302(b) - Modification in Quantum of Sentence

 PLJ 2024 Cr.C. (Note) 227

[Lahore High Court, Multan Bench]

Present: Ch. Abdul Aziz and Anwaarul Haq Pannun, JJ.

GHULAM AKBAR--Appellant

versus

ZULFIQAR ALI etc.--Respondents

Crl. A. No. 516 & M.R No. 47 of 2020, decided on 27.2.2024.

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Modification in quantum of sentence--Place of occurrence and time of occurrence have not been denied by accused--Presence of both witnesses at place of occurrence is neither improbable nor can be doubted and merely on account of their relationship with deceased, their evidence cannot be discarded in absence of any inconsistency or inherent infirmity in their deposition--Even in their cross-examination both eye-witnesses remained consistent on all material aspects of prosecution’s case and their evidence is fully supported by medical evidence--Plea of substitution taken on behalf of appellant remained unproved--Even otherwise, substitution of accused in such like murder case by complainant is a rare phenomenon--Even after exclusion of recovery, there remains sufficient evidence in form of confidence inspiring and trustworthy ocular account fully supported by medical evidence against appellant therefore, his conviction under Section 302(b), PPC being based upon well-settled principles of appreciation of evidence is maintained--It is not a case of capital sentence as there are certain extenuating circumstances in favour of appellant to warrant lesse sentence--Appellant in peculiar circumstances of this case deserves benefit of doubt to extent of his sentence one out of two provided u/S. 302 (b), PPC--It is well-recognized principle by now that accused is entitled for benefit of doubt as an extenuating circumstance while deciding his question of sentence.

                                                                   [Para 10 & 12] A, B, D & E

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Art. 75--Criminal Procedure Code, (V of 1898), S. 510--Prosecution has failed to bring on record original report of Punjab Forensic Science Agency and has merely produced photocopy of said report  which is inadmissible in evidence being against mandate of Section 510, Cr.P.C--According to Article 75 of Qanun-e-Shahadat Order, 1984, a document must be proved by primary evidence whereas Article 76 thereof provides some exceptions under which secondary evidence may be permitted to be given in place of original--The proof of loss of a document is a condition precedent for granting permission to lead secondary evidence--In present case, neither any application was submitted nor permission obtained for producing photocopy of report of Punjab Forensic Science Agency as secondary evidence--As far as motive in this case is concerned, strained relations between parties has not been denied.

                                                                                           [Para 11] C

2011 SCMR 429, 2008 SCMR 688 and 2014 SCMR 1034.

Mr. Muhammad Usman Sharif Khosa, Advocate assisted by Mr. Qaisar Abbas, Advocate for Appellant.

Mr. Adnan Latif, Deputy Prosecutor General for State.

Mr. Abdul Rehman Ahmad Rizwan Sadozai, Advocate assisted by Ms. Saima Kanwal, Advocate for Complainant.

Date of hearing 27.2.2024.

Judgment

Anwaarul Haq Pannun, J.--Ghulam Akbar, appellant along with his co-accused namely Akhtar Abbas, Ansar Abbas and Azhar Abbas was tried in a Complaint Case pertaining to case F.I.R
No. 83/2018 dated 28.04.2018, registered at Police Station B-Division, Dera Ghazi Khan, in respect of offence under Sections 302, 34, PPC. On conclusion of trial, learned trial Court vide its judgment dated 7.11.2020 has convicted the appellant under Section 302(b), PPC and sentenced him to death on two counts with a compensation of
Rs. 200,000/- each under Section 544-A, Cr.P.C. to the legal heirs of each deceased, recoverable as arrears of land revenue, and in default of payment of compensation to undergo six months S.I., whereas co-accused Akhtar Abbas, Ansar Abbas and Azhar Abbas were acquitted of the charges.

Murder Reference No. 47 of 2020 for confirmation or otherwise of death sentence awarded to the appellant Ghulam Akbar shall also be disposed of through this single judgment.

2. Initially, complainant Zulfiqar Ali (PW-4) got registered F.I.R No. 83/2018 (Ex.PD/1), under Sections 302, 34, PPC at Police Station B-Division, Dera Ghazi Khan, but during the investigation co-accused Akhtar Abbas, Ansar Abbas and Azhar Abbas were declared innocent by the police. Feeling aggrieved of the investigation, the complainant preferred a Private Complaint (Ex.PK). As per contents of the complaint, on 28.04.2018 at 11:00 a.m. the complainant along with his brother Umer Siraj, father Naseer Muhammad and mother Musarrat Wazir Bibi was present at his house situated in Sajjad-Abad Colony; meanwhile, the accused Ghulam Akbar, Akhtar Abbas, Ansar Abbas and Azhar Abbas while armed with pistols entered into the house of the complainant; accused Ghulam Akbar raised lalkara that he will not let alive the father and the mother of the complainant for quarrelling with his sisters and daughter and for not letting them to rehabilitate; he made successive fires with his pistol hitting the father and mother of the complainant who succumbed to the injuries at the spot; rest of the accused extended threats of dire consequences to the complainant and his brother, thereafter, all the accused persons decamped while brandishing their weapons.

3. Motive behind the occurrence, as stated by the complainant, was that two sisters and one daughter of accused Ghulam Akbar are wives of the complainant and his two brothers respectively, but due to some estrangement/disunity they left the houses of their husbands and are Living in the house of their parents.

4. All the accused were summoned by the learned trial Court and they were formally charge-sheeted under Sections 302, 459, 114, 34, PPC, to which they pleaded not guilty and claimed trial. The complainant produced as many as ten witnesses to prove charge against the accused whereas one CW was examined by the learned trial Court.

