Sunday, 25 October 2015

Quashment Accepted Petition Judgment of Karachi High Court


PLJ 2015 Karachi 10 (DB)
WAJID ALI MEMON--Petitioner
versus
CIVIL JUDGE JUDICIAL MAGISTRATE NO. 1, TANDO MUHAMMAD KHAN and 5 others--Respondents
C.P. No. D-1845 of 2013, decided on 24.10.2013.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 353, 147, 149, 341 & 506(2)--Anti-Terrorism Act, 1997, Ss. 6/7--Quashing of FIR--No cognizable offence was made out and FIR was lodged without recording statement of victims and obtaining signatures--Wrongly issued direction for lodgment of FIR--Simple threats were not sufficient to constitute criminal intimidation--Legal and factual position--Question of--Whether Sections 6/7 of ATA and S. 506(ii), PPC were applicable--Domain and jurisdiction of police--Validity--FIR only means to bring law into motion so as to collect material as to whether, in reality, a cognizable offence is made out which requires its determination by a competent Court of law after a legal trial or it shall require a legal disposal at end of police which shall be subject to approval by Court--Administrative jurisdiction should only be exercised where subordinate functionary is found guilty of negligence in performing its function and not otherwise, which too, be not in a manner to pre-empt authority of subordinate functionary--Sections 6 and 7 of Act, are not applicable in matter--Ingredients of criminal intimidation, as defined under Section 503, PPC, are also missing in matter which must exist for application of Section 506(ii), PPC--It is settled principle of law that quashment of FIR could only be ordered when material available on record, if taken as gospel truth, yet does not provide a chance of accused being convicted for any offence--Proceeding culminating to F.I.R, are pending before trial Court, thus petitioner is at liberty to avail alternate remedy before trial Court-- Sections 6, 7 of ATA Section 506(ii) PPC are not applicable in matter in hand hence same are, accordingly, ordered to be deleted; consequently, jurisdiction lies to regular Court. [Pp. 15, 19 & 20] A, B, C, D, E & F

Mr. Ghulamullah ChangAdvocate for Petitioner.
Date of hearing: 24.10.2013.
Order
Salah-ud-Din Panhwar, J.--Through the instant petition, the petitioner seeks quashment of the FIR bearing Crime No. 199 of 2013 u/Ss. 353, 147, 149, 341, 506(2) PPC, S. 6/7 ATA of Police Station, Tando Muhammad Khan, on the plea that no such offence as alleged has been taken place and no cognizable offence is made out and the FIR is lodged without recording the statement of victims and obtaining the signatures.
2.  Succinctly, the relevant facts, leading to the instant petition, are that on 6.9.2013; Respondent No. 5 filed CP No. S-536 of 2013 ("Re-Jai Ram Kolhi vs. DIG Hyderabad & Ors), wherein it was contended that on 1.9.2013 at 12.30 a.m four persons, intruded in the house of petitioner and taken away his son, alongwith chattels hence he approached to S.H.O and SSP concerned for redress, but no action was taken thereby filed petition and he, inter-alia, prayed as under:--
(i)       Issue rule nisi and direct the Respondent Nos. 1 to 3 to recover and produce the detenue before this Honourable Court and after recording his statement, he may be set at liberty in accordance with law;
3.  While issuing notices to the respondents, this Court issued directions as follows:--
"Let the concerned Magistrate to conduct raid at the otaq Respondent Nos. 4 to 7 to recover the alleged detenue or any other place at the pointation of petitioner. In case the alleged detenue is found there, he shall be handed over to the petitioner on identification with direction to produce him before this Court on 13.9.2013. In case the report submitted by the Magistrate shows that the detenue is recovered from any of the respondent, such respondent shall appear in person before this Court on the next date of hearing in case of failure to appear bailable warrants to follow. The petitioner is directed to accompany the Magistrate for pointation of the place to be raided by the Magistrate"
4.  In pursuance of such order the Respondent No. 1 (Magistrate) conducted raid at the house of one Ghulam Hussain Memon on 10.9.2013, but not succeed to recover the detenue, thus, such report was placed wherein it was asserted that he alongwith petitioner and his counsel Mr. Ishaque Qureshi, proceeded to conduct the raid, at pointed place, meanwhile within a short span of time, a crowd of 40 to 60 peoples, converged there; they caused strong resistance, and did not allow him to enter in the house / otaq of Respondent No. 4. The entire mob was being led by brother of Respondent No. 4. Petitioner and his counsel immediately left the place, however, he remained there for 4 to 5 minutes; strong confrontation was offered by the mob and they, while issuing threats of dire consequences, tried to snatch the weapon from his gunman. Due to fear of life he departed from the said place and conveyed such information to the District Police. Thereafter, with the help of SHO(s) of different police stations, conducted search of the village but no recovery was effected. Such report was placed with the request of permission for registration of F.I.R, against the culprits, who offered resistance.
