MUHAMMAD QASIM KHAN, J:- By this single judgment, I propose to decide two matters i.e. Criminal Revision No.9027/2017 titled "Muhammad Jawad Hamid versus Mian Muhammad Nawaz Sharif, etc, and Criminal Revision No.7067/2017 titled "Mushtaq Ahmad Sukhera versus Judge ATC-II, Lahore and another ", as both have arisen out of one complaint, one order of the same date and carry similar facts, which in brief are that:- A private complaint was filed by Muhammad Jawad Hamid (petitioner) under section 190(1)(a) of the Code of Criminal Procedure (Act V of 1898 (hereinafter to be called as 'Code' ) and section 19(3) of the Anti-T errorism Act, 1997, (hereinafter to be called as "ATA") for offences under sections 302/324, 295-B/452, 395/427, 365/506, 120-B, 148/149, 337-F(vi), 337-C, 337-F(iii), 337-A(v), 337-L(ii), 337-F(i), 337-A(i) Pakistan Penal Code (Act XLV of 1860) read with Section 7 of the ATA and section 155-C of the Police Order , 2002 before Special Court constituted under the Anti-T errorism Act, 1997, at Lahore (hereinafter to be called as "ATC") , wherein, 139 persons were cited as accused; the case of Shahid Aziz Butt (respondent No.139) was separated; in the separate trial he was finally convicted and sentenced and the court has been informed that he is now out after serving out his entire sentence.
After recording cursory evidence, the respondents No.13 to 138, vide order dated 07.02.2017, were summoned and the learned trial court also opined that there is no evidence to prove a prima facie case against respondents No.1 to respondents No.12, as such, they were not summoned and their names were directed to be deleted from the list of respondents. (See para-41 of the impugned order .). The order dated 07.02.2017 to the extent of non- summoning of respondents No.1 to 12 is under challenge by the petitioner/complainant through the Criminal Revision No.9027/2017 "Muhammad Jawad Hamid versus Mian Muhammad Nawaz Sharif and others ", Whereas, Mushtaq Ahmad Sukhera, the then Inspector General of Police, Punjab (respondent No.16 in the complaint), has assailed the same order to the extent of his summoning through Criminal Revision No.7067/2017 titled "Mushtaq Ahmad Sukhera versus Judge Anti-T errorism Court, and oth ers".
2. Before proceeding further it is made clear that petitioners before us in both the petitions had initially filed respective writ petitions to raise their grievances, but this Court vide a short order dated 11.05.2018 (detailed reasoning dated 06.07.2018) held that against an interim order passed by a Court under Anti-T errorism Act, 1997, during proceedings of a case, including an order of summoning/non-summoning the accused, writ petition is not maintainable, as under Anti-T errorism Act, 1997, applicability of sections 435 and 439 of the Code. has not been restricted, except under section 21(d) to the extent of bail, hence, criminal revisions were competent, therefore, on our direction the writ petitions were converted into criminal revision, were numbered accordingly and thus are being decided as such.
3. This case involves multiple complex legal questions. Hence, the learned counsel for the petitioners, the learned Prosecutor General, the learned Additional Prosecutor General and learned Assistant Advocate General were called upon to assist this court on these legal propositions. For the sake of conve nience, these questions may be placed and addressed in the following sections:- SECTION-I
1. Whether an order passed under section 204 Cr.PC (for summoning of the accused to face the trial) is an adverse order af fecting the right of the accused?
2. What is the ef fect of an order passed under section 203 Cr .P.C?
3. What is the nature of the order when a few accused have been summoned under Section 204 Cr.PC and few have not been summoned in a private complaint?
4. What is the remedy available against the order of dismissal of private compla int under Section 203 Cr.PC or against summoning of the accused under Section 204 Cr .PC?
5. Whether it is mandatory to afford hearing to the persons complained against in case order of dismissal of complaint (under Section 203 Cr .PC) is impugned in the Revisional/Constitutional jurisdiction?
