IN THE HIGH
COURT OF SINDH
CIRCUIT COURT HYDERABAD
C. P. NO.D-1845 OF 2013
MR. JUSTICE SALAHUDDIN
PANHWAR
Petitioner : Wajid Ali Memon,
Through
Mr. Ghulamullah Chang, advocate.
Respondents : Civil Judge & JM-1, Tando Mohammad
Khan & others
Date of hearing : 24.10.2013.
Date of decision : 20.11.2013.
SALAHUDDIN PANHWAR, J.
Through the instant petition, the petitioner seeks quashment of the
FIR bearing Crime No.199 of 2013 u/s 353,147,149,341,506(2) PPC, 6/7 ATA of
police station Tando Mohamamd
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 06.09.2013;
respondent No.5 filed CP NO.S-536 of 2013 (“Re-Jai Ram Kolhi
Vs DIG Hyderabad & Ors),
wherein it was contended that on 01.09.2013 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 No.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 admi9nistration
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 learned Magistrate 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 U/s 353,147,149,341,506(2), 114 PPC r/w
Section 6/7 ATA at police station Tando Mohammad 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
section 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 subsection-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 subsection-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 subsection (3). It means the use or
threat of use of any action falling within the meaning of subsection (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. [Subsection (1)(c)] is
achieved or satisfied.
15. According to this subsection if the act
falling within any clause of the subsection (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 subsection (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 subsection (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.
J
U D G E