' SHAHID ANWAR BAJWA, No.104 of 1999 was recorded at Police Station Qazi Ahmed on 16-9-1999 at 1710 hours for an offence alleged to have occurred at 4-45 a.m. .Ejaz Ali Shah was the complainant.
He stated that he, his lather and his uncle resided together. Six months earlier there had been some altercation between brother of complainant, Kamil Shah and Ehsan Mian Unar and a case was consequently registered by his brother against Ehsan Mian Unar. Day before the fateful day, harsh words were exchanged .Between cousin of complainant Zulfiqar Ali Shah and brother of Ehsan Mian and on the fateful day while complainant along with Kamil Shah, Zulfigar Ali Shah and Muhammad Ramzan Khaskheli were sitting in the house one Alto, white coloured, car came there. On driving seat Zulfiqar Unar and on front seat Ehsan Mian, having Kalashnikov, were sitting and on the rear seat were Iftikhar Unar with Mouser and Mumtaz Ali Dahri with .30 bore pistol. As soon as car stopped Zulfiqar Ali gave proverbial hakkal and it is stated that Ehsan. Made straight fire from his Kalashnikov which hit Zulfiqar Ali Shah. Iftikhar Unar fired on Mumtaz and others but they saved themselves. Sound of fire attracted persons of locality upon which culprits fled away. Zulfiqar Ali was found to have sustained injury on left side of chest. He was removed to hospital where he expired. Consequently, F.I.R. Was registered. After investigation on 3-2-1999 Challan was submitted while Ehsan and Mumtaz were shown accused in F.I.R., present three applicants were not sent up for trial because, according to police, no evidence had been collected against them and, therefore, they were discharged.
2. An application was submitted in the STA Court for transfer of the case from STA Court to Ordinary Court of criminal jurisdiction. Learned Judge STA Court after hearing the parties ordered for transfer of the case. Such order was challenged in Criminal Revision Application No.45 of 2003 and vide judgment dated 3-10-2003 criminal revision was converted into constitutional petition and it was allowed, thereby the case went back to the STA Court.
3. Application under section 193, Cr.P.C. Was filed and the trial Court vide order dated 25-4-2005 allowed the application and ordered the present applicants to be joined as co-accused in the case. This order was challenged in this Court in Criminal Revision Application No.46 of 2005.
Criminal revision was allowed vide order dated 30-5-2005 and non-bailable warrants of arrest issued by the trial Court were set aside. Complainant took up the matter before the Supreme Court in Criminal Petitions Nos.231 and 232 of 2005 and vide order dated 22-9-2005 petitions, with consent of the parties, were converted into appeals and were allowed in the following terms:-- "(a) The order of the learned trial Judge, to the extent of summoning the three private respondents in the trial in question, is declared legal and restored and to the said extent, the impugned order of the learned High Court is set aside. The said accused persons shall however, have the right to approach the learned trial judge for recall of the said order.
(c) The order of the learned trial Judge to the extent of issuing bailable warrants for the arrest of the accused persons in question is declared to be a transgression in law and offensive of the principles regulating the subject and to said extent, the order of the learned High Court is maintained."
