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Petitioner: BASHIR AHMAD and anothers VS Respondent: THE STATE and 2 others
Court Name: Lahore High Court Judge(s): Asif Saeed Khan Khosa Title: BASHIR AHMAD and anothers vs THE STATE and 2 others Case No.: Criminal Revision No,71 of 2001 Date of Judgment:2002-01-23 Reported As: 2002 P Cr. L J 1208 Result: Revision petition dismissed
JUDGMENT
JUDGMENT ' The present issue is one of comparative simplicity. That is to say, the facts of the case are intelligible to the least-instructed layman and, with respect, the only persons utterly at sea are those connected with the law. One may even be tempted to coin a new maxim for such a case; factum clarum, jus nebulosum (the clearer the facts the more dubious the law)! What the petitioners in this case allegedly did is simple and manifest, but how can they be called upon by a Court of law to answer a charge in that regard is a question that has been made to appear before this Court to be a question of gravest difficulty. This apparent difficulty and the resultantly beset ambiguity, however, are not that difficult to resolve. 2. The necessary facts giving rise to the present revision petition are that at about 8-30 a.m. On 8- 11-1999 Hafiz Abdul Ghafoor complainant's brother namely Muhammad Akram was murdered and the complainant (respondent No,3 herein) had lodged F.I.R. No,323 in that regard at Police Station Muzaffarabad, Multan on the same day for offences under sections 148/302/149, P.P.C. In the F.I.R. The complainant had claimed to be an eye-witness of the occurrence which had also statedly been witnessed by Muhammad Yousuf and Farid Ahmad P.Ws. According to the F.I.R. The said murder had been perpetrated by Muhammad Yousaf, Bashir Ahmad (petitioner No,1 herein), Pehlwan, Allah Ditta (petitioner No,2 herein) and an unknown person accompanying them. The unknown person mentioned in the F.I.R. Was subsequently named as Muhammad Iqbal. It was alleged in the F.I.R. That Muhammad Yousuf accused had caused a fire-arm injury on the back of Muhammad Akram deceased near his neck, Bashir Ahmad petitioner had fired a shot at the deceased hitting his right flank and Allah Ditta petitioner had given an injury to the fallen deceased on his head with the butt of his kalashnikov. The other accused persons had also allegedly taken
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an active part in the incident. During the ensuing investigation of this case the police arrested Pehlwan accused who disclosed that the murder had in fact been committed by him with active participation of Muhammad Iqbal accused and one Muhammad Rafiq. The said Muhammad Rafiq was then arrested and he also maintained that the murder was actually committed by him and Pehlwan and Muhammad Iqbal accused but he added that they had done it at the instance of Muhammad Yousuf accused. Upon finalization of its investigation the police concluded that Bashir Ahmad and Allah Ditta petitioners were innocent and the murder of the complainant's brother had actually been committed by Pehlwan, Muhammad Rafiq and Muhammad lqbal accused at the instance of Muhammad Yousuf accused. Resultantly the challan submitted by the police did not place the present petitioners either in Column No,3 or even in Column No,2 thereof. 3. Upon commencement of the trial of this case the learned Additional Sessions Judge, Multan framed a charge on 16-5-2000 with two heads under sections 302/34 and 109/302, P.P.C. To which the accused persons pleaded not guilty and claimed a trial. On 14-2-2001 the learned trial Court started recording the statement of Hafiz Abdul Ghafoor complainant, respondent No,3 herein, as P.W.1 Soon after recording of the complainant's examination-in-chief the complainant submitted an application before the learned trial Court on the same day praying for summoning of the present petitioners to face a trial as the complainant had fully implicated them in the murder in question and had ascribed to each of them an active and specific role therein. On 15-2-2001 the accused persons already facing the trial submitted their joint reply to the said application of the complainant and contested the same. That application of the complainant was finally accepted by the learned trial Court vide order, dated 21-2-2001 and resultantly both the present petitioners were summoned by the Court through non-bailable warrants so as to face a trial for the murder of the complainant's brother. The operative part of that order reads as follows:-- "5. Both the accused namely Bashir Ahmad and Allah Ditta alias Katto are named in the complaint as well as in the statements of two eye-witnesses namely Muhammad Yousuf and Ghulam Farid with their specific role. In the statement-in-chief of P. W.1 Hafiz Abdul Ghafoor complainant, the P.W. Named both the accused with their specific role. According to his statement Bashir Ahmad son of Muhammad Yousaf was armed with carbine and Allah Ditta alias