Dr. Aiman Javed, WMO (PW-9) and Dr. Muhammad Tanvir Hussain (PW-10) conducted postmortem examinations on the dead bodies of the deceased; Ghulam Akbar, S.I (CW-1) conducted investigation of this case, whereas Zulfiqar Ali, complainant (PW-4) and Umer Siraj (PW-5) furnished the ocular account.

5. On 28.04.2018 at 03:55. P.m., post-mortem examination on the dead body of Musarrat Wazeer deceased was conducted and the doctor (PW-9) found the following injuries:

1.       There is an oval lacerated wound of about 1cm x 1.5cm with inverted margins present on the right pterion. Blackening present but no burning seen at the time of examination. This is the wound of entry.

2.       There is oval lacerated wound of 2cm x 2.5cm with everted margins and dribbling of blood from the wound present on the left temporal bone 3cm above the mastoid process and 2cm posterior lateral to the left ear.

In her opinion, cause of death was damage to vital organ i.e. brain due to Injury No. 1 caused by firearm, which was sufficient to cause death in ordinary course of nature. Probable time elapsed between injuries and death was 02 to 03 minutes and between death and postmortem 05 to 06 hours.

On the same day i.e. 28.04.2018 at about 04:00 p.m., post-mortem examination on the dead body of Naseer Muhammad deceased was conducted and the doctor (PW-10) found the following injuries:

1.       A lacerated wound of about 1.2cm x 1.6cm oval shaped present on right side of head about 4cm above right ear, burning and blackening were present, having Collar of abrasion towards frontal side, margins were inverted, going deep in. It was an entry wound.

2.       A lacerated wound of about 2.5cm x 2cm present below left ear just Icm below left ear, margins are everted. It was an exit wound. Injury No. 1 and 2 were inter connected.

4.       A lacerated wound of about 2cm x 1.2cm present on left side of front of neck, burning blackening were present, margins were inverted, Collar of abrasion was on medial side, entry wound was going deep in.

4.       A lacerated wound of about 2.5cm x 2.5cm was present on back of neck, margins were everted. It was exit wound of Injury No. 3.

5.       A lacerated wound of about 1.5cm x 1cm present on left arm 3cm lateral to shoulder joint, margins were inverted, burning and blackening were present, abrasion collar was on upper margins, it was entry wound. I pellet was recovered from wound.

In his opinion, Injuries No. 1 and 2 caused damage to brain which is vital organ and Injuries No. 3 and 4 ruptured blood vessels which are major vessels for supplying blood to the brain and these injuries were sufficient to cause immediate death in ordinary way of life. Probable time elapsed between injuries and death was immediate and between death and postmortem 04 to 07 hours.

6. Learned counsel for the complainant after tendering in evidence certified copy of DNA & Serology Report (Exh.PO), certified copies of Firearms & Tool Marks Examination (Exh.PP & Exh.PP/1), certified copy of Latent Finger Print Examination Report (Exh.PQ), certified copies of Trace Chemistry Analysis Reports (Exh.PR & Exh.PR/1), report of Emergency Service Rescue-1122 (Exh.PS), certified copy of divorce document of Umer Siraj (Exh.PT & Exh.PT/1) and certified copy of divorce document of Zulfiqar Ali (Exh.PU & Exh.PU/1) closed the prosecution’s case.

7. Thereafter, statement of the accused under Section 342, Cr.P.C. was recorded, in which he refuted all the allegations levelled against him and professed his innocence. While answering to question (Why this case is against you and why the PWs have deposed against you?), the appellant replied as under:

“It was a blind murder. I have been involved in this case due to mere suspicion. The PWs are inter se related and they have deposed falsely against me.”

The accused/appellant neither opted to appear as his own witness under Section 340(2), Cr.P.C. nor produced any defence evidence.

8. We have heard the learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the record with their able assistance.

9. The occurrence in this case took place at about 11:00 a.m. and the matter was reported to the ‘police at 12:05 a.m. i.e. just after about one hour of the occurrence. Postmortem examinations of both the deceased were also conducted on the same day at 3:55 p.m. and 04:00 p.m. respectively. In view of such prompt reporting of the matter to the police, we are of the view that there is no question of any consultation or deliberation on the part of the complainant.

10. The ocular account in this case has been furnished by two witnesses i.e. PW-4 Zulfiqar Ali and PW-5 Umer Siraj. Both the PWs are the sons of the deceased and at the time of occurrence they were present at their home along with the deceased. Moreover, both the PWs have reasonably explained their presence at the time and place of occurrence. Even otherwise, place of occurrence and the time of occurrence have not been denied by the accused. Therefore, the presence of both the witnesses at the place of occurrence is neither improbable nor can be doubted and merely on account of their relationship with the deceased, their evidence cannot be discarded in the absence of any inconsistency or inherent infirmity in their deposition. In this context, reliance is placed on the judgment reported as Khizar Hayat vs. The State (2011 SCMR 429). The firearm injuries on the persons of the deceased have specifically been attributed to the appellant. We have noted that even in their cross-examination both the eye-witnesses remained consistent on all material aspects of the prosecution’s case and their evidence is fully supported by the medical evidence. We have also observed that the plea of substitution taken on behalf of the appellant remained unproved. Even otherwise, substitution of accused in such like murder case by the complainant is a rare phenomenon. Reliance is placed on Khalid Saif Ullah vs. The State (2008 SCMR 688).

11. Recovery of pistol .30-bore from the appellant is of no avail for the prosecution as in this case the prosecution has failed to bring on record the original report of the Punjab Forensic Science Agency and has merely produced photocopy of the said report (Exh.PP), which is inadmissible in evidence being against the mandate of Section 510, Cr.P.C. According to Article 75 of Qanun-e-Shahadat Order, 1984, a document must be proved by primary evidence whereas Article 76 thereof provides some exceptions under which secondary evidence may be permitted to be given in place of the original. The proof of loss of a document is a condition precedent for granting permission to lead secondary evidence. In the present case, neither any application was submitted nor permission obtained for producing photocopy of the report of the Punjab Forensic Science Agency as secondary evidence. As far as motive in this case is concerned, strained relations between parties has not been denied.