5.  On raid report of learned Magistrate (Respondent No. 1), the learned Single Judge passed an order on 13.9.2013, the relevant portion thereof is reproduced hereunder:
The report suggests that brother of Respondent No. 4 has obstructed the Magistrate to comply with the orders of this Court, who led the mob of 40 to 60 people. He stopped the learned Magistrate from performing his duties in accordance with law. He has obstructed deliberately and caused hindrance in the administration of justice. He has violated the orders of this Court. Prima facie an attempt of the nature shown in the report comes within the parameters of Anti Terrorism Act as a sense of fear was created amongst the people of the vicinity. It is reported that they have tried to snatch the gun of the gunman and they have intimidated the learned Magistrate. Such type of incident can hardly be tolerated in compliance of the Court orders. Nobody is above the law. The brother of Respondent No. 4 should be taken to tasks. He has caused hindrance in compliance of the Court and in administration of justice. Prima facie he has willfully disobeyed and disregarded the orders of the Court and for about 105 minutes the orders of the Court were not complied. It appears that the brother of Respondent No. 4 considered himself above the law. Such incident took place in presence of the petitioner and his counsel, the gunman and learnedMagistrate and officials whose names have been disclosed in the report. I, therefore, direct the concerned SSP to get the FIR registered for the offence for the offence, which have been committed including but not limited to the offence under Anti-Terrorism Act against brother of Respondent No. 4 who could be identified by learned Magistrate and his gunman. Such accused after registration of the FIR should be arrested and as far as brother of Respondent No. 4 is concerned, he should be brought to this, Court and after arrest since he has violated the orders of this Court, obstructed and caused hindrance in the administration of justice. I also direct that the statements of petitioner, his counsel, gunman and the learned Magistrate who, were present at the scene may be recorded and efforts should be made to identify those other culprits involved in this incident although one of them who is identified as brother of Respondent No. 4 has already been identified. He may or may not be the brother of Respondent No. 4 but could be identified by learned Magistrate. The entire exercise of registration of FIR and compliance thereafter, should not make more than 24 hours. Let the copy of this order be faxed to I.G, D.I.G. and S.S.P concerned for strict compliance. In case of non-compliance, action against those police officials, who are found responsible, shall be taken. No relaxation will be accepted as far as compliance of above order is concerned. (Underline is supplied for emphasis)
6.  Thus, under compliance of the above order, the Respondent No. 3 on behalf of State lodged FIR bearing Crime No. 199 of 2013 under Sections 353, 147, 149, 341, 506(2), 114, PPC r/w Section 6/7 ATA at Police Station Tando Muhammad Khan; wherein raid report was reproduced as contents of FIR; thereafter as per directions investigation was carried out and accused were sent up for trial under Anti-Terrorism law.
7.  Learned counsel for the petitioner has, inter-alia, contended that the learned Single Judge of this Court was not legally competent to pass the order for lodgment of FIR in a particular offence nor was legally authorized to issue direction to conduct the investigation in a prescribed manner; in the raid report the learned Magistrate has sought permission for registration of case but instead of granting permission the learned Single Judge wrongly issued direction to SSP for lodgment of FIR though such jurisdiction lies with Incharge Police Station (SHO); direction for including Sections 6/7 of the ATA were also not legally justified; learned single Judge assumed the jurisdiction of Incharge Police Station so also that of Investigating Officer which is not warranted by law hence the FIR lodged in consequence to such illegal and wrong assumption of jurisdiction is liable to be quashed or least the Section 6/7 of the ATA, being attracted, be ordered to be deleted and case be sent back to Court of ordinary jurisdiction.
8.  In contra, the learned APG, while refuting the contention raised by counsel, agreed to the proposition that Sections 6 & 7, in instant case lacks, the basic ingredients, however, he maintained that petitioner can approach to the trial Court, by way of filing application under Section 23 of ATA Act, 1997 and further contended that this is not a case of quashment.
9.  Before proceeding to the merits of this case, it would be noteworthy to refer to the relevant, provision(s), having nexus with this case. First comes the provision of Section 154 of the Code which explains the manner of a report of cognizable offence, thus it would be conducive to refer Section 154 of the Code:
"Section 154. Information in cognizable cases.--Every information relating to the commission of a cognizable offence if given orally to an Officer Incharge of a Police Station, shall be reduced to writing by him or under his direction and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf."
