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Petitioner: IMRAN RAZA KHAN, ADVOCATE VS Respondent: S.S.P., LAHORE And 2 Other
Court Name: Lahore High Court Judge(s): Mian Allah Nawaz, Mian Nazir Akhtar, Tanvir Ahmed Khan Title: IMRAN RAZA KHAN, ADVOCATE vs S.S.P., LAHORE And 2 Other Case No.:Criminal Miscellaneous No.727/H and Constitutional Petitions Nos. 1004,
JUDGMENT
Reported As: 2001 MLD 1735 Result: Order accordingly Judgment JUDGMENT MIAN ALLAH NAWAZ, C.J.---This order will govern four petitions namely Criminal Miscellaneous No.727-H of 2000 and three Constitution Petitions bearing Nos. 1004, 1005 and 10805 all of 2000. The first one is a petition under section 491, Cr.P.C. By Imran Raza, Advocate/nephew of Ghulam Qambar Chadhar detenu. Two petitions Nos. 1004 and 1005 of 2000 under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 have been filed by Ghulam Qambar Chadhar, detenu. Last and fourth is also a Constitutional petition moved by Mr. Abid Saaqi, Advocate/General Secretary, Lahore High Court Bar Association, Lahore. Through the first petition, Imran Raza wants this Court to depute a Bailiff to recover all the detenus mentioned in the petition; produce them before the Court and to set them at liberty in accordance with law. In second Constitutional petition, Ghulam Qambar has prayed that respondent/S.H.O. Be restrained from taking any step under the cover of F.I.R. Impugned in this petition and he may be restrained from initiating any action against his relatives. He further wants this Court to declare the action of getting him declared as proclaimed offender, as without jurisdiction, without any lawful consequences and nullity in the eyes of law; that the Anti-Corruption Establishment be directed to ensure that the contents of Memo., dated 9-5-2000 are obeyed by the S.H.O.; that the Inspector- General of Police be directed to initiate action against the respondent/S.H.O. The third petition has been filed to restrain the Police from seeking any further police remand on the bass of F. I. R. No. l of 2000.'The fourth petition seeks the quashment of F.I.R. No. 131 of 2000. 2. In order to resolve the Competing claims of both sides, it is necessary to note the factual background leading to filing of these petitions. Concisely stated, the case of petitioner is; that
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Imran Raza Khan applicant herein is nephew of Ghulam Qambar who had been working as Accounts Officer in the office of Accountant General, Punjab, Lahore, F.I.R. No. l of 2000 was lodged by Ghulam Rasul, Accountant of Elite Training School, Lahore under section 409, P.P.C. Against Maqsood Bashir, ex-Accountant of the School and Fida Hussain/alleging therein that the aforesaid accused were involved in sheinous acts of manipulation, forgeries and massive embezzlement of funds of the School; that they had taken away the cash registers relating to 1997-98, 1998-99 and 1999-2000, contingent registers relating to 1997-98, 1998-99 and 1999-2000 and various other records. This F.I.R. Was lodged at Police Station, Barki. Statedly, on 2-2-2000 Sayed Muhammad Abbas, Inspector/S.H.O. Police Station Barki abducted Ghulam Qambar from the gate of office of the Accountant General, Punjab, Lahore, took him to some unknown destination and kept him in illegal confinement. Feeling aggrieved, he filed a habeas corpus petition which was disposed of by our learned brother Zafar Pasha Chaudhry, J. On 8-2-2000 with the observation that the said petition had become infrunctuous; that the Investigation Officer had obtained warrants of arrest of Ghulam Qambar; and according to him he had not been arrested by him. The petitioner, however, was given option to pursue remedies under the law. At this stage, it is necessary to mention that the occurrence reported in F.I.R. No.1 of 2000 came to the notice of Director Anti-Corruption and on 7-2-2000, a high powered committee comprising Additional Director, Anti-Corruption Establishment, Lahore, Deputy Director (Legal) and Sayed Abdus Samad Shah was constituted to look into the matter. Thereafter, another petition i.e. Writ Petition No.6795 of 2000 was filed by Jamila Qambar wife of detenu, which was withdrawn on 1-5-2000 as impressed. 