PLJ 2022 Lahore 268 (DB)
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----S. 19--Powers of constitution of JIT by special Court--Special Court through a detailed order directed to Chief Secretary Punjab Lahore to constitute (JIT)--Later on Respondent No.1, in exercise of powers conferred upon him under Section 19 of Act constituted a JIT to finalize investigation of case--Courts can interpret provisions of law but cannot change or substitute such provisions and also cannot go beyond wisdom of law; when spoken about judicial review--Provision of Section 19 of Act undoubtedly gives no power or authority to Special Court to constitute JIT or to issue a direction to Government in this regard--Special Court travelled beyond its jurisdiction while issuing direction for constitution of JIT pursuant to order hence this writ petition succeeds and allowed--Impugned order and in consequence thereof, notification issued by Respondent No.1 are declared illegal and without lawful authority--Once ‘investigation’ starts, either in cognizable or non cognizable offence then it has to be concluded after observing all legal formalities and moment it is completed, a report under Section 173, Cr.P.C (Challan) is to be forwarded to a Magistrate in form prescribed by Provincial Government.
[Pp. 271, 272 & 273] A, B, C, D, E & G
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 173 & 512--Recording of evidence--General rule is that evidence has to be recorded in presence of accused or in presence of his advocate, if his personal attendance is dispensed with whereas, proceedings under Section 512 Cr.P.C are exception to general rule with an aim to preserve evidence so accused may not take advantage of his illegal act of absconding--This is fair part of rule of game as it covers advantages for prosecution that it may not be at defeating end because of some clever move by an absconder--This interpretation is based on plain reading of Section 512 Cr.P.C where it provided that evidence so recorded may be given against accused on trial for offence with which he is charged, if deponent (witnesses) is dead of incapable of giving evidence etc. [P. 274] I
Criminal Procedure Code, 1898 (V of 1898)--
----S. 2(L)--Investigation--Word ‘investigation’ has been defined under Section 2(L) of Cr.P.C., which is as under:
“Investigation' includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.” [P. 273] F
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 173--Submission of challan--On conclusion of investigation report (Challan) is to be submitted only under Section 173
Cr.P.C. and it has nothing to do with Section 512 Cr.P.C.--What the Section 512 Cr.P.C. is and when this provision plays its’ role?
[P. 274] H
Malik Muhammad Saleem and Mr. Abdul Rehman Ahmad Sadozai, Advocates for Petitioner
Malik Altaf Hussain Rawn, AAG for State.
Date of hearing: 21.10.2021.
PLJ 2022 Lahore 268 (DB)
[Multan Bench, Multan]
Present: Sohail Nasir and Ahmad Nadeem Arshad, JJ.
versus
GOVERNMENT OF PUNJAB and 2 others--Respondents
W.P. No. 15433 of 2021, decided on 21.10.2021.
Order
After hearing both the sides, a notice has been issued to the Government of Punjab/Respondent No. 1 and same is accepted by learned AAG.
2. In brief facts of the case are that with regard to a police encounter took place in the area of Mauza Jiani District Dera Ghazi Khan, FIR No. 260, on 10.11.2019, was recorded at Police Station Kot Mubarak District Dera Ghazi Khan on the complaint of Azhar Hussain S.I (complainant) under Sections 302/324/353/186/440/148/149/337-D PPC read with Section 7 of the Anti Terrorism Act, (XXVII of 1997) {Act} and Section 13 of the Punjab Arms (Amendment) Ordinance, 2015. During this occurrence four accused lost their lives besides one Muhammad Salman Constable/1114 whereas, remaining accused were succeeded to escape.
3. On conclusion of investigation, a report under Section 173 Cr.P.C (Challan) was submitted in the Anti Terrorism Court Dera Ghazi Khan (Special Court)[1] titled as “State vs. Ghulam Shabbir & 2 others”.
4. A person named Din Muhammad/Respondent No. 3 claiming to be one of the legal heirs of Abdullah and Ghulam Haider (the deceased accused) came forward with a version that it was fake police encounter. His narrative was recorded, investigated and concluded in the manners that Riaz Hussain Shah/DSP (petitioner) and Kamran Saif SI were declared innocent whereas, Chaudhary Azhar Hussain SI (complainant) was an accused of abetment (109 PPC). The Challan in this context titled as “The State vs. Riaz Hussain Shah & 2 others” was also submitted in the Special Court.
5. Din Muhammad was not satisfied with the investigation, so he filed a private complaint[2] against petitioner and two others for their prosecution under Sections 302/34 PPC in the Court of ordinary jurisdiction. On conclusion of preliminary inquiry,[3] processes were issued against all accused by the learned Additional Sessions Judge Dera Ghazi Khan and they turned up. However, vide an order dated 09.04.2021, the case was transferred through proper channel to the Special Court for the reason that the trial in State case was pending in that Court.
