' Hamidullah, petitioner, by way of filing instant petition under section 561-A, Cr.P.C. Seeks quashment of the order dated 19-2-2004 passed by learned Additional Sessions Judge, Lakki Marwat, vide which bail cancellation application moved by the petitioner against Samiullah, accused-respondent, whereby the bail was granted to the accused-respondent under section 169, Cr.P.C., in case F.I.R. No. 8 dated 3-1-2004 registered under section 302/34, P.P.C. At Police Station, Naurang, Tehsil and District Lakki Marwat, was rejected.
2. The brief facts necessary for disposal of instant petition, are that on 30-1-2004 complainant Hamiullah accompanied by his brother Mir Aslam Khan (deceased) and cousin Gul Mirwan had come to Naurang Bazar for purchasing household articles, whereafter Mir Aslam Khan, boarded in a Datsun Pick-up No.C5601/DIK and sat on its front seat when in the meanwhile Muhammad Zaman accused, duly armed with a .30 bore pistol, started firing at Mir Aslam Khan, as a result of which, he was hit and injured. The persons present at the spot took the injured to the hospital.
Accused Muhammad Zaman ran towards Committee office and delivered the pistol i.e. The weapon of offence to accused-respondent Samiullah, who also started running: In the meanwhile, Muhammad Hayat, a traffic police constable who happened to be present there, overpowered accused Muhammad Zaman and handed him over to S.H.O., Police Station, Naurang, who had by then reached at the spot. Muhammad Zaman accused was charged for effective firing culminating into murder of Mir Aslam Khan deceased whereas accused-respondent was nominated for abetment. Mir Aslam Khan succumbed to the injuries and expired in the hospital.
3. On 8-1-2004 accused-respondent Samiullah submitted an application to Superintendent of Police, Lakki Marwat for making inquiry into the matter and to absolve him of the liability of the charge levelled against him on the ground that at the relevant time, he was present in his office and as.Such had played no role in the commission of the offence. The Inquiry Officer vide his report dated 10-1-2004 found that accused-respondent had no hand in the commission of offence and that he was innocent. Consequently, the accused-respondent got himself released on bail under section 169, Cr.P.C. From the local police on 26-1-2004. The petitioner filed an application in the Court of Sessions Judge, Lakki for cancellation of the bail granted to accused-respondent. The application was entrusted to Additional Sessions Judge, Lakki for adjudication. He rejected the application vide impugned order dated 19-2-2004 and declined to cancel bail observing:-- "that the S.H.O./Investigating Officer has the power under.Section 169, Cr.P.C. To release any person on bail if in his opinion that person is innocent. That these powers can be exercised by the S.H.O./ Investigating Officer. During the stage of investigation. However, these powers of the S.H.O./ Investigating Officer are subject to judicial re' iew of the trial Court at the stage when the cognizance is taken by the Court. That complete challan has not yet been submitted in the Court and the Court has not yet taken the cognizance of the case. Therefore, this bail cancellation petition is premature and is rejected resultantly."
4. Mr. Abdul Latif Khan Baloch, Advocate for the petitioner bitterly criticized the impugned order and attempted to argue that since the accused-respondent was in the custody of local police under the orders of Judicial Magistrate, therefore, legally the local police was not obliged to enlarge the accused-respondent on bail. The learned counsel added that accused-respondent along with co- accused Muhammad Zaman, stands directly nominated in the promptly lodged report for the commission of offence which had taken place in a broad-daylight in Naurang Bazar and as such the learned trial Judge was required to have cancelled the bail. The learned counsel further submitted that accused-respondent being a Nazim of Town Committee, Serai Naurang has prevailed upon his. Staff and others and succeeded in manipulating a false and fabricated plea of alibi in his favour. To substantiate the contentions, reliance was placed on Ghulam Qasim v. Nazir Ahmad and 3 others 1996 PCr.LJ 1187 Peshawar and Afsar Khan v. Nawab Khan and 3 others 1995 PCr.LJ 549 Peshawar.
5. 'Mr. Muhammad Sharif Chaudhary, learned Deputy Advocate-General for the State assisted by Mr. Sanaullah Khan Gandapur, Advocate for the accused-respondent, on the contrary, maintained that accused-respondent having been found innocent in the inquiry proceedings conducted by a Senior Police official in compliance with the directions of Superintendent. Of Police, Lakki Marwat, the accused-respondent was rightly released on bail under section 169, Cr.P.C. And the present petition has been filed malafidely in order to. Bring 'disrepute to accused-respondent and impair his image in public. In this regard, reliance was placed on Mastan Shah v. Additional Sessions Judge/Special Judge, Bannu and 2 others 1999 PCr.LJ 469 Peshawar and Muhammad Siddique and 5 others v. Mst. Badar Munir and another 1993 SCM R"233.
6. In order to appreciate the arguments of learned counsel for the parties, I consider it appropriate to reproduce below section 169, Cr.P.C. Which reads:-- "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."
7. 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 weigh, 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 not sufficient evidence against him, he could release him.
8. The Investigating Officer undisputedly and 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 cliallan. This is an interim relief made permissible under the law to an accused 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.
9. The only condition of releasing an accused person under section 169, Cr.P.C. Appears to be that when there is not sufficient evidence or reasonable ground for forwarding of an accused to a Magistrate, Officer in charge of the Police Station can release him on his executing a bond, with or without sureties, if the situation so demands.
10. No doubt it is true that the Investigating Officer has got no free hand in the matter of releasing the accused under section 169, Cr.P.C. And facts of each case are required to.Be taken into consideration and if the powers under section 169, Cr.P.C. Are exercised illegally or in a fanciful manner, then the trial Court is competent to interfere in the matter even before the challan is submitted to the Court but in the instant case, as noted above, after a proper inquiry, accused- respondent has been found innocent and placed in Column No.2 of the challan. The submission of learned counsel for the petitioner that legal aspect of the case has not been taken into consideration by the learned trial Judge and the impugned order has been passed in a mechanical manner without application of judicial mind, is misconceived. A perusal of the contents of F.I.R. Would reveal that mere presence of the accused-respondent has been shown at the venue of occurrence and co-accused Muhammad Zaman is alleged to have fired effectively at Mir Aslam Khan deceased. No overt act whatsoever has been attributed to accused-respondent.
Having regard to facts and circumstances of the case, I find that the order impugned herein has been passed in a proper manner and no legitimate exception can be taken to it. The petition fails which is hereby dismissed.