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Criminal Miscellaneous No. 6233 of 1969, decided on 15th December 1969.

----S.173-Police report Investigation-Police officer sure that accused was innocent-Accused should be placed in column 2 of challan instead of column.

In a murder case the Police Zimni prepared by the investigating officer showed that the accused was not present at the place of occurrence and had been falsely implicated. The police officer deposed before the Court that in his opinion the accused was innocent but as the complainant and the eye-witnesses were charging him with the crime it was desirable that the verdict of the Court should be obtained. He further added that it was the policy of the Police Chief of the District that even if as a result of investigation, an accused was found innocent but the eye witnesses named him he should be sent up for trial and in these circumstances it was finally decided to place the accused in column No. 1 of the police challan.

Held: In the instant case that very police officer, who pronounced, according to his investigation, the accused innocent, ultimately decided to challan him and placed him in column No. 1. In other words, he himself was not satisfied with the innocence of the accused. If he was sure that the accused was innocent it was his duty as a police officer to place him in column No. 2 of the challan. The policy of a particular Police Chief in a District cannot override mandatory provisions of law.

---S. 497 (S)-Bail, cancellation of Murder case-Accused named in F. I. R. and two eye-witnesses charging him of firing gun shot at deceased-Police ofcer, though of opinion that accused was not present at spot and was innocent, placing him in column No. 1 of Police challan-Case, in circumstances, held, not fit for hail-Bail granted by Sessions Judge cancelled.

Emperor v. Padri Parashad 8 Cr. L J 49 and Muhammad Iqbal v. Abdul Basit and another 1968 P Cr. L J 340 ref.

Pare Dusadh and others v. Emperor 1944 F C 1 and Haji Aehmat Khan v. The State 1968 P Cr. L J 1905 distinguished.

Qazi Ahmad Khan for Petitioner.

Ch. Nazir Ahmad Khan for Respondent No. 1.

Sh. Muhammad Ayub for the State.

This order may be read in continuation of my order dated the 26th of November 1969. Syed Shamsuddin, D. S. P. Nankana Sahib, has turned up with the file of the case. He stated that he investigated this case and as a result, there of, as contained in the Zimnis, he was of the view that Mushtaq Ahmad, the complainant, was not present at the spot and that Riasat Ali accused has been falsely charged in this case. According to him he examined several witnesses and was satisfied that Riasat Ali accused was at Lahore at the time. of the occurrence. He stated that according to his investigation the licensed gun of the accused was in fact used by his nephew Akhtar Ali. He further stated that two witnesses named in the F. I. R., namely, Muhammad Ashraf and Nazir Ahmad, are the relation and tenant of the deceased respectively, and, in his opinion, the accused was innocent but as the complainant and the eye-witnesses were charging him with the crime it was desirable that the verdict of the Court should be obtained. He further stated that it was the policy of the Police Chief of the District that even if, as a result of the investigation, an accused was found innocent but the eye-witnesses named him he should be sent up for trial. In these circumstances he stated it was finally decided to place Riasat Ali accused in column No. 1 of the police challan and the challan has been sent to the office of the P. D. S. P.

2. Ch. Nazir Ahmad Khan, learned counsel for Riasat Ali respondent, argued that the learned Additional Sessions Judge had applied his mind with care and had assigned cogent reasons to admit the accused to bail and that this Court should not interfere with the proper exercise of the discretion by the learned Add]. Sessions Judge. In support of hits contention he cited Emperor v. Padri Parashad (8 Cr. L J 49), Muhammad Iqbal v. Abdul Basit and another (1968 P Cr. L J 340). He further urged that the police officer of the rank of D. S. P. has found the accused innocent and though the police finally decided to challan him the principles laid down in Piare Dusadh and others v. Emperor (1944 F C1) and Haji Rehmat Khan v. The State (1968 P Cr. L J 1905) would be applicable and the respondent would be entitled to bail. In the Federal Court Judgment their Lordships observed: -

"If nevertheless the investigating police could not make up their minds with regard to the complicity of Ramanand Sahu, the only inference to be drawn there from is that they were not satisfied with the statements of these two witnesses made in the course of the investigation."

3. I have heard the learned counsel for the parties at some length and have given this matter my anxious consideration. The facts of the Federal Court and that of 1968 P Cr. L J 1995 cases are distinguishable as in both these cases there were, conflicting versions of the Police on the record. But in the instant case that very police officer, who pronounced, according to his investigation, the accused innocent, ultimately decided to challan him and placed him in column No. 1. In other words, he himself was not satisfied with the innocence of the accused. If he was sure that the accused, as innocent it was his duty as police officer to place him in column No. 2 of the challan. The policy of a particular policy chief in a District cannot override mandatory provisions of law. As stated earlier, in this case the investigating officer himself decided to challan the accused. The accused is named in N the F: I. R. and the complainant and the two eye-witnesses have charged him that he fired at the deceased.

4. Considering all the circumstances of the case I am of the view that it is not a fit case for bail. I set aside the order of Additional Sessions Judge, Sheikhupura, dated the 8th of October 1969, and direct the accused to surrender to his bail bond.

Bail cancelled.

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