3. This is the background, in which Imran Raza Khan filed a complaint under section 19(3) of Anti- Terrorism Act, 1997 read with section 200, Cr.P.C., in the Court of the learned Special Judge, Anti- Terrorism Court, Lahore on 27-4-2000. The aforesaid complaint was withdrawn with permission to file fresh one. Resultantly, on 28-4-2000, a fresh complaint was lodged. It was alleged therein that Ghulam Qambar was kidnapped by Abbas respondent/S.H.O. At about 8:30 a.m. On 2-2-2000 from the main gate of A.G. Office/Turner Road, Lahore; that his car Suzuki Mehran was also taken into custody by the said police officer; that there was massive embezzlement in the Institution known as Elite Training School, Baidian Road, Lahore; that one Col. (Rtd.) Tariq Ehtisham, who was Incharge of this School and was involved in the `embezzlement, goaded the said S.H.O. To kidnap Ghulam Qambar in order to destroy the evidence pertaining to his crimes. It will be highly useful to quote para. 10 of the afforded complaint in extenso:-- "That the aforesaid Ghulam Qambar Chadharh is still being held in illegal confinement by respondent Abbas at various secret places within his special knowledge in order to protect himself from penal consequence of his criminal act. Even now, the aforesaid detenu remains in illegal confinement after the lapse of 84 days. In order to protect himself, respondent Abbas has arranged for an arrest warrant even though the detenu continues to remain in his illegal custody for a prolonged period, hence the need for a Search Warrant in terms of section 100, Cr.P.C. Which has been separately applied for." 4. The learned Special Judge recorded the statement of the complainant on 29-4-2000 and that of the witnesses on 2-5-2000 respectively. On 29-4-2000, the basis of material before him, the S.P. Was directed to make a search and produce the detenus in Court, if possible on 6-5-2000. Despite hectic efforts, the aforesaid order did not yield any productive result. The applicant was, so, forced to move another application under section 100, Cr.P.C. For issuance of search warrant. The learned Special Judge, vide order, dated 10-5-2000, rejected the application holding that a search warrant issued under section 100, Cr.P.C. Will be totally an unproductive one. This was the situation in which the second application was filed on 17-5-2000 under section 100, Cr.P.C. On this application, after hearing the parties, learned Special Judge was pleased to appoint Mr. Shaukat Rafique Bajwa, Advocate as Bailiff of the Court and was empowered to effect the recovery of the detenu with the
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assistance of the concerned police. Pursuant to this order, Mr. Shaukat Rafique Bajwa, Advocate requested the Court to appoint two more Advocates in order to assist him in the above exercise. Consequently, on 19-5-2000, Mr. Zafar Mahmood Chaudhry, Advocate and Mr. Hamaad Raza, Advocate were appointed to assist Mr. Shaukat Rafique Bajwa, Advocate. Armed with this order, on the same date, the aforesaid two Advocates raided the Office of Union Council, Wahga and found that Ghulam Qambar, Zahid Kaleem, Sikander Hayat and Muhammad Latif son of Muhammad Siddique were confined in a room with handcuffs. Thereafter, they were taken from that place alongwith Nazir Hussain, Constable No. 11707 to the Court of Special Judge, Anti-Terrorism Court. The report was duly submitted by Mr. Shaukat Rafique Bajwa, Advocate, Mr. Zafar Mahmood Chaudhry, Advocate and Mr. Hamaad Raza, Advocate. The statements of the Constable and the detenus were recorded. All the above--mentioned detenus, at the time of raid, were found in handcuffs, which were removed. Their statements were recorded and they were again handcuffed and were required to be produced before the learned Judge Anti-Corruption. In this exercise the detenus were sent to jail by the learned Special Judge Anti-Corruption. 