4. Thereafter applicants approached trial Court for recalling of order dated 25-4-2005. Trial Court recalled the order and passed consent order by which application under section 193, Cr.P.C. Was to be treated as pending and it was ordered that it be taken up after recording of evidence. This was done by trial Court vide order dated 15-9-2006. After recording evidence, on 25-9-2010 trial Court passed order on application under section 193, Cr.P.C. It allowed application and ordered that the present applicants be joined as accused persons. This order was challenged in this revision application and for reasons to be recorded later this revision was dismissed vide order dated 25- 10-2010. Such order was challenged in the Supreme Court and the honourable Supreme Court observing that since reasons for short order could not be furnished by the learned Judge who ceased to hold that office in the meanwhile, therefore, the revision application was required to be heard and decided on merits, remanded the matter to this Court for deciding it afresh after hearing the parties. After remand revision application (Criminal Revision Application No.152 of 2010) was heard and was dismissed vide order dated 3-6-2011. Such was challenged in the Supreme Court and as it is stated at the bar same was dismissed. After dismissal of revision application charge was framed by the learned Special Judge (STA)/ Sessions Judge, Shaheed Benazirabad on 8-10-2011. Such act of learned Special Judge (STA)/Sessions Judge, Shaheed Benazirabad was challenged in Criminal Revision Application No.180 of 2011. Thereafter application under section 191, Cr.P.C. Was moved before learned Special Judge (STA)/Sessions Judge, Shaheed Benazirabad. It was prayed in that application that since cognizance has been taken under 190 (1)(c), Cr.P.C. It is mandatory that option be given to the accused in terms of section 191, Cr.P.C. This application was dismissed by the Special Judge (STA)/Sessions Judge, "That the accused Sher Muhammad Unar, Zulfiqar Ali and Iftikhar were joined in this case have already taken the ground in their transfer application No.81 of 2011, that the undersigned is hostile and biased against them and they in the circumstances have lost faith and confidence in the impartiality of undersigned. The incident pertains to the year 1999, with bias and influence upon this Court the order dated 25-4-2005 was passed after 5 years, without hearing and affording opportunity of hearing to the accused Sher Muhammad Unar, Zulfiqar and Iftikhar Ali. The conduct and behavior of the undersigned is hostile and bids against them, but the said transfer application of the accused was dismissed by . The honourable High Court of Sindh, Karachi on 13- 2-2012.
' That so far the question of informing the accused at this stage that they are entitled to have the case tried by another Court as provided in 5.191, Cr.P.C. Is concerned, the accused are educated persons and they have already exhausted said opportunity/remedy by filing Transfer application No.81 of 2011, after joining them as accused, in which they have also taken the ground that the Presiding Officer of this Court has joined them as accused and is biased against them. Hence the compliance of informing the accused that they are entitled to have the case tried by another Court is already enjoyed by the accused. The facts and circumstances of case law cited by the Advocate for the accused is distinguishable from the facts and circumstances of this case, therefore the same is not helpful to him."
6. Criminal Revision Application No.50 of 2012 has been filed to challenged the impugned order dated 10-3-2012. Criminal Revision Application No.180 of 2011 where charge was framed by the trial Court on 8-10-2011 and both the learned counsel for the applicant and the Additional Prosecutor General stated that this second revision should follow the first: If 50 of 2012 is allowed, 180 of 2011 be also allowed and if 50 of 2012 is dismissed 180 of 2011 be also dismissed.
7. Learned counsel for applicant submitted that since cognizance taken under section 190(1)(c) it was incumbent upon Courts below to give option to the present application as required under section 191, Cr.P.C. Learned counsel in this regard relied upon Abus Sattar Molla v. The Crown (PLD 1953 Federal Court 145), Muhammad Riaz v. The State (1983 SCMR 816), Muhammad Ashraf v. Zafar Mahmood alias Master Khaki Zaman and others (PLD 1967 Lahore 1045) and Abdul Ghafoor v. The State (1997 PCr.LJ 953). Learned counsel submitted that it is an irregularity which initiates the proceedings under section 530, Cr.P.C. In this regard learned counsel referred to section 530(k), Cr.P.C.
8. Learned A.P.G. Submitted that this irregularity can be cured under section 537, Cr.P.C. However, he conceded that it was incumbent upon Court to give option to the applicant in terms of section 191, Cr.P.C.
9. Complainant who appeared in person narrated whole history of long litigation and submitted that through one application or another application matter is being delayed. He referred to order passed by learned Chief Justice of this Court in Criminal Transfer Application No.81 of 2011 on 13-2- 2012 and submitted that trial Court be directed to expeditiously proceed with the trial and thus bring agony of the complainant to an end.
10. I have considered submissions made by the parties and have also gone through record as well as case-law cited at the bar.
