' SHAHNAWAZ TARIQ, J.---Through instant application, the applicant has called in question the order dated 24-5-2013 passed by learned Civil Judge and J.M. Digri, District Mirpurkhas, whereby the Court has approved the report submitted by the I.O. Under "B" class for disposal of the case bearing Crime No,16/2013 of Police Station Jhudo under sections 436, 427, 147, 148, 149, 337H(2), P.P.C.
2. Relevant facts leading to the instant criminal miscellaneous application are that on 12-3-2013, applicant/complainant lodged F.I.R. No,16/2013, alleging therein that on 18-2-2013 at about 3-00 p.m., he along with his brother Pono, Hoti, Ramesh and other family members were present in their house, where his grinding machine was also functioning. The respondents Nos.1 to 7/accused armed with lathies, hatchet and guns, after aerial firing, entered in his house and pointed their weapons upon the complainant party and asked them to vacate the house and remove the grinding machine. Thereafter on the instigation of accused Murtaza, other co-accused set the house of complainant on fire and removed grinding machine with their tractor. Accused persons demoished the house of the applicant and occupied the same.
3. After registration of the F.I.R., the case was investigated by the police and on conclusion, the I.O.
Submitted his report recommending, disposal of the case in "B" class, and said reported was approved by the learned Judicial Magistrate through impugned order.
4. Learned counsel for the applicant has contended that the incident was published in five daily Sindhi as well as Urdu newspapers and all newspapers have been filed by the applicant along with instant petition. The impugned order suffers from legal infirmity as the learned Magistrate did not examine the record properly and judiciously, and even he failed to appreciate that P.Ws. In their 161, Cr.P.C. Statements, have fully supported the contents of the F.I.R. Learned counsel further contended that the I.O. Did not conduct impartial and fair investigation and was mixed up with the accused party and even did not properly inspect the place of incident. I.O. Has malafidely concluded his report on the basis of statements of D. Ws. Which were not ought to be considered during investigation. Learned counsel further contended that the I.O. Has also based his opinion on the basis of statement of P.W. Laloo who was managed by the accused party in collusion with the I.O. And even the said witness was not called by the learned Magistrate to verify his statement Learned counsel further submitted that there was sufficient evidence for taking cognizance against accused but the learned Magistrate did not consider the same and approved the report submitted by the I.O. In haste manner. He prayed for setting aside the impugned order.
5. Learned counsel for the respondents Nos.1 to 7/accused opposed this application, and contended that no such incident had taken place but the applicant managed false story and registered a false case. The complainant showed P.W. Laloo to be one of the eye-witnesses of the incident but the said P.W. In his statement under section 161, Cr.P.C. As well as affidavit submitted before the I.O., has denied his presence and even shown his unawareness about the incident which shows that no incident had taken place. He further contended that the I.O. Conducted impartial and proper investigation and besides recording statements of the P.Ws., he has also recorded statements of the independent witnesses, and they had disowned the incident as alleged by the complaint. Learned counsel submitted that the learned Magistrate after hearing the parties and examining the record passed detailed order which does not call for any interference by this court.
Learned counsel lastly contended that the applicant has to file Direct Complaint before the competent court instead of agitating the impugned order before this Court. He has relied upon 2011 SCMR 1354, 2010 SCMR 1791, PLD 1997 Lahore 164 and 2013 YLR 1948.
6. Learned Assistant P.G supported the arguments of the learned counsel for the applicant and opposed the impugned order. He contended that learned Magistrate did not discuss/consider the statements of all the P.Ws., therefore, impugned order is liable to be set aside. He further contended that matter may be remanded to the learned Magistrate to consider the statements of all the P.Ws.
And pass appropriate order in accordance with law.
7. I have heard learned counsel for the parties as well as learned AGP for the State and perused the available record minutely.
8. Perusal of record reveals that the complainant in the F.I.R. Has clearly stated that applicant and other accused persons duly armed with deadly weapons entered into his house/plot and made aerial firing and threatened them to vacate the same. Accused party allegedly put the house of applicant on fire and taken away his grinder/Flour Mill by their Tractor. The contents of the F.I.R.
Prima facie reflect commission of cognizable offence which was witnessed by three P.Ws., and out of them two witnesses have fully supported the contents of F.I.R., but one witness namely Laloo has submitted his affidavit before the I.O. And disowned the incident. During the course of investigation, I.O. Also recorded statements of D. Ws. And submitted report under "B" class before the learned Magistrate, and learned Magistrate even has not called the P.W. Laloo to verify the contents of his affidavit submitted by him before the I.O. And by accepting report under "B" class, disposed of the case vide impugned order.
9. So far the enmity between the parties over the plot in question is concerned, the enmity is a double-edged weapon and cannot be considered in favour of any party and it is yet to be determined at the trial after recording evidence as to whether the accused party has been falsely implicated due to said enmity or otherwise.