Katto accused was armed with kalashnikov. According to his statement all the accused started firing and one fire hit the motorcycle of Muhammad Akram, with which it fell down and all the accused chased Muhammad Akram and encircled him at some. Distance. Bashir accused fired at Hafiz Muhammad Akram, hitting him on his right flank. Allah Ditta alias Katto give butt blow of kalashnikov on the head of Hafiz Muhammad Akram. The Honourable High Court has not stayed this Court to summon these accused. In view as discussed above, there are sufficient material against these accused to proceed against them, therefore, both the accused be summoned through non-bailable warrants for 28-2-2001." ' This order, dated 21-2-2001 passed by the learned Additional Sessions Judge, Multan has been assailed by the petitioners before this Court through the present revision petition. 4. In support of this petition the learned counsel for the petitioners has addressed two-pronged arguments. His first argument is that the police had found the petitioners to be innocent, nothing incriminatory against the petitioners was mentioned by the police in its report under section 173, Cr.P.C., the petitioners' names were not placed even in Column No,2 of the challan submitted before the Court, no charge was framed by the learned trial Court against the petitioners and none of those steps was challenged by the complainant party before any higher forum or Court and, therefore, the complainant party could not claim and the learned trial Court could not order summoning of the petitioners to face a trial at such a stage. The second argument is that the statement made by the complainant before the learned trial Court as P.W.1 was merely his examination-in-chief and in the absence of any cross-examination of the said witness his
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statement did not qualify to be termed and treated as "evidence" so as to form a basis for issuance of process against the petitioners. The learned counsel for the petitioners has referred to various precedent cases in support of his arguments. As against that the learned counsel for the complainant as well as the learned Assistant Advocate-General appearing for the State have maintained that the impugned order passed by the learned trial Court regarding issuance of process against the petitioners for the purpose of summoning them to face a trial for the murder of the complainant's brother was perfectly in order in the eye of law as sufficient incriminatory material was available on the record against the petitioners and the learned trial Court possessed the requisite jurisdiction to pass such an order at that stage of the case. The learned counsel for the complainant has also supported his submissions with some case-law. 5. After hearing the arguments of the learned counsel for the parties, going through the record of this case with their assistance and attending to the precedent cases referred to by the learned counsel it has emerged that the points of controversy between the parties are as to whether during the progress of a trial a person who had not so far been summoned to face a trial on the basis of the challan submitted by the police can be so summoned or not and whether process can be issued against a person on the basis of a statement made by a witness before the trial Court in his examination-in-chief or he can be summoned only after such a witness has actually been cross- examined. 6. Before embarking upon a discussion of the legal issues involved in the present petition it may be advantageous to refer here to the provisions of Article 2(l)(c) of the Qanun-e-Shahadat, 1984 and sections 190, 193 and 204 of the Code of Criminal Procedure, 1898 (hereinafter referred to in this judgment as Cr.P.C.). The word "evidence" has been defined in clause (1)(c) of Article 2 of the Qanun-eShahadat, 1984 as follows:-- "evidence includes--- (i) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry,, such statements are called oral evidence; and (ii) all documents produced for the inspection of the Court; such documents are called documentary evidence." ' Section 190, Cr.P.C. Provides for taking of cognizance of an offence by a Magistrate in the following terms:-- "190. 'Cognizance of offences by Magistrates.--- (1) Except as hereinafter provided any Judicial Magistrate specially empowered in this behalf by the Provincial Government on the recommendation of the High Court may take cognizance of any offence-- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any Police Officer; (c) upon information received from any person other than a Police Officer, or upon his own knowledge or suspicion, that such offence has been committed. (2) The Provincial Government may empower any Magistrate to take cognizance under subsection (1), clause (a) or clause (b), of offences for which he may try or send to the Court of Session for trial: ' Provided that in case of Judicial Magistrate, the Provincial Government shall exercise this power on the recommendation of the High Court. (3) A Magistrate taking cognizance under subsection. (1) of an offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to Court of Session for trial." Similarly section 193, Cr.P.C. Provides for taking of cognizance of an offence by a Court of Session as follows:-- 193. Cognizance of offences by Courts of Sessions.--- (1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance
