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Petitioner: (1) Muhammad Jawad Hamid (2) Mushtaq Ahmad Sukhera VS Respondent: (1) Mian Muhammad Nawaz Sharif, etc (2) Judge ATC-II, Lahore and another
Court Name: Lahore High Court Judge(s): Muhammad Qasim Khan, Aalia Neelum, Sardar Ahmad Naeem Title:(1) Muhammad Jawad Hamid (2) Mushtaq Ahmad Sukhera vs (1) Mian
Muhammad Nawaz Sharif, etc (2) Judge ATC-II, Lahore and another Case No.: (1) Criminal Revision No.9027/2017 (2) Criminal Revision No.7067/2017 Date of Judgment:2018-06-27 Reported As: 2018 LHC 2091, PLJ 2018 Cr.C. 911, 2018 LHC 1986 Result: Petition dismissed Judgment MUHAMMAD QASIM KHAN, J:- By this single judgment, I propose to decide two matters i.e. Criminal Revision No.9027/2017 titled "Muhammad Jawad Hamid versus Mian Muhammad Nawaz Sharif, etc, and Criminal Revision No.7067/2017 titled "Mushtaq Ahmad Sukhera versus Judge ATC-II, Lahore and another ", as both have arisen out of one complaint, one order of the same date and carry similar facts, which in brief are that:- A private complaint was filed by Muhammad Jawad Hamid (petitioner) under section 190(1)(a) of the Code of Criminal Procedure (Act V of 1898 (hereinafter to be called as 'Code' ) and section 19(3) of the Anti-T errorism Act, 1997, (hereinafter to be called as "ATA") for offences under sections 302/324, 295-B/452, 395/427, 365/506, 120-B, 148/149, 337-F(vi), 337-C, 337-F(iii), 337-A(v), 337-L(ii), 337-F(i), 337-A(i) Pakistan Penal Code (Act XLV of 1860) read with Section 7 of the ATA and section 155-C of the Police Order , 2002 before Special Court constituted under the Anti-T errorism Act, 1997, at Lahore (hereinafter to be called as "ATC") , wherein, 139 persons were cited as accused; the case of Shahid Aziz Butt (respondent No.139) was separated; in the separate trial he was finally convicted and sentenced and the court has been informed that he is now out after serving out his entire sentence. After recording cursory evidence, the respondents No.13 to 138, vide order dated 07.02.2017, were summoned and the learned trial court also opined that there is no evidence to prove a prima facie case against respondents No.1 to respondents No.12, as such, they were not summoned and their names were directed to be deleted from the list of respondents. (See para-41 of the impugned order .). The order dated 07.02.2017 to the extent of non- summoning of respondents No.1 to 12 is under challenge by the petitioner/complainant through the Criminal Revision No.9027/2017 "Muhammad Jawad Hamid versus Mian Muhammad Nawaz Sharif and others ", Whereas,
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Mushtaq Ahmad Sukhera, the then Inspector General of Police, Punjab (respondent No.16 in the complaint), has assailed the same order to the extent of his summoning through Criminal Revision No.7067/2017 titled "Mushtaq Ahmad Sukhera versus Judge Anti-T errorism Court, and oth ers". 2. Before proceeding further it is made clear that petitioners before us in both the petitions had initially filed respective writ petitions to raise their grievances, but this Court vide a short order dated 11.05.2018 (detailed reasoning dated 06.07.2018) held that against an interim order passed by a Court under Anti-T errorism Act, 1997, during proceedings of a case, including an order of summoning/non-summoning the accused, writ petition is not maintainable, as under Anti-T errorism Act, 1997, applicability of sections 435 and 439 of the Code. has not been restricted, except under section 21(d) to the extent of bail, hence, criminal revisions were competent, therefore, on our direction the writ petitions were converted into criminal revision, were numbered accordingly and thus are being decided as such. 3. This case involves multiple complex legal questions. Hence, the learned counsel for the petitioners, the learned Prosecutor General, the learned Additional Prosecutor General and learned Assistant Advocate General were called upon to assist this court on these legal propositions. For the sake of conve nience, these questions may be placed and addressed in the following sections:- SECTION-I 1. Whether an order passed under section 204 Cr.PC (for summoning of the accused to face the trial) is an adverse order af fecting the right of the accused? 2. What is the ef fect of an order passed under section 203 Cr .P.C? 3. What is the nature of the order when a few accused have been summoned under Section 204 Cr.PC and few have not been summoned in a private complaint? 4. What is the remedy available against the order of dismissal of private compla int under Section 203 Cr.PC or against summoning of the accused under Section 204 Cr .PC? 5. Whether it is mandatory to afford hearing to the persons complained against in case order of dismissal of complaint (under Section 203 Cr .PC) is impugned in the Revisional/Constitutional jurisdiction? 6. What is the scope of revisional jurisdiction against an order passed under section 203/204 Cr .P.C? SECTION II 1. What are the guiding principles for summoning/non-summoning of accused in a private complaint? 