6. What is the scope of revisional jurisdiction against an order passed under section 203/204 Cr .P.C?
SECTION II
1. What are the guiding principles for summoning/non-summoning of accused in a private complaint?
2. What is the ef fect of delay in filing a private complaint?
3. Under what circumstances at the preliminary stage, a private complaint can be declared as frivolous, vexatious and malicious?
4. Whether "political rivalry" is reasonable ground to declare a private complaint frivolous, vexatious, malicious and liable to be dismissed under Section 203 Cr .PC?
5. What is the scope of "inquiry" and "investigation" under Section 202(1) Cr .PC?
6. Whether police file and the material collected by the I.O during the process of investigation for the same offence, which is also subject matter of the FIR/State case, can be considered and examined for summoning or non- summoning of the person complained against?
7. When in a case the person complaine d against is not summoned on the basis of insuf ficient grounds, whether complainant can move application for further inquiry when he receives information of fresh ground/evidence/material against such a person who had not been summoned, or he can file a fresh complaint by producing fresh material against the accused, in addition to the one which was already available with him and produced before the court?
SECTION-III
1. Whether statement of a witness recorded in an inquiry under Commissions of Inquiry Act/ The Punjab Tribunals of Inquiry Ordinance, 1969 can be used against the person making it or any other person?
2. Whether the statement of a witness recoded in an inquiry under The Punjab Tribunals of Inquiry Ordinance, 1969 can be used against the other witness?
SECTION IV
1. What constitutes "criminal conspiracy"?
2. How the criminal conspiracy and abetment can be dif ferentiated?
3. Whether statement of a conspirator can be used against another conspirator?
4. What is scope of "design" in the light of section 6 ATA?
4. A plethora of case law from our own, Indian and other jurisdictions, for and against the above legal propositions was placed before us by the learned counsel for the respective sides as well as Research Centre of this Court. For the sake of brevity and preciseness, I do not consider it appropriate to reproduce excerpts from all such cited judgments and reference sources. The relevant case law and references would be mentioned where immediate reference is required.
5. Now, I would like to deal the questions mentioned in Section-I of this judgement without reproducing the same to avoid repetition. The order passed for the summoning of the "person complained against" under Section 204 of Cr.PC modifies the status of said person to an "accused" and offer him/her an opportunity to respond to the charges levelled against him. Therefore, any such order does not tantamount to infringement of any right of that person and cannot be treated or deemed as an adverse order (reliance placed on "Noon Muhammad Y. the State " (PLD 2007 SC 9). When a private complaint has been filed under Section 200 of Cr.PC, the court concerned, after recording the statement of complainant (if not a court complaint or made by the public servant in the official capacity), may directly summon the persons complained against as accused or it may postpone the summoning process and opt inquiry/investigation under Section 202 of the Code. After the conclusion of inquiry or investigation, as the case may be, the court may "dismiss" the complaint under Section 203 of the Code or summon the accused under Section 204 of the Code. In certain cases, the court may summon only a few accused and refuse to summon certain number of accused persons. In case where some of the "persons complained against " are not summoned, the said order to that extent also amounts to partial dismissal of the complaint.
(Reference may be made to "Dhondu Bapu Gajar Vs. Emperor " (AIR 1929 Bombay 436). The order passed under Section 203 and 204 of the Code is a judicial order (Reliance is placed on "Muhammad Farooq Versus Ahmed Nawaz Jagirani and Others " (PLD 2016 SC 55). However , the order passed under Section 203 of the Code cannot be held as autrefois or statutory acquittal "Mst. Robina Rashid Vs. Farrukh Amin " (PLD 2011 FSC 121); Ibrar Hussain Shah Vs. Syed Waris Shah (2015 PCrLJ 784); "Tariq Javed Vs. Hom Purkash " (2018 PCrLJ 771 Karachi ). At the most, dismissal of the complaint as a whole or non-summoning of some of the persons complained against may have the effect of discharge. The complainant, at his own option, may file a subsequent fresh complaint on same allegations by adding some new facts/grounds and mentioning any new material/evidence which earlier were not in his knowledge or the complainant was not in a position to bring them on record.