5. As a sequel to the above recoveries, F.I.R. No.131 of 2000 was registered on 24-5-2000 by Muhammad Riaz, A.S.I. At Police Station Batapur under sections 365 and 186, P.P.C. Against the aforesaid learned Advocates, who recovered the detenus from the office of Union Council, Wahga. As a result of this, Criminal Miscellaneous No.727-H of 2000 was filed, which was received by one of us (Mian Allah Nawaz, Chief Justice) at his residence on 27-5-2000. Pursuant to the order of the Court, Bailiff raised the Police Station, Batapur, Lahore and found Shaukat Hussain son of Haji Shah Muhammad, Fazal Abbas son of M. Rafique, Haji M. Ismail son of Muhammad Ibrahim and Muhammad Shafique son of Muhammad Siddique present in the Police Station. They, according to Bailiff, were in a Police Van and were being taken to Court of competent jurisdiction for seeking their remand. They had been arrested in case F.I.R. No.131 of 2000, dated 25-4-2000. The S.H.O. Stated that they had taken away the accused in case F.I.R. No.1 of 2000, dated 2-1-2000 registered with Police Station Burki under sections 409/468/471/477-A, P.P.C. Thereafter, Writ Petitions Nos.1004, 1005 and 10805/ all of the 2000 were filed on 30-5-2000, 30-5-2000 and 6-6-2000 respectively. 6. Before we proceed further to note the legal contentions of the parties, we find, it is expedient to record to version of Abbas/S.H.O. Burki. This version was unfolded by Sayed Shabar Raza Razvi, Advocate, who entered appearance on his behalf. He stated, at the outset, that Abbas/S.H.O. Was being painted as a devil but he was not so. He relied upon Zimni No. 15, dated 19-1-2000 and Zimni No.35, dated 19-5-2000. The Copies of the Zimnis were placed on record of this petition. According to the learned counsel, Maqsood Bashir, the Accountant and Fida Hussain, Cashier P.P.C. Battalion- I, Abbas Line, Lahore were arrested in a case under sections 498, 468, 471-A, 477 and 120-8, P.P.C. The aforesaid accused, on interrogation, divulged that they had prepared fictitious- record of Elite Training School under the supervision of Ghulam Qambar, accused and manoeuvred to misappropriate, in the first instance, 5 to 6 crore rupees on the basis of felonious strategy charted` by him. He further disclosed, that a pretty good amount had been paid to Col. (Retd.) Ehtisham, the Principal of the Institution, in order to solicit his support in the aforesaid felonious process. He further disclosed that an amount of more than 4 crorers had been misappropriated by the above gang with respect to purchase of pistols; that said police official had conducted investigation under the orders of the competent Authority and found incriminating material against the aforesaid accused and also against a very high official, Col. (Retd.) Ehtisham, another senior police officer in the rank of D.I.-G., and Mrs. Seemi Khan, Deputy Accountant General in the office of A.-G.; that it came to light that the aforesaid gang had manufactured fictitious record to pocket huge amount of public money with tacit connivance of Col. (Retd.) Ehtisham. Learned counsel continued that the aforesaid S.H.O. Had conducted investigation with mathematical honesty and unearthed a case of embezzlement of public fund. On the arrest of Ghulam Qambar and his two associates, he
