1. ' S. ALI ASLAM JAFRI, J.---This criminal miscellaneous application under section 561-A of the Code of Criminal Procedure, 1898 has been filed by applicant Ch. Tanveer Ahmed who was a witness (P.W.7) in Special Case No.2 of 2005 registered under section 7(e) of ATA 1997 read with section 365-A, P.P.C. (F.I.R. No.393 of 2004) at Police Station, Shahrahe-Faisal, Karachi on 18-9-2004 which ended in acquittal of the accused; to seek the following reliefs:--
(i) "It is respectfully prayed that this Honourable Court may, in exercise of its inherent powers, in consideration of the material on the record, graciously be pleased to initiate criminal proceedings against respondents Nos.2 to 10 and punish them by itself or give directions, in accordance with law for hatching criminal conspiratorial design for committing heinous crime of terrorism and in pursuance thereof for giving intentional false evidence and fabricating false and fake evidence to exist and case of kidnapping for ransom; and firstly to grab ransom amount from the applicant and upon failing to achieve their such object, ultimately falsely implicating the applicant in the case entailing capital sentence and diverted the administration of criminal justice. This will prevent abuse of the process of Court/law and to secure the ends of justice.
(ii) This Honourable Court may further be pleased to set aside the directions of the learned Trial Court, in connection with the offence committed which are subject-matter of this application, requiring the Inspector-GeneraI of Police Sindh for thorough probe and further necessary action.
2. Any other offences, other than the subject-matter of this application, may be probed against culprits, by the Inspector-General of Police Sindh.
(iii) This Honourable Court may, in its discretion, in the circumstances, matters and evidence on the record of a peculiar case before it, take proper action of law, as may deem fit to meet the ends of justice."
3. ' The facts in brief which have given rise to the filing of this application appear to be that a report of abduction of his brother-in-law Dr. Abdul Ghafoor Bhutto (respondent No.2) was lodged by complainant Dr. Ejaz Ahmed Bhutto (respondent No.3) at Police Station, Shahrah-e-Faisal, Karachi on 18-9-2004 stating therein that on 17-9-2004 in between 9-30 to 10-30 p.m. Dr. Abdul Ghafoor Bhutto proceeded from his residence of Clifton to his other residence in Gulshan-eIqbal and when he reached near Islamic Center Block-10, Gulshan-e-Iqbal Railway Housing Society, some unknown persons duly armed with lethal weapons came in two vehicles and kidnapped him while leaving his car bearing Registration No.AAM-227 in start condition. The complainant was informed about the incident on telephone during the said night at about 2-45 a.m. By his sister Dr. Zeba Bhutto (respondent No.4) who is second wife of Dr. Abdul Ghafoor Bhutto. The complainant reached Karachi and searched his brother-in-law, but did not succeed and as such lodged the report against unknown persons for kidnapping Dr. Abdul Ghafoor Bhutto for certain unknown reasons.
4. ' It appears that while the investigation was going on, two letters written in the handwriting of Dr. Abdul Ghafoot Bhutto (abductee) as well as the audio-cassette containing his voice were handed over by accused to applicant Ch. Tanveer Ahmed who is employer of Dr. Abdul Ghafoor Bhutto wherein demand of Rs.25 crores was made by the kidnappers and abductee had settled the ransom to Rs.15,000,000 (Rupees Fifteen Crores) and requested his employer Ch. Tanveer Ahmed/applicant to pay such amount. According to the prosecution Rs.15,00,000 (Rupees Fifteen Lacs) by Dr. Ejaz Ahmed, Rs.12,00,000 (Rupees Twelve Lacs) by P.W., Huzoor Bux and Rs.200,000 (rupees two lacs) by, P.W. Afzal Hameed in all Rs.2,900,000 (Rupees Twenty Nine Lacs) were paid for release of the abductee, whereafter the abductee was left blind folded at Boat Basin on 18-12-2004 during night time and immediately thereafter accused Mushtaq Ali Jatoi reached there and brought the abductee to his home where abductee was informed by the accused regarding the payment of Rs.2,900,000 (Rupees Twenty Nine Lacs) to him for his release. Statement of abductee as well as of complainant Dr. Ejaz Ahmed and P.W., Huzoor Bux were also recorded under section 164, Cr.P.C.
5. ' It further appears that after usual investigation, initially a report under section 169, Cr.P.C. Was submitted before the learned Administration Judge who entrusted the same to the learned trial Court and that Court after notice to the complainant, SPP and the accused rejected said report and directed the Investigating Officer to submit complete challan. Compliance was made by Investigating Officer on 25-1-2005. It also appears that at one stage application under section 494, Cr.P.C. Was also filed by the State to withdraw the case but that too was rejected by the learned trial Court. However, after conclusion of the trial, vide his judgment dated 25-6-2005 learned Judge Anti-Terrorism Court No.III, Karachi, while finding the prosecution story to be highly doubtful and by extending the benefit of doubt acquitted accused Mushtaq Ali Jatoi who was facing trial in this case.