6. Now moving to the next question as to the right of audience of the "persons complained against" in case where complaint is dismissed under Section 203 of the Code as a whole or to the extent of some of the persons complained against. It is well settled law that until process is issued, the person complained against does not have the status of an accused and has no right of audience before the trial court or before a superior Court at the pre-process stage . (Mst. BASHIR BEGUM AND 2 OTHERS versus GHULAM NABI AND ANOTHER " (PLD 1972 Lahore 185); Somu alias Somasundaram and others v. The State and another (1985 Crl.L.J. 1309 , (Madras) and Sivasankar v. Santhakumari " (1993 (1) KLT (Madras). Moreover , even in the pre-partition jurisprudence, in cases of "Mannupsingh Vs. Sahadeo Sadhu " (AIR 1929 Patna 230) and "Abdulla Jan Vs. Totigul " (AIR 1935 Pesh 14) it was held that in case of dismissal of complaint by the Magistrate under Section 203 of the Code accused has no right to appear before the Sessions Judge when he orders further inquiry and no notice need, therefore, be given in such case. Thus, the argument of learned Prosecutor General and Mr. Azam Nazir Tarrar, Advocate for the petitioner in connected Criminal Revision No.7067/201 7 regarding providing audience to the respondents, does not sound well.
(Further reference may be made to the cases of Major Subodh Shukla v. Major R.S. Dudee (Madhya Pradesh)
(2007(1) MPHT 431); "Somu @ Sumasundaram and others v . The State and another" (1985 Cr .LJ 1309).
7. It has already been held by this Full Bench in order dated 11.05.2018 (detailed reasoning dated 06.07.2018 ) that Anti-T errorism Court is one of the other courts mentioned in Section 6 of the Code and its orders, inter alia, for dismissal of complaint or summoning of the accused are amenable to the Revisional jurisdiction of this Court as provided under the Code. There are three sections in the Code. (i.e. Sections 435, 436 and 439) which provide for the revisional powers. However , Section 436 of the Code would not attract in this case for the reasons that it places an embargo upon the powers of Revisional Court when an order for the dismissal of complaint under Section 203 has been challenged. It may be noted that in Section 203 of the Code the word 'Court' was substituted for the word 'Magistrate' by Law Reforms Order , 1972 and in Section 436 of the Code, word "any Magistrate" was substituted by Ordinance XXXVI of 2001, hence, if may be inferred that the legislature in its own wisdom, has deliberately not used term 'any court' in the amended Section 436(a) and this Section would apply only when the impugned order under section 203 of the Code has been passed by the 'Magistrate' and not any other court. Moreover , the power of the High Court under section 439, of the Code is very wide and it could revise the proceedings or orders passed by any of the inferior criminal courts in the exercise of its Revisional jurisdiction in an appropriate case (Reference may be made to "Muhammad Ashraf Versus Khair Muhammad " 1979 P.Crl.L.J. 372, "Haleem Shah versus The State " (PLD 1996 Karachi 306 DB).
8. While exercising jurisdiction under section 435, 439 of the Code High Court can examine the record of any proceedings before any inferior criminal court within its territory and within its local limits and having jurisdiction on it, to satisfy correctness, legality or propriety of any findings, etc, and in these provisions the word "accused" has been used and under section 439 of the Code, it can exercise the powers of appeal available to it under section 423, 427, 428 or by Section 338 of the Code Subsection (2) of Section 439 of the Code is important with reference to the question in issue, the same is reproduced hereunder:- "No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence."
