Wazir Shah Vs The state

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PESHAIryAR HIGH COIJRT, PESHAIryAR

0IJDICLAL DEPARTMEI\I T)

Cr. Misc. GA) No.l938-P/2025

For petitioner: Mr. Gohar Ali Advocate. (Wazlr Shah) For respondents: IvIr. Nauman-ul-Haq Kakakhel AAG for the state.

Date of hearing: 3'd July, 2025.

For complainant: Mr. Taimoor Khan, Advocate

ORDER

S. M. ATTIOLJE SHAH. ACI.- The accused-petitioner seeks post-arrest bail in respect of FIR No. 379, dated 16.04.2025, registered under Section 395 PPC at Police Station Tangi, Distlict Charsadda, after having been denied the said relief by the learned fora below.

2.As per the contents of the FIR, the allegation against the accused-petitioner is that he, along with his co-accused, was involved in a dacoity incident targeting the complainant and his brothers. It is alleged that during the course of the occurrence, the culprits forcibly entered their residence and shop and Iooted the following: from the complainant's residential room, four tolas of gold ornaments and a Vivo mobile phone; from the ctrJd..slt^|rF3r.l

room of his brother Masood [Jllah, an amount of Rs. 900,000, one .30 bore pistol, one 9mm rifle, four tolas of gold ornaments, and a Y28 mobile phone; from the room of his other brother Asad Ullah, Rs. 178,000, a HUEINI mobile phone, two pistols of .30 and .32 bore respectively, and a wallet; and finally, a sum of Rs. 40,000 from their shop.

3 Arguments heard and available record gone through.

4.Initially, the FIR was lodged against unknown persons. However, the accused'petitioner, along with his co-accused, was later nominated through a supplementary statement recorded under Section 164 of the Criminal Procedure Code, 1898 (CrPC). A careful perusal of the record reveals that the complainant had categorically stated in the FIR that he would be able to identify the real culprits upon confrontation. Despite this express assertion, no Identification Parade was conducted by the Investigating Officer. In such circumstances' holding an Identification Parade is not a mere procedural formality but a fundammtal safeguard to ensure the fairness, transparency, and credibility of the investigative process' The failure to conduct

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this essential step has substantially weakened the evidentiary value of the complainant's claim and reflects a manifestly careless and indifferent approach on the part of the Investigating Officer'

5.Moreover, the only piece of evidence allegedly connecting the accused-petitioner with the offence is the recovery of a pordon of the robbed amount. Howevet, this recovery was neither effected at the time of arrest nor pursuant to any pointation made by the accused-petitioner. Instead, it was reportedly produced by one of his relatives. The Investigating Officer neither recorded the statement of the said individual under Section 161 CrPC nor incorporated his name in the recovery memo. This omission is both procedural and substantive in nature, striking at the root of the credibility and admissibility of the recovery itself' In the absence of any cogent comoborative evidence, and keeping in view the overall factual matrix, I am of the view that the accused-petitioner is entitled to the concession of bail in the attending circumstances of the case.

6.Accordingly, this bail petition is allowed' The accused-petitioner is admitted to bail, subject to his furnishing bail bonds in the sum of

Rs.100,000 with two suteties each in the like amount to the satisfaction of the Illaqa/Judicial Magisnate concerned, who shall ensure that the sureties are local, reliable, and persons of sufficient means,

7.It is a matter of grave concern that, in recent times, citizens are increasingly losing their lives, digrity, honoul, valuable movable and immovable properties due to systemic failures in the processes of investigation, prosecution, and adjudication. The inadequacies and inefficiencies within these fundamental pillars of the justice system have resulted in gross miscarriages of justice, wherein aggrieved individuals are often unable to obtain appropriate rdiefs in accordance with the mandate of law. This pervasive failure not only undermines the rule of law but has also led to an alarming erosion of public trust in the justice delivery system. The situation has deteriorated to such an extent that it borders on a near-anarchical state of affairs, wherein law and order are increasingly becoming unmanageable and beyond the effective control of state functionaries and institutions. Given the gravity of the situation, there is an urgent and compelling need for

comprehensive, swift, and result-oriented remedial measures aimed at suengthening the investigative, prosecutorial, and adjudicative mechanisms. Such measures must be implemented across the board and by all lalvful means, with a view to restoring public confidence and addressing / allaying the legitimate grievances and agonies of the citizens. It is imperative that all stakeholders viz. executive, judiciary, and legislature collaborate proactively to undertake necessary legal, institutional, and procedural reforms to ensure the delivery of timely and effective justice, in consonance with constitutional mandates and principles of natural justice.