12. Keeping in view all above, we are of the considered view that even after exclusion of recovery, there remains sufficient evidence in the form of confidence inspiring and trustworthy ocular account fully supported by medical evidence against the appellant Ghulam Akbar, therefore, his conviction under Section 302(b), PPC being based upon well-settled principles of appreciation of evidence is maintained. However, in our view it is not a case of capital sentence as there are certain extenuating circumstances in favour of appellant to warrant lesser sentence. Therefore, we are convinced that the appellant in the peculiar circumstances of this case deserves benefit of doubt to the extent of his sentence one out of two provided under Section 302 (b), PPC. It is well-recognized principle by now that accused is entitled for the benefit of doubt as an extenuating circumstance while deciding his question of sentence. Reliance is placed on Ghulam Mohy-ud-Din alias Haji Babu and others vs. The State (2014 SCMR 1034).

13. Resultantly, while maintaining the conviction of the appellant Ghulam Akbar under Section 302(b), PPC, his sentence is altered from death to imprisonment for life on two counts with the benefit of Section 382-B, Cr.P.C.; but the penalty of compensation and the sentence in default thereof awarded to him by the learned trial Court are maintained. With the above modification in the quantum of sentence, Criminal Appeal No. 516 of 2020 is dismissed.

14. Death sentence of the convict Ghulam Akbar is not confirmed and Murder Reference No. 47 of 2020 is answered in the Negative.

(A.A.K.)          Appeal dismissed

Change of Investigation after submission of Challan

PLJ 2016 Lahore 500 (DB)[Multan Bench Multan]

Present: Syed Muhammad Kazim Raza Shamsi and Farruk Gulzar Awan, JJ.

MUHAMMAD DANISH--Petitioner

versus

CITY POLICE OFFICER, MULTAN and 4 others--Respondents

W.P. No. 17691 of 2015, decided on 14.1.2016.

Constitution of Pakistan, 1973--

----Art. 199--Punjab Police Order (Amendment) Ordinance, 2013, Art. 18-A--Constitutional petition--Change of investigation--Challan was submitted--Validity--Challan had been submitted in trial Court where charge was framed and trial was in progress and as such transfer of investigation at such a belated stage was not sustainable--Petition was dismissed.                                                                            [P. 502] A

2014 SCMR 1499 rel.

Mr. Muhammad Bilal Butt, Advocate for Petitioner.

Mehar Nazar Abbas Chawan, AAG alongwith Atif, SSP (Operation) for Respondents.

Date of hearing: 14.1.2016.

Order

Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, arising out F.I.R No. 510/2015 and F.I.R.No. 512/2015 dated 15.09.2015 under Section 9(c) of the Control of Narcotic Substances Act, 1997 registered at Police Station, Shujaabad, District Multan, the petitioner has sought direction against Respondent No. 1 that the application for change of investigation moved by petitioner before him be decided.

2. It is argued by learned counsel for the petitioner that cousin Muhammad Saleem Shahzad alias Akku and father of petitioner Khiyzar Hayat were booked into above mentioned false cases due to political rivalry; that police official demanded gratification from them and on refusal they were involved in these cases just to teach them a lesson and as a result, huge quantity of contraband charas was planted on them and now both of them are in judicial lockup.

3.  On the other hand, learned law officer has opposed this petition and submitted that challan of both the cases have been submitted in which charge has been framed and trial is in progress.

4.  We have heard the arguments of learned counsel for the petitioner and learned A.A.G for the State and have perused the record.

5.  The above mentioned cases F.I.R. No. 510/2015 and F.I.R. No. 512/2015 were registered on 15.09.2015 under Section 9(c) of the Control of Narcotic Substances Act, 1997. During investigation, both MuhammadSaleem alias Akku and Khiyzar Hayat were found involved and challan was submitted in learned trial Court. Thereafter, petitioner being dissatisfied from the aforesaid investigation, moved application for change of investigation before City Police Officer, Multan.

6.  Article 18-A of the Punjab Police Order (Amendment) Ordinance, 2013 (Ordinance II of 2013) deals with the subject which is re-produced for ready reference:

“18-A. Transfer of investigation.--(1) Within seven working days of the filing of an application, the Head of District Police may, after obtaining opinion of the District Standing Board and for reasons to be recorded in writing, transfer investigation of a case from the investigation officer to any other investigation officer or a team of investigation officers of a rank equal to or higher than the rank of the previous investigation officer.

(2) If the Head of District Police has decided an application for transfer of investigation, the Regional Police Officer may, within seven working days of the filing of an application, after obtaining opinion of the Regional Standing Board and for reasons to be recorded in writing, transfer investigation of a case from the investigation officer or a team of investigation officers to any other investigation officer or a team of investigation officers of a rank equal to or higher than the rank of the previous investigation officer or officers.

3 -----------------“

7.  Today SSP (Operations) has submitted report and stated that both the case files were referred to District Standing Board considering for first change of Investigation. He further stated that both the case files, investigating officer was examined minutely and application of the petitioner for change of first investigation was disposed of. Record reveals that challan of the above mentioned cases have been submitted in learned trial Court where the charge is framed and the trial is in progress and as such transfer of investigation at such a belated stage is not sustainable. Reliance in this respect is placed upon “Qari Muhammad Rafique vs. Additional Inspector General of Police (Inv.) Punjab and others” (2014 SCMR 1499).

8.  In view of above, the petition in hand is without any merit, the same stands dismissed.

(R.A.)  Petition dismissed

Powers of Magistrate to Discharge Accused

PLJ 2015 Lahore 220[Multan Bench Multan]

Present: Sikandar Zulqarnain Saleem, J.