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of any offence as a Court of original jurisdiction unless the case has been sent to it under section 190, subsection (3). (2) Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as the Provincial Government by general or special order may direct them to try, or as the Sessions Judge of the Division, by general or special order, may make over to them for trial." Section 204, Cr.P.C. Provides as under:-- "204. Issue of process.--- (1) If in the opinion of a Court taking cognizance of an offence there is sufficient ground for proceedings, and the case appears to be one in which, according to the fourth column of the Second Schedule, a summons should issue in the first instance, it shall issue his summons for the attendance of the accused. If the case appears to be one in which according to that column, a warrant should issue in the first instance, it may issue a warrant, or if it thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Court or if it has no jurisdiction itself some other Court having jurisdiction. (2) Nothing in this section shall be deemed to affect the provisions of section 90. (3) When by any law for the time being in force any process fee or other fees are payable, no process shall be issued until the fees are paid and if such fees are not paid within a reasonable time, the Court may dismiss the complaint." 7. The statutory provisions reproduced above show that at the time of taking cognizance of an offence or even at the time of issuing process against an accused person for the purpose of summoning him to face a trial there is no need, to record any evidence and also that in order to qualify as "evidence" an oral statement of a witness does not necessarily have to be subjected to cross-examination. Cognizance of an offence can be taken by a Magistrate upon receipt of a complaint, report or information without the complainant, reporter or informant having been subjected to cross-examination. Likewise a Court of Session can take cognizance of an offence if a case has been sent to it under subsection (3) of section 190, Cr.P.C. Irrespective of any cross- examination of the complainant, reporter or informant before the Magistrate. As a matter of fact the word "evidence" does not even figure in the provisions of sections 190 and 193, Cr.P.C. In the context of taking of cognizance of an offence by a Magistrate or a Court of Session or in the context of issuing process against an accused person for the purpose of summoning him to face a trial-It is settled law that while taking cognizance of an offence a Court takes cognizance of the offence and not the offender and after taking cognizance of the offence the Court can issue process against and summon any person to face a trial who may appear to it to be connected with such an offence. It is quite significant to notice that for the purpose of issuing process and summoning of a person to face a trial the provisions of section 204, Cr.P.C., which apply to both challan as well as complaint cases, only speak of formation of an "opinion" of the Court taking cognizance of the offence and availability of "sufficient ground for proceeding". Such formation of an opinion or availability of sufficient ground for proceeding have not been made by the Legislature to be conditional upon any recommendation of the police in that regard or availability of "evidence". As a matter of fact it had been held by the Honourable Supreme Court of Pakistan in the case of Raja Khushbakhtur Rehman and another v. The State 1985 SCMR 1314 that:-- "The arguments addressed by learned counsel in fact showed that he laboured under the impression that cognizance is to be taken of the offender, but that is not the law. Under section 190(3), Cr.P.C. The Magistrate takes cognizance of an offence and not the offender. He takes cognizance of the case as a whole and not qua only some of the accused found by the police to be implicated in the case. Cognizance can be taken even if the offenders be unknown. On taking cognizance of the offence the Court acquires jurisdiction overall the persons involved and not only .Over persons against whom the challan is submitted. The word 'cognizance' is a term of art implying application of mind to the facts of a case in order to determine whether the facts