Whether the private respondents can be equated with accused or not, we need to examine Sections 202 to 204 of the Code. Legislature in Section 202 for the person against whom allegations are levelled, has used the term "person complained against ", and has not equated him with an "accused" because this is the stage where only a complaint of commission of an offence has been made and the court has yet to ascertain the truth or falsehood of the complaint and for this purpose the court, under section 202, has to satisfy itself by holding an inquiry or directing any inquiry or investigation to be made by any Justice of Peace, Police Officer or a Magistrate. The court can dismiss the complaint after examining the statement of the complainant, the witnesses and considering the result of inquiry and investigation. The word "accused" has been used in section 204 when summons or warrants as the case may be, for the attendance of the person complained against is issued and this is the stage when the person complained against has been considered as accused.
9. It is settled principle of law that in the proceedings under Section 202 the person complained against has no right to appear and participate in these pre-trial proceedings. At this preliminary stage the court ascertains the truth or falsehood of the allegations levelled in the complaint. The complainant has to establish a prima facie case, because the word "sufficient ground" has been used for proceedings against the person complained against.
10. In the Indian Criminal Procedure Code 1973 Section 401 is parallel to Section 439 of our Code and it is important to be noted that in the Indian Code of Criminal Procedure, 1973, Sectio n 401(2) has been added "other person" besides accused. The said part of the provision is reproduced as under:- "(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defense."
Therefore, in the Code of Criminal Procedure 1973 Indian jurisprudence affords right of audience to every person whose right is likely to be affected by the order of Revisional Court and the same remedy is not provided in our Code.
11. In this case certain respondents were not summoned and to their extent the complaint was dismissed, as such these persons complained against had no right of audience before the trial court and even before this court. I, therefore, hold that issuance of notice to them is not required. I am mindful of the fact that under section 440 of the Code the revisional court has the power to allow any person to be heard in person or through a pleader , but as the court has to decide the issue in the light of material available before the learned trial court at the time of passing of order under section 203 where respondents are not legally permitted to appear or participate in the proceedings, therefore, I hold that the respondents in Criminal Revision No.9027/2017 have the status of "persons complained against", as such, they are not entitled or required to be heard in these proceedings.
SECTION-II
12. Prior to moving to the questions referr ed in Section-II , it would be appropriate to reproduce relevant provisions of Code of Criminal Procedure 1898:- "200. Examination of complainant: A Magistrate taking, cognizance of an offence on complaint shall at once examine the complainant upon oath, and the substance of the examination shall be reduced to writing and shall be signed by the complainant, and also by the Magistrate: Provided as follows:
(a) when the complaint is made in writing, nothing herein contained shall be deemed to require a Magistrate to examine the complainant before transferring the case under Section 192 [or sending it to the Court of Session];
(aa) when the complaint is made in writin g nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or - purporting to act in the discharge of his of ficial duties;
(b) [Omitted A.O., 1949,Sch.];
(c) when the case has been transferred under Section 192-and the Magistrate so transferring it has already examined the complainant, the Magistrate to whom it is so transferred shall not be bound to re-examine the complainant.
202. Postponement of issue of process:
(1) Any Court, on receipt of a complaint of an offence of which it is authorised to take cognizance; or which has been sent to it under Section 190, sub-section (3), or referred to it under Section 191 or-Section 192, may, if it thinks fit, for reasons to be recorded, postpone the issuance of process for compelling the attendance of the person complained against, and either inquire into the case itself or direct any inquiry or investigation to be made by [any Justice of the Peace or by] a police officer or by such other person as it thinks fit, for the purpose of ascertaining the truth or falsehood of file complaint: Provided that save, where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of Section 200.
(2) A Court of Session may, instead of directing an investigation under the provisions of sub-section (1), direct the investigation to be made by any Magistrate subordinate to it for the purpose of ascertaining the truth or falsehood of the complaint.
(3) If any inquiry or investigation under this section is made by a person not being a Magistrate [or Justice of the Peace] or a police officer, such person shall exercise all the powers conferred by this Code on an officer-in-charge of a police station, except that he shall not have power to arrest without warrant.
(4) Any Court inquiring into a case under this section may , if it thinks fit, take evidence of witnesses on oath].
