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Petitioner: ASHIQ HUSSAIN VS Respondent: SESSIONS JUDGE, LODHRAN and 3 others
Court Name: Lahore High Court Judge(s): Asif Saeed Khan Khosa Title: ASHIQ HUSSAIN vs SESSIONS JUDGE, LODHRAN and 3 others Case No.: Criminal Miscellaneous No,25-Q of 2001 Date of Judgment:2001-04-10 Reported As: PLD 2001 Lahore 271 Result: Order accordingly
JUDGMENT
JUDGMENT ' Sometimes either through misunderstanding of law or through lack of proper application of mind by those concerned a simple concept of law or practice assumes a meaning which is neither contemplated by the relevant law itself nor the same fits into he normal scheme of things. One such example is the law relating to 'discharge' of an accused person in a criminal case. It is unfortunate that of late a lot of confusion has been created about the true meaning and scope of discharge of an accused person in a criminal case. Lately an understanding is gaining ground that discharge of an accused person in a criminal case means that further investigation qua him or his prosecution for the reported crime has come to an end, he has finally been absolved of the allegations with his discharge virtually having the effect of an acquittal and, because of such a consequence of an order of discharge, such a discharge can be ordered only by the Court competent to try the offence in question and not by a Magistrate if he otherwise lacks jurisdiction to try the relevant offence. All these views have in fact been expressed before me in the present case by the learned counsel for the petitioner. Unfortunately all such notions and impressions about discharge are misplaced and misconceived. Therefore, through the present judgment I propose to restate the legal position in this regard. 2. The necessary facts giving rise to the present petition filed under section 561-A, Cr.P.C. Are that Ashiq Hussain petitioner's son of Muhammad Munib, aged about 11/12 years, was allegedly subjected to carnal intercourse against the order of nature by Muhammad Zubair accused after Isha prayer time on 17-9-2000 in the Chaubara of Muhammad Rafique, respondent No,3 herein, situated in village Dunyapur within the area of Police Station City, Dunyapur, District Lodhran.. Muhammad Rafique respondent had allegedly abetted his co-accused Muhammad Zubair in that
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regard. At about 11-00 p.m. During the same night F.I.R. No,184 was lodged by Ashiq Hussain petitioner in respect of the said incident at Police Station City, Dunyapur for offences under section 377, P.P.C. And section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. 3. During the investigation of that case Muhammad Rafique respondent and his co-accused Muhammad Zubair were arrested by the local police on 21-9-2000 and on the next day, i,e, on 22- 9-2000 both of them were produced bete the Ilaqa Magistrate, i,e, Civil Judge 1st Class/Judicial Magistrate Section 30, Dunyapur, respondent No,2 herein, with an application by the local police seeking their judicial remand for a period of fourteen days. On 22-9-2000 the respondent Magistrate accepted the application of the local police in respect of Muhammad Zubair accused and granted his judicial remand till 6-10-2000 whereas the application was turned down qua Muhammad Rafique respondent who was discharged. 4. While discharging Muhammad Rafique respondent the respondent Magistrate had recorded in his order that the allegation against Muhammad Rafique respondent was only in respect of abetment of his co-accused Muhammad Zubair and the only witness of the said alleged abetment was none other than the victim himself namely Muhammad Munib. It was noticed by the respondent Magistrate that till the passage of the said order of discharge the police file did not contain any statement of Muhammad Munib under section 161, Cr.P.C. And that a few sentences referring to some such non-existent statement made by Muhammad Munib appeared to have been inserted in the police file by way of interpolation. According to the respondent Magistrate Ashiq Hussain complainant and the other two eyewitnesses mentioned in the F.I.R. Were admittedly not witnesses of the alleged abetment provided by Muhammad Rafique respondent to his co- accused Muhammad Zubair and in the absence of any statement of Muhammad Munib on the police file the case against Muhammad Rafique respondent was one of no evidence till that stage. It is also recorded in the said order passed by the respondent Magistrate that the police file showed that as many as thirty-five persons had appeared before the Investigating Officer stating about innocence of Muhammad Rafique respondent and that Ashiq Hussain complainant had refused to accept an offer of settlement of the matter of involvement of Muhammad Rafique respondent on the basis of an oath on the Holy Qur'an. The respondent Magistrate had, thus, concluded that till that stage the case against Muhammad Rafique respondent was that of no evidence at all and, according to the respondent Magistrate, it would be extremely unjust and oppressive to send a decent citizen to jail on the basis of an allegation which was not supported by any evidence whatsoever. 5. Ashiq Hussain petitioner-complainant preferred a revision petition before the Court of Session, Lodhran against the said order of discharge passed by the respondent Magistrate on 22-9-2000. 