2. What is the ef fect of delay in filing a private complaint? 3. Under what circumstances at the preliminary stage, a private complaint can be declared as frivolous, vexatious and malicious? 4. Whether "political rivalry" is reasonable ground to declare a private complaint frivolous, vexatious, malicious and liable to be dismissed under Section 203 Cr .PC? 5. What is the scope of "inquiry" and "investigation" under Section 202(1) Cr .PC? 6. Whether police file and the material collected by the I.O during the process of investigation for the same offence, which is also subject matter of the FIR/State case, can be considered and examined for summoning or non- summoning of the person complained against? 7. When in a case the person complaine d against is not summoned on the basis of insuf ficient grounds, whether complainant can move application for further inquiry when he receives information of fresh ground/evidence/material against such a person who had not been summoned, or he can file a fresh complaint by producing fresh material against the accused, in addition to the one which was already available with him and produced before the court? SECTION-III 1. Whether statement of a witness recorded in an inquiry under Commissions of Inquiry Act/ The Punjab Tribunals of Inquiry Ordinance, 1969 can be used against the person making it or any other person? 2. Whether the statement of a witness recoded in an inquiry under The Punjab Tribunals of Inquiry Ordinance, 1969 can be used against the other witness? SECTION IV
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1. What constitutes "criminal conspiracy"? 2. How the criminal conspiracy and abetment can be dif ferentiated? 3. Whether statement of a conspirator can be used against another conspirator? 4. What is scope of "design" in the light of section 6 ATA? 4. A plethora of case law from our own, Indian and other jurisdictions, for and against the above legal propositions was placed before us by the learned counsel for the respective sides as well as Research Centre of this Court. For the sake of brevity and preciseness, I do not consider it appropriate to reproduce excerpts from all such cited judgments and reference sources. The relevant case law and references would be mentioned where immediate reference is required. 5. Now, I would like to deal the questions mentioned in Section-I of this judgement without reproducing the same to avoid repetition. The order passed for the summoning of the "person complained against" under Section 204 of Cr.PC modifies the status of said person to an "accused" and offer him/her an opportunity to respond to the charges levelled against him. Therefore, any such order does not tantamount to infringement of any right of that person and cannot be treated or deemed as an adverse order (reliance placed on "Noon Muhammad Y. the State " (PLD 2007 SC 9). When a private complaint has been filed under Section 200 of Cr.PC, the court concerned, after recording the statement of complainant (if not a court complaint or made by the public servant in the official capacity), may directly summon the persons complained against as accused or it may postpone the summoning process and opt inquiry/investigation under Section 202 of the Code. After the conclusion of inquiry or investigation, as the case may be, the court may "dismiss" the complaint under Section 203 of the Code or summon the accused under Section 204 of the Code. In certain cases, the court may summon only a few accused and refuse to summon certain number of accused persons. In case where some of the "persons complained against " are not summoned, the said order to that extent also amounts to partial dismissal of the complaint. (Reference may be made to "Dhondu Bapu Gajar Vs. Emperor " (AIR 1929 Bombay 436). The order passed under Section 203 and 204 of the Code is a judicial order (Reliance is placed on "Muhammad Farooq Versus Ahmed Nawaz Jagirani and Others " (PLD 2016 SC 55). However , the order passed under Section 203 of the Code cannot be held as autrefois or statutory acquittal "Mst. Robina Rashid Vs. Farrukh Amin " (PLD 2011 FSC 121); Ibrar Hussain Shah Vs. Syed Waris Shah (2015 PCrLJ 784); "Tariq Javed Vs. Hom Purkash " (2018 PCrLJ 771 Karachi ). At the most, dismissal of the complaint as a whole or non-summoning of some of the persons complained against may have the effect of discharge. The complainant, at his own option, may file a subsequent fresh complaint on same allegations by adding some new facts/grounds and mentioning any new material/evidence which earlier were not in his knowledge or the complainant was not in a position to bring them on record. 