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stated that on 19-5-2000, the said S.H.O. Received an information that Ghulam Qambar, Zahid Kaleem, Muhammad Latif and Sakindar Hayat were coming from 'Goal Chakkar' and were proceeding towards `Cantt. Ketchary'; that they were arrested and taken to Union Council, Wahga from where they had been taken away by the Bailiff, deputed by the learned Special Judge Anti- Terrorsim Court. This is factual version of maligned S.H.O. 7. The above given factual narrative will not be complete without noting certain revenue which happened in the Court. Criminal Miscellaneous No.727-H of 2000 came before one of us (Chief Justice) at his residence on 27-5-2000. Pursuant to his order, the bailiff raided Police Station Batapur, Lahore and found Shaukat A.I, Fazal Abbas, Haji Muhammad Ismail and Muhammad Shafique present in the police station. According to the bailiff the aforesaid detenus were in a van and were being taken on concerned Court for seeming their remand in a case F.I.R. No.131 of 2000, registered on 24-5-2000 under sections 365/186, P.P.C., etc. The aforesaid detenus were produced alongwith S.H.O. The learned Advocates, who had earlier performed duties of bailiff, were also implicated in the F.I.R. And were also granted ad interim bail subject to their furnishing bail bonds in the sum of Rs.5,000 each to the satisfaction of Deputy Registrar (Judl.) of this Court. Again this case came up for hearing before one of us (the Chief Justice) on 29-5-2000, 31-5-2000, 31-5-2000 and then on 2-6-2000 when an unfortunate incident occurred in the Court. However, whatever happened on the date i.e. 2-6-2000, is not useful to recapitulate in this judgment. On 5-6-2000, one of us (Chief Justice) felt that it was proper to put all these matters before a Full Bench. This is how all these causes were heard by the Full Bench on 8-6-2000 and 9-6-2000. On this date of hearing, Dr. A. Basit, Advocate entered appearance. He expressed his deep remorse and regret for whosoever had happened on 2-6-2000. He expressed his unconditional feeling of regret and sought that the aforesaid episode be forgotten. Thereafter, he opened arguments on behalf of Imran Raza Khan and Ghulam Qambar and inter alia urged:-- Firstly: That Ghulam Qambar Chadharh had been kidnapped by Abbas, Inspector/S.H.O. On 2-1- 2000 from the main gate of the office of the Accountant General, Punjab, Lahore and had been kept in illegal confinement till the date of his recovery; that the version given by the S.H.O. Was totally incorrect and was a device to put a cover on his illegal acts. On the strength of the above circumstances, he submitted that the detention of Ghulam Qamabar Chadharh from 2-1-2000 to 19-5-2000 be declared as illegal and a case be registered against the said delinquent police official. Secondly: That the petitioner had filed a complaint before the learned Special Judge Anti-Terrorism Court; that a search warrant was issued on 17-5-2000; that the bailiff party comprising Mr. Zafar Mahmood Chaudhry, Advocate and Mr. Hamaad Raza Naqvi, Advocate recovered the detenus from the office of the Union Council, Wahga and they were produced before the Court of law in pursuance of its order; that the registration of F.I.R. No.131 of 2000 was therefore, wholly without jurisdiction, sheer abuse of authority and so needed to be quashed. Thirdly: That the learned Special Judge Anti-Terrorism Court was competent to entertain the complainant and was also competent to issue order of search warrant under section 100, Cr.P.C. Read with section -202, Cr.P.C.; that the conduct of the S.H.O. Was totally contumacious, unlawful and merited to be checked. 8. Ms. Yasmin Saigal, Assistant Advocate-General entered appearance on behalf of the State. She in reply raised the following points:-- (i) That the case of the Advocates Bailiffs/accused in F.I.R. No. 131 of 2000 is separable from that of other co-accused; that the aforesaid Advocates were acting in pursuance of an order passed by the Court arid so the State has no objection to the quashment of F.I.R. Qua the aforesaid Advocates Bailiffs; that the other co-accused obstructed public servants in discharge of their official duties and so F.I.R. No.131 of 2000 had been correctly recorded against them.