11. Since entire brunt of arguments of learned counsel was on the provision contained in section 191, Cr.P.C. As originally enacted section 191, Cr.P.C. Provided as under:- "When a Magistrate, takes cognizance of an offence under subsection (1), clause. (c), of the preceding section, the accused shall, before any evidence is taken, be informed that he is entitled to have the case tried by another Court, and, if the accused, or any of the accused if there be more than one, objects to being- tried by such Magistrate, the case shall, instead of being tried by such Magistrate, be committed to the Court of Session or transferred to another Magistrate."
12. :This was amended by Law Reforms Ordinance, 1972 with effect from April 14, 1972, and in amended form it reads as under:-- "Transfer on application of the accused.--When a Magistrate taken cognizance of an offence under subsection (1), clause (c), of the preceding section, the accused shall, before any evidence is taken, be informed that he is entitled -to have the case tried by another Court, and, if the accused, or any of the accused if there be more than one, objects to being tried by such Magistrate, the case shall instead of being tried by such Magistrate, be sent to the Sessions Judge for transfer to another Magistrate."
13. There were few other amendments relating to Executive Magistrates but by amendments introduced in 2001 position was restored to as it was after amendments by .Law Reforms Ordinance, 1972.
14. Reference may be made to sections- 4(ma) and 556 of the -Criminal Procedure Code, which sections read as under:-- "Section 4 (ma) Magistrate means Judicial Magistrate and includes a Special Judicial Magistrate appointed under sections 12 and 14."
"Section 556. Case in Which Judge or Magistrate is personally interested. No Judge or Magistrate shall, except with the permission of the- Court to which an appeal lies from his Court, try any case to or in which lie is a party, or personally interested, and no Judge or Magistrate shall hear an appeal from a judgment or order passed or made by himself".
15.' This brings me to the case-law on this point:--
(i) Abdus Sattar Molla v. Crown (PLD 1958 Federal Court 145). In this case by majority of two to one (with Cornelius, J. Dissenting) firstly it was observed as under:-- "The contention that once cognizance is taken of the offence, section 190 does not apply to the case is based in the view that under that section cognizance is taken of the offence and not the offender. This view no doubt finds support in some decisions . But I find myself unable to agree with it. Taking cognizance of the offence, has not been defined in the Code and from the fact that the word offender is not mentioned in section 190, it does not follow that once cognizance of the offence is taken section 190 has no application when a person who was not an accused at the start has to be placed on trial."
' Thereafter it observed as under:-- "I therefore consider that the trial Magistrate in proceeding against the appellant acted under clause (c) of section 190(1) though , he had not been empowered to do so. The trial of the appellant was therefore vitiated.
' Even if the Magistrate had the power to act under clause (c) of section 190(1) the trial in this case would still have to he held to be vitiated because section 191 was not complied with. In my opinion there is no force in the contention of the learned Advocate- General that there is no proof of the noncompliance of that provision of law. From the record before us it is clear that the appellant was not informed that he was entitled to he tried by another Court. In the order dated 1st December, 1949 when the appellant appeared and the case was started afresh, it was not noted that he was informed as required under section 191; nor does any other part of the record show that the provision was complied with. It is true that this point was not raised before the Courts below, and had it not affected the jurisdiction of the trial Magistrate I might not have considered it at this stage. But being a point that goes to the root of the matter, the mere fact that it was not raised in the Courts below cannot be allowed to stand in the way of its being considered. Questions of fact no doubt cannot be raised in this Court but it appears to me that there is no question of fact to be determined in this respect. We have to act on the record in the case and it appears to me that the theory of the learned Advocate-General that the Magistrate might have forgotten to note that fact is far-fetched. On behalf of the appellant this point was taken when leave to appeal was asked for and in the concise statement filed on his behalf in this case the omission of the Magistrate to comply with section 191 is Mentioned. It is significant that in the concise statement filed on behalf of the Crown the theory now advanced before us on this point by the Advocate-General does not find a place. In the circumstances we have to go by the record and as already stated there is nothing on the record to show that section 191 was complied with. If the Magistrate had acted under that section he would have, in the nature of things, made a note to that effect.
