Riaz Muhammad Khan Vs State

YA

Judgment Sheet

IN THE PESHA WAR HIGH CO

ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

WP No. 825-A/2016.

JUDGMENT

Dale of hearing............... 24.07.2017............................................... Petitioner/s (Riaz Muhammad Khan) ................................................ Respondent/s ............... ........................... ..... . ... ... ... ... ... ... ... ... ... ... ...

SYEI) ARSHAI) ALL J:- Petitioner seeks

constitutional jurisdiction of this Court praying that:

on acceptance of instant writ petition, the proceedings under section 169 Cr.

P.0 for respondent No. 6 and subsequently granting him bail through personal bond may kindly be quashed by declaring the entire process as without lawful authority, mtc use of __ power, void ab-initio and the . local d to be True Copy EXAMINER police be directed to arrest the

03 NOVV

27 respondent NO. 6 by submitting

Peshawar High Cou complete challan against all the accused therizcd Under Se ns:

inclutling respondent No. 6 accordingly for triaL Any other remedy which deens Jit by this Hon 'ble Court may also be granted in favour ofpetitioner."

I3rief and essential facts of the case are that case FIR No. 68 dated: 09.05.2016 under section 302/324/148/149 PPC at Police Station I3anna Allai, was registered by the petitioner against respondcnth No. 6 and others.

it was reported by the petitioner that he along with Fazal Ghafar (deceased) Ilyas Khan Durrani, and Khanzada "Complainant Party" when reached at their land near Mosuma Adda, (iohar Ali son of Sher Ali respondent No. 6, Gullu Kohistani, Chappu Kohistani along with seven others "Accused" armed with weapons asked the Complainant Party that Accused, under the instructions of Professor Mukhtiar Ali, directing the Complainant Party not to use the thoroughfare/pedestrian track and if the Complainant Party did not return bacic, the Accused will open fire )\ at them. I)uring this time accused (Johar Ali opened

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ire at F azal (ihafar (deceased), resultantly F azal Ghafar sustained firearm injury on his face from Gohar Ali and another fire injury from Gulla, which caused his death. The accused surrounded the en

7 Complainant Party and started indiscriminate firing.

At the time of registration of case, since petitioner was already nominated in FIR No. 67 by Muhammad Khan for firing at him, was alTested by police. The place of occurrence and dispute has been the use of thoroughfare in both the FIRs.

The perusal of medical report/autopsy of the deceased Fazal Ghafar shows that deceased had received entry wound on his mouth with an exit entry and another entry and exit at the right deltoid muscle region. It was ftirther alleged that the occurrence was also seen by the brother of Complainant.

On 23.05.2016, respondent No. 6 was

granted ad-interim bail before arrest by learned Additional Sessions Judge.

Respondent No. 6 pleaded his

innocence before the investigation officer and also raised plea of Alibi. The investigation officer recorded statements of various persons in support of the plea of Alibi of the accused/respondents.' 'ftc investigation officer found the Respondent No 6 innocent while believing his plea of defense qua other evidence collected by him during the course of investigation.

8.Not contended with the mode and

manner of investigation of local police, the present petitioner filed an application to the compctcnt authority for transfer of investigation. The said request was 'acceded to and investigation was transferred to crime branch. Crimc branch also concurred with the investigation of the local police.

On 04.06.2016 investigation officer solicited the opinion from the office of I)istrict Public Prosecutor for deferment of arrest of respondent No. 6. 1 Jowever, the office of 1)istrict Public Prosecutor did not give any opinion as the application for bail before arrest was pending before the competent court.

9.During the investigation, the eye

to b witnesses recorded their statements under section 164 Cr.P.0 stating to have not witnessed the occurrence.

kd ov The investigation officer after evaluating the prosecution evidence qua the defense - witnesses, believed the defense version and declared Respondent No 6 innocent and accepted bails bonds from respondent No. 6 on 6-6-2015 purportedly under section 169 Cr. P.C, despite the fact that respondent No. 6 was not in his custody. I-Iowevcr, while preparing the final investigation report under

section 173 Cr.P.0 he did not mention the factBrn of releasing Respondent No 6 on his personal bond. In the said report he has stated to have deferred the arrest of respondent No 6 being innocent.