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(ii) That from the contents of the complaint filed in the Court of Special Judge Anti-Terrorism, it was clear that offence under sections 342/340, P.P.C. Was also mentioned therein and so the learned Special Judge Anti-Terrorism Court had no jurisdiction to entertain the complainant within the framework of section 6 of the Anti-Terrorism Act, 1997. (iii) That the petitioners were not entitled to any discretionary relief under Constitutional jurisdiction as they had approached Special Court with unclean hands. (iv) That the learned Special Judge Anti-Terrorism Court was a Special Court and riot a Court of plenary or general jurisdiction, therefore, it had no jurisdiction or power to issue search warrants under section 100 of Cr.P.C. Reliance was placed on the case of Mst. Kausar Parveen v. Ahmad A.I Zafar, Judicial Magistrate, Kabirwala, District Khanewal (PLD 1997 Lahore 208). (v) That there was no material whatsoever for registration of a case against Abbas/S. H. O. (vi) That the petitioner had filed a complaint before the Special Judge wherein a process had been issued, therefore, there was no occasion to issue a direction for registration of a case. The learned Advocate-General supported whatever was argued by Mr. Shabbar Raza Rizvi, Advocate. 9. Raja Shafqat Abbasi, Advocate/Chairman, Executive Committee, Punjab Bar Council entered appearance on behalf of the Punjab Bar Council and supported the act of the bailiffs dated 19-5- 2000. Thereafter, Ch. Abdur Razzaq, Advocated appeared on behalf of Mr. Zafar Mahmood Chaudhry, Advocate and Mr. Aftab Ahmad Bajwa, Advocate appeared on behalf of Lahore High Court Bar Association. They also supported the arguments of Dr. A. Basit, Advocate. They further relied upon sections 77 to 79 of Pakistan Penal Code to suggest that even if the order of the learned Special Judge, Anti-Terrorism Court was incorrect, still the F.I.R. No.131 of 2000 could not have registered. The President, Lahore High Court Bar Association supported the action of the bailiffs. He also filed written arguments in support of his contentions which have been placed on record of this petition. 10. From the foregoing factual narration, the following propositions of law/points/questions arise for consideration:-- (1) Whether the learned Anti-Terrorism Court was competent to entertain and take cognizance of complaint moved by Imran Raza Khan under section 19(3) of the Anti-Terrorism Act, 1997 read with section 200, Cr.P.C.? Whether the learned Special Judge Anti-Terrorism Court was competent to issue a search warrant under section 100, Cr.P.C.? (3) Whether the raid conducted by Mr. Zafar Mahmood Chaudry, Advocate and Mr. Hamaad Raza, Advocate on 19-5-2000 was void ab initio and it was tantamount to interference in the official duties of the concerned police functionaries, and whether on the facts and circumstances of the case, F.I.R. No.131 of 2000 was rightly registered at Police Station Barki on 24-5-2000 by A.I Raza, S.-I. Under sections 136/186, P.P.C. (4) Had Ghulam Qambar Chadhar been in the illegal custody of Abbas, S.H.O., Police Station Barki from 2-1-2000 till 19-5-2000? 11. Having noted the facts, circumstances of the instant petitions and competing contentions of the parties, we, now, proceed, to deal with the above proposition in seriatim. As regards question No. 1, we will have to undertake servey of the relevant provisions of the Anti-Terrorism Act (XXVII of 1997). It was promulgated on 20-8-1997 with an object "to provide for the prevention of terrorism, sectarian, violence and for speedy trial of heinous offences and for matters connected therewith in and incidental thereto". This statutory instrument has 40 sections/followed by a Schedule under section 2(e) of the Act (ibid). Its sections 6, 10, 11, 12, 13, 19 and 23 are pertinent for present examination. Section 6 contains the definition of terrorist acts committed by the terrorists. Section 10 empowers any officer of the police, armed forces or civil armed forces to enter and search the
