THE HIGH COURT OF SINDH AT KARACHI
Criminal Revision Applications No. 179
& 180 of 2016
Criminal Revision Applications No.
09 & 10 of 2017
Present Mr. Justice Naimatullah Phulpoto
Mr. Justice Abdul Maalik Gaddi
Date
of Hearing : 22.11.2017
Date
of announcement of Order : 22.11.2017
Applicants/accused : Muhammad
Ali Hasan, Umer Hasan Qadri through Mr. Anwar Mansoor Khan Advocate.
: Dr. Abdul Sattar Khan & Mst. Iqbal
Adeeb Khanum through Mr. Hassaan Sabir Advocate.
Respondent : The
State through Mr. Sajid Mehmood Special Prosecutor along with P.I/I.O Raja
Jahangir P.S Site B.
O R D E R
NAIMATULLAH
PHULPOTO, J.- Through
the aforesaid Criminal Revision Applications, applicants/accused Muhammad Ali
Hasan, Umer Hasan Qadri, Dr. Abdul Sattar Khan and Mst. Iqbal Adeeb Khanum have
called in question order dated 16.09.2016, passed by learned Judge,
Anti-Terrorism Court No.II, Karachi Division, whereby Trial Court took cognizance
of offence and issued N.B.Ws against
accused No. 5 to 13 whose names have been placed in Column No.2 of the challan.
2. Brief facts leading to filing the above
Revision Applications are that FIR of incident was lodged on 11.09.2012 vide
Crime No. 343/2012 at P.S Site-B under Sections 435/436/337/302/322/34 PPC.
3. After usual investigation challan was
submitted against the accused before learned Administrative Judge, ATCs Karachi
under Sections 384/385/386/435/436/302/324/337/109/34 PPC read with Sections
6/7 Anti-Terrorism Act, 1997. Names of applicants/accused were shown in Column
No.2 of Challan. Trial Court took the cognizance and issued NBWs against the
applicants/accused, hence these Revision Applications have been filed.
4. Mr. Anwar Mansoor Khan learned counsel
for applicants/accused Muhammad Ali Hassan and Umer Hassan Qadri contended that
applicant Muhammad Ali Hassan is businessman and he has longstanding business
partnership with Bhaila family. It is further contended that there is no nexus
between accused Muhammad Ali Hassan with fire incident of Baldia Factory at
Karachi. It is further contended that there was no complaint of extortion at
any point of time and JIT without taking into account version of the
applicants/accused involved them in the offence. It is further submitted that
impugned order has been passed without application of judicial mind. It is also
argued that Trial Court after taking cognizance of offence, joined applicants
as accused, issued NBWs and it was contrary to law and against the provisions
of Article 10A of the Constitution 1973. He further submitted that allegation
against applicants/accused of having committed extortion are not substantiated
in the JIT report. Mr. Anwar Mansoor lastly, contended that applicants/accused have
been falsely implicated and applicant/accused Muhammad Ali Hassan is a cancer
patient. Mr. Hassaan Sabir appearing for applicants/accused Dr. Abdul Sattar
Khan and Mst. Iqbal Adeeb Khanum adopted the same arguments. However, he added
that without sufficient material against applicants/accused, Trial court took
cognizance and issued NBWs and argued that impugned order is not sustainable
under the law.
5. Mr. Sajid Mehmood Special Prosecutor
argued that FIR of Baldia Factory Fire incident was lodged on 12.09.2012. At
that time I.O was under influence of one political party, therefore, he could
not conduct fair investigation. Special Prosecutor further argued that JIT was
constituted by the Home Department, statements of P.Ws Muhammad Arshad, Majid Baig,
Muhammad Mansoor and Abdul Ghani @ Babar were recorded. These witnesses implicated
the applicants/accused who were let off by the I.O. during investigation. Lastly,
Special Prosecutor argued that JIT collected sufficient material against
applicants/accused whose names were placed in Column No.2 and Trial Court had
rightly joined applicants as accused in this case. Special Prosecutor submitted
that Revision Applications are without merit.