10. In case of Hafiz Muhammad Ahmed v. Dar Muhammad and others, Criminal P.L.A. No, 92-K of 2013, whereby the order dated 3-9-2013, passed in Criminal Miscellaneous Application No,105 of 2013, the learned Single Judge in High Court of Sindh, Sukkur Bench, has granted requisite relief to the complainant by setting aside the order of the trial Judicial Magistrate; Ghotki, was maintained for the following reasons:-- "(7) The record reveals that F.I.R. Was lodged very promptly by attributing the specific role of straight fire upon deceased Mir to the respondent No,3 Hafiz Muhammad Ahmed. The. F.I.R. Is well corroborated by the statements of P.Ws. Under section 161, Cr.P.C. So far as the question of plea of 'Alibi' is concerned, it requires deeper appreciation which would be determined by the trial Court during the course of the trial.
(8) In view of the above, the impugned order dated 6-11-2012 is hereby set aside. Consequently, the instant Criminal Miscellaneous Application stands disposed of with directions to the trial Court to join the respondent No,3/accused Hafiz Muhammad Ahmed in the trial."
11. In case of Hayatullah Khan and another v. Muhammad Khan and others 2011 SCMR 1354, it is held that question of determination of guilt or innocence of accused squarely fell within the jurisdiction of trial Court, where sufficient incriminating material connecting accused prima facie with commission of alleged offence had come on record, then the trial Court had no power to endorse opinion/view of Investigating Officer. It is also held by the honourable Supreme Court that Investigating Officer could not be considered such a skillful person to give his opinion on medical evidence. The question as to whether medical evidence corroborated ocular version or not and what was evidentiary value of expert's report could be decided only by the Trial Court having substantial bearing on merits of case. The plea of 'Alibi' being a distinct plea would require to be substantiate by accused by adducing cogent and concrete evidence.
12. In case of Anwar Shamim and another v. The State, 2010 SCMR 1791, it is held that finding of the police is not binding on the court and investigating agency has the only duty under the law to collect evidence. Investigating agency has no authority whatsoever to give finding of guilt or innocence regarding accused persons under the provisions of Criminal Procedure Code, 1898, Police Act, 1861, or Police Order, 2002/Rules framed thereunder. It is only the prerogative of court to give finding, after recording evidence and statements of accused regarding guilt or innocence of accused. Deciding cases on finding of police tentamounts to delegate powers of court to investigating agency which is not permissible under the law, Constitution and conventions,
13. In case of Abdul Hameed v. The State, PLD 1997 Lahore 164, it is held that prosecution witnesses had fully implicated the accused in their statements under section 161, Cr.P.C., therefore, Magistrate could not discharge the accused on the basis of police opinion that they were innocent as such a finding could either be given by the competent Court or by High Court in quashment proceedings.
Prosecution was consequently directed to move application in the High Court for the annulment of the aforesaid order of discharge passed by the Magistrate.
14. In case of Riaz Gul v. The State through' Superintendent of Police, 2011 PCr.LJ 991, it is observed as under:-- "Investigating Officer even the suspicion about the guilt of accused should be based on reasonable grounds on any material on record and general rule that falsely involved the opponents in criminal cases cannot be accepted, therefore, it was directed to submit challan in the court of law."
15. Consequently, I am of the view that the Investigating Officer is bound to carry out the process of investigation of the offence registered with police strictly in accordance with the relevant provisions of Cr.P.C., Police Rules 1934, Police Order 2002 and submit report before the Magistrate as envisaged under the relevant. However, the Investigating Officer has no power to conclude the process of investigation by means of judicial proceedings. The iota of evidence produced by the complainant and P.Ws. Though suffering from minor discrepancies, could to be discarded on the strength/basis of defence evidence including documents or affidavits produced by the accused party before the Investigating Officer. The factum of genuineness of defence evidence be left upon the concerned trial Court to determine such fact during trial.
16. For the foregoing reasons, circumstances and identical rulings, instant Criminal Miscellaneous application stands allowed as prayed, and the impugned order dated 24-5-2013, passed by the learned Trial Magistrate is hereby set aside with direction to the trial Court to join accused/respondents in the trial in accordance with law.
Application allowed.
2014 P Gr. L J 1036 [Peshawar] Before Nisar Hussain Khan and Malik Manzoor Hussain, JJ MEHRUBAN SHAH---Appellant versus The STATE---Respondent Criminal Appeal No,566-P of 2012, decided on 24th September, 2013.