The language of the provision of the Section 154 of the Code has been formed in such a manner by the Legislature that no discretion has been left with the Officer Incharge of a police station to refuse or avoid exercise of such mandatory jurisdiction but the only condition is that information should spell out commission of a cognizable offence. However, since the Court (s) are the ultimate guardian (s) of the rights of the individuals and in Criminal Justice System, thus the Court (s) enjoy the status of the Administrative Authority so as to have a check under writ jurisdiction, yet such administrative jurisdiction shall not give a legal right and authority to curtail the powers of statutory functionary (investigating authorities) nor would mean to interfere in the independent functions of authorities provided by law, unless it is surfaced that such exercise is patently contrary to the law, and is result of colourable exercise, reference can be made to the case of Ghulam Sarwar reported in 2010 SCMR 624.
10.  We may add here that an offence continues to be an offence even if not reported timely or no informant comes forward therefore, it becomes the obligatory duty of the Incharge of police station to bring the law into motion as soon as it comes to his knowledge who does not have to wait for one to come to report the offence which has already come into his knowledge. Further, the law, nowhere, demands that before lodging an FIR there should be a prior permission, particularly where the offence is one to be reported to an ordinary police station, unless embargo is provided, under the Criminal Procedure Code, 1898 for particular sections. This is for the simple reason that FIR only means to bring the law into motion so as to collect material as to whether, in reality, a cognizable offence is made out which requires its determination by a competent Court of law after a legal trial or it shall require a legal disposal at the end of the police (investigating agency) which shall be subject to approval by the concerned Court. We can safely say that administrative jurisdiction should only be exercised where subordinate functionary is found guilty of negligence in performing its function and not otherwise, which too, be not in a manner to pre-empt the authority of subordinate functionary.
11.  In case of Imtiaz Ahmed v Government of Pakistan (1994 SCMR 2142), it is held that:
"This Court, held, therefore, "that the continued control over the investigation exercised by the Court as in this case was prejudicial to the accused and detrimental to the fairness of the procedure apart from being without jurisdiction."
Further, the Honourable Supreme Court of Pakistan in the case of Brig. (Rtd.) Imtiaz Ahmed v. Government of Pakistan through Secretary Interior Division, Islamabad and 2 others (1994 SCMR 2142) laid down the principle much elaborately which is as follows:--
“In every investigation there are by and large three-different phases. First of all, the administrative phase; next, the judicial phase; and finally, the executive phase when the orders of the Court or the Tribunal are, if necessary, executed or promulgated. Quite plainly fairness to the suspect demands that he should be given a chance of starting his case before the final period; the execution. Equally fairness demands that the suspect shall be given a chance of putting his side of the case before the judicial inquiry is over. But on the other side, and the other side is entitled to fairness just as the suspect is. Fairness to the inquirer demands that during the administrative period he should be able to investigate without having at every stage to inquire from the suspect what his side of the matter may be. Of course it may be difficult to find out the particular point at which the administrative phase ends and the judicial phase begins".
12.  The above guidelines make the wisdom of legislature explained whereby an FIR can well be lodged without hearing the proposed accused because in above guiding principles the Honourable Supreme Court has termed the accused as 'suspect' and such a suspect shall have an undeniable right of a proper investigation including bringing the defence of such a suspect on record.
In the above case, the Honourable Supreme Court further held that:
"In other words what the petitioner wanted the High Court to do was to assume the role of Investigator. This could obviously not be done, for the authority to register and investigate a criminal case in law vests in the police and not in Court.”
13.  In view of above touch stone, it is germane to mention that it is the domain and jurisdiction of the Police to carry out the investigation and submit report under chapter XIV of the Code, therefore, a High Court would not be legally justified while directing for lodgment of the FIR in particular sections; because determination of application of a particular section or offence could only be determined only when raised and not otherwise, particularly not before recording of FIR, else it would not only prejudice the right of the authorized police officer but also of the Investigating Officer and even may influence the Court (s) taking cognizance or that which will ultimate deal with trial of the case which would seriously prejudice the right of the accused regarding fair trial, as protected by Article 10-A of the Constitution.
14.  Now, we would like to examine as to whether the Sections 6/7 of the ATA and 506(ii), PPC are applicable in this case or otherwise. While examination of such applicability, it would be conducive to refer the provision of Section-6 of the Anti-Terrorism Act, 1997 which defines the `terrorism' which is as follows:--
"6.  Terrorism.--(1) In this Act, 'terrorism' means the use or threat of action where;
(a)      the action falls within the meaning of sub-section (2); and
(b)      the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society; or
(c)      the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause (or intimidating and terrorizing the public, social sectors, business community and preparing or attacking the civilians, Government officials, installations, security forces or law enforcement agencies).
Sub-section-(2)--An "action" shall fall within the meaning of sub-section (1), if it;
(a)      involves the doing of anything that causes death;
(b)      ………………………..
(c)      ………………………..
(d)      ………………………..
(e)      ………………………..
(f)       ………………………..
(g)      ………………………..
(h)      ………………………..
(i)       ………………………..
(j)       ………………………..
(k)      ………………………..
(l)       ………………………..