6. We have carefully heard the learned
counsel for the parties, perused the relevant record and JIT report. I.O PS Pak
Colony Karachi submitted final report before learned Administrative Judge ATCs
Karachi on 05.09.2016 for offences under Sections
384/385/386/435/436/302/324/337/109/34 PPC read with Sections 6/7 Anti-Terrorism
Act, 1997 under Section 512 Cr.P.C, in which names of applicants/accused Muhammad
Ali Hasan, Umer Hasan Qadri, Dr. Abdul Sattar Khan and Mst. Iqbal Adeeb Khanum and
others were shown in Column No.2 of the Challan. Case was transferred to
learned Judge, Anti-Terrorism Court-II, Karachi. Learned Judge, A.T.C-II vide
order dated 16.09.2016 took cognizance of the offence and issued NBWs against
accused Nos. 5 to 13 shown in blue ink in challan.
7. For the sake of convenience impugned order
dated 16.09.2016 is reproduced as under:
“Order
16.09.2016
I have gone through this Challan as well as J.I.T
report and I do not agree with the I.O who has shown accused No. 1 to 13 in
blue ink that there is no evidence against them. Serious allegations are leveled
against the owners that they had locked emergency gates which resulted in 259
deaths of workers. Accused No.4 was the G.M. of the Factory. The rest of the
accused No. 5 to 13 in Challan had abetted the crime one way or the other by
extorting money from that Factory on the plea to distribute amongst the family
members of the victims which was never done. Therefore I take cognizance of the
crime against them. Notice to accused No.1 to 4 and issue Non Bailable Warrants
against accused No. 5 to 13 shown in blue ink in Challan.
Sd/-
Judge
Anti-Terrorism Court No.II
Karachi”
8. A Joint Investigation Team in FIR No.
343/2012 under Sections 302/322/337/435/436/34 PPC registered at PS Site-B was
constituted by the Home Department, Government of Sindh vide Notification dated
26.03.2015. Findings of JIT with regard to the post incident extortion relating
to the present applicants/accused are relevant for just disposal f above
Revisions and the same are reproduced as under:-
“19. POST
INCIDENT EXTORTION AND BULLYING
During the course of investigation the JIT visited
Dubai, UAE and met with Arshad Bhaila and Shahid Bhaila, owners of M/s Ali
Enterprises. Both were examined in detail and their statements were recorded.
Inter-alia other facts they also disclosed as under:-
After
their release on bail from the Central Prison on Feb 11, 2013 they were under
tremendous pressure from MQM office bearers and therefore they decided to
reconcile with MQM. They approached Shoukat Khayam, a friend of theirs, who
took them to one Muhammad Ali Hassan (based in Hyderabad), who claimed to be a
close associate of Anis Qaim Khani, the then Deputy Convener of Rabita
Committee of MQM. After a few meetings, Muhammad Ali Hassan, conveyed that
things could be settled and MQM could intervene in normalizing the matters at
all relevant forums, if they were ready to pay compensation at the rate of
250,000/- per casualty and Rs.100,000/- per injured. The amount would be
deposited in a bank account till the time MQM compensates the victims from
party platform. They agreed to this settlement and amount in following bank
account whose detail was given by Muhammad Ali Hassan with the understanding
that balance amount would be paid at the time of distribution ceremony. The
bank account details are as follows:
Account
Title : Siddique Hassan Kadri
Account
No. : 1010-0081-010815-01-6
Bank
& Branch : Bank Al-Habib Ltd, Hyderabad.
Having credited the amount, they contacted Muhammad Ali
Hassan for announcement of compensation distribution ceremony but to date the
same has not been arranged. In their final conversion with him, Muhammad Ali
Hassan informed them that the amount had been sent to Anees Qaim Khani and
asking for the amount is asking for trouble as it is in ‘lion’s mouth’.
Subsequently, above disclosures of Bhaila Brothers were probed which revealed
that:
i.
Muhammad Ali Hassan
of Hyderabad is a businessman running different business along with his other
partners in following names & style:
·
M/s Aqsa Ginning Enterprises,
Hyderabad.
·
M/s Hi Tex
Enterprises, Hyderabad.
·
M/s Hi Tex Weaving
Hyderabad.
ii.