(i) It was not denied that failure to comply with section 191 in cases to which it applies vitiates the trial. It is clear from that section, that the jurisdiction of a Magistrate to try the accused against whom he takes cognizance under section 190(1)(c) depends on the accused's consent. Since the consent of the appellant was not obtained the Magistrate had no jurisdiction to try him. I am in agreement with the view taken in Chedi's case that the omission on the part of the trial Magistrate in this respect is not a mere irregularity which can be cured."
(ii) .It may be pointed out that facts of this case were that on the eventful evening Abdus Sattar Molla was returning home from the shop of P.W.12 when 9 persons surrounded him and threatened to kill him and caused injuries. An entry in daily diary of the police station was made by P.W.9 and it was to the effect that on the day in question one Daud Molla while taking cattle of another to the pond was opposed by the appellant and some others who attacked him. His cries attracted the relatives and when Abdus Samad Molla appeared on the scene he was caused injuries by 11 persons whose names were mentioned in the entry. Name of Abdus Sattar Molla was not mentioned in the entry. In his evidence- P.W.9 explained that during investigation he received information from a professor of a college that the appellant being a student of MA and Law Classes, was in law class, on the day of occurrence. He was therefore not forwarded by the police to the Magistrate while .Other 8 accused were so forwarded. This was done on 4-6-1949. On 27-6- 1949 it was stated that the appellant surrendered and moved a bail petition. He was admitted to bail. It appeared that he appeared because apparently his name had appeared in the F.I.R. The Magistrate proceeded only against the accused mentioned in the charge-sheet (name of appellant was not mentioned in the charge-sheet) and nowhere in the Court diary it was stated that the Magistrate intended to proceed against the appellant. It was only on 1-12-1949 after son of Abdus Samad was examined in full and Abdus Samad in part that the Magistrate thought of proceedings against the appellant. He stopped recording evidence, issued warrants of arrest against the appellant and thereafter proceeded with the case. In Abdul Razzaq Butt v. Kalsoom Bibi (1999 MLD 30) it was held that provision of section 191 do not apply to the proceedings before the Anti-Terrorism Court. In Nga Chan Tha v. Emperor (AIR 1923 Rangoon 31) it was observed as under:- "It is to be noted that the section provides that cognizance may be taken of any offence and that no reference is made to the offender. Indeed, the identity of the offender is in no way involved, for a complaint. May be presented with a view to action being taken against some person or persons unknown. When therefore, proceedings are initiated on a complaint, or on a police report, the Magistrate can legally take cognizance of the offence and the requirement of section 190 of the Code are complete.
' In the present case, the trial was commenced and action was taken against Chan Tha. The addition of a new accused does not, in my opinion, necessitate fresh proceedings in initiation. The evidence, it is true, must be recorded de novo, but that is merely in order that the witnesses, whose evidence has already been recorded, may be used against the new accused. The Magistrate having taken cognizance of the offence, it is right and proper that he should bring to justice all those persons, whether originally mentioned or not, who the evidence shows were guilty of that offence. It has been held that in such cases the Magistrate should be regarded as taking cognizance under the same clause of section 190 as he did against the original accused and if it were necessary to apply section 190 at all. I would hold that that is the correct view to take for the reasons that I have given above. But, in my opinion, section 351 applies to such cases; and is intended to apply to them. The offence being one and the same, and the Magistrate having cognizance of that offence acting under section 190(b), has full seizing of the offence. He takes action on the evidence given for the prosecution to establish the offence, and there is apparently no need, therefore, to refer back to section 190 at all. However this may be, if there is such necessity, there is ample authority to support the view that in this case the Magistrate _.Was acting under 190(b). I am unable to agree that there is no indication En the language of section 351 to support the view that section 190 applies to the initiation, of proceedings and that section 351 applies to proceedings that have alreadybeen initiated. The section distinctly refers to cases in which a trial has already been begun, and the section, as now drafted, refers to enquiries arid also trials. With the exception of one case, there is no reported case that I can find that takes a different view. That one case, which is also the earliest is that of Khudiranz Mookerjea v. Empress (1). It was under the old Code of Criminal Procedure and before section 351 had been amended. In that case, however, there is a bare statement of the opinion of the Court. No reasons for the decision are given, and it is, therefore impossible to ascertain or consider the grounds on which the decision was arrived at. In the case of Raghab Acharjee v. Empress (2), we have only a note of the case, which has not apparently been reported in full. The case is different from the present one, in that the Magistrate took action against the petitioner on the evidence that was led for the defence of the original accused and not on the evidence which was given for the prosecution. The case was decided on other grounds, but it held that a Magistrate is competent at the trial of one person to proceed against any other who may appear upon the evidence taken, to be concerned in that offence, and that in doing so he cannot be properly regarded as acting within the terms of section 190, clause (c). It was further held that this rule should not be applied to a case where the trial of the 2nd accused is not on the same evidence on which the 1st accused was tried but on other evidence adduced on behalf of the defence of the 1st accused."
