2018 M L D 1758
[Balochistan]
Before Abdullah Baloch, J
MUHAMMAD SADIQ ---Petitioner
Versus
The STATE---Respondent
Criminal Revision No.134 of 2017, decided on 28th March, 2018.
Penal Code (XLV of 1860) ---
----Ss. 324, 365, 504, 506, 147, 148 & 149---Criminal Procedure Code (V of 1898), S.169---
Attempt to commit qatl- i-amd, kidnapping or abducting with intent to secretly and
wrongfully confine person, rioting common object ---Cross FIRs ---Discharge of accused
under S.169, Cr.P.C., by the Investigating Officer ---Issuance of summons by the Trial Court
for appearance of accused ---Petitioner/accused had taken the plea of alibi by producing some
evidence ---Investigating Officer, discharged accused from the case by exercising his powers
under S.169, Cr.P.C. and mentioned name of accused in Column No.2 of the challan and submitted the same in the Trial Court---Trial Court issued summons to accused for appearance---Validity ---Cross FIRs had been registered by both the parties against each other
the same date and time at the same Police Station ---Accused and his companions had been
nominated with specific role of firing in the FIR registered against accused ---Investigating
Officer, during investigation, had discharged ac cused under S.169, Cr.P.C.---Provisions of
S.169, Cr.P.C., empowered the Investigating Officer to discharge any accused, if he would come to the conclusion that sufficient evidence or reasonable ground was not available to justify forwarding of accused to the Trial Court, but had no power to weigh the defence evidence ---On receipt of challan and after examination of record, if the Trial Court would be
satisfied that there existed two sets of evidence from both the sides, the Trial Court had powers to weigh both sets of evidence on judicial scale by relying upon the one set and to discard the other ---In the present case, Trial Court after assessing the material available on
record had rightly summoned the accused placed in Column No.2; because the Investigati ng
Officer by exercising his powers and authority had discharged the petitioner from the case, who had specifically been nominated in the FIR with specific role ---Investigating Officer had
mainly based his conclusion of discharge of the accused on the basi s of CCTV footage
produced by the accused--- Investigating Officer, had no power to weigh the defence evidence
qua the prosecution evidence, rather it was the sole discretion of the Trial Court ---
Investigating Officer while conducting investigation of the m atter could not assume the
charge of Trial Judge--- Authenticity of the CCTV footage and the supporting documents,
were required to be controverted by the complainant party after the acid test of cross -
examination ---Considering such evidence at such a pre -mature stage would amount to abuse
of process of law ---Accused could approach the Trial Court for his acquittal from the charge
prior to recording evidence and if the Trial Court found the prosecution evidence deficient, it had ample powers under S.249- A an d S.265- K, Cr.P.C., to acquit the accused ---Revision
petition being devoid of merits, was dismissed, in circumstances.
Rizwan Ali v. The State 2017 PCr.LJ 1088; Hazar Khan v. State 2013 PCr.LJ 1892
and Muhammad Arastu v. The State 2014 PCr.LJ 802 ref.
Rehmatullah Barech for Petitioner.
Syed Ayaz Zahoor for the Complainant.
Abdul Karim Malghani for the State.
Date of hearing: 8th March, 2018.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of the Criminal Revision
Petition No.134 of 2017 filed b y the petitioner Muhammad Sadiq son of Muhammad Anwar,
against the order dated 4th August 2017 (hereinafter referred, as "the impugned Order")
passed by learned Sessions Judge, Killa Abdullah at Chaman (hereinafter referred as "the trial Court"), whereby d espite discharge of the petitioner under Section 169, Cr.P.C. by the I.O.,
the trial Court issued summons to him for appearance.
2. Facts of the case are that on 24th July 2016 on the complaint of one Abdul Jabbar the
FIR No.20/2016 was lodged at Levies T hana Saranan under Sections 324, 365, 504 and 506
read with Sections 511, 147, 148, 149, P.P.C., alleging therein that the petitioner Muhammad Sadiq through his Manager ( ) Abdul Qayyum accompanied by Muhammad Khan and
Abdullah was demanding extortion amount/Bhatta of Rs.20,000,000/ - and also extending
threats for dire consequences, which was refused by the complainant, hence on the fateful
day, the petitioner along with his companions intercepted their vehicles, snatched cash amount, mobile phones and othe r articles and kidnapped one of their companion Naqeebullah
and took him with them to their Godown; when the complainant party went to the godown of the accused persons for recovery of the abductee Naqeebullah, the accused persons started indiscriminate firing, consequent upon which one Muhammad Ibrahim sustained injuries, while one of the accused persons' companion Abdul Rahim also sustained injuries due to their own firing and succumbed to the injuries; that due to firing made by Sailab, Shah Barat got in jured and the complainant's driver namely Mamoor was kidnapped; that subsequently
the abductee Naqeebullah was recovered by the levies, but the driver Mamoo is still in captivity of the accused persons. Thus, the instant FIR was lodged.