(a) Anti-Terrorism Act (XXVII of 1997)--- ----S. 7(FF)---Explosive Substances Act (VI of 1908), Ss.3 & 4---Criminal Procedure Code (V of 1898), S.164---Act of terrorism, causing explosive or making or keeping explosive---Appreciation of evidence---Confession---Promptitude with which the confessional statement was recorded, depicted volunteerness; and had eliminated the possibility of use of coercion or inducement--All the necessary formalities as enumerated in 5.164, Cr.P.C., were duly complied with prior to recording statement of accused under 5.164, Cr.P.C.--- Confessional statement of accused was not the result of maltreatment and coercive measures---Accused, while being examined under 5.342, Cr.P.C., gave affirmative answer to the question of confession---When accused would retract or resile from confession, onus would lie on him, to prove that he did not record any confession---Conviction could be based on the sole confessional statement, provided same was voluntary; and true and there was no basic difference between the confession already recorded or the retracted confession, if the element of truth was not missing---Occurrence in the present case was result of the reason as stated by accused in his confessional statement---Such like cases should be dealt with iron hands and no leniency should be shown to a heinous crime--Schools were blown-up and the Government property was damaged by miscreants---Life of the inhabitants of the area, had become miserable due to the activities of which accused had been involved---Such terrorist activities had created a sense of fear in society---Prosecution had proved its case against accused beyond shadow of doubt-Conviction of accused was maintained and his appeal was dismissed, in circumstances. Ipp. 1039, 10401 A, B & D State through AG; N.-W.F.P.
Peshawar v. Waqar Ahmad 1992 SCMR 950 rel.
(b) Criminal Procedure Code (V of 1898)- --Ss 164 & 364-- Judicial confession--- Admissibility-- Notwithstanding the procedural defect in the confessional statement, a judicial confession, if it was found true, voluntary and confidence inspiring, could safely be made basis for conviction---Provisions of Ss.164 & 364, Cr.P.C., would apply to all sorts of statements and confessional statement recorded under S.164, Cr.P.C.---Missing of the seal of the Court which recorded confession and caused no prejudice or injustice to accused, would not vitiate the admissibility of the confessional statement. [p. 10401 C Nazir alias Wazir v. The State PLD 2007 SC 2002 rel. Sahib Zada Riaz-ul-Haq for Appellant. Gul Daraz Khan for the State.
Date of hearing: 24th September, 2013.
' MALIK MANZOOR HUSSAIN, J.---This appeal is directed against the judgment passed by learned Special Judge, Anti-Terrorism Court-I, Peshawar dated 14-11-2012, whereby the appellant/convict Mehruban Shah, charged in case F.I.R. No.772 dated 21-9-2010 under sections 3/4, Explosive Substances Act/7, A.T.A. 1997, Police Station Mathra, Peshawar was convicted and sentenced under section 7(FF), A.T.A. To undergo Rigorous Imprisonment for 14 years while benefit of section 382-B, Cr.P.C. Was extended.
2. Briefly, the facts of the case are that on the night of 21-9-2010, a private school situated within the jurisdiction of Police Station Mathra, was blasted through explosive device. The night watchman namely Akbar Khan (P.W.7) reported the crime to the SHO, and the case was registered. The appellant was arrested on 18-9-2011 and on 21-9-2011, he made a confession before the Judicial Magistrate for committing his involvement in blasting school along with co-accused named in the confession. After completion of investigation, challan against appellant and his co-accused was submitted in the court of Special Judge, Anti-Terrorism Court, Peshawar.
3. In order to prove its case the prosecution examined 8 P.Ws., out of whom P.W.1 Qaisar DFC executed the warrants under section 204, Cr.P.C. And proclamation notices under section 87, Cr.P.C.
Against absconding accused Ajmal alias Salman, Ziaur Rehman, Abdul Haleem and Farid; P.W.2 Khaliq Dad Khan Inspector obtained police custody of accused Zain Khan and Abdul Manan, interrogated them and recorded their statements under section 161, Cr.P.C.; P.W.3 Muhammad Jameel Khan then posted as JMIC, Peshawar recorded confessional statement of appellant/convict Mehruban Shah; P.W.4 Muhammad Miskeen Khan Inspector investigated the instant case; P.W.5 Ghani-ur-Rehman SI is marginal witness to recovery memo Exh.PC vide which the 10 took into possession two safety fuse Exh.P.1 from the spot; P.W.6 KhaistaRehman SI is also marginal witness to pointation memos Exh.P.W.4/3, Exh.P.W.4/7, Exh.P.W.4/11 vide which appellant and other co-accused made pointation of the spot to the I.O. In his presence; P.W.7 is complainant Akbar Khan who narrated the whole story about the occurrence and P.W.8 Ameer Sultan Khan Inspector submitted supplementary challan as well as complete challan against all the accused.