One Shoukat Khayyam
is business partner of Muhammad Ali Hassan and his brother-in-law as well.
iii.
Shoukat Khayyam
introduced Bhaila Brothers to Muhammad Ali Hassan on their request in order to
settle the matters with MQM as the later is close to Anees Qaim Khani and they
had business relations as well.
iv.
Siddique Hassan
Qadri, father of Muhammad Ali Hassan and Ali Hassan Qadri has been maintaining
a bank account No. 0081-010815-01-6 A/c Title Siddique Hassan Qadri at M/s.
Bank Al Habib, Main Branch, Hyderabad. Muhammad Ali Hassan holds mandate in the
said account.
v.
On the advice of
Ali Hassan Qadri, Bhaila brothers arranged Rs.59,800,000/- and deposited the
same in above account on April 30, 2013.
vi.
On 30.04.2013,
another mandate was arranged for Omar Hassan Qadri, who on the very next
working day i.e. May 2, 2013 transferred an amount of Rs.50,000,000/- in the
account of Muhammad Yamin, a known builder of Hyderabad for purchase of a
property i.e. Plot No. 175, Block-C, Unit No.VI, Latifabad, Hyderabad measuring
1000 Sq. Yds in the name of Mst. Iqbal Adeeb Khanum (Benami transaction).
vii.
Interstingly an
amount of Rs.13,500,000/- was transferred in the account No.0020135860001289
A/c Title Mst. Iqbal Adeeb Khanum being maintained at M/s. Burj Bank Ltd.
Latifabad Branch, Hyderabad by Dr. Abdul Sattar Khan (adopted son of Anees Qaim
Khani) for payment of advance for said plot. He transferred said amount through
following cheques of A/c No. 0020010586000002 A/c Title Abdul Sattar Khan being
maintained at M/s Burj Bank Ltd. Latifabad Branch, Hyderabad.
·
Cheque No. 1702166
dated 25.03.2013 of A/c No.0020010586000002 A/c Title Abdul Sattar Khan being
maintained at M/s Burj Bank Ltd. Latifabad Branch, Hyderabad of Rs.5,000,000/-.
·
Cheque No.1702167
dated 25.03.2013 of A/c No. No.0020010586000002 A/c Title Abdul Sattar Khan
being maintained at M/s Burj Bank Ltd. Latifabad Branch, Hyderabad of
Rs.5,000,000/-.
·
Cheque No.1702165
dated 26.03.2013 of A/c No.0020010586000002 A/c Title Abdul Sattar Khan being
maintained at M/s Burj Bank Ltd. Latifabad Branch, Hyderabad of Rs.8,000,000/-.
·
Cheque No. 1702174
dated 08.04.2013 of A/c No.0020010586000002 A/c Title Abdul Sattar Khan being
maintained at M/s Burj Bank Ltd. Latifabad Branch, Hyderabad of Rs.500,000/-.
viii.
He got transferred
the said property in the name of Mst. Iqbal Adeeb Khanum who is family friend
of Qadri family and subsequently constructed a house on it, which is still
vacant.
ix.
All amount is extorted
from Bhaila brothers and is still with Qadri Brothers and Dr. Abdul Sattar in
the shape of above property.
x.
Muhammad Ali Hassan
is suffering from cancer (last stage) and is unable to join investigation.
xi.
Omer Hassan is
unable to explain that why;
·
His name is
included as mandatory in the account?
·
Dr. Abdul Sattar
arranged advance payment amount?
·
Said property is
transferred in the name of Mst. Iqbal Adeeb Khanum?
xii.
Omer Hassan Qadri
and Dr. Abdul Sattar has also other business partnerships.