203. Dismissal of complaints: [The Court], before whom a complaint is made or to whom it has been transferred, [or sent] may dismiss the complaint, if, after considering the Statement on oath (if any) of the complainant and the result of the investigation or inquiry (if any) under Section 202 there is in his judgment no sufficient ground for proceeding. In such cases he shall briefly record his reasons for so doing.
204. Issue of process:
(1) If in the opinion of a [Court] taking cognizance of an offence there is sufficient ground of proceeding, and the case appears to be one in which, according to the fourth column of the Second Schedule, a summons should issue in the first instance, [it] shall issue his summons for the attendance of the accused. If the case appears to be one in which, according to that column, a warrant should issue in the first instance, [it] may issue a warrant, or, if [Court] or if [it] thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such [Court] if as if it has no jurisdiction itself some other Court having jurisdiction.
(2) Nothing in this section shall be deemed to af fect the provisions of Section 90.
(3) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid, and if such fees are not paid within a reasonable time, the Court may dismiss the complaint. "(Emphasis added)
13. In a complaint case, trial Court is not required to examine material minutely and or in depth, but has merely to see that prima facie a case has been made out to proceed further with the matter for issuance of warrant or summons (as the case may be) under Section 204 of the Code. (Muhammad Farooq Versus Ahmed Nawaz Jagirani and Others (PLD 2016 SC 55); Muhammad Fiaz Khan Versus Ajmer Khan and another (2010 SCMR 105). The two expressions i.e. existence of sufficient ground and prima-facie case (used in Section 204 of Cr.PC) have interchangeably been construed by the Courts (Noor Muhammad Vs. State" (PLD 2007 SC 9); "Abid Shah Vs. Additional Sessions Judge Sheikhupura" (PLD 2009 Lahore 444). In the case of "Sher Singh v. Jatendranath Sen" (AIR 1931 Cal. 607), it was observed "a prima facie case only means that there is ground for proceeding (same view has been adopted in the case of "Noor Muhammad Vs. State" (PLD 2007 SC 9). August Supreme Court of Pakistan, to further clarify the proposition observed that it is to be kept in view that initiation of process 'under sections 202 and 204 of the Code depends upon the availability or non-availability of sufficient incriminating material (2010 SCMR 194). It is settled principle of law that the provisions as contained in sections 202 to 204 of the Code, if read together, would show that a proper safeguard has been provided by the Legislature by using the words "if any" and "sufficient grounds for any" in section 203 of the Code and accordingly the frivolous and vexatious complaints must be buried at their inception where no prima facie case is made out "Abdul Wahab Khan Versus Muhammad Nawaz and 7 others" (2000 SCMR 1904). At the stage of consideration of the private complaint the court is not expected to see whether the allegations are likely to be proved by the materials produced before court. (Sreekumar S. Menon v. State of Kerala, (2004 (2) KLT 53).
