Saturday, 20 April 2019

It is duty of Police Officer, to register crime report under relevant provisions of law

PLJ 2018 Cr.C. (Lahore) 481[Multan Bench Multan]
PresentAsjad Javaid Ghural, J.
ABID HUSSAIN--Petitioner
versus
STATE--Respondents
Crl. Rev. No. 94 of 2017, heard on 4.10.2017.
Duty of Police Officer--
----Crime report--It is duty of Police Officer, to register crime report under relevant provisions of law after minutely going through written or verbal assertion of informer and thereafter during investigation, Investigating officer is always duty bound to collect evidence (for and against) and prepare a report under Section 173, Cr.P.C., on basis of material available on record under relevant provision of law--Before submission of challan, Investigating Officer had to see prima facie what offence was made out from allegation of cognizable offence--Police /officer, who had registered crime report as well as Investigating Officer remained fail to discharge their duties in accordance with law--Act of accused persons as alleged in crime report squarely falls under definition of terrorism.
                                                                                  [Pp. 483 & 484] A
Terrorism--
----Definition of--Accused persons have committed murder of innocent person, in police uniform for purpose to spread terror and 5 in society so that no one from law enforcement agencies step forward to take any action against them, is squarely falls under definition of “terrorism” as envisaged under statute--They not only refrained police officials from discharging their official duties but also given a message to police functionaries as well as public at large while creating panic, fear and insecurity in society.                   [P. 484] B
Constitution of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, (V of 1898), S. 439--Criminal Revision--Application for insertion of S. 7 of ATA 1997, was dismissed--Trial Court has not considered very purpose of enforcement of Anti-Terrorism Act 1997, especially at time of framing of charge trial Court was under legal obligation to go through entire record to proceed further--From bare reading of crime report taking and into an account facts and circumstances of case, this case falls within ambit of “terrorism” which is exclusively triable by Anti-Terrorism Court--Order impugned passed by trial Court is suffered with illegality and perversity and has prejudiced case of prosecution and, thus, invites the interference by High Court--Revision allowed.                                                   [P. 484] C
Mr. Basir Khan Sakhani, Advocate for Petitioner.
Qari Abdul Karim Shahab, Advocate for Respondents.
Mr. Muhammad Ali Shahab, DPG for State.
Date of hearing: 4.10.2017.
Judgment
Through this criminal revision petition Abid Hussain has assailed the legality and propriety of order dated 06.06.2013 passed by the learned Additional Sessions Judge, Kot Adu(Camp at Central Jail), Dera Ghazi Khan, whereby the application of the petitioner for insertion of Section 7-ATA of 1997 in case FIR No. 01 dated 01.01.2011 in respect of offences under Sections 302, 353, 186, 148, 149, PPC registered at Police Station Mehmood Kot District Muzaffargarh, was dismissed.
2.  The facts necessary for disposal of the instant petition are that Abid Hussain ASI, the complainant along-with Muhammad Ishaq 10820-C in an official vehicle Bearing No. 1455/MHC driven by Matloob Hussain 945/HC proceeding from Choki Abbas Wala to Sunalwan City in order to repair official motorcycle and for change of engine oil of the vehicle. At about 11:30 a.m. when they reached in the area of Mauza Thatha Gurmati, they saw six persons armed with kalashnikovs namely Javaid Lashari, Abdul Ghafoor alias Kali KaneraRabNawaz alias Nabi DaddaSadiq, Abdul Razzaq and one unknown persons riding on two motorcycles, Honda-125. They haulted the police party, aimed their weapons towards them and directed them to deboard from the official vehicle. Abdul Ghafoor alias Kali Kanera inquired them whether the officials belonged to Police Station Kot Mehmood. On replying in positive the accused persons, who were already annoyed on police encounter made by the officials of Police Station Kot Mehmood, resulting into inflicting fire-arm injuries to Nadir Lashari, companions of the accused persons a day before the instant occurrence, in order to take revenge Sadiq Lashari accused made a brust of kalashnikov at the chest of Muhammad Ishaq constable who fell down smeared with blood, thereafter, Rab Nawaz, Abdul Razzaq and one unknown made a burst of kalashnikov on the tyres, bonnet and front screen of vehicle and made an alarm that who so ever attempted to assault upon them they will teach him a lesson. The complainant attended Muhammad Ishaq, constable who had succumbed to the injuries at the spot. It was further alleged that the accused were members of a gang of dacoits consisting of 14/15 persons who had been indulged in murder, abduction for ransom and such like other criminal activities. Hence this case was registered.
