2025 P Cr. L J 453
[Balochistan]
Before Sardar Ahmad Haleemi, J
HABIB BARKAT ---Petitioner
Versus
NAEEM KHILJI IO/IP POLICE STATION BEROTE HUB
and 2 others ---Respondents
Crl. Misc. Quashment No. 335 of 2023, decided on 26th April, 2024.
Criminal Procedure Code (V of 1898) ---
----Ss. 561- A & 169 ---Release of accused when evidence deficient ---Scope ---Petitioner
assailed the discharge of accused persons by the Investigating Officer ---Held, that
petitioner had lodged an FIR against the accused persons under Ss. 395 & 365, P.P.C.,
with the allegation that accused/respondents forcibly kidnapped his drivers and took away the trucks for extortion---Record showed that the Investigating Officer arrested the accused/respondents in the Court premises after rejection of pre- arrest bail application ---
Thereafter, the Investigating Officer obtained physical remand of accused/respondents
from the concerned Court and recorded the statements of drivers under S.164, Cr.P.C, before the Judicial Magistrate, wherein, they did not disclose the names of the culprits and did not implicate the accused/respondents in their abduction ---In the meantime,
three persons submitted their affidavits in support of the plea of alibi taken by
accused/respondents ---As per crime report, a cognizable offence had been committed
and specific role of snatching of trucks was levelled against accused/respondents but the
Investigating Officer instead of making efforts to investigate said accused/respondents and recover the alleged snatched trucks, only relied upon the affidavits of three persons and discharged accused/respondents under S.169, Cr.P.C, on plea of alibi ---It was
evident from the record that initially, the Trial Court made a tentative assessment of material available on record including the statement of the drivers of alleged snatched trucks and prima facie found the involvement of accused/respondents in the occurrence, thus declined the pre -arrest bail vide order dated 31.05.2023--- On 02.06.2023, the
Investigating Officer received affidavits of three persons, supporting the plea of alibi taken by accused/respondents ---Investigating Officer without proper investigation and
verification of contents of affidavits discharged accused/respondents on the plea of alibi, which was beyond the parameters of S.169, Cr.P.C ---Bounded duty of the Investigating
Officer, was to probe and investigate the case and dig out the truth by following the Police Rules, 1934, but in the presentcase, the Investigating Officer had not adopted the procedure provided under the Rules, 1934 and acted arbitrarily--- Moreover, during the
pendency of the instant petition, notice was issued to the Investigating Officer with the direction to submit progress in the instant case ---In compliance with the said order, a
report was submitted which reflected that an alleged snatched truck was recovered from the possession of a driver ---Provision of S.169 ,Cr.P.C, demonstrated that powers
conferred in the said provision could not be invoked, if prima facie indiscriminate evidence was available on record to connect an accused in the commission of the alleged offence---Plea of alibi would be ascertained after adducing evidence of respective parties at the trial, which was the exclusive jurisdiction of concerned criminal Court, thus the action of Investigating Officer was illegal, perverse, and arbitrary--- Petition was allowed, in
circumstances, by setting aside the order of the Investigating Officer.
Shoukat Bus Service, Shahkot v. The State and another 1969 SCMR 325 and Ghulam
Nabi v. State 2016 PCr.LJ Note 46 rel.
Jam Saka Dashti for Petitioner.
Ms. Amna Hashmi, District Public Prosecutor along with Riaz Hussain, IP/IO P.S
Beirut, Hub for the Respondents Nos. 1 to 3.
Farooq Ali Masto and Ilahi Bakhsh Mengal for Respondents Nos. 4 and 5.
ORDER
SARDAR AHMAD HALEEMI, J. --- The instant Criminal Quashment Petition
carries the following prayer: -
"It is, therefore, prayed with utmost Respect and veneration that the Discharged order,
in case/FIR No.73/2023, Police Station Berote Hub, passed by Respondent No.1 may
kindly be set aside and accused persons namely Hussain Bakhsh son of Karim Bakhsh and Muhammad Sharif son of Nazar Muhammad may kindly be taken into custody, for fair and proper investigation. Furthermore, the investigation of case may kindly be transferred to another Police Station for better administration of justice and impartial investigation. Any other relief, if this Hon'ble court deems fit and proper may also kindly be granted in favour of petitioner, in the better interest of justice, peace and fair play."
2. Learned counsel for the petitioner contended that the impugned discharge order under
Section 169 Cr.P.C. passed by respondent No.1 is illegal and unlawful, as same was passed with connivance of respondent No.2 and that too after two days of conducting investigation,
discharged the accused persons namely Hussain Bakhsh and Sharif; that the investigating
officer while conducting investigation of respondent No.1 has ignored the basic procedure provided under Police Rules, 1934; the offences are cognizable and the trial Court declined
pre-arrest bail on the basis of incriminating evidence on record, but the Investigating Officer
discharged respondent Nos. 4 and 5 on the plea of alibi, thus, his action is illegal and utter
violation of law; that the recovery of case property cannot be effected, as respondent Nos. 4 and 5 did not face the complete investigation; the trial Court rejected the pre -arrest bail of
respondent Nos. 4 and 5 on account of non- recovery of case property, but the Investigating
Officer misused his authority and illegally discharged respondents Nos. 4 and 5 under
Section 169 Cr.P.C; that the FIR got registered on the direction of the Ex -Officio Justice of
Peace and respondents Nos. 4 and 5 were nominated with specific role but the Investigating
Officer with mala fide intentions, formed a baseless opinion, which is not biding on the Court, thus, the impugned order warrants interference of this Court.