'The only ground urged by Ashiq Hussain petitioner before the Court of Session was that the respondent Magistrate lacked jurisdiction to pass the impugned order of discharge as the victim of this case was a child below the age of twelve years and an offence under section 377, P.P.C. Committed against a child of that age was one of 'child molestation' which was triable exclusively by a Special Court constituted under the Anti-Terrorism Act, 1997 and, therefore, an order of discharge of an accused person involved in such a case could have been passed only by a Special Court and not by a Magistrate. That revision petition was, however, dismissed by the learned Sessions Judge, Lodhran vide judgment dated 11-12-2000 holding that the material available with the respondent Magistrate was not sufficient to conclude that the victim of this case namely Muhammad Munib was a child below the age of twelve years and, therefore, the case in question did not attract the jurisdiction of a Special Court constituted under the Anti-Terrorism Act, 1997 ousting the jurisdiction of the respondent Magistrate to pass an order of discharge. Hence, the present petition filed by Ashiq Hussain petitioner before this Court under section 561-A, Cr.P.C. Seeking quashing of the impugned order of discharge of Muhammad Rafique respondent passed
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by the respondent Magistrate on 22-9-2000 and setting aside of the judgment dated 11-12-2000 passed by the learned Sessions Judge, Lodhran. It has also been, prayed by Ashiq Hussain petitioner in this petition that upon quashing of the impugned order passed by the respondent Magistrate and setting aside of the impugned judgment passed by the learned Sessions Judge, Muhammad Rafique respondent may be ordered to be taken into custody and be proceeded against in accordance with law. 6. In support of this petition it has been argued by the learned counsel for the petitioner that in the circumstances of this case the respondent Magistrate was not justified in letting Muhammad Rafique respondent off the hook and in absolving him of the allegation against him as the complainant party or the prosecution could still prove his guilt through producing evidence in that regard before the Investigating Agency or the trial Court. It has also been contended by the learned counsel for the petitioner that the case in hand was one of 'child molestation' within the purview of section 6 of the Anti-Terrorism Act, 1997 and an offence involving a 'terrorist act' of this nature was triable exclusively by a Special Court constituted under the Anti-Terrorism Act, 1997 as an offence under section 377, P.P.C. Is a scheduled offence "if the victim is below the age of twelve years and committed after the commencement of this Act". It has been maintained by the learned counsel for the petitioner that the victim in the present case was less than twelve years of age at the time of commission of the offence under section 377, P.P.C. According to the learned counsel for the petitioner if the present case was triable exclusively by such a Special Court then the respondent Magistrate had no jurisdiction to discharge Muhammad Rafique respondent. In this regard reliance has been placed by the learned counsel for the petitioner upon the cases of Sardar Muhammad v. Zaffar Javaid Awan, etc. PU 1996 Lahore 680 and Muhammad Dildar Hussain and another v. The Civil Judge/Judicial Magistrate, Shujabad and 3 others 2000 PCr.LJ 43. 7. As against that the learned Assistant Advocate-General and the learned counsel for Muhammad Rafique respondent have maintained that there was no reliable evidence available against Muhammad Rafique respondent and, thus, the respondent Magistrate was amply justified in passing the impugned order of discharge of Muhammad Rafique -respondent at that stage. They have further maintained that in the circumstances of this case the respondent Magistrate had the requisite jurisdiction to pass the impugned order of discharge irrespective of the fact as to which Court is to ultimately try this case. 8. After hearing the learned counsel for the parties and going through the record of this case with their assistance it has been observed that the offences involved in this case are those under section 377, P.P.C. And section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. According to the provisions of section 12 of the Anti-Terrorism Act, 199-7 a Spesial Court constituted under the said Act can try only a scheduled offence and by virtue of the provisions of section 17 of the said Act when trying a scheduled offence a Special "Court may also try any offence other than a scheduled offence with which an accused person may under the Code of Criminal Procedure be charged at the same trial. Admittedly an offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is not included in the Schedule appended with the Anti- Terrorism Act, 1997 whereas an offence under section 377, P.P.C. Is a scheduled offence only "if the victim is below the age of twelve years and committed after the commencement of this Act". Although no doubt the occurrence in this case had allegedly taken place after commencement of the Anti-Terrorism Act, 1997 yet the age of the victim in this case being below twelve years at the relevant time is an asserted fact which is far from being established so far. In his judgment dated 11-12-2000 the learned Sessions Judge, Lodhran had dilated upon this aspect of the matter in the following words: "Ashiq Hussain, the complainant; is the father of victim who stated in the F.I.R. That his son, namely, Muhammad Muneeb is aged about 11/12 years old. The Medico-legal report also indicates that the
