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Petitioner: SOHAIL VS Respondent: THE STATE
1995 P Cr
1995 P Cr. L J 369
[Karachi]
Before Shafi Muhammadi, J
SOHAIL and another---Applicants
Versus
THE STATE---Respondent
Criminal Bail Application No.546 of 1994, decided on 26th September, 1994
(a) Criminal Procedure Code (V of 1898)
----S. 497/498---Bail---Opinion of police officials---Court can take into consideration the circumstances of each case and can refuse or grant bail to an accused in the light of those circumstances and not on the opinion of police officials.
Mukhtar Ahmed v. The State 1984 M L D 1403; Manzoor v The State P L D 1972 SC 81; Mansha v. The State 1976 P Cr. L J 511; Gul Ahmed v. Masan Khan 1977 S C M R 27 and Aitbar Khan v. The State 1977 P Cr. L J 114 ref
(b) Criminal Procedure Code (V of 1898)
----S. 497(2)---Bail---Calling of Investigating, Officer for clarification---Words at any stage of investigation, inquiry or trial", used in S.497 (2), Cr.P.C. are of wide import---High Court and any other competent Court, therefore has powers to call the Investigating Officer of any case at any stage of the case to ask questions to satisfy itself about certain points missing from the police papers before passing any order on bail applications---Concept of the words "inquiry" and "investigation" used in S.497(2), Cr.P.C. cannot be different from their definitions given in S.4(1)(k) and 4(1)(1), Cr.P.C.
(c) Criminal Procedure Code (V of 1898)
----S. 167(2)---Remand of accused to police custody---Irregularities or illegalities committed by investigating police officials ignored by Magistrates highlighted---Instructions and guidelines for Magistrates in such context.
(d) Criminal Procedure Code (V of 1898)
----Ss. 497(2), 169, 170, 173 & 561-A---Bail---High Court's jurisdiction to satisfy itself about grounds for further inquiry into the guilt of the accused-- Every Investigating Police Officer has a statutory duty to investigate a cognizable offence under section L56, Cr.P.C. and he is entitled to carry the investigation to its conclusion in accordance with the provisions of Criminal Procedure Code, but the High Court has jurisdiction to ask questions from the Investigating Police Officers or the Provincial Law Officers before granting or refusing bail to an accused at any stage of the investigation, inquiry or trial, as the case may be, to reach a conclusion or to satisfy itself that there are sufficient grounds for further inquiry into the guilt of the accused/applicant-- Such queries especially in respect of completed investigation do not amount to investigation within investigation and particularly when specific allegations are made against the Police Officers regarding their final report submitted under Ss.169 & 170, Cr.P.C. read with S.173, Cr.P.C. in spite of the widest scope of discretion to be used justifiably and not to be misused as carte blanche.
Shahnaz Begum v The Honourable Judges of the High Court of Sind and Balochistan P L D 1971 SC 677; P L D 1980 Kar 498; Mukhtar Ahmed v, The State 1984 M L D 1403; Manzoor v. The State P L D 1972 SC 81; Mansha v The State 1976 P Cr. L J 511; Gul Ahmed v. Masan Khan 1977 S C M R 2'T; Aitbar Khan v. The State 1977 P Cr. L d 114 and Muhammad Sarfraz Khan's case P L D 1953 FC 317 distinguished.
P L D 1980 Kar 498; Mukhtar Ahmed v The State 1984 M L D 1403; Manzoor v The State P L D 1972 SC 81; Mansha v The State 1976 P Cr. L J 511; Gul Ahmed v. Masan Khan 1977 S C M R 2? and Aitbar Khan v The State 1977 P Cr. L J 114 ref. .
Aslam Rana (in Criminal Bail Applications Nos.632 and 633 of 1991).
I.I. Suleman (in Criminal Bail Applications Nos.546 and 547 of 1994)
Shoukat Hussain Zubedi (in Special Criminal Bail Applications
Nos 11 and 583 of 1994)
K.M. Nadeem, AA.-G. for the State.