6. Now moving to the next question as to the right of audience of the "persons complained against" in case where complaint is dismissed under Section 203 of the Code as a whole or to the extent of some of the persons complained against. It is well settled law that until process is issued, the person complained against does not have the status of an accused and has no right of audience before the trial court or before a superior Court at the pre-process stage . (Mst. BASHIR BEGUM AND 2 OTHERS versus GHULAM NABI AND ANOTHER " (PLD 1972 Lahore 185); Somu alias Somasundaram and others v. The State and another (1985 Crl.L.J. 1309 , (Madras) and Sivasankar v. Santhakumari " (1993 (1) KLT (Madras). Moreover , even in the pre-partition jurisprudence, in cases of "Mannupsingh Vs. Sahadeo Sadhu " (AIR 1929 Patna 230) and "Abdulla Jan Vs. Totigul " (AIR 1935 Pesh 14) it was held that in case of dismissal of complaint by the Magistrate under Section 203 of the Code accused has no right to appear before the Sessions Judge when he orders further inquiry and no notice need, therefore, be given in such case. Thus, the argument of learned Prosecutor General and Mr. Azam Nazir Tarrar, Advocate for the petitioner in connected Criminal Revision No.7067/201 7 regarding providing audience to the respondents, does not sound well. (Further reference may be made to the cases of Major Subodh Shukla v. Major R.S. Dudee (Madhya Pradesh) (2007(1) MPHT 431); "Somu @ Sumasundaram and others v . The State and another" (1985 Cr .LJ 1309). 7. It has already been held by this Full Bench in order dated 11.05.2018 (detailed reasoning dated 06.07.2018 ) that Anti-T errorism Court is one of the other courts mentioned in Section 6 of the Code and its orders, inter alia, for dismissal of complaint or summoning of the accused are amenable to the Revisional jurisdiction of this Court as
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provided under the Code. There are three sections in the Code. (i.e. Sections 435, 436 and 439) which provide for the revisional powers. However , Section 436 of the Code would not attract in this case for the reasons that it places an embargo upon the powers of Revisional Court when an order for the dismissal of complaint under Section 203 has been challenged. It may be noted that in Section 203 of the Code the word 'Court' was substituted for the word 'Magistrate' by Law Reforms Order , 1972 and in Section 436 of the Code, word "any Magistrate" was substituted by Ordinance XXXVI of 2001, hence, if may be inferred that the legislature in its own wisdom, has deliberately not used term 'any court' in the amended Section 436(a) and this Section would apply only when the impugned order under section 203 of the Code has been passed by the 'Magistrate' and not any other court. Moreover , the power of the High Court under section 439, of the Code is very wide and it could revise the proceedings or orders passed by any of the inferior criminal courts in the exercise of its Revisional jurisdiction in an appropriate case (Reference may be made to "Muhammad Ashraf Versus Khair Muhammad " 1979 P.Crl.L.J. 372, "Haleem Shah versus The State " (PLD 1996 Karachi 306 DB). 8. While exercising jurisdiction under section 435, 439 of the Code High Court can examine the record of any proceedings before any inferior criminal court within its territory and within its local limits and having jurisdiction on it, to satisfy correctness, legality or propriety of any findings, etc, and in these provisions the word "accused" has been used and under section 439 of the Code, it can exercise the powers of appeal available to it under section 423, 427, 428 or by Section 338 of the Code Subsection (2) of Section 439 of the Code is important with reference to the question in issue, the same is reproduced hereunder:- "No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence." Whether the private respondents can be equated with accused or not, we need to examine Sections 202 to 204 of the Code. Legislature in Section 202 for the person against whom allegations are levelled, has used the term "person complained against ", and has not equated him with an "accused" because this is the stage where only a complaint of commission of an offence has been made and the court has yet to ascertain the truth or falsehood of the complaint and for this purpose the court, under section 202, has to satisfy itself by holding an inquiry or directing any inquiry or investigation to be made by any Justice of Peace, Police Officer or a Magistrate. The court can dismiss the complaint after examining the statement of the complainant, the witnesses and considering the result of inquiry and investigation. The word "accused" has been used in section 204 when summons or warrants as the case may be, for the attendance of the person complained against is issued and this is the stage when the person complained against has been considered as accused. 9. It is settled principle of law that in the proceedings under Section 202 the person complained against has no right to appear and participate in these pre-trial proceedings. At this preliminary stage the court ascertains the truth or falsehood of the allegations levelled in the complaint. The complainant has to establish a prima facie case, because the word "sufficient ground" has been used for proceedings against the person complained against. 