MUHAMMAD RAMZAN and another--Petitioners

versus

STATE and 4 others--Respondents

W.P. No. 8591 of 2009, decided on 6.5.2014.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), S. 392--Criminal Procedure Code, (V of 1898), S. 561--Constitutional petition--Discharge of accused--Challenge to--Revision petition was accepted--Assailed--Revision was not competent against discharge order--Discharge order was merely administrative executive order regarding custody of accused--Validity--An order of discharge only means that physical custody of such an accused is not further required for purpose of investigation at present stage--It by no stretch of imagination, can be construed to be an order regarding cancellation of criminal case or termination of prosecution--Such an order of discharge can always be recalled by magistrate whenever, subsequently physical custody is required for proper investigation--Discharged accused person can subsequently be summoned by trial Court to face a trial--Police was quite justified in seeking discharge of accused and magistrate was also amply justified in passing order, therefore, no occasion has been found by High Court for interference in said order passed by pagistrate.

                                                                      [Pp. 221 & 222] A, B & C

Mr. Ahmad Raza, Advocate for Petitioners.

Date of hearing: 6.5.2014.

Order

Brief facts of the instant petition are that on the application of Muhammad Ashraf son of Muhammad Siddique case F.I.R. No. 91 dated 07.04.2009 was registered against the petitioners at Police Station Kameer, District Sahiwal, under Section 392 P.P.C. Thereafter, investigation officer after concluding the investigation recommended the discharge of accused persons from the aforementioned F.I.R The learned Magistrate Section 30, Sahiwal acceding with the request made by the I.O. had passed well reasoned order dated 05.05.2009 while discharging the accused from the case.

2.  Muhammad Ashraf, complainant of the case, being aggrieved of the order dated 05.05.2009 filed a revision petition which was accepted on 19.06.2009 by learned Addl. Sessions Judge, Sahiwal in the following terms:--

"The petitioner/complainant, who is present in the Court has stated that he never submitted affidavit to the police regarding innocence of accused. Accused have committed his dacoity and police in connivance with the accused have found them innocent and fraudulently got them discharged from the learned Judicial Magistrate, There is no affidavit of the complainant and in the light of the contentions of the learned counsel for the petitioner/complainant it is sufficient to hold that I.O. with connivance of the accused have found them innocent on the basis of the alleged affidavit of the complainant. The learned Judicial magistrate was duty bound to ask for production of original affidavit or to summon the deponent regarding its truthness but only depending on the report of the police learned judicial Magistrate discharged the accused, who has been named by the complainant in his petition for lodging FIR. In these circumstances impugned order dated 05.5.2009 passed by the learned Judicial Magistrate P.S Kameer, Sahiwal is set aside and the revision petition is accepted and record of challan be sent to learned Judicial Magistrate P.S. Kameer, who is directed to proceed further in their matter strictly in accordance with law."

Hence, through this Constitutional Petition under Article 199 of the Islamic Republic of Pakistan read with 561 Cr.P.C. petitioner has assailed the order passed by the learned Addl. Sessions Judge and has sought quashing of the case.

3.  Heard. Record perused.

4.  Contention made by the learned counsel for the petitioner that learned Addl. Sessions Judge had acted beyond the mandate of law as the revision petition was not competent against the discharge order passed by the learned Magistrate, carries weight as an order of discharge is merely an administrative executive order regarding custody of an accused person.

5.  No restraint whatsoever has been placed on the authority of the Investigating Officer, who is authorized to make an independent, impartial and transparent investigation which should be given due weight unless some malafide or dishonesty is alleged.

6.  An order of discharge only means that physical custody of such an accused is not further required for the purpose of investigation at  present  stage.  It, by no stretch of imagination, can be construed to

be an order regarding cancellation of criminal case or termination of prosecution.

7.  Such an order of discharge can always be recalled by the Magistrate whenever, subsequently physical custody is required for proper investigation. Even a discharge accused person can subsequently be summoned by the trial Court to face a trial.

8.  The order passed by the learned Magistrate. Sahiwal is a reasoned order and I have found no perversity of reasoning of illegality of approach therein. In view of the fact that the aggrieved persons had produced affidavits in support of the conclusion of the police and the same were not rebutted by the complainant's counsel. Therefore, it appears that the police was quite justified in seeking discharge of the accused/petitioners and learned Magistrate was also amply justified in passing the order dated 05.05.2009, therefore, no occasion has been found by this Court for interference in the said order dated 05.05.2009 passed by the learned Magistrate Section 30, Sahiwal.

9.  Before parting with this Order, in view of the observation made above, the order passed by the learned Addl. Sessions Judge, is set aside as revision petition was not competent.

(R.A.)    Petition dismissed

Judgment in a Central Excise Act 1944 Case

PLJ 2015 SC 701[Appellate Jurisdiction]

Present: Nasir-ul-Mulk, HCJ, Gulzar Ahmed & Mushir Alam, JJ.

DEPUTY DIRECTOR COLLECTOR CUSTOMS INTELLIGENCE AND INVESTIGATION, PESHAWAR--Appellant

versus

FARMAN ALI and others--Respondents

Civil Appeal No. 09 of 2006, heard on 27.1.2015.