3. It is further av erred in the petition that the instant FIR has been lodged just to
minimize the gravity of FIR already lodged by the accused party against the complainant party, which was registered prior to instant FIR bearing No.19/2016, wherein due to attack of the accused party, Abdul Raheem was died due to firing of Abdul Ali, while Najeebullah was injured due to firing of accused Abdullah.
4. The Investigation of the case was carried out by the Levies Chaman and petitioner has
taken the plea of alibi by producing som e evidence at the relevant time, he was present at
Lahore in connection with his business affairs and ultimately, the Investigating Officer of the case discharged him from the case by exercising his powers under Section 169, Cr.P.C. and mentioned his name in Column No.2 of the Challan and submitted the same in the trial Court. After perusal of record, the learned trial Court issued summons to the petitioner for appearance before it. The petitioner being aggrieved from issuance of summons, has filed this
petition before this Court.
5. Learned counsel for the petitioner contended that he is innocent of the charge and was
not at all present in the area at the relevant time. when the occurrence had taken place he was
present in his house at Lahore and at the rel evant time when the occurrence had taken place
was present before the Special Court at Lahore, hence on coming to know about registration of instant false case, the petitioner produced the C.C.T.V. footage and other relevant material evidence before the In vestigating Officer, who after conducting thorough examination has
been pleased to discharge the petitioner from the case under Section 169, Cr.P.C. and placed his name in Colums No.2, but the trial Court by mis -exercising its authority and jurisdiction
as well as by overlapping the authority of I.O. has issued summons to the petitioner for
appearance before him; that calling of the petitioner by the trial Court, when he was discharged under Section 169, Cr.P.C. is not justified and requires interference of this Court.
6. Learned State Counsel assisted by the learned counsel for onmnlainant contended that
the petitioner has been nominated in the FIR with specific role assigned to him and the Investigating Officer has discharged him during investigation on the plea of alibi, for which the I.O. has absolutely no authority or competence to ascertain the truthfulness or falsehood of the plea of alibi; that the petitioner has produced some evidence before the Investigating Officer showing his presence at some othe r place at the time when the occurrence had taken
place, thus the said evidence is required to be tested/scrutinized during trial of the case and after acid test of cross -examination, the truthfulness of such evidence could be ascertained,
thus at this pre -mature stage the I.O. has mis -exercised his powers and authority, not vested
to it, thus the learned trial Court in exercise of legal jurisdiction and authority has rightly summoned the petitioner for appearance through impugned order, which otherwise is not
open for interference by this Court.
7. Heard the learned counsel and perused the available record. Perusal of record reveals
that cross FIRs have been registered by both the parties against each on the said date and at
the same Levies station. However , the FIR No.20/2016 has been registered against the
petitioner, whereby the petitioner along with his companions have been nominated in the FIR with specific role of firing. However, during investigation of the case, the I.O. has discharged him under Sect ion 169, Cr.P.C.
8. The provisions of Section 169, Cr.P.C. empowers the I.O. to discharge any of the
accused, if he comes to the conclusion that sufficient evidence or reasonable ground is not available to justify forwarding of accused to the trial Court, but simultaneously it has no powers to weigh the defence evidence. On receipt of Challan and after examination of the record, if the trial Court satisfies that there exists two sets of evidence from both the sides, the trial Court has powers to weigh both the sets of evidence on judicial scale by relying upon on the one set and to discard the other. In the case in hand, the learned trial court after assessing the material available on record has rightly summoned the accused placed in Column No.2, because th e Investigating Officer by this exercising his powers and authority has discharged
the petitioner from the case, who has specifically been nominated in the FIR with specific role and the I.O. incompetently weighed the alleged evidence produced by the petit ioner.
Such evidence is to be tested through trial and after acid test of cross -examination. According
to settled principles of law, once the trial Court has come to the conclusion to summon any of the accused placed in column No.2 of the Challan, thereaft er the said order of summoning the
accused is not assailable as it is the sole discretion of the trial Court. The Chief Court of Gilgit- Baltistan in case of Rizwan Ali v. The State, reported in 2017 P.Cr.L.J. 1088, has held
that, "If there is some incrimin ating evidence against an accused placed in column -2 of the
challan, the trial Court's powers cannot be curtailed. ... As discussed above the powers of trial
Court to summon an accused placed in column- 2 are not under challenge and there is
consensus that these powers are the sole discretion of the trial Court.".