(iii) In Intaj Khan v. Emperor (AIR 1934 Rangoon 193) Nga Chan Tha's case was followed and it was held that where a new accused is added he is not entitled as of right to have the case tried by another Court under section 191 and the Magistrate can act under section 351. In Babu and 3 others v. The State (1969 PCr.LJ 226) police after investigations found that no case could be made out against the petitioners and, therefore, submitted a report to the Hap Magistrate for their discharge.
One witness's evidence was recorded on the same day and summoned the accused persons in view of the evidence recorded although earlier Magistrate agreed with police report and discharged the petitioners. Evidence produced by prosecution involved other set of accused persons but three Court witnesses involved the petitioners. Magistrate after an appraisal of evidence discharged the petitioners. Revision petition was filed in Sessions Court. Learned Sessions Judge set aside the order of discharge and ordered that the petitioners be committed for trial.
Relying upon Abdus Sattar Molla's case (supra) a Single Judge of Lahore High Court held that proceedings by Magistrate stood entirely vitiated. It further ordered that successor of Magistrate may proceed to record evidence against the petitioners and may commit them to the Sessions if he finds that a case against the petitioner has been made out.
16. A survey of the above case indicates the position in law to be as under:--
(i) under section 190(1) there are three modes in which the Magistrate can take cognizance: firstly, under subsection (a) on receiving a complaint of fact which constitutes such offence, since the present is not a case of a direct complaint, it has no applicability: secondly, upon a report in writing of such facts made by any police officer: and thirdly (c) upon information received from any person other than a police officer or upon his own knowledge or suspicion.
'(ii) Section 191 is applicable only where cognizance is taken by the Magistrate under clause (c) of subsection (1) of section 190. It has no applicability to the other two situations.
(iii) As has been held by the Supreme Court in Abdus Sattar Molla's case (supra) taking cognizance has not been defined in the Cr.P.C. And the word "offender" is not mentioned in the section 190, Cr.P.C. It does not follow that once cognizance of offence is taken, section 190 has no application when a person who was not accused at the start is decided or ordered to be placed at the trial.
(iv) Though the cognizance is taken of an offence and not of the offender but it cannot be said that. The cognizance is an act which can be "absolutely" independent of an offender. Taking a case where an offence has been committed but the offender is not yet known obviously the Court will not take cognizance because after taking cognizance who will be the offender that it will try.
(v) Under section 191, Cr.P.C. As originally enacted if cognizance was taken under clause (c) of subsection (1) of section 190, the person accused, before evidence is taken was required to be informed to have the choice of his case being tried by another Court and if he objected to trial by such Magistrate i.e. By the Magistrate who took cognizance, the Magistrate had two options either to commit the person to the Court of Session or to transfer the matter to another Magistrate. When in 1972 procedure of committal proceedings was brought to an end then only one option given to the Magistrate was to send the case to the Sessions Court for transfer to another Magistrate.