(On appeal from the judgment of the Peshawar High Court, Peshawar, dated 25.03.2006 passed in W.P. No. 85 of 2000)

Central Excise Act, 1944--

----S. 13--Power to arrest--Leave granting order--Comprehensive procedure for inquiry into offence--Validity--Comprehensive procedure for inquiry into an offence committed under Act, right up to filing of complaint before special judge--Central Excise Officer has been conferred power to arrest a person whom he believes to have committed a crime under Act--Upon arrest he is required to produce accused before special judge within 24 hours--Special judge may admit accused to bail or direct his detention “at such place as he deems fit.”      [P. 707] A

Central Excise Act, 1944--

----S. 13(6), (8) & (10)--Scope of--Leave granting order--Power to arrest--Procedure of inquiry into allegation--Sufficient evidence was required--Arrest of a suspect CEO is required to record fact of arrest and other relevant particulars in register and then to proceed with inquire into allegations--Where complete particulars of case are to be mentioned, including person arrested, time and date of arrest, things and documents recovered and taken into custody, details of information received and manner in which inquiry had been conducted--If Central Excise Officer does not proceed to release accused for lack of sufficient evidence he is required to submit complaint to special judge.         [P. 707] B & C

Criminal Procedure Code, 1898 (V of 1898)--

----S. 154--Central Excise Act, 1944, S. 13(6) & (10)--Power to registrar FIR--High Court had set aside F.I.R. in case on ground that Act, 1944 does not make any provision for it--Provision of sub-section (6) read with sub-section (10) of Act when examined in juxtaposition with Section 154 of Cr.P.C. bears material similarity between two and thus CEO is also empowered to register a criminal case in shape of F.I.R. [P. 707] D

Police Rules, 1934--

----R. 24, 1 & 5--Criminal Procedure Code, (V of 1898), Ss. 154, 156 & 157--Central Excise Act, 1944--S. 13(10)--Entry of information in a book--Investigation--Cognizable offence--Power of central excise officer--Validity--Absence of F.I.R. however, does not, in any way, take away or effect powers of CEO to arrest an accused under Act, to carryout inquiry into an offence and to file complaint before Special Court--By setting aside registration of F.I.R.--High Court had annulled entire criminal proceedings--Such an impression perhaps is being gathered as ordinarily when any F.I.R. is quashed by Court entire criminal proceedings are set at naught--Excise officer can still file complaint under S. 13(11) of Act before Special Judge                                [P. 708] E, F, G & H

Central Excise Act, 1944--

----S. 13--Criminal Procedure Code, (V of 1898), S. 173--Power to arrest--Nature of complaint--As regards nature of complaint to be filed by Central Excise Officer to special judge for trial of accused same has been expressly equated with police report submitted by S.H.O. under Section 173 of Cr.P.C.--It is in nature of police report (challan) submitted by police under Cr.P.C. and has all trappings of such a police report and trial Court shall proceed upon it accordingly--However, setting aside of registration of case in that format did not amount to quashment of criminal proceedings against respondents.                                      [Pp. 708 & 709] I, J & K

Central Excise Act, 1944--

----S. 13(10)--Criminal Procedure Code, (V of 1898), S. 173--Power to arrest--Complaint can be filed before special Court--Nature of police report--Validity--Recording of information under Section 13(10) of Act in register of arrest and detention, mentioning names of persons arrested, giving details of information regarding crime itself amounts to registration of a criminal case on basis of which complaint can be filed before Special Court in nature of police report under Section 173 of Cr.P.C.--Appeal was partially allowed.

                                                                                                                        [P. 709] L

Mr. Abdul Rauf Rohaila, ASC for Appellant.

Mr. Isaac Ali Qazi, ASC for Respondent Nos.1-2.

Mr. Waqar Ahmed Khan, Addl. A.G. KPK for Respondent
No. 3.

Mr. Sohail Mehmood, DAG On Court Notice.

Date of hearing: 27.1.2015

Judgment

Nasir-Ul-Mulk, CJ.--Leave to appeal was granted against the judgment of the Peshawar High Court on 02.01.2006. The points of law for determination with the brief background as stated in the leave granting order are reproduced:--

“By the impugned judgment of the Peshawar High Court, dated 25.6.2003 in Writ Petition No. 85 of 2000, filed by the respondents, Farman Ali and another, case F.I.R. No. 5 dated 25.1.2000, registered against the respondents, under a number of provisions of the Central Excise Act, 1944 and the Rules framed thereunder, was declared to be without lawful authority and consequently, of no legal effect, on the grounds that cognizance of the said offences can be taken by the Special Judge, under sub-section (6) of Section 9-A of the Central Excise Act, 1944, only upon a complaint in writing by the Central Excise Officer and that Section 13 of the Act, though empowers the Central Excise Officer to arrest an accused, it does not provide for the registration of the first information report.

2.  The submissions made by Mr. Abdul Rauf Rohila, ASC for the petitioner, Deputy Director Customs Intelligence and Investigation, Peshawar, and Barrister Masood Kauser, for the respondents, raise the following questions of public importance:--

(i)      Whether the complaint mentioned in sub-section (6) of Section 9-A of the Central Excise Act, 1944, by which the Special Judge, can take cognizance, is to be equated with the “complaint” under Section 200 of Cr.P.C. and thus the procedure thereunder to be followed or charge sheet submitted by a police officer under Section 173 Cr.P.C. as provided under sub-section (11) of Section 13 of the Act?

(ii)     Whether in the absence of express provisions in the Central Excise Act, 1944, the Central Excise Officer is precluded from registration of a case?

(iii)    Whether the High Court was correct in holding that in view of the special procedure provided under Section 13 of the Act for the investigation of a crime, the first information report could not be registered?

(iv)    That when the Central Excise Officer has been empowered under sub-section (1) of Section 13 of the Act to arrest a person without warrant and for the investigation of a case to exercise the powers conferred under criminal procedure code upon officer incharge of a police station, whether the registration of the first information report could be declared illegal?

(v)     That even if the first information report has been rightly held to have been registered without lawful authority can the Special Judge not take cognizance of the offences under sub-section (6) of Section 9-A of the Act, upon complaint mentioned in sub-section (11) of Section 13 of the Act?

We, thus, grant leave to appeal to determine the above questions.”