ORDER
Applicant Sohail Jan son of John Peter is facing trial in a case under section 17(3) of Offences Against Property (E.H.O.) 1979, which is the out come of an F.I.R. No.802/1991 registered at Police Station Ferozabad, Karachi. His bail application was turned down by the trial Court, hence he preferred his bail application before the High Court in which he alleged that he was arrested by the police on 21-7-1992 alongwith other accused persons and was remanded to judicial custody on 22-9-1992 i.e. after about two months. The Court realised that if the allegations of the applicant were correct, then the conduct of the police was clearly in violation of section 167(2), Cr.P.C. because the Police Officer who was conducting investigation, could not be authorised to keep the applicant/accused for more than 15 days in the whole notwithstanding to the fact that there were more than one cases against the accused in the same police station. It is notable that the present, applicant and his companions were interrogated by Inspector Tajamul Hussain of Special Investigation Cell and the said cell cannot be treated to be different from a police station. On account of these reasons I considered it necessary to call the Investigation Officer of the case namely Tajjamul Hussain to explain the custody of the accused person for a term exceeding the specified period. .
2. On 29-8-1994, Inspector Tajjamul Hussain appeared in the Court and stated that the applicant and his companions were initially arrested by S.I. Abdul Hameed Jatoi in F.I.R. No.40/92, on 26-7-1992 and not on 21-7-1992 as alleged by the applicant. They were released under section 169, Cr.P.C. on 6-8-1992. He further stated that they were again arrested on 10-8-1992 i.e. after 4 days of their release in F.I.R. No.266/1992. Such novel story could not be believed, unless proved otherwise, that the accused had been released by the police especially when they had to be arrested after 4 days. I think that such release must be on the papers only. It is not known how many times Inspector Tajjamul Hussain released and re-arrested the accused person before booking them in the preent case, but, he successfully shifted the burden from his shoulders and placed the same on the shoulders of his subordinate S.I. Abdul Hameed Jatoi who, naturally could not be expected to go against the stand of such influential superior police official. However, the said S.I. Abdul Hameed Jatoi was called in the Court on 8-9-1992 and when he was put in the witness- box to answer certain questions, Mr. K.M. Nadeem, the learned Assistant Advocate-General, Sind objected and submitted that the High Court had no jurisdiction to do so: The learned A.A.-G. further urged that the High Court, while hearing Criminal cases, especially the bail application and exercising Criminal Jurisdiction cannot assume powers of holding investigation within investigation even under section 561-A, Cr.P.C. because the judicial powers and police powers are complimentary and not over-lapping. The learned A.A. G. went on saying that the judicial Authorities should respect the boundaries as set forth by the Criminal Procedure Code (hereinafter referred as the Code) and should not transgress.
3. Considering the above underlined portion of the submission as the "Voice of his heart", instead of treating the same to be harsh on his part, I asked the learned AA.-G. whether he could point out the line of demarcation which could differentiate the boundaries between the judicial powers and the police powers. However, the reply of the learned A.A.-G. was that the Code itself was evident with reference to such powers. Sections 169, 170 and 561-A of the Code were referred by the learned AA.-G. alongwith several citations including the case of Shahnaz Begum v. The Honourable Judges of the High Court Sind and Balochistan reported in P L D 1971 SC 677 in support of his contention. The only impression, which could be drawn by this Court, from the submissions made by Mr. K.M. Nadeem was that the police had certain impregnable powers, which could not be questioned at bail stage especially the power of police under sections 169 and 170 of the Code by any Court.
The submissions advanced by the learned AA.-G. were flashed in Daily "DAWN". Karachi on 11-9-1994 Any silence on the part of the Court could create far-reaching effects of misunderstandings in the minds of Judicial Officers and police officials, hence, keeping in view the above apprehension, background as well as the hot-discussion between the learned -A.A:-G. and the Advocates appearing on behalf of the parties, the following question was formulated by the Court:
"Whether at bail stage, the Court has powers to put any question to the Investigating Officer of any case in order to satisfy itself on any issue concerning the case with reference to powers under sections 169, 170, 173, 4(k), 4(1), Cr.P.C. read with section 561-A, Cr.P.C."
Main arguments were advanced by Mr. Shaukat Hussain Zubedi on behalf of the applicants and Mr. K.M. Nadeem, AA.-G. for the State.
