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Petitioner: MUHAMMAD JAWWAD HAAMID VS Respondent: MIAN MUHAMMAD NAWAZ SHARIF ETC
Court Name: Lahore High Court Judge(s): Muhammad Qasim Khan, Aalia Neelum, Sardar Ahmad Naeem Title: MUHAMMAD JAWWAD HAAMID vs MIAN MUHAMMAD NAWAZ SHARIF ETC Case No.: Criminal Revision No.9027 of 2017 Date of Judgment:2018-09-26 Reported As: 2019 P Cr. L J 665, PLJ 2018 Cr.C. 886, 2018 LHC 2170 Result: Petition dismissed
Judgment Aalia Neelum, J. By this revision petition, Muhammad Jawad Hamid (petitioner), who is complainant in a private complaint titled, " Muhammad Jawad Hamid versus Mian Muhammad Nawaz Sharif etc." filed under section 190(1)(a) of the Code of Criminal Procedure Code, 1898 and section 19(3) of the Anti-Terrorism Act, 1997, 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 1860 read with Section 7 of the Anti-Terrorism Act, 1997 and section 155-C of Police Order, 2002 before Special Anti-Terrorism Court, Lahore, challenges order to the extent of non-summoning of respondent Nos. 1 to 12 passed by learned Judge ATC-II, Lahore dated 07-02- 2017. 2. The incident as per the complaint (Ex.P A) took place on 16-06-2014 at 01:00 am (midnight) and continued till forenoon on 17-06-2014. The District administration of Lahore with the help of police attempted to remove the alleged illegal barriers/encroachments on public roads around Minhaj-ul-Quran Academy and its Secretariat in Model Town, Lahore, resulting in clash between police and workers of Pakistan Awami Tehreek. According to the petitioner/complainant, 10 persons lost their lives, whereas, 66 persons sustained injuries. Thereafter, the petitioner/complainant went to the Police Station Faisal Town, Lahore and lodged a complaint, orally. But police refused to lodge the FIR. Rather, on the basis of false and concocted story, on the complaint of SHO of the police station Faisal Town, Lahore a case FIR No. 510 of 2014 (Ex.PMMMMMM/1-3) was registered on 17-06-2014, for offences under sections 302/34, 324/353, 186/148, 149/290, 291/427, 506/B, 109 Pakistan Penal Code (Act XLV of 1860) read with Section 7 of the ATA and under section 13/20/65 under Arms Ordinance, 1965, at police station Faisal Town, Lahore against 52 nominated and unknown accused persons, who are office bearers and workers of Idara Minhaj-ul-Quran and Pakistan Awami Tehreek. After the investigation conducted by JIT, report was filed against 42 civilians and seven police officers/officials. Meanwhile, the petitioner/complainant moved an application under section 22-A, 22-B of Cr.P.C (Ex.PNNNNNN/1-7), for
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registration of the second FIR as per version of the petitioner/complainant, before learned Ex-officio Justice of Peace/ASJ, Lahore on 04 07-2014. Vide order dated 16-08-2014 (Ex.POOOOOO/4-4) learned Ex-officio Justice of Peace/ASJ, Lahore accepted the application under section 22-A, 22-B of Cr.P.C and directed to the concerned police to register the FIR on the application of the petitioner and then to proceed with investigation under the law. The order supra was assailed through constitutional petition No. 22661 of 2014 before this Court by respondent No. 7 etc., dismissed by this court vide order dated 26-08 2014 (Ex.PPPPPPP/1-4). Thereafter, FIR No. 696 of 2014 (Ex.PQQQQQQ/1-4) was registered on 28-08-2014 and JIT was constituted by the I.G Punjab Mushtaq Sukhera to carry out the investigation of the case registered at the petitioner's stance. But the members of the JIT carried out dishonest investigation of the case because of the nomination of Prime Minister of Pakistan, Chief Minister Punjab, Federal and Provincial Ministers and high ranked police officials being accused. The JIT challaned only two police officials and no action was taken with regard to principal accused nominated in FIR No. 696 of 2014 (Ex.PQQQQQQ/1-4). The registration of FIR No. 696 of 2014 was result of sit-in made by Dr. Muhammad Tahir-ul-Qadri. As a result of sit-in and negotiation the government promised with the petitioner/complainant and participants of sit-in that the neutral JIT will be formed with the consensus. But the government resiled from its commitment and appointed their favorite officer, who earlier had earlier served under the subordination at Gujranwala and Lahore, to get favorable report. Thereafte r, Pakistan Awami Tehreek got registered their protest, but the government did not provide justice. Then, the petitioner/complainant through letter dated 28-12 2014 asked the I.G Punjab for constitution of neutral JIT, same was ignored. Till the date of filing private complaint, the petitioner/complainant was trying to get the report of judicial commission through legal process, but could not get the same. Hence, private complaint. 