21. CONCLUSION
AND RECOMMENDATIONS
Based upon available evidence and expert opinions, the
JIT has come to the following conclusions:
i)
That factory fire
was a ‘planned sabotage/terrorist activity’ and ‘not an accidental fire’
carried out due to refusal to pay extortion (Bhatta) of Rs.20 (Twenty) Crores and partnership
in factory profits by factory owners to office bearers namely Rehman Bhola and
Hammad Siddiqi of MQM-A.
ii)
That the incident
was dealt with in an ‘unprofessional manner’ and is a classic manifestation of
‘compromised and mutilated’ form of policing. The incident was handled from
inception till end in a ‘way and fashion’ to benefit the ‘offenders’ rather
than the ‘victims of crime’ for some ‘motives and gains’. The lodging of FIR
and subsequent investigations were not only carried out with clear malafide
intentions but also suffered heavily from ‘tremendous influence’ both
‘internal’ and ‘extraneous’. An event of ‘terrorist activity’ was
portrayed/translated in FIR as simple murder (later converted into an accident)
not against actual perpetrators of crime but against factory owners and its
management. The way the incident was probed into speaks volumes about partisan
and partial approach of police under ’influence’. Not surprisingly therefore,
FIR and the first investigation nowhere mention extortion (Bhatta) that JIT
believes was a basic motive and crucial element to plan, prepare and carry out
this dastardly act. The JIT considers this omission as an element of prime and
critical importance as well as ‘defining factor’ to shape up later
investigations.
iii)
That a fresh FIR
should be lodged under relevant sections of Pakistan Penal Code (PPC) 1861 read
with Anti-Terrorism Act (ATA) 1997 against following set of accused (Serial No.
‘a’ through ‘d’ for act of arson and terrorism and serial No. ‘e’ through ‘h’ for post incident extortion.
a.
Rehman Bhola
b.
Hammad Siddiqui
c.
Zubair @ Chariya
d.
Four unknown
(Associates of Zubair @ Chariya)
e.
Omer Hassan Qadri
f.
Dr. Abdul Sattar
g.
Ali Hassan Qadri
h.
Mst. Iqbal Adeeb
Khanum
iv)
That the JIT tried
to examine Muhammad Zubair in order to ascertain his role in the incident, as
all the available evidences point fingers towards his involvement in the
commission of crime. In this regard, the JIT repeatedly offered Muhammad Nazeer
father of Muhammad Zubair return ticket from and to Saudi Arabia so that he may
join the investigation. But Muhammad Nazeer turned down the offer every time.
Further development in investigation will depend very much on interrogation of
accused Muhammad Zubair. Moreover, JIT has written three different letters to
DG Immigration and Passport for cancellation of passport vide letter No.
SP/SITE/RDR/1942/ dated 22.6.2015, letter No. 1994/dated 28.6.2015 and letter
No. 2375/ dated 04.08.2015, as the accused person had already left the country
(Annexure E).
v)
That the accused
absconding to foreign countries should be brought back and arrested.
vi)
That the passports
of all the absconding accused be cancelled and names of all the accused be
placed on ECL immediately.
vii)
That all the
witnesses should be provided protection under the Witness Protection Act.
viii)
That the property
in the shape of Bungalow situated at Plot No. 175, Block-C, Unit No. VI,
Latifabad, Hyderabad measuring 100 square yards has been purchased from the
amount extorted from the factory owners through post-incident bank
transactions. Thus, it is recommended to transfer back the attached property to
factory owners through legal process.
ix)
That in order to
minimize the losses to life and property by such terrorist activity in future,
new laws and safety procedures should be devised and factory owners and
employees be trained to cope with such terrorist activities. Relevant
departments like Labour Department, Building Control Department, Electric
Department, Environment Department Social Security Department, SITE Limited,
Civil Defence & others can play a pivotal role in enforcement of anti-terrorism
safety procedures and laws.
x)
That the Rescue
services available in Metropolitan city of Karachi having a population of
twenty two million are not capable to deal with such catastrophes of terrorism
and mega accidents. Hence a high powered committee of experts in rescue
services with relevant qualifications from public and private sectors may be
constituted to submit study report along with recommendations within three
months for overhauling the present rescue services.
xi)
That the gory act of Baldia Factory Fire is a glaring
example of police inefficiency in dealing and investigating this high profile
incident in ‘right directions’ without any ‘fear and favour‘. It reminds us
about classic police failure in ascertaining not only the ‘truth’ but also in
‘booking and apprehending the real culprits’ involved in the commission of
crime from ‘planning to execution stage’. The incident history clearly
manifests how police lodged a motivated FIR and subsequently raises eyebrows
the way investigations into the incident were conducted. The JIT carried out a
critique of first investigation mentioned above, concludes that ‘fear and
favour’ were denominating factors throughout and affected police performance
‘length and breadth’. The JIT therefore strongly recommends introduction of
police reforms in order to avoid recurrence of such catastrophic investigative
failures in future. The in vogue archaic policing system should be replaced
with professionally independent but accountable policing system including up
gradation of its technical facilities, especially forensic laboratory that
currently is devoid of modern facilities and fire experts.”
