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Petitioner: TARIQ SAYEED AND ANOTHER VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Abdul Qadir Sheikh Title: TARIQ SAYEED AND ANOTHER vs THE STATE Case No.: Criminal Revision Application No, 22 of 1976 Date of Judgment:1976-10-24 Reported As: PLD 1977 Karachi 235 Result: Revision application allowed
JUDGMENT
JUDGMENT ' This Revision application under section 439, Cr. P. C. Is directed against the order of the Vlth Additional Sessions Judge, Karachi, dated the 27th July, 1976 by which he rejected application filed by the District Public Prosecutor, Karachi under section 494, Cr. P. C. For the withdrawal of the case against the two Applicants Tariq Saeed. And Syed Zia Abbas under section 302/ 307/149, Cr. P. C. ' The facts of the case may be summarized as below :- ' The two applicants along with six others, namely, Habib-ur-Rehman, Rustam Khan, Zaibta Khan, Hussain Khan, Mir Ajab Khan and Mohammad Akbar are facing trial under section 302/307/149, P. P. C. For having caused the murders of Noor Hassan and Abdul Hassan and made murderous assault on Fazal Qayyum in front of Qadri Hotel, Chowk Masjid Road, Keamari at 1-30 p. m. On 6th September, 1974. The First Information Report of the crime was lodged by Bakhtayar Khan, within a matter of 15 mimutes of the incident with the Jackson Police Station, Karachi, two furlongs away. Bakhtyar Khan alleged in the F. I. R.That Habib-ur-Rehman. Accompanied by Hassan Khan, Zaibta Khan, Rustam Khan, Mohammed Akbar, Zia Abbas and Tariq Aziz (not Tariq Saeed) came in Jeep No, KAK 7626 to the Hotel of Mir Hassan, followed by Mir Ajab Khan, who reached on a scooter. They all got down from the jeep and scooter and Zia Abbas asked his companions to take advantage of the situation and "finish our enemies". At the time of the incident Abdul Hassan, Noor Hassan and Fazal Qayyum were standing outside the Hotel. Habib-ur-Rehman opened the assault by firing gun and the bullet hit Noor Hassan in the eye. Rustan Khan then fired his gun at Abdul Hassan which struck his head. Thereafter Zaibta Khan fired his gun as a result of which Fazal Qayyum was hit in the buttocks. All the culprits then used their weapons namely, guns, rifles and pistols resulting in the death of Noor Hassan and Abdul Hassan brothers of Mir Hassan.
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' The motive for the crime stated by Bakhtyar Khaa was that Habib-urRehman and Rustom Khan who are related to Mir Hassan had long-standing enmity with his family. ' The Police Investigation commenced immediately after the registration of the crime and it is said that large number of witnesses were examined who deposed to the alibi of both the applicants Tariq Saeed and Zia Abbas. According t one of the eye-witnesses-namely, Idris, both these applicants were not present with the other accused persons at the time of the incident. As regards Tariq Saeed is concerned his name was mentioned by Bakhtyar Khan as Tariq Aziz. The only allegation atiainst him and Mir Ajab Khan is that both of them were present. Mir Ajab Khan produced a medical certificate in support of his plea of alibi that he was under treatment as an indoor patient in the Services Hospital, Hyderabed from 5th to 7th September, 1974. ' In view of these circumstances, Second Additional Sessions Judge, Karachi, granted applicants' request for bail and the case had come up earlier before me in Criminal Miscellaneous Applications Nos 778 and 779 of 1974 for cancellation of bail granted to the applicants. While rejecting bath these Criminal Miscellaneous Applications by order dated 20th May, 1975 I made the following observations : - "On the other hand, learned Additional Advocate-General appearing for the State opposed the applications for cancellation of bail and supported the order passed by the learned Additional Sessions Judge, Karachi. Messrs Mohammad Hayat Junejo, S. S. Shaikh and Muzaffar Hussain Shah !Earned counsel appearing for the respondents Syed Zia Abbas, Tariq Sayeed and Mir Ajab Khan supported the order of learned Additional Sessions Judge, Karachi by pointing out two obvious factual errors in the version given by Bakhtiar Khan petitioner in the F. I. R. Itself. These errors are, indeed admitted. One pertains to the assertion that except for Mir Ajab Khan, other culprits came in Jeep No, KAK-7626, and the other relates to the name of 'Tariq Aziz' as culprit, which has been afterwards substituted for 'Tariq Saeed' respondent. It is admitted by all the learned counsel for the parties at the Bar that vehicle No, KAK-7626 is not a jeep, but a Toyota car. So far as the name of Tariq Aziz as one of the culprits is concerned, it is admitted that the name was subsequently changed to Tariq Sayeed. I further find that certain interpolations have been made is the police papers, and the name has been substituted by Tariq Saeed." It seems that the overall position of the prosecution case was examined and later on the District Public Prosecutor made an