3. Conversely, the learned Deputy Public Prosecutor assisted by the learned counsel for
respondents No. 4 and 5 controverted the contentions of the learned counsel for the petitioner and contended that the instant petition is not maintainable, as the action of investigating officer is an administrative action; that after proper investigation, respondent No.1 has rightly discharged respondents Nos.4 and 5 under section 169, Cr.P.C. which is not open to any exception; that no case was made out against respondents Nos. 4 and 5, as such were rightly discharged by respondent No.1, as there was no evidence available on record to connect respondents Nos. 4 and 5 in the alleged commission of offence; lastly prayed for dismissal of the instant petition.
4. I have heard the arguments advanced by learned counsel for the parties and have
perused the available record with their able assistance.
5. Before parting with the merits of the case, it would be appropriate to address the
pivotal question regarding the maintainability of instant petition under Section 561- A of the
Code of Criminal Procedure, 1898 (hereinafter "the Code"). For convenience, the provision of section 561- A of the Code is reproduced, which reads as follows: -
"Saving of inherent powers of High Court.--- Nothing in this Code shall be deemed to
limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code; or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
6. A plain reading of foregoing provision of the code manifests that the powers
conferred to the High Court are wider, which can be exercised to prevent abuse of the process of law and rectify all such orders made under the provisions of the Code. In the present case, the investigating officer carried out the investigation of a cognizable offence
under the provisions of the Code and by misusing the power discharged respondents Nos. 4
and 5 contrary to incriminating material available on the record, thus such illegal action can be looked at and rectified under the provision supra, thus the instant petition is maintainable. Reliance in this regard is placed on the case of Shoukat Bus Service, Shahkot v. The State and another (1969 SCMR 325), wherein it is held as under:
" It is, no doubt, true that where express provision is made in the Code itself for a particular purpose, recourse cannot be had to the inherent jurisdiction to achieve the same purpose, but at the same time it has to be pointed out that the inherent powers of the High Court is of a very wide and indefinable nature and in exercise of this power the High Court can make all such order which may be necessary to do real and substantial justice and prevent abuse of the process of the Court, subject only to the limitation that it cannot override an express provision of the Code"
7. Now coming to the merits of the case, it appears from the record that complainant
Habib Barkat registered an FIR No.73 of 2023 dated 02- 05-2023 under sections 395, 365,
P.P.C. at Police Station Berot District Lasbella to the effect that on 13 -03-2023 he was
informed through phone by his driver that his trucks bearing registration Nos.TAQ -465 and
TUB -089 were parked near Daru Hotel Hub Chowki; at about 3:00 p.m., the accused persons
Hussain Bakhsh, Sharif along with 4 unknown persons by display of weapon/Kalashnikov forcibly kidnapped his drivers and took away the trucks; the motive behind the incident was demand of extortion, which was refused by the complainant.
8. In pursuance of instant criminal case, respondents Nos. 4 and 5 moved pre -arrest bail
application under section 498 of the Code before the learned Additional Sessions Judge -I,
Hub, and obtained an ad- interim bail on 03.05.2023, but the trial Court after hearing the
arguments of the parties, declined the pre -arrest bail vide order dated 31.05.2023. For
convenience the relevant part is reproduced as under:
4. I have heard the arguments from both sides and perused the available record very carefully, which reveals that accused/applicants are nominated in the FIR with specific role assigned by the complainant and allegations levelled upon accused/applicants are about abduction dacoity and extortion of money (bhatta) which are serious in nature and not bailable. The mala fide on the part of complainant by the applicant is that soon after morning (sic) an application to the S.H.O for lodgment of FIR, the complainant opted to file a complaint under section 200 Cr.P.C before the learned Judicial Magistrate Hub and simultaneously filed a petition under Section 22-A Cr.P.C. before the competent forum. In response to said stand it is contention of complainant that when he was not entertained by the concerned Police Station for redress of his grievance, he refused for complaint and on approval of 22- A, he
immediately withdrew his complaint. Even otherwise there is no bar available in law to a person from approaching him to different forums for redressal of his grievance. Hence, prima facie there is sufficient evidence available on record to connect the accused/applicants with the commission of alleged offence. Moreover, accused/applicant failed to establish/produce any mala fide intention or ulterior motive on the part of complainant or prosecution at this stage, which is basic and essential ingredients taking the bail before arrest, as the pre -arrest bail is an
extraordinary relief which requires sufficient grounds warranting further inquiry. Reliance is placed in case law:
Ghulam Nabi v. State (2016 PCr.LJ Note 46 (Sindh Hyderabad Bench)
"Bail before arrest was an extraordinary relief which could not be granted unless person seeking it had satisfied conditions specified under S.497(2) Cr.P.C and established existence of reasonable grounds leading to believe that he was not guilty of offence alleged against him and there were in fact sufficient grounds warranting further inquiry --- ample material/evidence was available with prosecution to connect
accused person with the commission of offence --- No mala fide was attributed to
complainant or investigating officer -- - pre-arrest bail was declined in
circumstances".