9. Above J.I.T report shows that prima
facie, there is sufficient evidence/material against the applicants/accused,
whose names were placed in Column No.2 of Challan. It is further mentioned in
J.I.T report that police conducted investigation in an unprofessional manner to
benefit the offenders. It is further mentioned that factory fire was a
pre-planned sabotage/terrorist activity for extortion (Bhatta) of Rs. 20 Crore
and partnership in factory. It was not the case of insufficient evidence/material.
Statements of P.Ws, who implicated applicants/accused and judicial confession
of main accused are available on record. Investigation officer placed names of
applicants/accused in Column No.2 of Challan without lawful authority. I.O has
only duty under the law to collect evidence and he has no authority whatsoever
to give findings of guilt or innocence qua under the provisions of Criminal
Procedure Code. It is only prerogative of the concerned Court to give findings
after recording evidence and statement of accused qua guilt or innocence of the
accused. In case contention of learned counsel for the applicants/accused is accepted
then it amounts to delegate powers of the Court to the investigating agency,
which is not permissible under the law. Section 173 Cr.P.C enjoins upon
investigating police to forward to the Magistrate a report setting forth the
names of the parties, nature of the information and names of the witnesses, to
be acquainted with case for taking cognizance of an offence. Contention of learned
Advocates for applicants/accused that learned Judge, Anti-Terrorism Court was
not competent to take cognizance of the accused shown in Column No.2 of the
police report is without legal force for the reasons that learned trial Court
was not helpless on receiving report from police under Section 173 Cr.P.C and
report of JIT. Learned Special Prosecutor has highlighted the circumstances
that investigation of the offence could not be conducted by the I.O fairly due
to influence of one political party and JIT was constituted. Prima facie
sufficient material has been collected against accused persons shown in Column
No.2. Deeper appreciation of evidence is not permissible at this stage. It is
settled by now that Magistrate can take cognizance of the offence even in case
of negative report submitted by police that accusation is baseless and no case
is made out against the delinquents. There is no cavil with the proposition
that accused place in Column No.2 of the challan cannot be summoned by the
learned Trial Court to face the trial and there is no legal bar whatsoever that
at first instance evidence should be recorded to ascertain as to whether prima
facie case is made out against them. In this regard, reference can be made to
the case titled Waqarul Haq vs. State
(1988 SCMR 1428). In the case of Safdar
Ali vs. Zafar Iqbal and others (2002 SCMR 63) Honourable Supreme Court has held that trial Court can summon the
accused placed in Column No.2 of the
challan to face trial and there is no legal bar whatsoever that at first
instance evidence should be recorded to ascertain as to whether prima facie
case is made out against them. Relevant
portion is reproduced as under:-
“6. A
bare perusal of the said order would reveal that entire record has been
examined including the statements of complainant; prosecution witnesses and
F.I.R. and thus, it can be inferred safely that the same has not been passed in
a mechanical manner or arbitrarily. It may not be out of place to 'mention here
that learned Ilaqa Magistrate was not supposed to pass an exhaustive order for
the simple reason that he was not deciding the case at all and, therefore, it
was not obligatory for him to dilate upon each and every aspect of the matter
which fails within the jurisdictional domain of learned trial Court. It is well‑settled
by now that the Magistrate can take cognizance of an offence even in case of
negative report submitted by police that accusation is baseless and no case is
made out against the delinquents: There is no cavil to the proposition that the
accused placed in column No.2 of challan cannot be summoned by the learned
trial Court to face the trial and there is no legal bar whatsoever that at
first instance the evidence should be recorded to ascertain as to whether the
prima facie case is made out against them. In this regard reference can be made
to case titled Waqarul Haq v State (1988 SCMR 1428). Malik Rabnawaz Noon
learned Advocate Supreme Court could not mention any provision in Cr.P.C. in
support of his contention that evidence should have been recorded prior to
summoning the respondents whose names were admittedly placed in column No.2 of
the challan. In this regard we are fortified by the dictum as laid down in case
titled Falak Sher v. State (PLD 1967 SC 425) which has been followed in various
judgments passed by this Court and relevant portion whereof is reproduced
hereinbelow for ready reference:‑‑
"In
our opinion, the action of the Magistrate in issuing summ6ns to these
appellants despite the fact that the Investigating Officer it; his report under
section 173, Cr.P.C. placed their names in column No.2, was clearly correct.