4. The learned AA.-G. has drawn my attention to Article 175(2) of the Constitution of the Islamic Republic of Pakistan according to which "No Court shall have any jurisdiction save as or may be conferred on it by the Constitution or by or under any law".
He submitted that this Article was fully discussed in P Lb 1980 Kar. 498 wherein it was observed that "High Court is as much slave of the Constitution and law as any other Court, their powers being regulated by law or Constitution". The contention that High Court as Superior Court possesses jurisdiction to determine its own jurisdiction is not correct".
On the basis of the above-cited judgment, the learned AA.-G. submitted that the High Court should determine the scope of its jurisdiction with reference to sections 169 and 170 read with section 561-A Of the Code.
Without touching the background of the cases cited by the learned AA.-G. I would like to make it clear that I
would be the last one to go beyond the boundaries of my jurisdiction set by the Constitution and I have no doubt in my mind that the Courts are creatures of the Constitution, slave of the Constitution, bound to act according to the Constitution and have to derive their powers and jurisdiction from the Constitution within the limits set forth by the Constitution. At the same time, I want to make it clear that I was not working against the Constitution when I wanted to ask questions from the Investigating Officer, of the case to satisfy myself about certain ambiguous facts of the case. However, I would like to discuss the scope of sections 169 and 170, Cr.P.C. in detail on account of the objections raised by the learned AA.-G.
5. So far as section 169, Cr.P.C. is concerned it deals with the powers bf "Officer Incharge of the Police Station" or to the Police Officer making the investigation while section 170, Cr.P.C. seems to be concerned only with the "Officer Incharge of the Police Station.
For our ready reference both these sections are reproduced below:
"169. Release of accused when evidence deficient--- If, upon an investigation under this Chapter, it appears to the Officer-in-charge of the police station, [or to the Police Officer making the investigation] that there is not sufficient evidence or reasonable ground of 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."
"170. Case to be sent to Magistrate when evidence is sufficient.--- (1) If, upon an investigation under this Chapter, it appears to the Officer-in charge of the Police Station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or send him for trial or, if the offence is bail-able and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and .for his attendance from day to day before such Magistrate until otherwise directed.'
It is evident from the above that the words within parenthesis in section 169, Cr.P.C. do not appear in section 170, Cr.P.C. and such difference cannot be deemed meaningless. It seems that for the purpose of release of an accused on the grounds mentioned in section 169, Cr.P.C. two persons are empowered to do so i.e. (i) Officer Incharge of the police station as well as the (ii) Investigating Police Officer but for the purpose of treating any accused to be involved in an offence only Officer Incharge of the Police Station is competent to book an accused. It is impossible for the Officer Incharge of a Police Station to conduct investigation of each and every case therefore, investigation of case can be done by any other Officer also as is evident from section 169, Cr.P.C. But in section 170, Cr.P.C., there is only mention of Officer Incharge of the police station and not any other Investigating Officer. Hence the intention of the law must be nothing except that the Officer Incharge of a police station must carefully go through the investigation done by any of his subordinate and when he is satisfied that there is sufficient evidence or reasonable grounds exist to justify the forwarding of the accused to a Magistrate to try the accused or send him for trial, it is only then that he should exercise his powers under 170, Cr.P.C. by forwarding the result of such investigation under section 173, Cr.P.C. to a Magistrate empowered to take cognizance of the offence on such police report.
It is also evident that sections 169, 170 and 173 of the Code have to be read together because they relate to a final report of a case. Section 169, Cr.P.C. relates to cases in which no person is sent up for trial while section 170, Cr.P.C. is concerned with cases in which some one is sent up to face trial and section 173 contains general, directions relating to both. But in exercise of powers under those sections, main duty is cast upon the Officer incharge of the Police Station, no matter, he is the Investigating Officer of a case himself or the investigation has been done by any of his subordinate. There is nothing in these sections to show that `police officials are protected from being questioned in respect of their investigation at bail stage. The contention of the learned AA.-G., that such conduct would amount to "investigation within investigation" is totally misconceived because this Court had not started interfering in any investigation under progress but was going to ask questions about the cases in which final report of investigations done by Inspector Tajjamul Hussain or by S.I. Abdul Hameed had already been submitted under section 169 or 170 of the Code. These Police Officers had shown the applicants arrested and released by now and then and Inspector Tajjamul Hussain had submitted a statement before the High Court previously showing the applicants to be involved in two cases only, but as soon as, these criminal miscellaneous applications became infructuous, he again got the custody of the applicants from jail which shows that he had failed to prove his competency. On account of these reasons if queries by the Court had been investigation within investigation, as expressed by the learned AA.-G. then every trial by any Court, after the final report is submitted before the Court, would also fall within the ambit of "investigation within investigation".
