AMMAD AKRAM vs SENIOR SUPERINTENDENT OF POLICE, ABBOTTABAD And 6

A case under section 452, P.P.C. Read with section 22 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was registered at Police Station Mirpur vide F.I.R. No. 385 dated 5-7-2000, at the instance of complainant Muhammad Akram petitioner herein. In this case Jamshaid alias Javed resident of Banda Phagwarian Abbottabad was charged for having on the night of 5-7-2000 at about 2-00 a.m., trespassed into the house of the petitioner situated at Banda Phullan Abbottabad, with the intention to commit theft. On hearing the barking of the dog, the complainant and his brothers awoke from the sleep and caught hold of the accused with the stolen property. In the struggle, Gulzar, one of the brothers of the petitioner, sustained injury on his shoulder at the hands of Jamshaid. However, the attempt of Jamshaid to commit theft was foiled and he was overpowered and confined in a room of the house. He was handed over to the police on the following day. Jamshaid moved an application in the Court of Ilaqa Magistrate for grant of bail which was rejected by order-dated 10-7-2000. The bail application filed before Additional Sessions Judge, Abbottabad also met the same fate vide order dated 4-8-2000.

2. Jehan Dad Khan respondent No.6 herein, father of Jamshaid moved an application on 19-8-2000 before S.S.P. Abbottabad wherein it was claimed that Jamshaid was falsely connected with the guilt and that the matter may be investigated through an independent Agency. The application was marked to an Inspector Complaint Cell, Abbottabad, respondent No.3 herein with direction to conduct an inquiry. Respondent No.3 submitted his report on 28-9-2000. Respondent No.1 after calling for the comments of prosecution D.S.P. Abbottabad respondent No.2 herein, passed an order regarding cancellation of case against Jamshaid barring case registered against him under section 13 of the Arms Ordinance, 1969. Resultantly, Officer Incharge of Police Station Mirpur respondent No.4 herein, submitted the case to Judicial Magistrate Abbottabad respondent No.5 herein, for cancellation of the case and discharge of the accused under section 169, Cr.P.C.

3. The petitioner feeling aggrieved, has filed instant petition under section 561-A, Cr.P.C. For the quashment of inquiry report of respondent No. 3, the subsequent order passed thereon by respondents Nos. l and 2 dated 2-10-2000 and 3-10-2000 respectively and the application made by respondent No.4 for the cancellation of the case and discharge of accused under section 169, Cr.P.C.

4. 1 have heard Mr. Muhammad Ayub Tanoli, Advocate for the petitioner, Mr. Muhammad Younas Tanoli, Advocate-General for State and Syed Shabbir Hussain Shah, Advocate for respondent No.6 in the light of the material on the file. I have also gone through the rulings cited by the learned counsel in support of their respective contention. I find myself in agreement with the learned counsel for the petitioner that under the provisions of Criminal Procedure Code there is no scope for constitution of any complaint cell under the order of respondent No. 1 and hence the Complaint Cell has no competency to encroach upon the powers - of Court. Under the Criminal Procedure Code, once the case is registered under section 154, Cr.P.C. The Officer Incharge of the Police Station concerned is required to investigate the same under section 156, Cr.P.C. Respondent No.1 the S.S.P. Cannot take protection of section 551, Cr.P.C. In the exercise of his powers in the present case because there is no provision of any inquiry being conducted of any cognizable case which has been registered in any police station. The police has no jurisdiction to ask the Court for the cancellation of any case or to release the accused under section 169, Cr.P.C. The police is bound under the Cr.P.C. To submit complete challan in the Court of jurisdiction for the trial of the accused and nothing more. An Inquiry Officer of the complaint cell has no powers as rightly urged, to nullify the investigation of any criminal case done by or under the authority of Officer Incharge of a police station. The police has no authority to decide the cases before presenting' them to the competent Court of jurisdiction. Under section 169, Cr.P.C. When it appears to the police officer conducting investigation that there is no sufficient evidence available to justify the forwarding of the accused in custody to the Magistrate he may only release him on executing a bond with or without sureties.

But the Investigating Officer is not empowered to omit the name of the accused from the challan.

Furthermore, the powers under section 169, Cr.P.C. Can only be exercised by the police during the course of investigation when accused is in custody of the police. Once the challan is submitted under section 173, Cr.P.C. The provisions under section 169, Cr.P.C. Would not be attracted. It needs no reiteration that once the learned Magistrate has taken cognizance he should have proceeded with the trial of the accused and if at any stage of the trial the learned Court had come to the conclusion that the charge was groundless and there was no possibility of the accused being convicted of the offence he might have been acquitted under section 249-A, Cr.P.C. The application under consideration has been opposed principally on the ground that there is no provision in law to prohibit police from inquiring into a matter and that the petition was not maintainable. It is true that police cannot be prohibited from carrying out investigation into a matter but it is equally true that the investigation carried out by an Agency constituted contrary to the provisions of law, is not looked with favour by the Courts of law. In the instant case, the inquiry has been conducted by an Inspector of the Complaint Cell. The Complaint Cell has been constituted without there being any provision in the Cr.P.C. The inquiry report as such is of no consequence. The present petition is accepted, the inquiry report of respondent No.3 and subsequent order passed by respondent No. 1 on 3-10-2000 on the basis of the report of respondent No.2 and the application dated 3-10-2000 made by respondent No.4 for cancellation of this case and discharge of accused under section 169, Cr.P.C. Are hereby quashed.