of such Court or of some other Court to which such Court is subordinate; or (c)
9. It is also important to note that learned High Court was seized with matter pertaining to the bail of one of the accused persons, therefore, prima facie, we are of the opinion that in exercise of such jurisdiction, learned High Court may have not passed any remarks with regard to responsibility or otherwise of the petitioners, on the basis of the report of Mr. Muhammad Nawaz D.S.P.
(Headquarters) because the opinion of the Police Officer is not binding upon the Courts at bail stage, as it has been held in the case of Manzoor v. The State PLD 1972 SC 81. Relevant portion therefrom is reproduced hereinbelow:-- "It is obviously not correct to depend on the ipse dixit of thepolice regarding the guilt or innocence of an accused person even in the matter of deciding the question of his bail."
Besides it, the High Court pre-empted the trial by making observation and its ultimate benefit will go to the accused, involved in the heinous crime of trafficking of narcotics, etc. Therefore, in our opinion the High Court may have withheld its opinion till the disposal of the case, challan of which has already been filed and thereafter, it may have directed to the trial Court to proceed against the petitioners, if need be, on observing codal formalities or the accused i.e, Muhammad Akram and others, who have allegedly been involved falsely in the case by fabricating evidence against them, could have themselves availed legal remedy for the quashment of the case, etc. It is important to note that in E bail proceedings Muhammad Akram etc. Were not party nor they have alleged that evidence has been fabricated by the petitioners to falsely involve them in the commission of the offence, inasmuch as it is also not known that what was the interest or locus standi of Muhammad Hanif son of Ali Muhammad on whose behest investigation of the case was changed and Mr. Muhammad Nawaz, D.S.P. (Headquarters) (respondent No,3) opined that Muhammad Akram, etc. Were not involved but one Mushtaq Ahmed is involved in the case. Interestingly, latter's investigation report has also not been believed, as Mushtaq Ahmed accused has been released on bail by the High Court and it, seems that a device has been adopted by both the sets of accused i.e, Muhammad Akram and others and Mushtaq Ahmed to ensure their acquittal in the criminal case.
10. Be that as it may, after hearing both the sides and having taken into consideration the relevant provisions of law on the subject, we grant F leave to appeal to, inter alia, consider the above contentions of the learned counsel for petitioners.
11. Pending decision of appeal, arising out of instant petition, operation of the impugned judgment, dated 15th July, 2004 shall remain suspended except to the extent of granting bail to Mushtaq Ahmed. However, notice be issued to Muhammad Hanif son of Ali Muhammad as well as Mushtaq Ahmed accused, in the interest of justice. Proceedings before the trial Court against accused Muhammad Akram and others shall continue being uninfluenced from the impugned order of the High Court dated 15th July, 2004 as well as from the pendency of the matter before this Court. If the case is concluded by the trial Court in the meantime, copy of the judgment shall be transmitted to this Court for information and perusal by us.