2.  In order to appreciate the arguments advanced and to answer the questions formulated in the leave granting order it is necessary to reproduce the entire Section 13 of the Central Excise Act, 1944 (hereinafter referred to as “the Act”):--

“13. Power to arrest.--(1) Any Central Excise Officer authorized by the Central Board of Revenue in this behalf who has reason to believe that any person has committed an offence under this Act may arrest such person:

          Provided that the Central Excise Officer shall immediately intimate the fact of the arrest of a person to the Special Judge who may direct such Officer to produce that person at such time and place and on such date as the Special Judge Considers expedient and such Officer shall act accordingly.

(2) Notwithstanding anything contained in proviso to sub-section (1), any person arrested under this Act shall be produced before the Special Judge or, if there is no Special Judge within a reasonable distance, to the nearest Judicial Magistrate, within twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the Special Judge or, as the case may be, of such Magistrate.

(3) When any person is produced under sub-section (2) before the Special Judge, he may, on the request of such person, after perusing the record, if any, and after giving the prosecution an opportunity of being heard, admit him to bail on his executing a bond, with or without sureties, or refuse to admit him to bail and direct his detention at such place as he deems fit:

          Provided that nothing herein contained shall preclude the Special Judge from cancelling the bail of any such person at a subsequent stage if, for any reason, he considers such cancellation necessary, but before passing such order he shall afford such person an opportunity of being heard, unless for reasons to be recorded he considers that the affording of such opportunity shall defeat the purposes of this Act.

(4) When such person is produced under sub-section (2) before a Judicial Magistrate, such Magistrate may, after authorizing his detention in such custody, at such place and for such period as he considers necessary or proper for facilitating his earliest production before the Special Judge, direct his production before the Special Judge on a date and time to be fixed by him or direct such person to be forthwith taken to, and produced before, the Special Judge and he shall be so taken.

(5) Nothing in sub-section (3) or sub- section (4) shall preclude the Special Judge or the Magistrate from remanding any such person to the custody of the Central Excise Officer holding inquiry against that person if such Officer makes a request in writing, to that effect and the Special Judge or the Judicial Magistrate, after perusing the record, if any, and hearing such person, is of the opinion that for the completion of inquiry or investigation it is necessary to make such an order; provided that in no case the period of such custody shall exceed fourteen days.

(6) When any person is arrested under this Act, the Central Excise Officer shall record the fact of arrest and other relevant particulars in the register mentioned in sub-section (10) and shall immediately proceed to inquire into the charge against such person and if he completes the inquiry within twenty-four hours of his arrest, excluding the time necessary for journey as aforesaid, he may, after producing such person before the Special Judge or the nearest Judicial Magistrate make a request for his further detention in his custody.

(7) While holding an inquiry under sub- section (6), the Central Excise Officer shall exercise the same powers as are exercisable by an officer in charge of a police-station under the Code of Criminal Procedure, 1898 (Act V of 1898), but such Officer shall exercise such powers subject to the foregoing provisions of this section while holding an inquiry under this Act.

(8) If the Central Excise Officer, after holding an inquiry as aforesaid, is of the opinion that there is no sufficient evidence or reasonable ground for suspicion against such person, he shall release him on his executing a bond, with or without sureties, and shall direct such person to appear, as and when required, before the Special Judge, and make a report to the Special Judge for the discharge of such person and shall make a full report of the case to his immediate superior.

(9) The Special Judge to whom a report has been made under sub-section (8) may, after the perusal of record of the inquiry and hearing the prosecution, agree with such report and discharge the accused or, if he is of the opinion that there is sufficient ground for proceeding against such person, proceed with his trial and direct the prosecution to produce evidence.

(10) The Central Excise officer empowered to hold inquiry under this section shall maintain a register to be called “Register of Arrests and Detention” in the prescribed form in which he shall enter the name and other particulars of every person arrested under this Act, together with the time and date of arrest, the details of the information received, the details of things, goods or documents, recovered from his custody, the name of the witnesses and the explanation, if any, given by him and the manner in which the inquiry has been conducted from day to day; and such register or authenticated copies of its aforesaid entries shall be produced before the Special Judge whenever such Officer is so directed by him.

(11) After completing the inquiry, the Central Excise Officer shall as early as possible, submit to the Special Judge a complaint in the same form and manner in which the officer in charge of a police-station submits a report before a Court.

(12) Any Magistrate of the first class may record any statement or confession during inquiry under this Act, in accordance with the provisions of Section 164 of the Code of Criminal Procedure, 1898 (Act V of 1898)

(13) Without prejudice to the foregoing provisions of this section, the Federal Government may, by notification in the official Gazette, authorize any other officer working under the Central Board of Revenue to exercise the powers and perform the functions of a Central Excise Officer under this section, subject to such conditions, if any, that it may deem fit to impose.”

3.  Perusal of Section 13 of the Act would show that it provides a comprehensive procedure for inquiry into an offence committed under the Act, right up to the filing of the complaint before the Special Judge. The Central Excise Officer has been conferred the power to arrest a person whom he believes to have committed a crime under the Act. Upon arrest he is required to produce the accused before the Special Judge within 24 hours. The Special Judge may admit the accused to bail or direct his detention “at such place as he deems fit.” Three provisions of Section 13 sub-sections (6), (8) and (10) are relevant for the present purpose. First, under sub-section (6) upon effecting arrest of a suspect the Central Excise Officer is required to record the fact of arrest and other relevant particulars in the register as are mentioned in sub-section (10) and then to proceed with inquire into the allegations. Sub-section (10) requires the maintenance of register called the “Register of Arrests and Detention” in the prescribed form where complete particulars of the case are to be mentioned, including the person arrested, the time and date of arrest, things and documents recovered and taken into custody, details of the information received and the manner in which the inquiry had been conducted. If the Central Excise Officer does not proceed under sub-section (8) to release the accused for lack of sufficient evidence he is required under sub-section (11) to submit a complaint to the Special Judge “in the same form and manner in which the officer in charge of a police station submits a report before a Court.”