3.  Challan was submitted in the Court of ordinary jurisdiction and at present the case is being tried in the jail premises by the learned Additional Sessions Judge Kot Adu. During proceedings the complainant had filed an application with the submission that it was a case of terrorism and it was to be adjudicated by the Anti-Terrorism Court as offence under Section 7-ATA 1997 does attract to the facts and circumstances of the case but the said application was dismissed with the observation that initially the case was registered without insertion of Section 7-ATA 1997, and the case is being proceeded in Central Jail D.G Khan with the sanction of Home Department, where statements of some of the witnesses have already been recorded. It was further observed that prosecution had never added Section 7-ATA of 1997, while submitting the challan and no objection had been made by the Prosecution Department at the time of framing of the charge.
4. Learned counsel for the petitioner submits that the police officials were on duty, wearing police uniforms travelling on official vehicle when they were intercepted by the accused persons who had committed the murder of Muhammad Ishaq Constable having no fault on his part; that the bare reading of the crime report transpires that it was a case of terrorism and the police official who had registered the crime report, was under legal obligation to insert Section 7-ATA of 1997, along-with other enabling provisions of law. During investigation the Investigating Officer did not bother to add Section 7-ATA of 1997 and submitted challan in the Court of ordinary jurisdiction, which is not permissible under the law.
5.  Learned Prosecutor General has conceded in all fairness that the case was triable by the Anti-Terrorism Court and non-inserting of Section 7-ATA of 1997 is a fault on the part of Investigating Officer which can be cured while submitting supplementary report under Section 173, Cr.P.C.
6.  I have heard learned counsel for the petitioner as well as learned Deputy Prosecutor General appearing for the State and have perused the record.
7.  It is the duty of the Police Officer, to register the crime report under relevant provisions of law after minutely going through the written or the verbal assertion of the informer and thereafter during investigation, the Investigating officer is always duty bound to collect the evidence (for and against) and prepare a report under Section 173, Cr.P.C., on the basis of material available on record under the relevant provision of law. Before submission of challan, the Investigating Officer had to see prima facie what offence was made out from the allegation of cognizable offence. The police officer, who had registered crime report as well as Investigating Officer remained fail to discharge their duties in accordance with law. The act of accused persons as alleged in the crime report squarely falls under the definition of terrorism as envisaged under the statute i.e. Anti-Terrorism Act, 1997, the same is reproduced here:
Under Section 6(1). In this Act, “terrorism “ means the use or threat of action where:
(c)      “The use of threat is made for the purpose of advancing a religious, sectarian or ethnic cause {for intimidating and terrorizing the public, social sectors, media persons, business community or attacking the civilians, including damaging property by ransacking, looting, arson or by any other means, government officials, installations, security forces or law enforcement agencies}.
Section 6(2)  An “action” shall fall within the meaning of sub-section (1), if it:
(O)     involves in acts as part of armed resistance by groups or individuals against law enforcement agencies.”
In the instant case the accused persons have committed the murder of innocent person, in police uniform for the purpose to spread the terror and Panic in the society so that no one from law enforcement agencies step forward to take any action against them, is squarely falls under the definition of “terrorism” as envisaged under the statute. They not only refrained the police officials from discharging their official duties but also given a message to the police functionaries as well as public-at-large while creating panic, fear and insecurity in the society.
8.  Learned trial Court has not considered the very purpose of the enforcement of Anti-Terrorism Act 1997, especially at the time of framing of charge the learned trial Court was under legal obligation to go through the entire record to proceed further. From the bare reading of crime report and taking into an account the facts and circumstances of the case, this case falls within the ambit of “terrorism” which is exclusively triable by the Anti-Terrorism Court. The order impugned passed by the learned trial Court is suffered with illegality and perversity and has prejudiced the case of the prosecution and, thus, invites the interference by this Court.

9.  For what has been discussed above, instant revision petition is allowed, impugned order dated 6.6.2017 is set aside and learned trial Court is directed to transmit the case file to the learned Anti-Terrorism Court concerned .after due process.
(A.A.K.)          Revision allowed

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