10. In the Indian Criminal Procedure Code 1973 Section 401 is parallel to Section 439 of our Code and it is important to be noted that in the Indian Code of Criminal Procedure, 1973, Sectio n 401(2) has been added "other person" besides accused. The said part of the provision is reproduced as under:- "(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defense." Therefore, in the Code of Criminal Procedure 1973 Indian jurisprudence affords right of audience to every person whose right is likely to be affected by the order of Revisional Court and the same remedy is not provided in our Code. 11. In this case certain respondents were not summoned and to their extent the complaint was dismissed, as such these persons complained against had no right of audience before the trial court and even before this court. I, therefore, hold that issuance of notice to them is not required. I am mindful of the fact that under section 440 of the Code the revisional court has the power to allow any person to be heard in person or through a pleader , but as the court has to decide the issue in the light of material available before the learned trial court at the time of passing of
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order under section 203 where respondents are not legally permitted to appear or participate in the proceedings, therefore, I hold that the respondents in Criminal Revision No.9027/2017 have the status of "persons complained against", as such, they are not entitled or required to be heard in these proceedings. SECTION-II 12. Prior to moving to the questions referr ed in Section-II , it would be appropriate to reproduce relevant provisions of Code of Criminal Procedure 1898:- "200. Examination of complainant: A Magistrate taking, cognizance of an offence on complaint shall at once examine the complainant upon oath, and the substance of the examination shall be reduced to writing and shall be signed by the complainant, and also by the Magistrate: Provided as follows: (a) when the complaint is made in writing, nothing herein contained shall be deemed to require a Magistrate to examine the complainant before transferring the case under Section 192 [or sending it to the Court of Session]; (aa) when the complaint is made in writin g nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or - purporting to act in the discharge of his of ficial duties; (b) [Omitted A.O., 1949,Sch.]; (c) when the case has been transferred under Section 192-and the Magistrate so transferring it has already examined the complainant, the Magistrate to whom it is so transferred shall not be bound to re-examine the complainant. 202. Postponement of issue of process: (1) Any Court, on receipt of a complaint of an offence of which it is authorised to take cognizance; or which has been sent to it under Section 190, sub-section (3), or referred to it under Section 191 or-Section 192, may, if it thinks fit, for reasons to be recorded, postpone the issuance of process for compelling the attendance of the person complained against, and either inquire into the case itself or direct any inquiry or investigation to be made by [any Justice of the Peace or by] a police officer or by such other person as it thinks fit, for the purpose of ascertaining the truth or falsehood of file complaint: Provided that save, where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of Section 200. (2) A Court of Session may, instead of directing an investigation under the provisions of sub-section (1), direct the investigation to be made by any Magistrate subordinate to it for the purpose of ascertaining the truth or falsehood of the complaint. (3) If any inquiry or investigation under this section is made by a person not being a Magistrate [or Justice of the Peace] or a police officer, such person shall exercise all the powers conferred by this Code on an officer-in-charge of a police station, except that he shall not have power to arrest without warrant. (4) Any Court inquiring into a case under this section may , if it thinks fit, take evidence of witnesses on oath]. 203. Dismissal of complaints: [The Court], before whom a complaint is made or to whom it has been transferred, [or sent] may dismiss the complaint, if, after considering the Statement on oath (if any) of the complainant and the result of the investigation or inquiry (if any) under Section 202 there is in his judgment no sufficient ground for proceeding. In such cases he shall briefly record his reasons for so doing. 204. Issue of process: (1) If in the opinion of a [Court] taking cognizance of an offence there is sufficient ground of proceeding, 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 [Court] or if [it] thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such [Court] if as if it has no jurisdiction itself some other Court having jurisdiction. (2) Nothing in this section shall be deemed to af fect the provisions of Section 90.