application under section 49J, Cr. P. C. For the withdrawal of the case against the applicants. In order to appreciate the contentions raised before me it is necessary to reproduce the grounds mentioned in support of this application : "(1) That the prosecution case in brief is that on 6-9-1976 at about 1-30 p. m. Habibur Rehman accompanied by Hussain Khan, Zaibta Khan, Rustom Khan, Mohd. Akbar, Zia Abbas and Tariq Saeed went to the Qadri Hotel of Mir Hassan, where it is alleged that Habibur Rehman fired at Noor Hassan, Rustom Khan fired at Abdul Hassan and Zaibta Khan fired at Abdul Hassan and Zaibta Khan fired at Fazal Qayyum, resulting in the death of Noor Hassan and Abdul Hassan brothers of Mir Hassan. In the F. I. R. It is stated that "Habibur Rebman and Rustom Khan are relatives of Mir Hassan and have long-standing enmity with his family while no allegation of any kind of enmity is made against Zia Abbas and Tariq S weed. The only role assigned to Zia Abbas is one of instigation while no overt act has been alleged against Tariq Sayeed. (2) That the complainant Bakbtiar Khan who had lodged the First Information Report and is alleged eye-witness has since long left the country, and while the case was pending in the Court of the A. 17. M. No, 10, Karachi, his attendance could not be secured to give evidence. (3) That a bare reading of the F. I. R. Of the case shows that the alleged incident took place on account of enmity between two factions of Pathans who are also related inter se. The complainant has emphatically stated in the last line of the F. I. R. That the incident was the outcome of family enmity between his family and that of Habibur Reiman and Rustom Khan. The two accused Zia
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Abbas and Tariq Sayeed are not shown to have any connection whatsoever with either of the two factions of Pathans and as such it is not believable that they could have participated in the alleged incident. (4) That it is also pertinent to state that in the F. I. R. It was alleged that accused Zia Abbas and Tariq Aziz (not Tariq Saeed) had come in Jeep No, KAK-7626. But on inquiries it was discovered that the vehicle bearing Registration No, KAK-7626 was not a jeep but a Toyota Car belonging to a medical practitioner. It is submitted that if no such jeep ever existed, how is it possible to believe that accused Zia Abbas and Tariq Sayeed came in that Jeep and were present at the time of the incident. (5) That the prosecution witness Mir Hassan has admittedly political rivalry with accused Zia Abbas and Tariq Sayeed. He was the General Secretary of the Karachi Muslim League and prior to the incident had been removed from that position at the instance of the said accused Zia Abbas and Tariq Sayeed whose case is that they have been falsely implicated by Mir Hassan who has been harboring grudge against them. (6) That Mir Hassan in his evidence recorded before A. C. M. No, 21 has admitted very old enmity with Habibur Rehman and his relations co-accused in the case over family and property matters as a result of which cases under section 107, Cr. P. C. Had been registered against both parties. Accused Zia Abbas and Tariq Sayeed neither belong to the community of Habibur Rehman, nor have they any connection with him or his other relatives accused in the case, nor were they involved in any cases under section 107, Cr. P. C. Between Mir Hassan and Habibur Rehman and their relatives. This being the position it is difficult to believe that they were involved in any manner in the alleged incident. (7) That the police during investigation had examined a number of respectable witnesses who have deposed to the alibi of both Zia Abbas and Tariq Sayeed, proving beyond reasonable doubt that both of them were nowhere present in or around the vicinity of the scene of crime at the time of the alleged incident. The police had also examined one Idris, an eye-witness who has categorically stated that Zia Abbas and Tariq Sayeed were not present with the other accused at the time of incident. The evidence collected by the police thus indicates that these two accused have been falsely implicated. (8) That the incident is alleged to have taken place in Jackson Bazaar in day time but no reliable independent person from the locality and neighboring shops has come forward to support the case against these accused. There is lack of any reliable evidence against these two accused persons. (9) That the learned II Additional Sessions Judge, Karachi while granting bail to accused Zia Abbas and Tariq Sayeed has observed in his order dated 12-10-1974 that there are reasonable grounds to believe that the said accused are not guilty of the offences charged. This order of the learned Addl. District Judge has been maintained by the High Court, which dismissed the applications of the complainant for cancellation of bail granted to the said accused. (10) That it is also pertinent to state that the learned Chief Justice of the High Court of Sind & Baluchistan, while dismissing