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disclosed constituted an offence triable. Application of mind for the purpose of cognizance under section 190(1) and (3) read with section 193, Cr.P.C., is for the purpose of determining whether the facts disclosed the commission of an offence triable exclusively by the Court of Session, in which case the Magistrate is bound to send the case to the Court of Session for trial. This legal position stands already explained by this Court in Mehar Khan v. Yaqub Khan 1981 SCMR 267 in the words-- ' Even under the recently substituted subsection (3) of section 190, Cr.P.C., a Magistrate who takes cognizance of any offence under any of the clauses of subsection (1) of that section, is required to apply his mind in order to ascertain as to whether the case in question is one which he is required to 'send' for trial to the Court of Session or whether it is one which he can proceed to try himself.' ' Once the Magistrate has taken cognizance of the offence exclusively triable by the Court of Session, he has to send the case to that Court and it is not open for him to send the case only qua those of the accused who are placed in Column No,3 of the challan. The order of the Magistrate shows that the challan had been before him when he ordered the sending of the case to the Court of Session. The contention that he had not applied his mind to the facts of the case is thus devoid of merit. 7. As regards the power of the trial Court to summon the petitioners, who had been placed in Column No,2 learned counsel does not deny that the trial Court is possessed of such power. He contends that the trial Court had not taken proper note of the fact that the petitioners had been found guilty neither by the police nor by the Ilaqa Magistrate to whom the case had been referred under section 202, Cr.P.C. The learned Judge in his order, dated 3-10-1978 has given reasons for summoning the petitioners. He had perused the record before him. His order summoning the petitioners thus suffers from no legal infirmity." Similarly in the case of Waqarul Haq alias Mithoo and another v. The State PLD 1988 Lah. 336 this Court had held that:- "17. It seems to me, however, that the matter is concluded by the dicta in Raja Khushbakhtur Rehman's case. There, as in the present case, the petitioners were persons whose names were placed in Column No,2 of the challan. The learned Magistrate had taken cognizance of the offence and had sent the case, including the case of the petitioners, to the Court of Session; it was held that it was not open to the Magistrate to send the case only qua the accused persons whose names were placed in Column No,3 of the challan, and therefore, the learned trial Judge was fully competent to summon the petitioners as accused persons. One may conceive of a case in which a person accused has not only been found innocent and discharged by the Magistrate's order, but also whose name does not occur anywhere in the police report, either in Column No,2 or Column No,3 but that is not the case here. The petitioner's names were, despite the order of the Magistrate discharging them, placed in Column No,2 of the challan and their case was, therefore, clearly within the rule laid down in Raja Khushbakhtur Rehman's case. The order of discharge made in respect of them was an order under section 63, Cr.P.C. But even if it were an order under section 173, subsection (3), or is treated as an order under that provision, the fact remains that, as in the case of Raja Khushbakhtur Rehman, their names found mention in Column No,2 of the challan and the learned trial Judge, therefore, acted within his jurisdiction in summoning them to stand their trial, The making of an order under section 173(3), Cr.P.C. Could not affect the jurisdiction of the learned Court, for, such an order, to quote from Bahadur v. State PLD 1985 SC 62 is an administrative order and when the Magistrate makes it 'there is no lis before him; there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order'. To put it differently, the making of the order under section 173(3), Cr.P.C. Does not involve, and the order is not made, in the course of, any lis inter partes; it cannot, therefore, create res judicata. 18. Raja Khushbakhtur Rehman's case is, in my opinion, also authority for the view that the summoning an accused person whose name appears in Column No,2 of the challan, it is not