4.  The High Court had set aside the F.I.R. in the case on the ground that the Act does not make any provision for it. The learned counsel for the appellant submitted that the provision of sub-section (6) read with sub-section (10) of the Act when examined in juxtaposition with Section 154 of the Criminal Procedure Code bears material similarity between the two and thus the Central Excise Officer is also empowered to register a criminal case in the shape of F.I.R. We need to take a look at Section 154 of the Criminal Procedure Code:-

“Information in cognizable cases.--Every information relating to the commission of a cognizable offence if given orally to an officer-in-charge 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.”

5.  The above provision does not mention the phrase “First Information Report” (F.I.R.) but provides for entry of the information in a book in the prescribed form. It is the Police Rules, 1934 which makes reference to F.I.R. Rule 24.1 of the Rules read with Rule 24.5 of the Rules provides for the ‘First Information Report Register’ to be maintained in Form 24.5 prescribed in the Rules. This only provides a format for formal recording of the information whereas the power to record the same and to further investigate a cognizable offence is provided for in Sections 154, 156 and 157 of the Code of Criminal Procedure. The Police Rules obviously cannot be applied to the proceedings under Section 13, or for that matter, any other provision of the Act. The absence of F.I.R. however does not, in any way, take away or effect the powers of the Central Excise Officer to arrest an accused under the Act, to carryout inquiry into an offence and to file complaint before the Special Court. Sub-section (10) of Section 13 of the Act in fact provides for its own Register called “Register for Arrest and Detention” in which details referred to above are to be mentioned. Thus where the Form prescribed under the Police Rules for recording of the F.I.R. may not be used by the Central Excise Officer for recording information regarding the offence under the Act its exclusion will have no bearing on the criminal proceedings.

6.  It appeared from the arguments of the learned counsel for the appellant that by setting aside the registration of the F.I.R. the High Court had annulled the entire criminal proceedings. Such an impression perhaps is being gathered as ordinarily when any F.I.R. is quashed by the Court the entire criminal proceedings are set at naught. By the impugned judgment the High Court has set aside the F.I.R. but not the criminal proceedings. The proceedings are not liable to be annulled simply because the Central Excise Officer had used the format of F.I.R. prescribed in the Police Rules. The Excise Officer can still file complaint under sub-section (11) of Section 13 of the Act before the Special Judge, based on the information recorded under sub-section (10).

7.  As regards the nature of the complaint to be filed by the Central Excise Officer to the Special Judge for the trial of the accused the same has been expressly equated with the police report submitted by the officer in charge of a police station under Section 173 of the Criminal Procedure Code. The complaint is not to be treated as one filed under Section 200 of the Criminal Procedure Code. It is in the

nature of police report (challan) submitted by the police under the Criminal Procedure Code and has all the trappings of such a police report and the trial Court shall proceed upon it accordingly.

8.  It follows that the High Court may have been technically correct in holding that the case could not have been registered in the form of First Information Report. However, setting aside of the registration of the case in that format did not amount to quashment of the criminal proceedings against the respondents. The initiation of criminal proceedings, its investigation and trial is to be conducted in accordance with the procedure laid down in Section 13 of the Act. The very recording of the information under Section 13(10) of the Act in the register of arrest and detention, mentioning the names of the persons arrested, giving details of the information regarding the crime itself amounts to registration of a criminal case on the basis of which the complaint can be filed before the Special Court in the nature of police report under Section 173 of Criminal Procedure Code. The appeal is, therefore, partially allowed and the impugned judgment modified to the above extent.

(R.A.)  Appeal allowed

High Court cannot Quash FIR once challan is presented in Trial Court

PLJ 2014 Cr.C. (Lahore) 560
[Multan Bench Multan]

Present: Mahmood Ahmad Bhatti, J.

MUHAMMAD ASGHAR--Petitioner

versus

STATE etc.--Respondents

Crl. Misc. No. 28-Q of 2013, decided on 25.3.2014.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 561-A--Inherent of powers--Quashment of FIR--Principle--It is by now well-established law that when challan has been submitted and cognizance of a case has been taken, High Court is not to interfere under Section 561-A, Cr.P.C. or in writ jurisdiction.  [P. 563] A

PLD 2013 SC 401.

Peer Masood-ul-Hassan Chishti, Advocate for Petitioner.

Ch. Khawar Siddique Sahi, Advocate for Respondent No. 2.

Date of hearing: 25.3.2014.

Order

Through this petition, Muhammad Asghar, the petitioner seeks quashing of FIR No. 67/2013 dated 07.03.2013 lodged at Police Station Ghaziabad, District Sahiwal. This FIR was lodged by one Saqlain Asad, who alleged that on the abetment of the petitioner herein, the co-accused, namely, Muhammad Azam son of Muhammad Hanif and Muhammad Asghar son of Muhammad Hanif carried out murder of his father, Bashir Ahmad and his mother, Mst. Nusrat Parveen.

2. To state the obvious, the learned Area Magistrate sent up the case to the learned Sessions Judge, Sahiwal to make the accused face trial. The case was entrusted to a learned Additional Sessions Judge, Sahiwal, who framed the charge against Muhammad Asghar son of Muhammad Hanif, the co-accused on 03.08.2013. Needless to say, he pleaded not guilty to the charge brought against him and claimed trial. Thereupon, the testimony of the complainant, Saqlain Asad was recorded as PW-1 on 20.08.2013. He reiterated the facts narrated in the above-mentioned FIR. Towards the end of his deposition, he stated as under:

Motive for the said occurrence was that there was a dispute over agricultural holding between my father and the accused persons mentioned. The present occurrence tooklace at the instigation and abetment of Muhammad Asghar son of Muhammad Anwar, r/o Chak No. 175/9.L. I made statement before the I.O. in this regard, which was read over to me and I signed the same in token of its correctness. My statement is EX.PA. (At this stage, the learned counsel for the complainant has made request for summoning of rest of the accused persons in this case).