14. The analysis of relevant provisions of law and case law on the point of grounds of summoning or non- summoning of the accused in a private complaint, I have gathered the following main aspects which may be taken into consideration by the courts while taking cognizance of the private complaint:- a) Mere summoning a necessary party to explain the allegations levelled against him, does not tantamount to infringement of any right; rather opportunity is af forded to him to explain his position. b) In a complaint case at pre-trial stage, trial court is not required to examine the material minutely or in depth but is merely to see that prima facie case has been made out to proceed further in the matter of issuance of process or summons. c) High Court cannot strangulate the trial by over stretching its jurisdiction and embark upon to examine adequacy or inadequacy of evidence, which stage will only reach after charge is framed and complainant is given opportunity to prove his case beyond any reasonable doubt. d) At the stage of consideration of private complaint, the court is not expected to see whether the allegations are likely to be proved by the material produced before the court. e) Until the process is issued to the accused a person shown as person complained against in the complaint does not have a status of accused and has no right of audience before the trial court or before the superior courts at pre- process stage. f) To take cognizance of offence in complaint case, burden of proof in preliminary enquiry for the issuance of process or summons as the case may be is much lighter on the complainant and he is required to establish prima facie case, whereas, the burden of proof placed on the prosecution during regular trial is much stringent and the prosecution is required to establish and prove the case beyond reasonable doubt. g) The scope of section 202 is to separate founded from unfounded. The court has to satisfy itself as to the truth or falsehood of the complaint before issuing of process to the persons complained against. The object and scope of Section 202 of the Code is:- i. To allow free, fair and full opportunity to complainant to produce some material to make out grounds for issuing processes against accused. ii) To ascertain the truth or falsehood of the allegations, the court is bound not only to scrutinize contents of complaint, nature of allegations made therein and material in support of accusation but also to call for record, report or summon any person, who in the opinion of the court, is acquainted with facts of the case and may be helpful to the court to "satisfy itself" in terms of Section 202 of the Code or may enquire or investigate the matter as provided in this Section. iii) Object intended to be achieved, possibility of victimization and harassment, if any, to ensure himself that no innocent person against whom all allegations are levelled should suffer ordeal of protracted, time consuming and cumbersome process of law. h) Possibility of accusations turning out to be false or frivolous at the trial should not overbear the court from issuing the process if material available prima facie disclosed the case against the person complained. At this stage protracted inquiry or full dress rehearsal of trial is not required. i) At the stage of summoning the accused , court is not to determine guilt or innocence of the accused on the criteria of evaluating the evidence as to whether prosecution has been able to prove its case beyond reasonable doubt or not and while giving such benefit accused ought to be acquitted, which is beyond the scope of proceedings at the stage of issuance of process after making complaint visualized under section 202 to 204 of the Code. j) For deciding the question as to whether a prima facie case has been made out in an inquiry under section 202 of the Code the consideration should be from the point of view of the complainant without adverting to any defence which the accused may have. At this stage the accused has no locus standi and is not entitled to be heard on the question whether process should be issued against him or not.
15. Provisions of Section 202, 203 and 204 of the Code when read together make it clear that on one side fair opportunity to the complainant to produce material to make out grounds for issuance of process against the person complaint against, has been provided; and on the other hand, a proper safeguard has been provided by the Legislators showing its intention in this regard by using the word "if any" and "sufficient grounds" if any in Section 202 of the Code, in order to burry a baseless complaint at initial stage and to protect innocent persons. To establish truth or falsehood, these provisions provide vast powers to the court taking cognizance, to ascertain the allegations levelled in the complaint. For this purpose the court shall record statement of the complainant on oath, after recording statement of the complainant and examining the material produced before it, if the court finds reasons for not issuing the process for procuring the attendance of the persons complained against, in this situation the court has vast powers to inquire into case itself or may direct an inquiry or investigation to be made by any Justice of Peace, or by police officer or by such other person as it thinks fit to ascertain the falsity or truthfulness of the complaint. This power has been given for two reasons i.e. (i) no person who has committed an offence under any law should be let free and unpunis hed as provided in the relevant statu te and (ii) no innocent person should face the agony of trial and shall be saved from harassment . This option is left with the court which has taken the cognizance to decide as to what procedure it is to adopt. Anyhow , the court must not only opt for the procedure carefully , but at the same time it is to adopt the process of inquiry or investigation by applying its judicious mind considering the facts and the circumstances of each case befor e it. When the court can direct investigation of a case by Justice of Peac e or any police officer or any other person as it thinks fit, the word "as it thinks fit" bound to the court to apply its mind judiciously . While appointing any police officer or any other person as Investigating Officer the court has to observe that such person/police officer shall not have any interest in the cause. The Hon'ble Supreme Court of Pakistan in "Mst. SUGHRAN BIBI Versus The STATE" (PLD 2018 SC 595), with reference to Section 202 of the Code held that:- "25. During the course of hearing of this petition we had inquired from the petitioner as to why she was insisting upon registration of a separate FIR in respect of her version of the incident especially when she had already instituted a private complaint containing her version of the incident and the accused persons in her private complaint had already been summoned by the trial court to face a trial and a Charge had been framed against them. In response to that query the petitioner had categorically stated that she wanted the accused persons in her version of the incident to be arrested and recoveries to be affected from them which was not possible through the medium of a private complaint.