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(3) When by any law for the time being in force any process-fees 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. "(Emphasis added) 13. In a complaint case, trial Court is not required to examine material minutely and or in depth, but has merely to see that prima facie a case has been made out to proceed further with the matter for issuance of warrant or summons (as the case may be) under Section 204 of the Code. (Muhammad Farooq Versus Ahmed Nawaz Jagirani and Others (PLD 2016 SC 55); Muhammad Fiaz Khan Versus Ajmer Khan and another (2010 SCMR 105). The two expressions i.e. existence of sufficient ground and prima-facie case (used in Section 204 of Cr.PC) have interchangeably been construed by the Courts (Noor Muhammad Vs. State" (PLD 2007 SC 9); "Abid Shah Vs. Additional Sessions Judge Sheikhupura" (PLD 2009 Lahore 444). In the case of "Sher Singh v. Jatendranath Sen" (AIR 1931 Cal. 607), it was observed "a prima facie case only means that there is ground for proceeding (same view has been adopted in the case of "Noor Muhammad Vs. State" (PLD 2007 SC 9). August Supreme Court of Pakistan, to further clarify the proposition observed that it is to be kept in view that initiation of process 'under sections 202 and 204 of the Code depends upon the availability or non-availability of sufficient incriminating material (2010 SCMR 194). It is settled principle of law that the provisions as contained in sections 202 to 204 of the Code, if read together, would show that a proper safeguard has been provided by the Legislature by using the words "if any" and "sufficient grounds for any" in section 203 of the Code and accordingly the frivolous and vexatious complaints must be buried at their inception where no prima facie case is made out "Abdul Wahab Khan Versus Muhammad Nawaz and 7 others" (2000 SCMR 1904). At the stage of consideration of the private complaint the court is not expected to see whether the allegations are likely to be proved by the materials produced before court. (Sreekumar S. Menon v. State of Kerala, (2004 (2) KLT 53). 14. The analysis of relevant provisions of law and case law on the point of grounds of summoning or non- summoning of the accused in a private complaint, I have gathered the following main aspects which may be taken into consideration by the courts while taking cognizance of the private complaint:- a) Mere summoning a necessary party to explain the allegations levelled against him, does not tantamount to infringement of any right; rather opportunity is af forded to him to explain his position. b) In a complaint case at pre-trial stage, trial court is not required to examine the material minutely or in depth but is merely to see that prima facie case has been made out to proceed further in the matter of issuance of process or summons. c) High Court cannot strangulate the trial by over stretching its jurisdiction and embark upon to examine adequacy or inadequacy of evidence, which stage will only reach after charge is framed and complainant is given opportunity to prove his case beyond any reasonable doubt. d) At the stage of consideration of private complaint, the court is not expected to see whether the allegations are likely to be proved by the material produced before the court. e) Until the process is issued to the accused a person shown as person complained against in the complaint does not have a status of accused and has no right of audience before the trial court or before the superior courts at pre- process stage. f) To take cognizance of offence in complaint case, burden of proof in preliminary enquiry for the issuance of process or summons as the case may be is much lighter on the complainant and he is required to establish prima facie case, whereas, the burden of proof placed on the prosecution during regular trial is much stringent and the prosecution is required to establish and prove the case beyond reasonable doubt. g) The scope of section 202 is to separate founded from unfounded. The court has to satisfy itself as to the truth or falsehood of the complaint before issuing of process to the persons complained against. The object and scope of Section 202 of the Code is:- i. To allow free, fair and full…
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