Section 173, Cr.P.C. is in these terms:‑‑
"173(1). Every
investigation under this Chapter shall be completed without unnecessary delay,
and, as soon as it is completed, the Officer Incharge of the police station
shall‑‑.
(a) forward
to a Magistrate empowered to take cognizance of the offence on a police report,
in the form prescribed by the Provincial Government, setting forth the names of
the parties, the nature of the information and the names of the, persons who
appear to be acquainted with the circumstances of the case, and stating whether
the accused (if arrested) has been forwarded in custody or has been released on
his bond, and, if so, whether with or without sureties, and
(b) communicate,
in such manner as may be prescribed by the Provincial Government, the action
taken by him to the person, if any, by whom the information relating to the
commission of the offence was first given.
(2) Where
a superior officer of police has been appointed under section 158, the report
shall, in any cases in which the Provincial Government by general or special
order so directs, be submitted through that officer, and he may, pending the
orders of the Magistrate, direct the Officer Incharge of the police station to
make further investigation.
(3) Whenever
it appears from a report forwarded under this section that the accused has been
released on his bond, the Magistrate shall make such order for the discharge of
such bond or otherwise as he thinks fit.
(4) ……………………………………………………………..
Under
subsection (1), when the investigation is completed the police officer is
required to forward to the Magistrate a report in the prescribed form. Under
subsection (3) when it appears from the report forwarded under section 1, that
the accused has been released on his bond 'the Magistrate shall make such order
for the discharge of such bond or otherwise as he thinks fit"'. It is clear
that under section 3 a Magistrate may agree or may not agree with the police
report. It, however, does not say what step the Magistrate should take if he
disagrees with the police report. If the Magistrate wants to start a
proceedings against the accused, he must act under section 190 of the Code of
Criminal Procedure.
Section
190 provides that a Magistrate may take cognizance of any offence (a) upon a
complaint (b) upon a police report, or (c) upon information received by
himself.
Now,
the question is, if he disagrees with the report, can he take action under
clause (b) against those whose names have been placed under column 2 of the
challan. As already pointed out, the Magistrate is not bound by the report
submitted by the police under section 173. When the said report is received by
the Magistrate, the Magistrate on the report itself may not agree with the
conclusions reached by the Investigating Officer. There is nothing in section
190 to prevent a Magistrate from taking cognizance of the case under clause (b)
in spite of the police report. This. Court in the case of Sardar Ali and others
v. The State P.S.L.A. No.66 of 1966, while dealing with a similar question,
observed:‑‑
Reference
to section .173, Cr.P.C., which prescribes the details that must go into a
police report of the relevant kind shows that the requirements are of a factual
nature, so that, irrespective of the Investigating Officer's opinion, a
Magistrate takes cognizance on a police report, when he proceeds against a
person whose name is mentioned therein as one accused of the offence reported
upon."
In
conclusion, we may observe that this has been the consistent view of the High
Court of West Pakistan and that Court has correctly interpreted the meaning and
scope of sections 173 and 190 of the Code of Criminal Procedure in Muhammad
Nawaz Khan v. Noor Muhammad and others (PLD 1967 Lah. 176)."