5. In addition to above, it has also been pointed out by the learned DPP that the accused/applicants since granting ad -interim bail do not co- operate with investigating
officer and they are reluctant to appear before the I.O for investigation due to which the investigation is being lingered on/frustrated so far. Even otherwise recovery of
trucks is also yet to be made due to non- cooperation on the part of accused/applicants.
Reliance is placed on case law: 2015 SCMR 1394.
6. Since the accused/applicants are required for investigation which cannot be
possible to be completed without them, therefore, I am not inclined to allow/confirm the ad -interim bail dated 03.05.2023, which is hereby re -called and application for
grant of bail before arrest is hereby rejected. Application after its completion be
consigned to record.
9. The Investigating Officer arrested respondents Nos. 4 and 5 in the Court premises
after rejection of pre- arrest bail application. On 01.06.2023, the Investigating Officer
obtained physical remand of respondents Nos. 4 and 5 from the concerned court and recorded the statements of drivers Sabir Ali and Mehrab under Section 164 Cr.P.C before the learned
Judicial Magistrate, Hub, wherein, they did not disclose the names of the culprits and did not
implicate respondents Nos. 4 and 5 in their abduction. In the meantime, Ghulam Nabi, Abdul Ghaffar, and Muhammad Naeem submitted their affidavits in support of the plea of alibi taken by respondents Nos. 4 and 5.
10. As per crime report, a cognizable offence has been committed, and specific role of
snatching of trucks bearing Registration Nos.TAQ -465 and TUB -089 were levelled against
respondents Nos. 4 and 5, but the Investigating Officer instead of making efforts to investigate respondents Nos. 4 and 5 and recover the alleged snatched trucks, only relied upon the affidavits of Ghulam Nabi, Abdul Ghaffar, Muhammad Naeem, and discharged respondents Nos. 4 and 5 under Section 169 of the Code on plea of alibi. In order to proceed further, it would be advantageous to reproduce the provisions of Section 169 of the Code., which reads as follows:
Release of accused when evidence deficient: If, upon an investigation under this Chapter, it appears to the officer incharge of the police station, or to the police officer making the investigation that there is not sufficient evidence or reasonable ground for 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.
11. It is evident from the record that initially, the trial Court made a tentative assessment
of material available on record including the statement of the drivers of alleged snatched trucks and prima facie found the involvement of respondents Nos. 4 and 5 in the occurrence, thus declined the pre -arrest bail vide order dated 31.05.2023. On 02.06.2023, the
Investigating Officer received affidavits of Ghulam Nabi, Abdul Ghaffar, and Muhammad Naeem, supporting the plea of alibi taken by respondents Nos. 4 and 5. The Investigating Officer without proper investigation and verification of contents of affidavits, discharged respondents Nos. 4 and 5 on the plea of alibi, which is beyond the parameters of Section 169 of the Code. It is bounded duty of the Investigating Officer to probe and investigate the case and dig out the truth by following the Police Rules, 1934 ("the Rule, 1934"), but in the present case, the Investigating Officer has not adopted the procedure provided under the Rules, 1934 and acted arbitrary.
12. Moreover, during the pendency of the instant petition, notice was issued to the
Investigating Officer with the direction to submit progress in the instant case. In compliance with this Court order, a report was submitted which reflected that an alleged snatched truck bearing registration No. TUB -089 was recovered from the possession of driver Khudai Rahm
at Gishkor District Awaran. The provision of Section 169 of the Code supra, demonstrates that powers conferred in the aforementioned provision cannot be invoked, if prima facie indiscriminate evidence was available on record to connect an accused in the commission of the alleged offence. The plea of alibi would be ascertained after adducing evidence of respective parties at the trial, which is the exclusive jurisdiction of concerned criminal court, thus the action of investigating officer is illegal, perverse, and arbitrary.
13. As a sequel to the above discussion, it is concluded that the action of the Investigating
Officer under Section 169 of the Code is patently illegal and an abuse of exercise of jurisdiction.
For the above reasons, Criminal Quashment Petition No. 335 of 2023 is allowed,
consqeuntly, the action taken by the Investigating Officer of instant case under Section 169
of the Code is hereby set aside. The Investigating Officer is directed to arrest respondent Nos. 4 and 5 for investigating the case by following the law and relevant rules, thereafter, submit the challan within the stipulated period before the competent Court.
JK/1/Bal. Petition allowed.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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