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premises where it is suspected that there is some material or recording which is in contravention of section 8. Section 11 empowers the Anti-Terrorism Court to forfeit any material or recording referred to therein. Section 12 pertains to jurisdiction of Anti-Terrorism Court. It says that notwithstanding anything contained in the Code or in any other law, a scheduled offence committed in an area in a Province shall be triable only by the Anti-Terrorism Court having the territorial jurisdiction, in relation to such area. Subsection (2) of this section empowers the Government to seek trial of a scheduled offence by any Anti-Terrorism Court having territorial jurisdiction. Section 13 empowers the Federal Government to establish, by notification, one or more Anti-Terrorism Courts and take any further administrative measures. Section 14 lays down the qualification of a Judge of Anti- Terrorism Court. Then comes section 19. It is very important provision. It relates to procedure and power of the Anti-Terrorism Court. This section contains 14 subsections. Subsection (1) mandates that officer-in--charge of a police station shall complete the investigation with regard to a scheduled offence within seven working days and put a report directly to that Court under section 173, Cr.P.C. Subsection (2) deals with any default/lapse on the part of the Investigating Officer and empowers the Court to deal with it. Subsection (3) specifically- states that the Anti-Terrorism Court may directly take cognizance of a case triable by it without the case being sent to it under section 190, Cr.P.C. Subsections (4) and (5) relate to police custody while subsection (6) enacts that Anti- Terrorism Court shall be deemed to be a Magistrate for the purpose of subsections (4) and (5). Subsection (7) states that on taking the cognizance of the case, the Anti-Terrorism Court shall proceed with the case from day to day and shall conclude the matter within seven working days. Subsections (8), (9), (10, (11), (11-A), (12) and (13) are of not much relevance. Then comes the last subsection i.e. (14). It postulates that, the Anti-Terrorism Court shall, for the purpose of trial of any offence, shall function and possess all the powers of Court of Session and try it in accordance with the procedure prescribed in the Code for trial of Sessions case. These are, in brief, salient features of this statutory instrument. Briefly, it can be said that Anti-Terrorism Court is a Special Court; it functions as a Sessions Court for the purpose of trying scheduled offences and acts falling within the ambit of section 6 of the Act, it is the only Court which has the power to try the scheduled offences; it is to follow the procedure as prescribed in Chapter relating to Sessions trial unless it is in conflict with any provision in the Anti-Terrorism Act. 12. The stage has now come to examine the inter-actions between section 19 of the Anti-Terrorism Act and sections 190, 190(3), 200 to 203 of the Code of Criminal Procedure. Section 190(3) lays down that any. Magistrate, who takes cognizance under subsections (1) of an offence triable by a Court of Session shall without recording any evidence, send the case to the Court of Session in accordance with law. Clearly the Magistrate may examine the material judicially for the purpose of taking cognizance of a case and if he so finds out that there is a prima facie which is triable by the learned Sessions Judge, he shall forward it to that Court. Section 190(3) provides an embargo on the power of the learned Sessions Judge. It specifically enacts that no Court of Sessions shall function as a Court of ordinary jurisdiction and take cognizance of any offence unless the case has been sent to it under section 190(3), Cr.P.C. By a Magistrate, empowered to do so. 13. The first difficulty which so arises, is due to section 190(3), Cr.P.C. And section, 19(3) of Anti- Terrorism Act, 1997. In order to solve the difficulty, we are inclined to refer to decision rendered by the apex Court in Riffat Hayat v. Judge 'Special Court for Suppression of Terrorist Activities, Lahore and another (1994 SCMR 2177). This case arose out of the Suppression of Terrorist Activities Act (Act XV of 1975). Coincidentally, section 5 and section 5(a) of this Act are pari materia with section 19(1) and (3) of Anti-Terrorism Act, 1997. These are as follows:--- Section 5 of Suppression of Terrorist ActivitiesSection 19(1)(3) of Anti- -Terrorism Act(XXVIIof Courts) Act, 1997)
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5. Taking of cognizance .- -(1) The officer-in-charge of a police station shall complete the investigation and forward directly to the Special Court a report under section 173 of the Code within fourteen days in respect of a case triable by such Court: Provided that the Special Court may extend the time within which such report is to be forwarded in a case where good reasons are shown for not doing so within the time specified in this subsection.-- Any default on the part of an officer-in-charge of a police station, an Investigating Officer or any other person required by law to perform any functions in connection with the investigation, which results in, or has the effect of delaying the investigation or the submission of the report under subsection (1), shall be deemed to be a willful disobedience of the order of…
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