MASTAN SHAH vs ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE, BANNU and 2

' MALIK HAMID SAEED, J.--- Through the instant petition, the petitioner has challenged the order, dated 15-11-1997 passed by the learned Additional Sessions Judge/Special Judge, Bannu vide which petitioner was arrested and his release on personal bond under section 169, Cr.P.C. Was set aside.

2. Learned counsel for the petitioner subjected the impugned order to swear criticism on legal premises.

3. The learned counsel took us through various provisions of Suppression of Terrorist Activities Act, 1975 and argued that Special Court is primarily a Trial Court for the trial of only scheduled offences and its jurisdiction though is ' exclusive but only to the extent of scheduled offences. It has not been invested with any powers of controlling the police investigation except to the extent that after the expiry of initial statutory period of fourteen days for investigation, further extension of time for the conclusion of investigation shall be with the approval of Special Judge.

4. While inviting our attention to Article 10 of the Constitution, he further argued that for initial custody of the accused, the Ilaqa Magistrate alone is competent and it was for this very reason that provisions of the Cr.P.C. From sections 167 to 344 have not been included in the Suppression of Terrorist Activities, 1975, while omission is deliberate and obvious for the above reasons and legal position. He further argued that the police powers to investigate a cognizable offence have not been taken away or in any manner diminished by the provisions of Suppression of Terrorist Activities Act, 1975, therefore, the Investigating Officer/Police has the same statutory powers in investigating a scheduled offence as of other offences under the provisions of Chapter XIV of the Cr.P.C. He contended that during the course of investigation, the Investigating Officer has got some statutory privileges/discretionary powers of exclusive nature which include the powers to release an innocent person/accused on bail bond by way of intermediate/interim relief, which, of course, subject to judicial scrutiny by the Court/Tribunal competent to try him. He laid considerable emphasis on the observance of judicial restraints by the Court competent to take cognizance till the time when the challah is submitted before it and until that stage comes the Court shall not, interfere at the early stage of investigation, as it will amounts to unnecessary and hasty interference in the said course which may cause prejudice to either side. He, however, conceded that after the cognizance is taken by the Special Court of Scheduled Offence, then it seized of the entire case which will include the grant or cancellation of bail to an accused. He was of the view that liberty of a man is more precious. And can only be curtailed strictly in a legal manner and not arbitrarily. His last submission was that the learned Special Judge has acted in an arbitrary manner as he has not taken the cognizance of the case and has deprived the petitioner from his liberty on erroneous considerations.

5. The learned Assistant Advocate-General for the State did not controvert the above legal position.

6. Learned counsel for the complainant was, however, of the view 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 must 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. He argued that cognizance means and includes the judicial determination of any cause by the Court.

7. We have given our anxious thoughts to the above submissions made at the Bar and also perused the record of the case.

8. The main question involved in this case which requires determination is as to whether the Investigating Officer (I.0.) while investigating the Scheduled Offence can exercise the powers under section 169, Cr.P.C. For releasing an accused person against whom the evidence is deficient or there exist no reasonable ground to forward him to the Magistrate and whether the Special Court can control the course of investigation at preliminary stage.

9. In our views, none of the provisions of the Suppression of Terrorist Activities Act, 1975 either expressly or impliedly oust the authority of the Investigating Officer conferred on him by the provisions of Chapter XIV of the Cr.P.C. No separate machinery has been provided for the investigation of scheduled offences and, therefore, the powers/authority of Police/Investigating Officer is one and the same for Investigating Schedule Offence. The Investigating Officer undisputedly/undeniably has the discretionary powers under section 169, Cr.P.C. In releasing an accused under section 169, Cr.P.C. On bail bond during the course of investigation before the submission of challah. This is an interim relief made permissible under the law to an innocent person which, of course, will have to stand the test of judicial scrutiny made by the Trial Court at a proper stage, i,e, after taking cognizance of the case.

10. The right course to be adopted by the Investigating Officer, in such a situation, is that at the conclusion of the investigation he should place, the name of the accused discharged under section 169, Cr.P.C. In column No,2 of the challah with his own remarks. The Court then has to form its own opinion on the basis of material on record.

11. As discussed above that police before submission of challah can make resort to section 169, Cr.P.C. At preliminary stage of investigation, the Trial Court shall not interfere at such a stage as this will be amounting interference premature. The August Supreme Court in the cases reported as Malik Shaukat Ali Dogar and others v. Ghulam Qasim Khakwani PLD 1994 SC page 281 and Brigadier (Retd.) Imtiaz Ahmad v. Government of Pakistan 1994 SCMR page 2141 has firmly settled this proposition. Thus, reasonable constraints and restraints are required to be observed till the proper time to come.

12. Our Criminal System of Justice has three well-demarcated phases, i,e, Investigation, Enquiry and Trial. All the three phases possess special characteristics and distinct features and each one related to a well-defined forum.

13. To ensure the smooth running of the system, one should not interfere into the specified and well-defined sphere of jurisdiction of other to prevent overstepping and undue interference.

14. However, it shall not escape unnoticed that resort to the provisions of section 169, Cr.P.C. By the Investigating Officer during the investigation or reinvestigation has become a frequent phenomenon which requires to be discouraged and a serious notice should be taken by the Superior Police Officers including the Superintendents of Police and Deputy Inspector-Generals concerned in the interest of justice by having a strict observance over the investigations so that the said discretionary powers of the Investigating Officers are not misused in any way nor exercised blindly without any valid and legal basis.

15. From what has been discussed above, we are clear in our minds that the bail allowed under section 169, Cr.P.C. To an accused cannot be recalled in the manner as has been done by the Additional Session Judge/Special judge, Bannu in the case in hand. The impugned order, dated 15- 11-1997 being arbitrary and without jurisdiction is, therefore, set aside and the accused/petitioner shall be released on bail forthwith as ordered in our short order, dated 18-12-1997. However, what said and observed in this order shall not influence the mind of the Trial Court during trial of the case.