3. On the very same day, i.e. 20.08.2013, the learned Additional Sessions Judge, Sahiwal passed the following order:-

"Examination-in-chief of Saqlain Asad, complainant, has been recorded today as PW-1. In his statement the complainant has nominated Muhammad Azam, GhulamSamdani and Abdul Ghafoor as accused by mentioning their specific roles and thereafter the learned counsel for complainant has made a request for their summoning to face trial. The request of learned complainant counsel appears to be justified, therefore, the above named accused persons be summoned for 30.8.2013 to face trial in this case."

4. On 28.10.2013, it was observed by the learned trial Court that co-accused Muhammad Azam is fugitive from law and proceedings were ordered to be initiated against him under Section 87, Cr.P.C. and his case was separated from the rest of the co-accused under Section 512, Cr.P.C. As regards the petitioner herein, the order dated 28.10.2013 reads as under:

"Accused Muhammad Asghar s/o Anwar present in Court is directed to furnish his bail bonds in the sum of Rs. 1,00,000/-with one surety in the like amount to the satisfaction of this Court. Now to come up for framing of amended charge on 18.11.2013."

5. On 25.11.2013, the amended charge was framed against Muhammad Asghar son of Muhammad Hanif, Abdul Ghafoor son of Noor Muhammad and Muhammad Asgharson of Muhammad Anwar (the petitioner herein). The petitioner pleaded not guilty to the charge pressed against him and he also claimed trial.

6. Against the above background, the petitioner has challenged the orders dated 28.10.2013 and 25.11.2013. Under the first order the petitioner was directed to furnish bail bonds in the sum of Rs. 1,00,000/-with one surety and by the second order, he was indicted for the offence of murder.

7. Learned counsel for the petitioner submits that the orders dated 28.10.2013 and 25.11.2013 passed by the learned trial Court are manifestations of an abuse of process of law. He elaborates that the petitioner herein was not summoned by the learned trial Court vide order dated 20.08.2013 in the wake of the statement of P.W.1 and no other independent order was passed to summon the petitioner. It was only a misconception on the part of the counsel who represented the co-accused that led the petitioner to appear before the Court and taking advantage of his presence, he was directed by the learned trial Court to furnish the bail bonds. He goes on to argue that even no express charge has been framed against the petitioner in the amended charge sheet dated 25.11.2013. Therefore, the proceedings against the petitioner are liable to be quashed or dropped.

8. Learned counsel for the complainant has opposed this petition moved under Section 561-A, Cr.P.C. He makes reference to the statement of Saqlain Asad PW-1 in which he clearly mentioned the petitioner as the person who instigated and abetted the murder of Bashir Ahmad and Mst. Nusrat Parveen. He argues that this very statement made by the complainant empowered and induced the learned trial Court to summon all the accused named in the FIR. However, due to a typographical error, the name of the petitioner was omitted to be mentioned in the order dated 28.08.2013 by which, the other co-accused, namely, Muhammad Azam, Ghulam Samdani and Abdul Ghafoor were ordered to appear to face trial. He stresses that the name of the petitioner was dictated by the learned Presiding Officer in open Court in the presence of the counsel for the accused. That is why the petitioner appeared before the Court on 28.10.2013. As such it was not due to any misunderstanding or negligence on the part of the learned counsel for the accused.

9. From the resume of the facts, it is abundantly clear that the petitioner was named as one of the accused in the FIR, and he was clearly identified as the abettor and instigator of the crime allegedly committed by the co-accused. This much was stated again at the time of the trial, when the complainant's deposition was recorded as P.W.1. It seems to me that the name of the petitioner was omitted to be mentioned in the order dated 20.08.2013. As a matter of fact, the other three co-accused were also not mentioned by names, and their names appear to have been inserted afterwards. Be that as it may, the name of the petitioner could not be inserted either due to inadvertence or negligence on the part of the concerned Stenographer, and this also escaped the notice of the learned trial Court. At the cost of repetition, it is stated that the order dated 20.08.2013 proceeded and stemmed from the testimony of P.W.1 recorded on the very same date. This being so, if all the co-accused named by the complainant were to be summoned, there was no point in leaving the name of the petitioner out.

10. This brings me to the argument advanced by the learned counsel for the petitioner that since no specific charge has been laid against the petitioner in the amended charge sheet, he stands absolved of  the  charge  brought against him by the complainant. Suffice it to say, the petitioner is at liberty to move an application under Section 265-K, Cr.P.C. for his pre-mature acquittal. It is by now well-established law that when challan has been submitted and cognizance of a case has been taken, this Court is not to interfere under Section 561-A, Cr.P.C. or in writ jurisdiction. In this behalf, reference may well be made to the judgment of the Hon'ble Supreme Court of Pakistan reported as "Director General Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan" (PLD 2013 SC 401). The relevant portion therefrom is reproduced hereunder:

"The law is quite settled by now that after taking of cognizance of a case by a trial Court the FIR registered in that case cannot be quashed and the fate of the case and of the accused persons challaned therein is to be determined by the trial Court itself. It goes without saying that if after taking of cognizance of a case by the trial Court an accused person deems himself to be innocent and falsely implicated and he wishes to avoid the rigours of a trial then the law has provided him a remedy under Sections 249-A/265-K, Cr.P.C. to seek his premature acquittal if the charge against him is groundless or there is no probability of his conviction."

11. For what has been stated above, there is no merit in the petition, which is hereby dismissed, letting the petitioner avail of the remedy open to him under the law.

(A.S.)   Petition dismissed