3. After recording cursory evidence, vide order dated 07.02.2017 the accused-respondent Nos.13 to 138 in a private complaint were summoned and are facing trial before the ATC, Lahore. Vide the same order dated 07.02.2017 the learned trial court opined that there was no evidence to prove prima facie case against respondent Nos.1 to 12, as such, they were not summoned and their names were ordered to be deleted being respondent Nos. 1 to 12 in the private complaint. The impugned order dated 07.02.2017 to the extent of non-summoning of respondent Nos.1 to 12 is under challenge by the petitioner/complainant through the instant criminal revision. 4. We have heard the learned counsel for the petitioner and learned Prosecutor General Punjab at length. We have also gone through the record annexed with this petition and the copies of relevant documents from both criminal cases pending on the file of Special Judg e Anti-T errorism, Lahore placed on the record by the learned counsel for the petitioner through criminal miscellaneous petitions. 5. It is an admitted position that FIR No. 510 of 2014 (Ex.PMMMMMM/1-3) was registered on 17-06-2014 at Police Station Faisal Town, Lahore on the complaint of Rizwan Qadir Hashmi, Inspector/SHO, police station Faisal Town, Lahore. As per contents of FIR No. 510 of 2014 till lodging of the FIR seven (07) persons lost their lives and 100 persons sustain injuries. Whereas, on the basis of written complaint/application dated 19-06-2014 (receipt of receiving application through dairy No. 657-5B-FT/19-06-2014 and application were placed on the record through C.M. No. 829 of 2018 at pages Nos. 392-A and 392-B available in volume No. 11) of the petitioner/complainant the criminal case FIR No. 696/14, was registered with Police Station Faisal Town, Lahore on 28-08-2014 and private complaint was lodged on 16-03-2016. It is also admitted fact that the petitioner/complainant boycott the investigations conducted by two JITs constituted by the government in above said both cases. The private complaint was filed by the petitioner/complainant with delay of 21 months from the date of occurrence i.e.16/17- 06-2014, and finally with delay of six months and 19 days from the date of first submission of the report under section 173 Cr.P.C in case FIR No. 696/2014 i.e.27-06-2015. 6. Suffice it to point out here that after submission of reports under section 173 of Cr.P.C in FIR No. 510 of 2014 till 14-03-2016 evidence of 40 prosecution witnesses was recorded by the learned trial court. Similarly , after submission of reports under section 173 of Cr.P.C in FIR No. 696 of 2014 till 14-03-2016 evidence of 21 prosecution witnesses was recorded by the learned trial court and the cross-examination upon the witnesses was reserved on the request of the defence counsel (appointed by court) and case was adjourned to 15-03- 2016. Thereafter, on 15-03-2016, the petitioner/complainant filed a private complaint in the Court of Special
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Judge Anti-Terrorism, Lahore. In this private complaint, the petitioner/complainant nominated 139 accused persons, whereas, in FIR No. 696 of 2014 nominated 23 accused persons. In addition, the petitioner/complainant has mentioned total number of injured persons as 66, whereas in FIR No. 696 of 2014 mentioned 53 persons as injured persons. 7. Before proceeding further we may observe here that we are considering the case only to the extent of respondent Nos. 1 to 12. According to story/roles in the private complaint related to respondent Nos. 1 to 12 is/are as follows:- {{URDU TEXT}} 8. Whereas, the story/roles attributed to respondent Nos. 1 to 12 in the state case registered as FIR No. 696 of 2014, on the basis of written complaint/application dated 19 06-2014, which was duly signed by the petitioner/complainant and received through dairy No. 657- 5B-FT/19-06-2014 in the police station Faisal Town, Lahore, are reproduced in verbatim as under:- {{URDU TEXT}} 9. The story/roles, as described by the petitioner/complainant in the private complaint, is certainly not identical with the story as put up by the prosecution in the state case i.e. FIR No. 696/14. For the purpose of present revision petition, it is necessary to take a note of the roles attributed to the respondent Nos. 1 to 12, in the private complaint, much different than the state case. No doubt private complaint is based on the same incident taken place at midnight between 16-06-2014 and 17-06-2014 till forenoon on 17-06-2014 (as per FIR No. 696 of 2014 till 10/11 a.m. on 17-06-2014). The major details regarding the prosecution story to the extent of the roles of respondent Nos. 1 to 12, as mentioned in the private complaint and state case are given above, for the purpose of decision of present revision petition. 10. We have observed that in the State case i.e. FIR No. 696 of 2014 dated 28-08-2014 the petitioner/complainant impleaded respondent Nos. 1 to 9 as accused but no specific role was attributed to them, whereas, respondents No. 10 to 12 were not impleaded as accused. In the private complaint respondent Nos. 10 to 12 have been impleaded. That has been so, because the petitioner/complainant with some motive has introduced entirely a new story at the time of the filing of the private complaint. 