Without prejudicing the merits of the case and bearing in mind that findings at the bail stage are necessarily tentative, it is nonetheless imperative to note, with serious concern that the Investigating Officer failed to investigate essential links in the chain of evidence. Specifically, the omission to conduct an Identification Parade despite the complainant's dedared ability to identify the culprits, and the failure to forrnally associate or record the statement of the individual from whom the alleged recovery was made, reflect

a glaring lapse in investigative diligence. This inaction stands in stark violation of RuIe 25.2(3) of the Police Rules, 1934, which mandates that: "-It is the duty of an irwestigating officer to frnd out the truth of the matter under investigation. His obiect shall be to discover the actual facts of the case and to alrest the real offender or offenders. He shall not commit himself premarurety to anyview of the facts for or against any person". The Investigating Officer is orpected to proceed objectively, elploring all material aspects necessary to ensure a fair, thorough, and lawful investigation. In the present case, the investigative omissions have not only diminished the evidentiary value of the prosecution's case but also raise questions regarding the integrity of the process. Such dereliction of duty warrants appropriate action through the competent authority.

8.Given that this Court, in the exercise of its jurisdiction under Section 497 of. the Code of Criminal hocedure (CrPC), is ordinarily required to confine itself to a tentative appraisal of the material placed on record, but sometime it cannot turn a blind eye to the manifest illegalities, grave procedural improprieties, and conspicuous inaction

on the part of the prosecution, notably, the worthy DisEict Public Prosecutor and the Investigating Officer. Such glaring lapses not only tlrdermine the integrity of the investigative process but also pose a serious threat to the adminisuation of justice. In these exceptional circumstances, where the prosecutorial conduct appears to defeat rather than advance the cause of justice, this Court finds it necessary to invoke its inherent jurisdiction in terrns of section 561-A CrPC, to prevent the abuse of the process of law and to ensure that iustice is truly served in order to secure the ends of justice. Accordingly, the worthy Superintendent of Police (Investigation), Charsadda is directed to look into the matter of defective investigation by the IO, as highlighted hereinabove. Simultaneously, the investigation of the case shall be entrusted to another competent and impartial officer, who shall proceed with due diligence and in accordance with law. A compliance report in this regard shall be submitted through the worthy Additional Registrar Oudicial) of this Court for the perusal of the Bench in Chamber within one month, positively.

9 This Court is nonetheless constained to record its concern regarding institutional failures

that e>rtend beyond mere police negligence. In addition to the lapses on the part of the [rvestigating Officer, it is imperative to examine the role of worthy District Public Prosecutor, Charsadda, in light of his statutory duties under Sections 5(d) to (0 and 8 of the I(hyber Pakhtunkhwa Prosecution Service (Constitution, Functions and Powers) Act, 2005. These provisions were designed to serve not as hollow formalities, but as substantive safeguards to ensure prosecutorial supervision over police investigation, with the object of strengthening justice delivery at the earliest stage of criminal proceedings.

10.Under Section 5(d), it is the express function of the DPP to issue insurrctions or guidelines to police officers in relation to the conduct of investigations. Section 5(e) empowers him to recommend appropriate disciplinary action where such investigations are found to be defective, negligent, or in contravention of law' Section 5(0 further empowers worthy Director General of Prosecution to initiate proceedings where such recommendations are not acted upon.

Most significantly, Section 8(2) mandates that a copy of every FIR registered by the police must be

forwarded to the concerned DPP, who is required to scrutinize the investigation and, where lapses are forrnd, report the same to the appropriate authority under Section 8(4). These provisions collectively reflect the legislative intent to institutionalize prosecutorial oversight, not only to assist in the pursuit of justice but also to act as a check on investigative arbitrariness and procedural iregplarities.

11.II1 the present case, the FIR was admittedly registered against unknown accused, and serious procedural failures subsequently marred the investigation, including the failure to conduct an identification parade despite the complainant's assertion that he could recognize the perpetrators; a dubious recovery process unsupported. by legally admissible evidence; and non-recording of statements under Section 161 CrPC. [r the investigation, despite these glaring defects, no corrective measure or intervention appears to have been taken by the worthy DPP in the grven circumstances of the case' This dereliction not only undermines the statutory function of prosecutorial supervision, but also (3t) Lqarld tud.. $i rldrq.. sai

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renders the safeguards built into the criminal justice framework largely illusory.