6. ' It also appears that as a result of appraisal of the evidence brought on record, learned trial Court reached at a conclusion that no kidnapping of Dr. Abdul Ghafoor Bhutto had taken place, and in fact, he himself went in self hiding for accomplishment of his illegal act and designs to grab billions of rupees from his employer. The complainant and other private witnesses except P.W.4, Afzal Hameed and P.W.7, Ch. Tanveer Ahmed (applicant) equally shared the attempt and stance of Dr. Abdul Ghafoor Bhutto, which according to the learned trial Court amounted to forgery, cheating, and false registration of the F.I.R. Learned trial Court also observed that since it possessed limited powers under the Schedule of the Anti-Terrorism Act, 1997 as such could not take, cognizance of the matter which also required thorough probe and independent investigation by the competent agencies, hence a copy of the judgment was ordered to be sent to the Inspector-General of Police, Sindh for further necessary action. The relevant portion of judgment is reproduced hereinafter:-- "However, as stated above, it is the specific case, wherein the prosecution, Government and all the witnesses except P.W., Ch. Tanveer Ahmed and P.W. Afzal Hameed, have failed to divert the direction of the case to some other side against the accused otherwise, if it was not so the police had not to submit application under section 169, Cr.P.C. And after its dismissal and confirmation by the Honourable High Court, Government would had not withdrawn the case under section 494, Cr.P.C. Which too was refrained by this Court duly confirmed by the Honourable High Court as such the result of the case is manifest that all these agencies and P.Ws. Were never interested in any conviction of the accused which also belied the fact that all the said story and kidnapping of the abductee was preplanned because of which the abductee himself went in self hiding and underground for grabbing billions of rupees from the employer, which also tantamount to an offence of fraud, cheating registration of false case etc. And the witnesses except P.W.7 and P.W.4 as well as the accused are the actors and participators of that offence. Since this Court possess limited power under the schedule of Anti-Terrorism Act, 1997 as such this Court cannot take the cognizance of the matter which also requires thorough probe and independent investigation by the competent agencies." ' n 193 and Part II of section 194, P.P.C. Against the persons who were found to have fabricated false evidence, learned trial Court has directed the Inspector-General of Police Sindh to investigate the case and take action as per law, which tantamounts to abuse of process of the Court, as such the said order is liable to be set aside/quashed. Learned counsel has further argued that learned trial Court failed to state in its judgment categorically that respondents Nos.2 to 10 by their criminal conspiracy and conspiratorial designs caused the circumstances of the false kidnapping of respondent No.2 to grab ransom from the applicant. Learned counsel also urged that the learned trial Court ought not to hold that it possessed limited powers under the schedule of ATA, 1997 and as such could not take cognizance of the matter which also requires thorough probe and independent investigation by competent agencies. Learned counsel has therefore, vehemently urged that in fact the learned trial Court ought to have taken action itself against the respondents Nos.2 to 10 under section 476, Cr.P.C. Read with section 193 and 194, P.P.C., and there was no justification at all for ordering reinvestigation against all concerned found responsible for committing such forgery, and fraud by fabricating false evidence.
7. ' In support of his contention learned counsel has referred to the cases reported as (1) Khairdin v.
8. The State PLD 1982 SC 291; (2) Mst. Karim Khatoon v. The State PLD 1984 SC 44; (3) Syed Abbas Raza Rizvi v. D.I.G. Lahore and others 1992 PCr.LJ 1548; (4) Abdul Hakim v. The State 1994 SCM R 1103 and
(5) Muhammad Afzal v. The State 2001 SCM R 1615.
9. ' So far the case referred at Sr. No.1 (Khairdin v. The State) is concerned, while maintaining the conviction of an accused under section 161, Cr.P.C. An observation was made by the Honourable Apex Court that the trial Court should consider the propriety of prosecuting complainant for perjury.
10. ' In the case referred at Serial No.2 (Mst. Karim Khatoon v. The State) which also relates to appeal against conviction with reference to offence under section 193, P.P.C., while rejecting the appeal it has been held by the Honourable apex Court that perjury is one of the most heinous social and moral offence.
11. ' In the case referred at Serial No.3, (Syed Abbas Raza Rizvi v. D.I.-G. Police Lahore and others, we find that during hearing of a pre-arrest bail application filed by applicant Syed Abbas Raza Rizvi before High Court, it had transpired that false evidence was fabricated against him, hence in a writ petition filed by him an order for registration of a case under section 194, P.P.C. Was passed by the High Court and D.I.-G., Lahore Range was directed to depute any officer senior in rank to investigate the case against the concerned officer.
12. ' In the case of Abdul Hakim v. The State referred at Serial No.4, the powers of the High Court to make a complaint under section 193, P.P.C. To the competent Court for trial instead of ordering trial by itself was examined and it was held 'that every Civil, Criminal and Revenue Court is empowered and has the discretion to take cognizance of the offence referred in section 195(1)(b) or (c), Cr.P.C.