11. The other addition/dif ference is that in paragraphs Nos, 10, 11, 12 and 13 of the private complaint, some additional allegations have been levelled in continuation of the attempt to connect the respondent Nos. 1 to 12 with the incident. The learned Judge Anti Terrorism Court recorded the cursory evidence of four witnesses i.e. the complainant/petitioner (CW-1), Muhammad Shakeel (CW 18), Fiaz Ahmad Warriach (CW-25) and Khurram Nawaz Gandapur (CW -56), in this regard under section 200 and 202 of the Code of Criminal Procedure, 1898. 12. The object of an inquiry under section 202 of the Code of Criminal Procedure is to ensure that no person shall be compelled to answer a criminal charge unless the Court is satisfied that there is a prima facie case against him/them. The law as to the scope and extent of enquiry under section 202 of the Code of Criminal Procedure is well established and same is limited to finding out the truth or otherwise of the complaint in order to determine whether process should be issued or not. Whereas, section 203 of the Code of Crim inal Procedure lays down what materials are to be considered for the said purpose.? According to Section 203 of the Code of Criminal Procedure, if, after considering the statements on oath (if any) of the complainant and of the witness (es) and the result of the inquiry or investigation (if any) under Section 202 of the Code of Criminal Procedure the Court is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing. If, on the contrary , the Court taking cognizance of the offence is of the opinion that there is sufficient cause for proceeding, he should issue process against the accused in accordance with Section 204 of the Code. It may be that the eviden ce which is required to be adduced by the complainant at that stage may not be sufficient to record a finding of conviction, but that fact would not absolve the complainant who wants Court to issue a process against the accused person from leading some credible evidence as may "prima facie " show the commission of the of fence. 13. For ready reference section 200, 202, 203 and 204 of Code of Criminal Procedure 1898 are reproduced below: Section 200 in the Code of Criminal Procedure, 1898
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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 writin g nothing herein contained shall be deemed to require a Magistrate to examine the complaint before transferring the case under section 192 or sending it to the Court of Sessions. (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 complainant 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) * * * * * (c) when the case has been transferred under section 192 and the Magistrate so transferring it has already examined the complainant, Magistrate to whom it is so transferred shall not be bound to re-examine the complainant. Section 202 in the Code of Criminal Procedure, 1898 202. Postponement of issue of process. (1) Any Court, on receipt of a complaint of an offence of which it is authorized to take cognizance, or which has been sent to it under Section 190, sub-section (3), or transferred to it under Section 191 or Section 192, may, if it thinks fit, for reasons to be recorded postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case itself or direct an 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 the 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-of ficer, 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. Section 203 in the Code of Criminal Procedure, 1898 203. Dismissal of complaint. 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 case he shall briefly record his reasons for so doing. Section 204 in the Code of Criminal Procedure, 1898 204. Issue of process. (1) If in the opinion of a Court taking cognizance of an offence there is sufficient ground for 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 its summons for the attend ance 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 af fect the provision of section 90. (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. 14. The scope of inquiry under section 202 of the Code of Criminal Procedure, 1898 is extremely limited only to ascertain the truth or falsehood of the allegations made in the complaint on the materials placed by the complainant before the Court for the limited purpose of finding out whether a prima facie case for issue of process has been