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victim was 12 years old. The complainant has himself mentioned the age of the victim about 12 years. Therefore, the case is not triable by Special Judge Anti-Terrorism Act. In these circumstance, there is no ground to interfere in the impugned order. Hence, this revision petition is dismissed." ' During his final arguments before this Court the learned counsel for the petitioner has produced before this Court a photocopy of an extract from the Register of Births maintained by the Municipal Committee, Dunyapur showing the victim's date of birth as 30-9-1988 and, thus, an effort has been made to establish before this Court that the victim was 11 years 11 months and 17 days old at the time of the occurrence. The said copy had statedly been issued on 27-9-2000. However, admittedly no such proof about the exact age of the victim was available before the respondent Magistrate at the time of passage of the impugned order by him on 22-9-2000. All that the respondent Magistrate had before him at that time was the material available on the police file approximately describing the age of the victim to be "11/12 years". Thus, in the absence of any conclusive proof to the effect that the victim was definitely "below the age of twelve years" at the time of the alleged occurrence the respondent Magistrate was not expected to readily abdicate his normal jurisdiction under the Code of Criminal Procedure regarding remand or discharge and to advise the parties to approach in that respect a Special Court the jurisdiction of which vis-a-vis the present case was still dependent upon a fact which was far from being admitted or established. Therefore, keeping in view this and other similar cases of this peculiar nature I am minded to hold that as long as jurisdictional facts prima facie ousting the jurisdiction of a Magistrate in respect of remand or discharge of an accused person are not established on the record a Magistrate is quite competent and justified in not abdicating his normal and general jurisdiction in that regard under the Code of Criminal Procedure in favour of a Special Court constituted under a special statute. When confronted with this situation the learned counsel for the petitioner has advanced an alternate argument maintaining that a case involving an offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is triable by a Court of Session and even in such cases a Magistrate has no jurisdiction to discharge an accused person. This alternate argument of the learned counsel for the petitioner shall be adverted to in the later part of this judgment. 9. This aspect of the matter can also be looked at from another angle. The learned Sessions Judge had and this Court has been asked to adjudge the correctness of the impugned order passed by the respondent Magistrate on 22-9-2000. The correctness of that order is, therefore, to be adjudged on the basis of the facts available by that time and subsequent availability of some proof having a bearing on the matter cannot be utilised for holding that the respondent Magistrate had decided the matter incorrectly at that stage. Such subsequent proof, if prima facie reliable, can steer the matter on correct lines prospectively but the same cannot be used retrospectively for undoing things already done and for retracing steps already taken in the past correctly according to the facts available by that time. 10. There may be yet another perspective from which this issue can be examined. By virtue of the provisions of section 167 of the Code of Criminal Procedure Muhammad Rafique respondent could have been kept in custody by the police only for a period of twenty-four hours and not beyond that period unless an order of remand was obtained for his further custody either with the police or in judicial lock-up. Even clause (2) of Article 10 of the Constitution of the Islamic Republic of Pakistan, 1973 guarantees it as a Fundamental Right that "Every person who is arrested and detained in custody shall be produced before a Magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the nearest Magistrate, and no such person shall be detained in custody beyond the said period without the authority of a Magistrate". Muhammad Rafique respondent was arrested on 21-9-2000 and by 22- 9-2000 he was legally as well as constitutionally entitled to be released if no order of his remand was passed by a competent authority. Thus, if the present petition is allowed and the impugned
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order of discharge of Muhammad Rafique respondent passed by the respondent Magistrate on 22-9-2000 is set aside on any ground still the fact remains that no order of his remand was ever passed by any authority on 22-9-2000 or on any date subsequent thereto and, thus, after expiry of twenty-four hours of his arrest he was entitled to become a free man, and he so remains till today. Therefore, even if the impugned order of discharge passed by the respondent Magistrate is set aside by this Court upon acceptance of the present petition still Muhammad Rafique respondent does not automatically go back to custody of any sort. I am sure Ashiq Hussain petitioner or his learned counsel would not be pleased with such a result! 11. As regard the merits of the impugned order of discharge passed by the respondent Magistrate suffice it to observe that Muhammad Rafique respondent is not the principal accused in this case and the only allegation levelled against him in the F.I.R. Was that of abetment of his co-accused namely Muhammad Zubair. The learned counsel for the petitioner has remained unable to contradict the fact recorded in the impugned order of discharge that by the time the said order was passed by the respondent Magistrate on 22-9-2000 no material or evidence at all was available on the police file qua abetment allegedly provided by Muhammad Rafique respondent to his co-accused Muhammad Zubair. The respondent Magistrate had also noticed some manifest irregularities committed by the. Investigating Officer which had apparently rendered the implication and involvement of Muhammad Rafique respondent in the present case to be quite suspicious. Thus, I have felt satisfied that the discharge of Muhammad Rafique respondent by the respondent Magistrate at that stage was quite justifiably called for and the impugned order dated 2-9-2000 is, therefore, not open to any legitimate exception on the merits of the matter. 