(m)     Involves serious coercion or intimidation of a public servant in order to force him to discharge or refrain from discharging his lawful duties; or
(n)      Involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant.
(o)      ………………………..
(p)      ………………………..
Sub-section (3)--The use or threat of use of any action falling within sub-section (2), which involves the use of fire-arms, explosives or any other weapon, is terrorism, whether or not sub-section-1(c) is satisfied.
15.  The plain reading of the sub-section (3) of the Section-6 of the Act, elucidate that action defined in sub-section (2) of Section 6, if qualifies the condition of involvement of the use of fire-arms, explosives or any other weapon, would fall within meaning of "Terrorism" as, defined under sub-section (2) of the Section 6. In case of Amir Khan v. The State reported in PLD 2005 K 344, this Court has decided similar issue, it would be advantageous to refer the relevant Paragraphs, 14, 15 & 16 of said dictum, same are as under:
"14.  The second category of the definition of "Terrorism" has been given in sub-section (3). It means the use or threat of use of any action falling within the meaning of sub-section (2) and in doing so fire-arms, explosives or any other weapon is used, then it will become terrorism whether or not the purpose of advancing the religious, sectarian or ethnic clause. [Sub-section (1)(c))] is achieved or satisfied.
15.  According to this sub-section if the act falling within any clause of the sub-section (2) is committed, in which fire-arms, explosives or any other weapon is used then it will also come within the definition of "terrorism", regardless of the fulfilment or satisfaction of the circumstances or purpose mentioned in sub-section (1)(c). (underlining is provided foe emphasis)
16.  In this definition, the word "design" has not been used. Thus, the intention of the legislature clearly shows that for the offence falling within the scope of sub-section (3) the intention or mens rea is not an important factor or essential ingredient. The mens rea of clause 1(c) is also not necessary if the offence falling within the scope of clause 1(c) is committed with the use of fire-arms, explosives or any other, weapon.''
16.  Thus, in the instant matter nowhere it is alleged that any of the person, forming mob, was armed with any weapon, therefore, alleged resistance, offered by the mob, cannot be said to be an act of Terrorism" within meaning of sub-section (2) of Section 6 of the Act. If the interpretation is made, otherwise, it shall result it in bringing every single case of simple resistance to a public official, within meaning of Section 6 of the ATA and this does not appear to be the objective of the enactment of the Anti-Terrorism Act. Here we would like to reproduce the relevant portion of the judgment passed by honourable Supreme Court of Pakistan in case of "Mohabbat Ali Vs State" (reported as 2007 SCMR 142) which reads as under:--
"In order to determine as to whether an offence would fall within the ambit of Section 6 of the Act, it would be essential to have a glance over the allegations made in the F.I.R, record of the case and surrounding circumstances. It is also necessary to examine that the ingredients of alleged offence has any nexus with the object of the case as contemplated under Sections 6, 7 and 8 thereof. Whether a particular act is an act of terrorism or not, the motivation, object, design or purpose behind the said Act is to be seen. It is also to be seen as to weather the said Act has created a sense of fear and insecurity in the public or any section of the public or community or in any sect."
17.  Further, it is a matter of record that the learned Magistrate after short time, again completed the raid proceeding with help of the police without any resistance which also shows that there had not been created any sense of fear and insecurity. Thus, keeping in view the legal and factual position discussed hereinabove, we are of the view that Sections 6 and 7 of the Act, are not applicable in the matter. Moreover, it appears that, the ingredients of criminal intimidation, as defined under Section 503, PPC, are also missing in the matter which must exist for application of Section 506(ii), PPC. The Section 503, PPC defines criminal intimidation as under:
"503. Criminal intimidation. Whoever threatens another with an injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intention 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.”
The bare perusal of the above makes it elucidate that simple threats are not sufficient to constitute a criminal intimidation within the scope of this section unless it is caused that person to do an act who was not legally bound to do or to omit to do any act which that person was legally bound to do. Thus Section 506(ii), PPC, applied in the matter, also not applicable.
18.  So far as to the plea of quashment, it is settled principle of law that that quashment of the FIR could only be ordered when the material available on record (collected by prosecution), if taken as gospel truth, yet does not provide a chance of accused being convicted for any offence, hence the principles, guiding exercise of such provisions should prima facie exist before insisting for quashment of an  FIR.  Further,  it  is  surfaced  that  proceeding  culminating  to the

aforesaid F.I.R, are pending before the trial Court, thus the petitioner is at liberty to avail the alternate remedy before the trial Court.
19.  In view of above discussion we are of the firm view that Sections 6, 7 of the ATA Section 506(ii), PPC are not applicable in the matter in hand hence the same are, accordingly, ordered to be deleted; consequently, jurisdiction lies to the regular Court.
20.  These are the reasons of the short order dated 24.10.2013, whereby instant petition was accepted partially.

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