6. Similarly the view of the learned AA.-G. that the Police Officers cannot be taken to task on account of their reports under section, 169 or 170, Cr.P.C. is not well-founded. For example if any corrupt Investigating Police Official releases the desperate criminals under section 169, Cr.P.C. on the strength of their being rich, influential or due to bribe or books an innocent person to face trial by misusing his powers under section 170, Cr.P.C. when the poor accused does not meet the demands of 'the corrupt police officials, then in all such cases, the Courts are not supposed to remain immune to such barbarism, if the sufferers knock the doors of the Courts. As the well-known conduct of the corrupts in the police ranks never remained hidden from the Courts, therefore, the superior Courts never treated the police reports under section 169 or 170, Cr.P.C. as sacrosanct Gospel truth as is clear from the following references.
In the case of Mukhtar Ahmed v The State reported in 1984 M L D 1403, the police had declared the accused innocent but the Court observed at bail stage that the finding as to the innocence of the accused was not well-founded. Hence the bail application of the accused was dismissed.
In the case of Manzoor v The State reported in P L D 1972 SC 81, the Court gave its observations by saying that "It is obviously not correct to depend on the Ipse dixit of police regarding the guilt or innocence of an accused person even in the matter of deciding the question of his bail. In this case bail, was refused to the accused by the Supreme Court.
However, the Court can take into consideration the circumstances of each and every case and can refuse or grant bail to any accused in the light of A those circumstances and not on the opinion of the police officials. For example, in the case of Mansha v The State reported in 1976 P Cr. L J 511, two investigating reports had declared the accused persons to be innocent. However, the Court granted bail to the accused on the basis of other circumstances according to which the prosecution had not at all explained some incised injuries, which were found on the body of the deceased.
In the case of Gul Ahmed v. Masan Khan reported in 1977 S C M R 27, the C.I.A. Staff had held the accused innocent as a result of their investigation. The learned Chief Justice of the Peshawar High Court allowed bail to the accused persons on the basis of that report but the Supreme Court set aside the impugned order of enlargement, because circumstances of the case did not support the result of the investigation done by the police.
In the case of Aitbar Khan v The State reported in 1977 P Cr. L J 114, the accusd was named in F.I.R. armed with pistol and had used the same to' kill the deceased but 'he Investigating Officer had declared him innocent. Even his superior Officer had affirmed the innocence of the accused but the Court did not believe the police and refused bail to the accused on the basis of circumstances.
There are only few examples, which reflect the character of corrupt police officials who misuse their powers under section 169 or 170, Cr.P.C. Can the learned A.A: G. consider that the superior Courts had conducted "investigation within investigation" before reaching any such conclusion to decide the bail application?
7. Perhaps the unreliable conduct of corrupt police officials was one of the reasons of inserting section 249-A, Cr.P.C. in the Code according to which every Magistrate has been empowered to acquit an accused at any stage of the case, if he considers that the charge against an accused sent for trial by the police is groundless. In other words, the final report of police is not to be supposed as truth and nothing but truth. If a Magistrate has powers to acquit an accused under section 249-A, Cr.P.C. on the basis of record submitted by the Officer Incharge of the Police Station by treating the charge against the 'f11 accused to be groundless, then it would be a painful frivolity with .the High Court, if not an insult or contempt of Court, to consider that a High Court has no jurisdiction to ask questions from an Investigating Officer of a case to satisfy itself on any issue concerning the bail application. .