A
similar proposition was discussed in case titled Muhammad Akbar v. State (1972
SCMR 335) as under:‑‑
"Even
on the first report alleged to have been submitted under section 173, Cr.P.C
the Magistrate could, irrespective of the opinion of the Investigating Officer
to the contrary, take cognizance, if upon the materials before him he found
that a prima facie case was made out against the accused persons. After all the
police is not the final arbiter of a complaint lodged with it. It is the Court
that finally determine upon the police report whether it should take cognizance
or not in accordance with the provisions of section 1900)(b) of the Code of
Criminal Procedure. The view finds support from a decision of this Court in the
case of Falak Sher v. State (PLD 1967 SC 425).”
7. The
implications of section 173, Cr.P.C. were also discussed in case titled Saeed
Muhammad Shah v. State (1993,SCMR 550) wherein it was held as under:
"Report
of Police Officer under section 173, Cr.P.C. is merely an information of the
Police Officer and the same is not admissible in evidence. Presumption of
innocence of accused involved in such report is not diminished by mere fact
that the case has been sent up for trial or that particular witness or person
had formed opinion against the accused."
The
said view also finds support from case titled Raja Muhammad Afzal v. Ch.
Muhammad Altaf Hussain and others (1986 SCMR 1736). An identical issue remained
subject of discussion in case titled Khushbakhtur Rehman v. State (1985 SCMR
1314) whereby it was concluded as follows:‑‑
"6.
Before us, too, learned counsel for the petitioner reiterated the contentions
that application of mind being a prerequisite of taking cognizance; the
Magistrate, who had acted mechanically and without application of mind in
sending the case to the Court of Session, could not be said to have legally
taken cognizance of the case. In this connection, he urged that the case
against the petitioners, who had been found innocent by the police could not
have been sent along with that of the other accused without express reasons.
The arguments addressed by learned counsel in fact showed that he laboured
under the impression that cognizance is to be taken of an offender, but that is
not the law. Under section 190(3), Cr.P.C. the Magistrate takes cognizance of
an offence and not of an offender. He takes cognizance of the case as a whole
and not qua only some of the accused found by the police to be implicated in
the case. Cognizance can be taken even if the offenders be unknown. On taking
cognizance of the offence the Court acquires jurisdiction over all the persons
involved and not only over persons against whom the challan is submitted. The
word cognizance is a term of art implying application of mind to the facts of a
case in order to determine whether the facts disclosed constituted an offence
triable. Application of mind for the purpose of cognizance under section 190(1)
and (3) read with section 193 Cr.P.C., is for the purpose of determining
whether the facts disclosed the commission of an offence triable exclusively by
the Court of Sessions, in which case the Magistrate is bound to send the case
to the Court of Session for trial. This legal position stands already explained
by this Court in Mehar Khan v. Yaqub Khan 1981 SCMR 267 in the words:‑‑
'....even
under the recently substituted subsection (3) of section 190, Cr.P.C., a
Magistrate who takes cognizance of any offence under any of the clauses of
subsection (1) of that section, is required to apply his mind in order to
ascertain as to whether the case in question is one which he is required to
'send' for trial to the Court of Session or whether it is one which he can
proceed to try himself.'
Once
the Magistrate has taken cognizance of the offence exclusively triable by the
Court of Session, he has to send the case of that Court and it is not open for
him to send the case only qua those of the accused who are placed in column
No.3 of the challan. The order of the Magistrate shows that the challan had
been before him when he ordered the sending of the case to the Court of
Session. The contention that he had not applied his mind to the facts of the
case is thus devoid of merit.”
10. On
the touchstone of criterion as discussed hereinabove, we are of the considered
view that the order passed by learned Judge, Anti-Terrorism Court No.II,
Karachi dated 16.09.2016 is neither illegal
nor capricious but on the other hand it has been passed by the Trial Court after
having an in‑depth scrutiny of the entire record including JIT. Thus, it
cannot be termed as non‑speaking and being unexceptionable and it hardly
calls for any interference. Above Revision Applications are without merits and
the same are dismissed. However, trial Court is directed to proceed with the
case expeditiously in accordance with law.
11. These
are the reasons for our short order dated 22.11.2017.
JUDGE
JUDGE