Cr. Misc. Applications Nos. 778/74 and 779/74 filed by the complainant for cancellation of bail granted to accused Zia Abbas and Tariq Sayeed has made the following observations in his order dated 20-5-1975 "On the other hand, learned Additional Advocate-General appearing for the State opposed the applications for cancellation of bail and supported the order passed by the learned Additional Sessions Judge, Karachi. Messrs Muhammad Hayat Junejo, S. S. Shaikh and Muzaffar Hussain Shah, learned counsel appearing for the respondents Syed Zia Abbas, Tariq Sayeed and Mir Ajab Khan supported the order of learned Additional Sessions Judge, Karachi by pointing out two obvious factual errors in the version given by lathtiar Khan Petitioner in the F. I. R. Itself. These errors are.
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Indeed, admitted, one pertains to the assertion that except for Mir Ajab Khan, other culprits came in Jeep No, KAK-7626. And the other relates to the name of 'Tariq Aziz' as culprit, which has been afterwards substituted for `Tariq Saeed' respondent. It is admitted by all the learned counsel for the parties at the Bar that vehicle No, KAK7626 is not a jeep but a Toyota Car. So far as the name of Tariq Aziz as one of the culprits is concerned it is admitted that the name was subsequently changed to Tariq Sayeed. I further find that certain interpolations have been made in the Police papers, and the name has been substituted by Tariq Saeed." (11) That in the facts and circumstances of the case there are reason Ale grounds to believe that accused Zia Abbas and Tariq Sayeed nave beer, falsely implicated and on the available evidence the case against them is not likely to result in conviction. It would not be just said expedient to proceed with the prosecution of the said two accused, Zia Abbas and Tariq Sewed, and therefore the case is withdrawn that this humble Court may be pleased to accord necessary consent under section 494, Cr. P. C. To the withdrawal of the case against the said two accused, Zia Abbas and Tariq Saeed only." ' Learned Additional Sessions Judge, Karachi has rejected the application for the reasons, that since according to the F. I. R. All the accused persons bad gone to the scene of offence armed with rifles; guns, and pistols in Jeep, except Mir Ajab Khan who had gone on scooter, and applicant Syed Zia Abbas is said to have instigated the co-accused to finish the enemies and the mischief of section 149, P. P. C. Was therefore attracted, the case of individual accused could not be distinguished. Moreover, since one prosecution witness, Mir Hassan, had stated in his statement before lower Court that there had been political differences between the complainant party and the applicants, the plea of the District Public Prosecutor that no motive can be attributed to the applicants, in the opinion of learned Additional Sessions Judge, had no force and he also declined to give benefit as to the discrepancy that whereas liakhtyar Khan had stated in the F. I. R. That culprits had come in a jeep bearing No, KAK-7626, the actual fact, however, is that the vehicle bearing that registration number is really a Toyota car belonging to a Medical Practitioner. The reason that prevailed with learned Additional Sessions Judge was that tbis aspect would react on the entire case and he, therefore, felt that he should refrain from giving any positive opinion in that regard. ' Finally, according to the learned Additional Sessions Judge since evidence in the case had not yet been recorded it was not proper to give consent to the request for withdrawal, for, before doing so the Court has necessarily to scrutinize carefully the grounds on which the request for withdrawal is made. The application, in his view, was moved in order to throttle the prosecution case, and he accordingly rejected the request. ' Mr. Muhammad Hayat Jueejo, learned counsel for the applicants, firstly, submitted that learned Additional Sessions Judge has failed to appreciate that section 494, Cr. P. C. Vests in the Public Prosecutor the discretion to apply to the Court for consent to the withdrawal from the prosecution of any person, and in these proceedings the Court is only to satisfy itself that the executive function of the public Prosecutor has been properly exercised and the request is not motivated for improper reasons or purposes. Learned counsel pleaded that the application filed by learned District Public Prosecutor for withdrawal of the prosecution of the applicants was based on extremely cogent reasons which the Courts have always treated as valid grounds for withdrawal and the learned Additional Sessions Judge has either misconceived the true scope of section 494, Cr. P. C. As to the limits of the Court's function in such cases in withholding the consent, or he has acted in arbitrary exercise of judicial discretion to have withheld the consent, particularly when learned District Public Prosecutor had supported the request with facts as well as case-law. ' Mr. Abdul Hafeez Lakho, Additional Advocate-General appearing for the State fully supported the Revision Application and pointed out that the Advocate-General had been instructed to file a