4. At the conclusion of prosecution evidence, all the accused facing trial were examined under section 342, Cr.P.C., wherein, they opted not to be examined on oath or to produce defence evidence. The learned trial Court after hearing the parties, acquitted the remaining co-accused whereas appellant/convict Mehruban Shah was convicted under section 7(ff), A.T.A. And sentenced him to undergo rigorous imprisonment for 14 years vide judgment passed dated 14-11-2012, however benefit of section 382-B, Cr.P.C. Was extended to him and the absconding co-accused were declared as Proclaimed Offenders.
5. Learned counsel for the appellant contended that the appellant had not been nominated in the F.I,R. As the same was lodged against unknown accused. He further contended that no corroborative evidence in support of confessional statement of the appellant was recorded by the prosecution in support of their case and badly failed to prove the guilt of the appellant. He further contended that the appellant was arrested in another case registered under F.I.R. No.108 - dated 8- 2-2011 under sections 302/324/353/427, P.P.C., 120-B, P.P.C., 3/4 Exp: Sub: Act/ 7, A.T.A., Police Station Mathra and the appellant has already been acquitted in the mentioned case.
6. Conversely, the learned AAG appearing on behalf of the learned counsel for the State, supported the judgment of the conviction on the ground that the appellant confessed his guilt through the confessional statement recorded before the Judicial Magistrate, which was voluntary and inculpatory in nature. He further submitted that this court should take notice of the alarming situation in this part of the country wherein, such like offences are committed rapidly and the lives of innocent students are at the mercy of such like miscreants.
' Arguments heard, record perused.
7. We have given due considerations to the arguments and have gone through the record with the valuable assistance of learned counsel for the parties.
8. Perusal of the record reveals that the present appellant was arrested in the case on 1-9-2011; (sic.) he made confession on 21-9-2011, (sic.) which eliminates the possibility of use of coercion or inducement. The promptitude with which the confessional statement was got recorded, depict volunteerness.
9. With the assistance of learned counsel for the parties we have A also gone through the statement of learned Judicial Magistrate, Muhammad Jamil Khan, who recorded the confessional statement of the appellant, which reveals that all the necessary formalities as enumerated in section 164, Cr.P.C. Were duly complied with prior to recording statement of appellant under section 164, Cr.P.C. We are not persuaded with the contention of learned counsel for the appellant that the confessional statement was the result of maltreatment and coercive measures and have noticed that while being examined under section 342, Cr.P.C., the appellant not only gave affirmative 'answer to the question of confession with the somersault sort that the same was recorded in another case.
10. It is well-settled that when an accused person retracts or resile from his confession then the onus lies on him that he did not record any confession. Nothing has been brought on record to show that the confession was not voluntary or same was result of maltreatment or inducement.
Conviction can be based on the sole confessional statement, provided the same is voluntary and true and there is no basic difference between the confession already recorded or the retracted confession if the element of truth is not missing. Reliance can be safely placed on the reported case, "State through AG, N. -W.F.P. Peshawar v. Waqar Ahmad, 1992 SCMR 950."
11. It is worth-mentioning that appellant while recording his confessional statement have admitted that he was persuaded by Qari Haq Nawaz to join his group involved in blasting the schools, colleges and government buildings. Thus on the relevant night he along with the co-accused named in confession prepared explosive device and took it to the school where it was planted and exploded. In presence of clean breast admission made by the appellant strong grounds exists about his involvement in the crime on the available record. We can safely conclude that the occurrence was result of the reason as stated by the appellant in his confessional statement. So far the objection of the learned counsel for the appellant that the confessional statement though recorded by the Judicial Magistrate by himself and signed by him does not contain the seal of the court, is irrelevant and misconceived. It is settled preposition of law that notwithstanding the procedural defect in the confessional statement, a judicial confession, if it is found true, voluntary and confidence-inspiring can safely be made basis for conviction. The provision of section 164, Cr.P.C. And 364, Cr.P.C. Apply to all sorts of statements and confessional statement recorded under section 164, Cr.P.C. And the missing of the stamp which caused no prejudice or injustice to the appellant does not vitiate the admissibility of the confessional statement. Reliance can be made on the case of "Nazir alias Wazir v. The State PLD 2007 SC 2002".
12. In view of peculiar circumstances of the case and the situation faced by the inhabitants of this part of the country, such like cases should be dealt with iron hands and no leniency should be shown for such a heinous crime. In a number of cases we have noticed that the schools are blown and the government property is damaged by the miscreant. The life of the inhabitants of this area had become miserable due to the activities of which the appellant had been involved. Such-like terrorist activities had created a sense of fear in society and we have no hesitation in our mind to hold that the prosecution has proved its case against the accused beyond, shadow of doubt.
13. In view of the above, while placing implicit reliance on the above cited rulings delivered by the Hon'ble Supreme Court of Pakistan with regard to confessional statement, the conviction of the appellant is maintained. This appeal being without any substance is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.