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necessary for the learned trial Judge to record some evidence." ' Subsequently this aspect of the matter was further elaborated by this Court in the case of Muhammad Yaqub v. The State PLD 1998 Lah. 523 by holding that:-- "8. From the above-quoted judgments/authorities it can be gathered that the Sessions Court has to try the case sent up by the Magistrate, after taking cognizance under section 190(3) of the Cr.P.C. ; that the Sessions Court takes cognizance of the offence and not merely the offender and that it is competent to summon the accused discharged by the Magistrate, whose name figures in Column No,2 of the challan, without recording any evidence or reasons. In the present case the petitioner was discharged by a Court order but the case against him was not cancelled. His name was mentioned in the report prepared under section 173 of the Cr.P.C. As one of the assailants though it was mentioned that he was found to be innocent in the investigation conducted by Sardar Muhammad and Muhammad Sadiq, Sub-Inspectors. As the Magistrate has not passed any order for cancellation of the case against the petitioner, the police ought to have mentioned his name in Column No,2 of the challan. The police cannot allocate to itself the function of determining the guilt or innocence of an accused finally. It may record its own opinion on the basis of the material produced before it during the course of investigation but even after finding an accused to be innocent, it must place his name in Column No,2 of the report and leave the final determination of guilt or innocence of the accused to be made by the Court. The omission on the part of the police or the Investigating Agency cannot affect the jurisdiction of the Sessions Court to pass an appropriate order to summon the accused, though found to be innocent by the police. It is true that in all the judgments relied upon by the respondent's learned counsel the name of the accused person -found innocent by the police had figured in Column No,2 of the challan. However, it does not mean that where the police either carelessly omits to mention the name of the accused, found innocent during the investigation or deliberately chooses to do so, he cannot be summoned by the Sessions Court to face trial. Making of various columns in the challan form is a device of convenience. It does not limit the jurisdiction of the Court to try only those accused persons whose names find mention in Column No,2 or 3 of the challan. If a case is sent up for trial to the Sessions Court with brief facts of the case stated under Column No,7 of the challan, the Court is at liberty to summon any person appearing to be involved in commission of an offence irrespective of the fact whether his name finds mention in Column No,2 or 3 of the challan or not. In the case of Raja Khushbakhtur Rehman and another (supra), the Honourable Supreme Court was pleased to hold:- -- 9. It is evident from the above-quoted para. That the jurisdiction of the Sessions Court is too limited to the persons against whom challan is submitted by the Magistrate. Respectfully following the dictum of the Hon'ble Supreme Court, I hold that although the name of the petitioner was not placed by the Investigating Agency under Column No,2 of the challan, the Sessions Court was competent to summon him as an accused person without recording evidence." ' In the recent case of Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63 the Honourable Supreme Court has summed up the law on this subject . With reference to a number of provisions precedents and has reiterated the legal position mentioned above. Thus, the first argument of the learned counsel for the petitioners that in the absence of any challenge to, the challan or the charge in this case and without recording any "evidence" the learned trial Court could not have issued process against the petitioners for the purpose of summoning them to face a trial in this case has been found by me to be utterly unacceptable for the simple reason that such an argument runs contrary to the established legal opinion in that regard. 8. The second argument of the learned counsel for the petitioners regarding the uncross-examined statement of the complainant being not "evidence" for the purposes of sufficing for issuance of process against the petitioners is also equally unacceptable. Firstly, this argument also proceeds
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on the basis of the abovementioned fallacious. Assumption that there should be some "evidence" available on the record before an accused person can be summoned under section 204, Cr.P.C. This clearly is not the correct legal position as is evident from the abovementioned legal precedents as well as from the language of section 204, Cr.P.C. Itself which only provides for formation of an "opinion" by the Court taking cognizance of the offence and availability of "sufficient ground for proceeding". Secondly, even the reliance placed by the learned counsel for the petitioners in this regard upon the cases of Mr. Yahya Bakhtiar, Advocate v. The State through the Secretary, Ministry Df Interior, Government of Pakistan, Islamabad PLD 1983 SC 291, Muhammad Ibrahim and others v. Qudrat Ullah Ruddy and others PLD 1986 Lah. 256 and Muhammad Khan v. Haji Ghulam Qadir Brohi and another 1996 PCr.LJ 99 has been found by me to be inapt in the circumstances of this case. It was observed by the Honourable Supreme Court of Pakistan in the case of Mr. Yahya Bakhtiar, Advocate v. The State through the Secretary, Ministry of Interior, Government of Pakistan, Islamabad PLD…
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