Under section 497(2), Cr.P.C. every competent Court is empowered to release an accused on bail at any stage of the investigation, inquiry or trial provided it appears to the Court that there are not reasonable grounds for believing that the accused has committed a non-bail-able offence and there are sufficient grounds for further inquiry into his guilt. A Judge of a High Court is not supposed to possess some mystical, magical, supernatural or spiritual powers on the basis of which he (now she also) could reach a correct conclusion only by going through the police papers because such papers always show one side of the story as painted by the prosecution. Moreover, the words "at any stage of investigation, enquiry or trial", used in section 497(2), Cr.P.C. arc wide enough in their nature. Therefore, not only the High Court but every competent Court has powers to call the Investigating Officer of any case at any 8 stage of the case to ask questions to satisfy itself about certain points missing from the police papers before passing any order on bail applications. The concept of the words "inquiry" and "investigation" used in section 497(2), Cr.P.C. cannot be different from their definitions given in sections 4(k) and 4(1) of the Code.
8. The learned A.A.-G. has referred several cases in support of his, contention but mainly relied upon the cases of Muhammad Sarfraz Khan P L D 1953 FC 317 and of Shahnaz Begum P L D 1971 SC 677. None of the two cases were concerned with the bail applications hence they have nothing to do with the bail applications pending before this Court. As I would not like: to leave any room for others to call this order "a decision passed sub-silent", hence l consider it necessary to give the summary of both the cited cases with reference to their backgrounds.
In the first cited case, accused Muhammad Sarfraz Khan, accompanied by two servants namely Ramzan (a driver) and Sharif, had visited the brothel house of one Khair Din, in the prostitutes" quarter of the town of Montgomery and after enjoying the music provided by Mst. Gulzar Begum, the daughter of Khair Din, he wished Mst. Gulzar Begum to accompany him to his own house. Neither Khair Din nor her daughter were ready to bow before the wishes of Muhammad Sarfraz Khan, hence he started beating Khair Din with the help of his two servants. Two persons namely Yousuf (lover of the second sister of Mst. Gulzar Begum) and Saeed (husband of the third sister) intervened to save him and in this scuffle, Yousuf was shot dead and Saeed was injured. The prosecution brought two versions of the incident before the Magistrate, out of which one had been believed by the Session, Court. When the case came before the High Court for confirmation of death at appellate stage, the High Court adopted the second version with the following remarks:
"This case, which comes to us on appeal from a conviction of murder and reference for confirmation of a death sentence and is the first of its kind in the experience of every one concerned, is a remarkable illustration of how money may thwart the course of justice, screen the real murderer and induce a completely innocent man voluntarily to lei a bullet pass through his body and to take the halter round his neck, The actual murderer is Muhammad Sarfraz Khan, a wealth Zamindar of Montgomery, and the man who from feelings of loyalty for his master or temptation agreed to be shot through the wrist and almost walked-up to the gallows is his chauffeur Muhammad Ramzan."
Hence the Federal Court observed that:
"These categorical propositions formulated at the very commencement of the judgment indicate with clearness what were the underlying 1 beliefs in the minds of the learned Judges when they approached the task of appraising the evidence."
Such a mode of approach entails serious risk of prejudice to Sarfraz Khan, the more so as the beliefs were largely, in the judicial sense, unfounded.
It is notable that the High Court had not only started recording additional evidence in support of second version of the prosecution story, of such persons at appellate stage who were not witnesses at the trial instead of believing the first version believed by the Session Court at trial but also expressed its view by saying that:
"We have no hesitation in holding that whoever expressed the opinion that Muhammad Sarfraz Khan was innocent and that the guilty party was Ramzan could not possibly have arrived that result in fair and honest manner."
In the light of the abovementioned background of the case, it was observed by the Federal Court that:
"In order that it should interfere with a conclusion reached by a High Court particularly if the conclusion is in accord with that of the trial Court or other subordinate Court, it is necessary that there should be such a disregard of the forms of legal process, or such a violation of principle as amounts to a denial or perversion of justice. The disregard or violation should not be merely technical in character; it should be both grievous as well as substantial. Lastly, it is necessary that resultant injustice of a serious and substantial character should appear. Unless the…
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