10.The learned counsel appearing on

behalf of the petitioner has stated that the investigation officer has i]legally allowed release of respondent No. 6 against submitting bail bonds to the investigation officer and further stated that investigation officer had no mandate under section 169 Cr. P.0 to accept bail bond from respondent No.

6.On the other hand learned counsel appearing on behalf of respondent No. 6 stated that the findings of investigation office are factually correct and this Court has no jurisdiction to interfere in the investigation of police.

Arguments heard and rçcord perused.

Admittedly the respondent No. 6 has

been directly charged by the petitioner for the murder of Abdul Chafar (deceased) and the presence of Complainant at the spot is ftirther established by registration of FIR No. 67, wherein, Muhammad

Khan has charged the petitioner/complainant for firing at him.

13.Although, the investigation officer has the mandate to unearth the truth and collect the entire evidence relating to the occurrence and provide the investigation report in terms of section 173 of Cr.

P.0 and also to state his opinion on the case, however, he has no authoiity to arrogate to himself the role, and the function of adjudicating and to evaluate the evidence of prosecution viz-a-viz that of defense. However, the core issue before us is as to whether the investigation officer has rightly accepted bail bonds from respondent No. 6 under section 169 of Cr. P.C. For sake of convenience, section 169 Cr.P.0 is reproduced as under:-

Release of accused when evidence deficient: If upon an investigation under this Chapter, it appears to the

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officer Incharge of police station, or to the police officer making the Go9'J investigation that there is not sufficient be evidence or reasonable ground or suspicion to justify the forwarding of the accused to the Magistrate, such officer shall, ifs uc.h pe; son 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 lake cognizance of the offence on a police report and to try the accused or (send) him for trial.

The bare perusal of section 169 ibid lays down the following circumstances for release of accused on bonds ( personal or with sureties);

(1,). That the evidence is insufficient or there are reasonable grounds of suspicion to justify the forwarding the accused to the Magistrate.

(11)Insifficiency of evidence means inadequate evidence to prove or support ajmnding. (ill) the Investigation of has no authority to evaluate the evidence of prosecution viz-a-viz of defense ('iv). The accused has to be in custody.

ed

15.In the present case admittedly the Tj investigation officer while accepting the bail bond from respondent No. 6, respondent No. 6 was not in his custody. Furthermore, under section 173 of Cr.P.0 the invcstigation officer is required to state in the said report, if the accused is reieased on bond with or without sureties, apprising the magistrate of such bond so that the Magistrate can pass order on such bonds under section 173 (3) Cr.P.C. The

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investigation officer has prepared complete challan in the present case, wherein the factum of release of the accused on personal bond has not been stated, instead it has been mentioned that the arrest of the Respondent No 6 has been deferred. I lence, the releasing of respondent No. 6 on bond when he was not in custody is illegal and without lawftil authority.

From the aforesaid facts and law on

subject, we hold that the impugned action of the investigation officer is arbitrary and has transgressed and travelled beyond the scope of his jurisdiction under section 169 Cr.P.C. The investigation officer had no authority to arrogate to himself the function of adjudication and do determine the nature of offence and to give pre-trial verdict of innocence of accused. ieu r

03 'I 2.jri In view of the above, this writ petition is accepted and impugned order of

respondent/investigation officer releasing respondent No. 6 against personal bond is set-aside, however, at zv` this stage we cannot give any findings on the action of Investigation officer deferring the arrest of Respondent NO 6, as the same is his jurisdiction and is subject to •the orders of Magistrate tinder section

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173 read with section 193 of Cr.P.0 and thereafter, the trial court taking cognizance of the case shall pass appropriate order under the law. With these observations this writ petition is accepted and investigation officer is directed to submit the complete challan before the competent Court immediately.

Announced.

7 J '? ,flhc'q,cc cS/St

f'ied to be True (

EXAMINER

03 NOV 2U17

Peshawar