L2. This Court is compelled to note that the establishment of the hosecution Service under Section 3 of the 2005 Act, comprising the Director General, Deputy Directors, and Assistant Directors, is not a symbolic gesture nor a ceremonial institution. It is a public trust, funded by the exchequer, created to elevate the standard of criminal investigation and prosecution, and to ensure that the investigative process is guided by law and legal acumen at every stage. The failure of the worthy DPP, Charsadda, in the present case thus represents not merely administrative oversight but a breach of statutory obligation.

13.This Court observes with due emphasis that, under the scheme of the Code of Criminal Procedure, 1898, the High Court, being the superior Court of the Province, is vested with broad supervisory and regulatory powers' both on its judicial and administrative sides. These powers extend to overseeing the performance of all public functionaries who are tasked with exercising authority or discharging duties under the Cr'P'C' hl doing so, the Court ensures the rigorous

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enforcement of legal provisions pertaining to registration of criminal cases, the conduct of investigations, and all matters incidental thereto.

The High Court is not only competent but constitutionally mandated to issue directions aimed at securing adherence to the rule of law' Moreover, public officers acting under the framework of the CrPC may, when required, be directed by this Court to perform specific functions necessary to achieve the objectives of justice.

L4. Besides, at the heart of a just and functional criminal justice system lies vibrant, active and watchful role of the judiciary, particularly at the district level. Sessions Judges, Additional Sessions Judges, and Judicial Magistrates are not only adiudicators but also entmsted with significant magisterial powers under the Code of Criminal Procedure, 1898' to oversee and guide the investigative process under their respective jurisdictions. These judicial officers are empowered to ensure that police investigations are conducted lawfully, fairly, and without abuse of authority. They may direct the registration of criminal cases' ensure proper

investigation, suntmon investigating officers, and restrain law enforcemmt agencies from engaging in harassment or acting beyond their lawful mandate. These powers must be exercised proactively to uphold the rule of law and alleviate the suffering of ordinary citizens. In view of the foregoing, the Additional Registrar (Judicial) of this Court is directed to circulate a copy of this order among all Criminal Courts of the province, so that judicial officers may remain alert and responsive in the exercise of their respective jurisdictions.

15.II1 these citcumstances, the worthy Director General Prosecution, Khyber Pakhtunkhwa, is directed to initiate an appropriate inquiry strictly in accordance with law into the conduct of the worthy District Public Prosecutor' Charsadda, for his failure to exercise stahltory supervision as required under Sections 5 and 8 of the Prosecution Service Act, 2005. The inquiry shalt assess whether the DPP discharged his obligations in relation to the present case and shall determine whether disciplinary or corrective action is warranted. A report in this regard shall be submitted through the worthy Additional Registrar (Judicial) of this Court for perusal in Chamber

within one month positively. The worthy Director General Prosecution is further directed to submit a detailed and comprehensive report covering a period of the last five years, within the stipulated time, regarding the submission of challans in criminal cases on a disEict-wise basis. The report shall include the fate of such cases, specifying the number of convictions and acquittals, including those decided by the superior courts. Furthermore, the report must particularly highlight the reasons and causes for acquittals, especially in instances where the prosecution failed to establish the charges against the accused. Special emphasis shall be laid on cases where the failure to secure a conviction was attributable to poor or defective investigation, so as to ascertain the lapses and ensure remedial measures.

16.Furthermore, the worthy Additional Inspector General (AIG) Investigations, Khyber Pakhtunkhwa, is hereby directed to prepare and submit before this Court a consolidated, district- wise report encompassing: (i) the total number of criminal cases reported during the last five years in which the investigation was declared defective' deficient, or found to be non-compliant with

statutory requirements, along with the final outcome of such cases; and (ii) the nature and efient of remedial or disciplinary actions initiated or taken against the delinquent investigating officers whose negligence or misconduct resulted in the failure of prosecution cases. This exercise is essential not only for ensuring accountability but also for enabling institutional reflection and systemic reforms. The report shall be submitted through the worthy Additional Registrar (Judicial) within the same timeframe'

17.Copy of this order be endorsed to the worthy Inspector General Police, worthy Additional Inspector General (Investigation) and worthy Director General Prosecution Khyber Pakhtunkhwa for information and further necessary action at their end' The Additional Registrar (Judicial) is also directed to open a separate file till the submission of the compliance reports.

Above are the reasons of this court's short order of even date.

Announced.

Dated: O3.O7.2O25.

ACTING CHIEF JUSTICE

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