Therefore, the Magistrate who takes cognizance under clause (c) of subsection (1) of section 191 can only send the case to the Sessions Judge fortransfer to another Magistrate. It is indeed very significant to note here that originally there were two options: to commit to sessions or to transfer to another Magistrate. In 1972 only one option was left send to Sessions Judge for transfer to another Magistrate. Even under the old law, there was no provision that when the persons were committed to sessions, Sessions Judge was then bound to followprocedure of section 191. Even otherwise words 'Judge' and 'Magistrate' are not interchangeably used in the Cr.P.C. This is also evident from section 556, Cr.P.C.
(vi) In column 8 of Schedule-II it is specified as to which is the Court competent to try a particular offence. Therefore, as far as offences which are not triable by a Court of Magistrate, section 191 has no applicability. Since the present case is of an offence under section 302, P.P.C. And since that offence is only triable by a Court of Session obviously section 191, Cr.P.C. Has no applicability. That is so because the option available to the accused under section 191, Cr.P.C. Is only for sending the case to Sessions Judge for transfer to another Magistrate. Where the case ipso facto cannot be transferred to another Magistrate. Obviously there cannot be any question of giving any such option. It may be instructive to note that offence in question in Abdus Sattar Molla's case (supra) fell under sections 148 and 326, P.P.C., both triable by a Magistrate.
(vii) It is not the time at which cognizance is taken but it is the reason for which the cognizance is taken or the base material for taking cognizance which is relevant for the purpose of section 190 and the consequent provision of section 191. Where the cognizance is taken on the basis of a complaint or police report irrespective of when the cognizance is taken, the cognizance will be under section 190(1) (a) or (b), as the case may be. If a person is not sent up for trial and cognizance against him is taken at a subsequent stage, not on the basis of any evidence subsequently recorded but, on the basis of material stated in the F.I.R. Or in the police report or in Consequence thereto, the cognizance is to be deemed to have been taken on the basis of the police report. Mere fact that a person is not sent up for trial by police, the cognizance is taken would not mean that the cognizance was taken under section 190(1)(c).
(viii) In Abdus Sattar Molla's case (supra) police has let off on the basis of statement by a professor of the college who stated that at the material time Abdus Sattar Molla was attending a Law class.
When evidence of son of Abdus Samad Molla was completely recorded and part of evidence of Abdus Samad Molla was recorded it was at that stage that the trial Court came to the conclusion that cognizance should be taken against the applicant Abdus Sattar Molla. Therefore, the basis for taking cognizance.Was evidence of son of Abdus Samad. Molla and not what was stated, one way or the other, implicating or explicating the applicant.
' In the present case application under section 193, Cr.P.C. Was filed in 2005. That application was decided in favour of the complainant and ultimately from the Supreme Court an option was given to the accused persons to have right to approach the trial Court for recall of the order. The order was recalled on the basis of a consent order that application H under section 193, Cr.P.C. Shall be treated as pending and it would be taken up after recording evidence. Nowhere in the order of the Court in part of the evidence has been discussed or made basis of the impugned order, therefore, evqn on that score it could not be said that clause (c) to subsection (1) of section 190 has applicability.
(x) The trial Court is not a Court of Magistrate or a Court of Session Judge but is a Court of Special Judge (STA). Jurisdiction under the Anti-Terrorism Act is a jurisdiction specific and limited in a special Court having territorial jurisdiction in the area in question (section 12), An Anti-Terrorism Court is for a specified area (section 13). Provision of Anti-Terrorism Act have overriding effect over the provisions contained in the Criminal Procedure Code (section 32). The provisions in the Suppression of Terrorist Activities (Special Courts) Act, 1975 (sections 3, 4 and 10) and provisions of section 191, Cr.P.C. Have no applicability. This is an additional reason for which this Criminal Revision Application deserves to be dismissed.
' Result of the above discussion is that this Criminal Revision Application is dismissed.