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made out. It is true that in coming to a decision as to whether a process should be issued the court can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him/them. The Court has been given an undoubted discretion in the matter but the discretion has to be judicially exercised by him. Once the Court has exercised his discretion it is not for the this Court, to substitute its own discretion for that of the Court or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. However, it is clear that to decide whether a process should or should not be issued, the Court has to consider whether the complaint discloses all the essential ingredients of an offence. If the complaint does not disclose any essential ingredient of the offence, that will be a case where the complaint, taken on its face value, does not make out any case for issue of a process. 15. Before proceeding further it is necessary to reproduce for ready reference sections 107, 109, 120-A, 120 B, 503 and 506 of Pakistan Penal Code 1860 below: Sec.107 PPC 107. Abetment of a thing. A person abets the doing of a thing, who: First. Instigates any person to do that thing; or Secondly. Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy , and in order to the doing of that thing; or Thirdly . Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1. A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration. 1. A public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, willfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2.Whoever , either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act. Sec.109 PPC 109. Punishment of abetment if the act abetted is committed in consequence, and where no express provision is made for its punishment. Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the of fence. Provided that, except in case of Ikrah-i-T am the abettor of an offence referred to in Chapter XVI shall be liable to punishment of ta'zir specified for such of fence including death. Explanation: An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation or in pursuance of the conspiracy , or with the aid, which constitutes the abetment. Illustrations (a) A offers a bribe to B, a public servant, as a reward for showing A some favour in the exercise of B's official functions. B accepts the bribe. A has abetted the of fence defined in section 161. (b) A instigates B to give false evidence. B, in consequence of the instigation commits that offence. A is guilty of abetting that offence, and is liable to the same punishment as B. (c) A and B conspire to poison Z. A, in pursuance of the conspiracy, procures the poison and delivers it to B in order that he may administer it to Z. B, in pursuance of the conspiracy, administers the poison to Z in A's absence and thereby causes Z's death. Here B is guilty of murder. A is guilty of abetting that offence by conspiracy, and is liable to the punishment for murder. Sec.120-A PPC 120A. Definition of criminal conspiracy .
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When two or more persons agree to do, or cause to be done, (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation.-It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. Sec.120-B PPC 120-B. Punishment of criminal conspiracy (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards shall, where no express provision is made in this Code for the punishment of such a conspiracy , be punished in the same manner as if he had abetted such of fence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both. Sec.503 PPC 503. Criminal intimidation. Whoever threatens another with any injury to his person, reputation or property , or to the person or reputation of anyone in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation.-A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section. Illustration A, for the purpose of inducing B to desist from prosecuting a civil suit, threatens to burn B's house. A is guilty of criminal intimidation. Sec.506 PPC 506. Punishment for criminal intimidation. Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc. and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. 16. There being no presumption arising out of the above said contents of the private complaint against the respondent Nos. 1 to 12 for the commission of criminal conspiracy , abetment and criminal intimidation of the occurrence. It is beyond the pale of contr oversy , that the respondent Nos. 1 to 12 could not be proceeded against, without the petitioner/complainant having made a prima facie case against them, that they hatched up conspiracy for commission of this occurrence. At least, what is alleged in the private complaint and by the complainant and witnesses got in their cursory statements are not in line with the contents of written complaint/application dated 19-06-2014. It is admitted fact that the petitioner/complainant submitted written complaint/application dated 19-06- 2014 (written complaint/application was placed on the record through C.M. No. 829 of 2018 at page No. 392-B available in volume No. 11) before the S.H.O. police station Faisal Town, Lahore, after two days of the occurrence. The belated written complaint/application was totally silent about the three (3) meetings allegedly held on 15-06- 2014 and 16-06-2014. Even we observed that as none of the…
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