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Revision Application against the impugned order passed by the Additional Sessions Judge, Karachi but since the applicants had already filed this Revision Application it was decided that instead of filing a second Revision Application, the Revision Application be supported. ' Opposition has, however, come from Mir Hassan, brother of the two deceased, Noor Hassan and Abdul Hassan, who applied for being made a party to this Revision Application through Miscellaneous Application No, 1042 of 1976. He is represented by Mr. Abdul Wahab, Advocate. The request was opposed by Mr. Muhammad Hayat Junajo as well as learned Additional Advocate- General on the ground that Mir Hassan has no locus standi in these proceedings as held by the Federal Court in Matloob Hussain v. Gaman (1) and also by the Supreme Court of Pakistan in Muhammad Ashlq v. Allah Bakhsh (2) in which it was observed that "in a murder case) no person other than the accused, who is being prosecuted, or the Crown atr whose instance he is being prosecuted appear to be parties". ' Mr. Muhammad Hayat Junejo, however, stated that since the applicants have nothing to hide, I may in my discretion allow Mr. Abdul Wahab, learned counsel who appears for Mir Hassan to place the view that Mir Hassan may have to point out. Learned Additional Advocate-General also stated that so far as the merits of the case are concerned since the request for withdrawal from prosecution has been made for bona fide neasons and in the interest of justice, he also has no objection if Mir Hassan's point of view is taken into consideration. Since this is a double murder case and Mir Hassan's two brothers died in this crime, considering the sentiments of Mir Hassan rather than the legal position particularly when neither Mr. Muhammad Hayat Junejo nor learned Additional Advocate-General otherwise, have no objection except for pointing B out the legal position, I allowed the request made by Mr. Abdul Wahab learned counsel for Mir Hassan in so much as to place anything that he has to point out for consideration. ' Mr. Muhammad Hayat Junejo, in support of this Revision Application, heavily relied upon the decision of the Supreme Court of India in State v. Naresh Pandey (3). The question that arose for decision of the Supreme Court of India in this case was wetter where an application for withdrawal under section 494, Cr. P. C. Is made on the ground of insufficiency or meagerness of reliable evidence that is available, it is an improper exercise of discretion for the Court to grant consent before the evidence is taken, if it was reasonably satisfied, otherwise, that the evidence, if actually taken, is not likely to result in conviction. ' This case indeed covers the precise point of law that arises in the instant case before me, although what actually happened in the proceedings in the case before it came up before the Supreme Court of India is in reverse direction. There, the Magistrate who was dealing with the request for consent to the withdrawal from the prosecution, took the view that there was no reason to withold the consent that was applied for and the order passed by him was upheld by the Sessions Judge in a Revision Petition against it, filed jointly by the first informant in the case and by the widow of the murdered person. These pri%ate parties pursued the matter further and applied to the High Court in revision. The learned Chief Justice of the High Court dealt with the revision petition. He reached the opinion that consent should not be granted and he accordingly set it aside. The AdvocateGeneial then took up the matter further to the Supreme Court of India, Jaganandhandas, J., who gave the opinion for the Court, after examining the scheme of the Code of Criminal Procedure and holding that function of the Court in granting or refusing the request of the Public Prosecutor may well be taken to be a Judicial function, made the further observation as under s-- "But it does not follow that the discretion is to be exercised only with (1) PLD 1951 F C1115 (2) PLD 1957 SC (Pak.) 293 (3) PLD 1957 SC (Ind.) 361