12. The notions entertained by Ashiq Hussain petitioner and his learned counsel that the legal effect of the impugned order of discharge is that Muhammad Rafique respondent has been let off the hook and absolved of the allegation levelled against him, and that he is now immune from further investigation by the police or trial by the trial Court are notions which have of late been advanced and urged before this Court with some frequency in different cases and, therefore, the same need serious attention. After hearing detailed arguments advanced by the learned counsel for the parties in these regards I have found it to be imperative that in order to arrive at correct conclusions vis-a-vis the true legal effect and scope of 'discharge' of an accused person in a criminal case a comprehensive survey and analysis of the law on the subject is necessary and, thus, such an exercise is undertaken in the following paragraphs. 13. Upon registration of a criminal case with the police the latter, being the principal Investigating Agency, embarks upon an investigation of the reported crime. According to section 4(1) of the Code of Criminal Procedure, 1898 (hereinafter referred to in this judgment as the Code) an 'investigation' is the other name of collection of evidence in respect of the crime in question. During such an investigation the police may or may not arrest an accused person as it may suit proper investigation. According to section 63 of the Code: "No person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate." This provision clearly demonstrates that the concept of discharge of an arrested person is restricted only to the question of his release from custody and nothing more. This understanding is further fortified by the provisions of section 169 of the Code according to which: "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
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empowered to take cognizance of the offence on a police report and to try the accused or send him for trial." This provision of the Code not only confirms the fact that the bond got executed from an accused person by such a police officer is relevant only to his custody and release for the time being but at the same time it also visualises a possibility that even an accused person released on the basis of such a bond and against whom there is no sufficient evidence available with the Investigating Officer for the time being may still be tried by a Court if a subsequent report by the police before the Magistrate recommends so on the basis of subsequently gathered evidence and such a recommendation is favourably treated by the Magistrate. The provisions of subsection (1) of section 170 of the Code further clarify the position by providing that: "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 bailable 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." Such taking of security from the accused person and his release is, thus, possible even in a case where there is sufficient evidence available against him on the basis of investigation. This again shows that release of an accused person during the investigation on the basis of a bond or security is only I confined to the matter of his custody during such investigation and the same has no bearing on the question whether he would or would not be ultimately tried for the offence involved. Section 173 of the Code is critically relevant to the discussion in hand and, therefore, the relevant provisions thereof are reproduced here for facility of reference: "Report of police officer.---(1) Every investigation under this Chapter shall be completed without unnecessary delay and as soon as it is completed, the officer-in-charge of the police station shall through the public prosecutor--- (a) forward to a Magistrate empowered to take cognizance of the offence on a police report, in the form prescribed by the Provincial Government setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and (b) Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under section 154, the officer-in-charge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence. (2) (3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he may think fit. (4) (5) The provisions of the proviso to clause (b) of subsection (1) of section 173 of the Code clearly envisage holding of a trial by a Magistrate or by a Court of competent jurisdiction to which he
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sends the case for trial on the basis of the police report submitted by the officer-in-charge of the police station and for. The purpose of holding a trial no distinction has been contemplated between an accused person who is in custody and an accused person who has been released on bond or security. Subsection (3) of section 173 of the Code reproduced above also leaves no room for ambiguity that the matter of discharge or otherwise of such a bond vis-a-vis an accused person only relates to his custody and the same has nothing to do with his trial. The question whether such a discharged accused person or even an accused person in custody is to face a trial or not depends upon satisfaction of the trial Court regarding sufficiency or otherwise of the material available against him on the record and the same is in no way conditional upon his custody or otherwise or even upon his having been discharged of his bond or not. 14. The resume of the statutory provisions referred to above is that the word 'discharge' appearing in section 63 and subsection (3) of section 173 of the Code has been used in the context…
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