13. Which has been committed in or in relation to a proceeding before it and try the same in accordance with the procedure prescribed for summary trial in Chapter XXII, Cr.P.C. (Underlining is by us)
14. ' In the case of Dr. Muhammad Afzal v. The State referred at Serial No.5, while discussing the powers of the High Court in special circumstances, when an offence falling within the scope of Pakistan Penal Code is committed during judicial proceedings pending before the High Court, there could be no bar on it to take cognizance under section 194 directly and proceed to try accused under Chapter XXIIA, Cr.P.C., their Lordships in the Supreme Court have held as under:-- "However, in special circumstances when an offence falling within the scope of P.P.C. Is committed during the judicial proceeding pending before the High Court then there would be no bar on it to take cognizance under section 194, Cr.P.C. Directly and proceed to try accused under Chapter XXII- A, Cr.P.C. At the same time High Court instead of trying the accused for commission of the offence committed during pendency of judicial proceedings itself may send the case to the concerned investigating agency having jurisdiction for further action according to law."
15. ' We are in respectful agreement with the view expressed by their Lordships in the above cited cases. However, the point which needs to be resolved in this case is as under:-- "Whether a trial Court has no powers under Anti-Terrorism Act, 1997, to proceed itself against the person(s) found liable for having committed perjury within the meaning of sections 193 and 194, P.P.C. During the trial before it, and whether such refusal on the part of the trial Court to proceed itself shall amount to abuse of process of the Court."
16. Indeed, sections 193 and 194, P.P.C. Are not scheduled offences, but we do not feel inclined to subscribe to the view expressed by the learned trial Court that the offence under sections 193 and 194, P.P.C. Not being scheduled offences under the Anti-Terrorism Act, 1997, the Court could not take action, because section 17 of the Anti-Terrorism Act, 1997 clearly says that "when trying any scheduled offence, a Anti-Terrorism Court may also try any offence other than the scheduled offence with which the accused may, under the Code, be charged at the same trial." Offence under sections 193 and 194, P.P.C. Always take place either during or in relation to judicial proceedings and it cannot be argued that a trial before Anti-Terrorism Court does not fall within the definition of judicial proceeding. A person who intentionally gives false evidence in any stage of judicial proceeding or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding commits an act of perjury. Thus, to presume that Anti-Terrorism Court cannot proceed against a person for an offence under sections 193, 194, P.P.C., in our considered opinion is not a correct approach to the problem and we are of the considered view that an Anti-Terrorism Court has the powers and may proceed itself in appropriate cases against the person found to have committed perjury. Even otherwise, save as expressly provided in the Act, the provisions of the Code so far the same are not inconsistent with the provisions of the Act, have been made applicable to the proceedings before an Anti-Terrorism Court under section 32 of ATA, 1997, and applicability of section 476, Cr.P.C. Does not appear to have been specifically excluded, or found to be inconsistent with the provisions of ATA, 1997. Nevertheless, we do not find any illegality or irregularity in the discretion exercised by the learned trial Court issuing direction to Inspector- General of Police, Sindh for investigation and action as per laW as the matter required thorough probe and independent investigation by the competent agencies under the circumstance of the case as expressed by the learned trial Court after appraisal of the evidence.
17. ' We repeatedly inquired from the learned counsel for the applicant as to what prejudice will be caused to the applicant if the matter is investigated by the police and a case is registered against the persons and ordered in the judgment, more particularly when a clean bill of (sic) has been granted by the learned trial Court to applicant Ch. Tanveer Ahmed (P.W.7) and other witness Afzal Hameed (P.W.4), but there was no satisfactory reply from the learned counsel and he insisted that in fact learned trial Court should have proceeded itself against the complainant, the witnesses and the concerned investigating agency.
18. ' We have given due attention to the arguments advanced by the learned counsel for the applicant, and the case-law as cited. We have also examined the material placed on record, which justified the learned trial Court to make certain observations with reference to the evidence adduced by. The complainant, and some of his witnesses. What transpires from the impugned judgment that after assessing the evidence on record learned trial Court felt it necessary to get the matter investigated through the police and as such issued necessary direction to the Inspector- General of Police, Sindh. As observed above learned counsel for the applicant has not been able to point out as to what prejudice will be caused to the applicant if the case regarding the allegations of forgery, fraud and cheating allegedly committed by the complainant and his witnesses (except applicant and P.W., Afzal Harneed) in order to knockout money on the plea of payment of alleged amount of ransom, is investigated by the police, more particularly when the learned trial Court has found applicant Ch. Tanveer Ahmed (P.W.7) and Afzal Hameed (P.W.4) not to be involved in any such malpractice and not being a party to the factum of forgery, fraud and cheating which according to the learned trial Court has been committed by the complainant, the witnesses, and the investigating agencies, as pointed out in the judgment.
19. It was under the above stated factual and legal aspects of matter that this Cr. Misc. Application was dismissed in limine with listed-application by a short order dated 20-7-2005, and the above are the reasons for the same.