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' reference to material gathered by the judicial method, Otherwise the apparently wide language of section 494, Criminal P. C. Would become considerably narrowed down in its application. In understanding and applying the section, two main features thereof have to be kept in mind. The initiative is that of the Public Prosecutor and what the Court his to do is only to give its consent and not to determine any matter judicially. As the Privy Council has pointed out in Faqir Singh v. Emperor (1). : 'It (section 494, Criminal P. C.) gives a general executive, discretion (to the Public Prosecutor) to withdraw from the prosecution subject to the consent of the Court, which may be determined on many possible grounds.' ' The judicial function, therefore, implicit in the exercise of the judicial discretion for granting the consent would normally mean that the Court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised, or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. In this context it is right to remember that the Public Prosecutor (though an executive officer as stated by his Privy Council in AIR 1928 P C 268), is in a larger sense, also an officer of the Court and that he is bound to assist the Court with his fairly considered view and the Court is entitled to have the benefit of the fair exercise of his function. It has also to be appreciated that in this country the scheme of the administration of criminal justice is that the primary responsibility of prosecuting serious offences (which are classified as cognizable offences) is on the executive authorities. Once information of the Commission on any such offence reaches the constituted authorities, the investigation, including collecion of the requisite evidence and the prosecution for the offence with reference to such evidence, are the functions of the executive. But the Magistrate also has his allotted functions in the course of these stages. For instance, in the ccurse of investigation, a person arrested must be brought before him within 24 hours (section 61, Criminal P. C.). Continuance of the arrested person in detention for purposes of investigation from time to time has to be authorised by him (section 167, Criminal P. C.), a search can be conducted on the issue of warrant by him (section 94, Criminal P. C.). Statements of witnesses and confessions may be recorded by him (section 164, Criminal P. C.) In an appropriate case he can order investigation or further investigation (sections 155 (2) and 202, Criminal P. C.). In all these matters he exercises discretionary functions in respect of which the initiative is that of the executive hit the responsibility is his. His discretion in such matter has necessarily to be exercised with reference to such material as is by then available and is not a prima facie judicial determination of any specific issue. The Magistrate's functions in these matters are not only supplementary at a higher level, to those of the executive but are intended to prevent abuse. Section 494, Criminal P. C. Requiring the consent of the Court for withdrawal by the Public Prosecutor is more in line with the scheme than with the provisions of the Code relating to inquiries and trial by Court. It cannot be taken to place or the Court the responsbility for a prima fade determination of a triable issue. For instance the discharge (1) AIR 1938 P Q 228 ' that results therefrom need not always conform to the standard of "no prima fuck case" under sections 209 (1) and 253 (1), Criminal P. C. Or of "groundlessness under sections 204 (2) and 253 (2). Criminal P. C. This is not to say that a consent is to be lightly given on the application of the Public Prosecutor, without a careful and proper scrutiny of the grounds on which the application for consent is made." ' The Rule laid known above, I would say, is the appropriate course of action to be te en on an application from Public Prosecutor under section 494, Cr. P. C. For consent being accorded to the withdrawal from the prosecution of any person on the ground of insufficiency or meagerness of reliable evidence in the hands of the prosecution. Under the Scheme envisaged by the Code of Criminal Procedure. Public Prosecutor is entrusted with the exclusive responsibility and the duty to
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conduct prosecution on behalf of the State in so much as the Code by section 493 directed that if any private person instructs a Pleader to prosecute any person in any Court, he is to act under instructions of the Public Prosecutor, Yet, while so charged with the onerous task, the framers of the Code, in their wisdom, vested the Public Prosecutor with the authority, without making any reservations, imposing restrictions or limitations or otherwise furnishing any guidelines to withdraw from prosecution, subject to the consent of the Court, of any persons. They also furnished no guidelines or indications, upon which the Court is to give consent. This wisdom of the framers of the Code was that the Public Prosecutor, and so also the Court, will act in their wisdom, on the facts and circumstances of each case, the former as the Chief Executive entrusted with the duty to prosecute and the latter charged with the duty of administration of Justice. A Full Bench of the Patna High Court in The King v. Permanand and others (1) at page 226 has observed in this connection as follows -- "It may be assumed that when the Public Prosecutor has been instructed that there are reasons of state, or it has been discovered that evidence will not be forthcoming, or that the evidence that is forthcoming is unreliable, the…
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