9. The Investigating Officer has mainly based his conclusion of discharge of the
petitioner on the basis of some CCTV footage produced before him by the petitioner and he has taken the plea that he was present in Lahore at the relevant time. Be that as it may, as
discussed above the I.O. has absolutely no powers to weigh the defence evidence qua the prosecution evidence rather it is the sole discretion of the trial Court and the Investigating Office r while conducting the investigation of the matter cannot assume the charge of a trial
Judge. Besides, the authenticity of the CCTV footage and the supporting documents are required to be controverted by the complainant party after the acid test of cross -examination,
thus considering such evidence at this pre -mature stage amounts to abuse of process of law,
because it was not the stage to consider the plea of alibi of an accused, as if once such kind of
plea of alibi are taken into consideration at investig ation stage, it will become precedent for
all the criminal cases to be determined by the Investigating Officer. Even otherwise, there
exists the ocular evidence of injured witnesses as well as the medical evidence and
circumstantial evidence, which are imp licating the petitioner with the commission of crime
and they have specifically mentioned the presence and participation of the petitioner in the
crime, thus such evidence that is to be produced in the trial Court cannot be assessed and brushed aside by the I.O. by using his powers under Section 169, Cr.P.C., as the said powers are subject to judicial determination of the trial Court, because if the I.O. has been given such absolute powers, it amounts to overlapping the jurisdiction and powers of the trial Court. It has never remained the scheme of Section 169, Cr.P.C. to give the powers of trial judge to an
I.O. to decide the plea of alibi of an under investigation accused, when otherwise sufficient incriminatory evidence is available on record regarding hi s presence and participation in the
crime. Reliance in this regard is placed on the case of Hazar Khan v. State, reported in 2013 PCr.LJ 1892 (Sindh). Relevant portion is reproduced herein below: --
"The submissions of learned State Counsel that the I/O. has released the applicants
during investigation under section 169, Cr.P.C. by relying upon the plea of alibi taken by the applicants, has not been controverted by the counsel for the applicants rather he has admitted that at the time of alleged incid ent the applicants were available at there
respective posting places, such proof was produced before the I/O. The law does not permit the I/O. to let- off any accused against whom sufficient evidence has been
produced by the complainant merely on the plea of alibi as the evaluation of two conflicting sets of evidence i.e. prosecution evidence and the defence plea is not in his domain of powers vested under section 169, Cr.P.C. and release of an accused could only be valid in case the prosecution evidence is "deficient", otherwise it is the exclusive jurisdiction of trial Court conferred the ample powers to decide the guilt or innocence of any person brought before the trial Court with certain charges, as such the release of applicants by Investigating Officer under section 169, Cr.P.C. giving the
preference to the defence plea of alibi over the prosecution evidence based upon ocular testimony supported by medical evidence, is unlawful being beyond the parameters of Section 169, Cr.P.C."
"So, the crux is that a fter a person is arrested and detained by the police, he can be
released on execution of a bond, with or without sureties, by, the Investigating Officer when he finds against the accused no sufficient evidence, no reasonable ground or no
suspicion to justi fy for his forwarding to a Magistrate in custody. But it would be the
duty of the Investigating Officer, to report all these facts, by placing the name of that
accused in Column No.2 of the report under section 173 of the Cr.P.C. Extraordinary powers confe rred upon the Investigating Officer to release on bond an accused
person, are open to judicial scrutiny. If the Investigating Officer is allowed absolute power, without judicial determination of scrutiny from a competent Court; it would be an interference into the jurisdiction and realm of the Courts, who have been granted and conferred the powers to adjudicate the innocence or guilt of a person and to convict, discharge or acquit. Section 169 cannot be propounded in such a manner so as to grant such powers of learned Magistrate/Court to an Investigating Officer to
determine the innocence or guilt of the person involved in a case and to declare such a person innocent through his order of release. The determination of innocence or guilt lies with the learned Magistrate/Court It is purely an interim arrangement/relief to a person who in the opinion of the Investigating Officer is an innocent, and against whom no evidence has been brought by the prosecutor/informant. If power of discharge in the form and under t he pretext of release is considered to lie with the
police officer, it would be a disastrous interpretation of law for the safe criminal administration of justice."
10. Even otherwise, the petitioner can approach the trial Court for his acquittal from the
charge prior to recording evidence and if the trial Court found the prosecution evidence deficient, it has ample powers under Section 249- A read with section 265- K, Cr.P.C. to
acquit the petitioner. When the court reaches at the conclusion that it would be sheer futile
exercise to linger on the case which shall not culminate on conviction, the Court may exercise such powers as there is no clog of time on exercise of inherent powers by the Court, which could be used at any stage. Reliance in this regard is placed on the case of Muhammad Arastu
v. The State, reported in 2014 PCr.LJ 802. Relevant portion is reproduced herein below: --
"9. Suffice is to say that the provision of section 265- K, Cr.P.C. is meant to prevent
the rigors of a prolong trial, when it is apparent from the record, that there is no probability of the accused being convicted of the offence charged with, the trial Court can exercise judicial discretion in a fit and appropriate case but such power not intended to be exercised arbitrarily. When the court reaches at the conclusion that it would be sheer futile exercise to linger on the case which shall not culminate on conviction, the court may exercise such powers as there is no clog of time on exercise of inherent powers by the court, which coul d be used at any stage."
For the foregoing reasons discussed hereinabove, the petition being devoid of merits
is herby dismissed.
HBT/37/Bal Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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