6. The final position therefore, was that two Challans and a complaint case came for hearing before the learned Special Court. However vide an order dated 16.07.2021, passed by the said Court in Challan case against petitioner and others, it was observed that Section 7 of the Act was not made out hence it was triable by the Court of ordinary jurisdiction. In the light of same order, a verdict was recorded in the complaint case therefore, both the cases were transferred to the Court of ordinary jurisdiction which now are pending in the Court of learned Additional Sessions Judge Dera Ghazi Khan. It will not be out of context to mention here that when the Challan against deceased accused was kept pending by the Special Court, there was no justification to transfer the remaining two cases to the Court of ordinary jurisdiction as all were relating to one and the same occurrence.
“I issued the direction to the Chief Secretary Punjab Lahore to constitute JIT comprising upon:-
(i) District Police Officer.
(ii) Incharge Commanding Officer ISI and
(iii) Commanding Officer of M.I.
9. Petitioner, being aggrieved from the order dated 24.05.2021 passed by the learned Special Court and notification dated 26.08.2021 issued by Respondent No. 1 has approached this Court through the instant writ petition.
10. Learned counsel for petitioner maintains that the learned Special Court was under no authority at all to direct the constitution of JIT, which was the exclusive domain of the Government hence the order dated 24.05.2021 is illegal therefore issuance of notification is also of no consequence.
11. Learned AAG does not dispute the legal proposition. When he is asked that how about one and the same occurrence, the learned Judge of the Special Court could transfer the two cases to the Court of ordinary jurisdiction, while retaining the main case in that Court against deceased accused? He is having no convincing reply at all.
12. HEARD
13. Section 19 (1) of the Act to resolve the proposition about constitution of JIT is relevant and is reproduced as under:
“Procedure and Powers of Anti terrorism Court. (1) An investigating officer under this Act shall be an officer or Police Officer not below the rank of Inspector or equivalent or, if the Government deems necessary Joint Investigation Team to be constituted by the Government shall be headed by an Investigating Officer of Police not below the rank of Superintendent of Police, (BS-18) and other officers of JIT may include equivalent rank from Intelligence Agencies, Armed Forces and Civil Armed Forces…………
(Emphasized)
16. It is evident from an order dated 02.09.2021 passed by the learned Special Court and also an application of DPO Dera Ghazi Khan (Convener of JIT) the constitution was not by the government under its own powers but it was in compliance of the order issued by the learned Special Court. Therefore, if impugned order is declared illegal, the notification shall also take its last breath.
18. Before parting with this judgment we want to observe that the learned Special Court also committed a serious illegality while transferring the state case against petitioner and others and complaint case filed by Din Muhammad to the Court of ordinary jurisdiction for the reason that as in all three cases the occurrence is one and the same but with different versions, therefore, all have to be tried by one and the same Court as a rule of propriety and to avoid conflict decisions by two Courts. We therefore, direct that the cases pending in the Court of ordinary jurisdiction shall be deemed to be returned to and pending in the Special Court forthwith and all the cases shall be tried side by side.
19. We have also observed that in one of the Challans of this case on the top/heading it is written as:
چالان زیر دفعہ 512 ض ف
20. We have noticed such heading almost in every Challan where accused is declared Proclaimed Offender. This is done not only by police officers and Prosecution but also by the Courts. As this practice is illegal, so for this reason we consider it to hold that what the correct position of law is?
“Investigation' includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf”
22. The process of investigation starts on receipt of information of a cognizable or non cognizable offence (155 and 156 Cr.P.C.). In cognizable offence once FIR is recorded, a police officer requires no permission for investigation as he possesses all the powers under the law vested in him under Section 156 Cr.P.C.. The position however, is different when case relates to non-cognizable offence as the powers to investigate are dependent on authorization by the Magistrate (155 {2} Cr.P.C.). The moment he is allowed to exercise his authority, he starts enjoying all the powers to be exercised in cognizable cases except power to arrest the accused.
24. The words “every investigation’ used in Section 173, Cr.P.C are significant and leaves no room of doubt that it may be in cognizable or non-cognizable offence, the report (Challan) has to be submitted in a form prescribed by the provincial government.
26. What the Section 512 Cr.P.C. is and when this provision plays its’ role? For better understanding it is reproduce as under:
“512. Record of evidence in absence of accused: (1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions. Any such deposition may be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.
(2) Record of evidence when offender unknown: if it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court may direct that any Magistrate of the First Class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence. Any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of Pakistan”
(Emphasized)
27. The role under the above provisions is post to submission of report (Challan) and that too when it is before the Court of competent jurisdiction because of the words used "the Court competent to try such person for the offence complained of”.
28. As after the words ‘offence complained of’ the word ‘may’ has been used, therefore, discretion to proceed under Section 512 Cr.P.C also lies with the Court to be performed keeping in view the facts and circumstances of each case and in particular if Court finds that there is no immediate prospect of arresting the absconder.
30. We, therefore, direct that copies of this order shall be sent to Inspector General of Police and Prosecutor General of Punjab who shall circulate it to all the concerned with directions that this illegal practice to mention “Challan under Section 512 Cr.P.C.”
(چالان زیر دفعہ 512 ض ف) shall be discontinued forthwith. Office is further is directed to send the copies of this order to all the judicial officers of the Punjab (including on ex-cadre) for their guidance and compliance in future.
(K.Q.B.) Petition allowed
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