Such understanding of the law on the part of the petitioner, which understanding is also shared by a large section of the legal community in our country, has been found by us to be erroneous and fallacious. By virtue of the provisions of section 202(1), Cr.P.C. a court seized of a private complaint can "direct an inquiry or investigation to be made by any Justice of the Peace or by a police officer or by such other person as it thinks fit". If in a given case the court seized of a private complaint deems it appropriate to direct an investigation to be carried out in respect of the allegations made then the powers available during an investigation, enumerated in Part V, Chapter XIV of the Code of Criminal Procedure, 1898 read with section 4(1)(l) of the same Code, include the powers to arrest an accused person and to affect recovery from his possession or at his instance. Such powers of the investigating officer or the investigating person recognize no distinction between an investigation in a State case and an investigation in a complaint case."
16. The purpose of inquiry as contemplated in section 202 of the Code or investigation by a police officer or by "any other person", is only to help the court to decide whether or not there is any sufficient ground to proceed further on facts of which cognizance had already been taken by it of the offence disclosed in the complaint but issuance of process had been postponed. Section 202 of the Code, confers all powers available to a police officer in charge of a police station for purposes of investigation except the power to arrest without warrant.
Reference be made to the cases "Ramdev Food Products Private Limited v. State of Gujarat" (SC) 2015 AIR
(SC) 1742; Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi & Ors., (1976)3 SCC 736); Dilawar Singh v.
State of Delhi, (SC) 2007(12) SCC 641); Mr. Bhagat Ram v. Surinder Kumar, (2004(11) SCC 622) and Raj Kumar Adalkha v. State of U.P. (Allahabad)" (2014(8) ADJ 410). There is difference between investigation carried out after registration of FIR u/s 154 of the Code or investigation as initiated under section 156 of the Code and investigation carried out under section 202 of the Code. In the former, Investigation Officer has vast powers even to arrest an accused without warrants and in the later he has to proceed with limited scope under the control and direction of the court which had taken cognizance of the case and he is only to submit his report for the purposes of assistance whether the person complained against to be summoned or not and he (Investigation Officer) could not arrest without the permission of the court. The word "any other person" has been defined in "ABDUL GHAFOOR and 4 others versus GHULAM HUSSAIN and 4 others " (1993 P .Cr.L.J. 1988) and it was held that:- "A Civil Judge or a Judicial Magistrate of his status can be included in the definition of 'such other person'. This word 'such other person' is wide enough and has been used in the context of a person with reference to any person other than a police officer or a Magistrate and a Civil Judge if not enjoying the powers of Magistrate falls within the definition of such other person."
In view of the above situation, the court is empowered under Section 202 to direc t, within the limits circumscribed by that section, an investigation for the purpose of deciding whether or not there is sufficient ground for proceedings. Thus, the object of an investigation under section 202 of the Code is not to initiate a fresh case on police report but to assist the Court in completing proceedings already instituted upon a complaint before him.
17. The question arises that when the court has itself inquired into the matter and recorded statements of some of the witnesses, in such an eventuality whether the same court could direct for invest igation or further inquiry , or not?
The same question came under consideration before a Court in India in the case "Mr. Bhagat Ram v. Surdinder Kumar & Ors. (2004 (11) SCC 622), wherein, a complaint was filed before the Additional Chief Judicial Magistrate, after examining the complainant and his witnesses, the Magistrate directed the investigation to be done by the police and referred the matter for investigation/inquiry by the police. The said action of the learned Magistrate was challenged before the High Court on the ground that the court, after having taken cognizance and holding the inquiry under Section 202 of the Code, could not have referred the matter for inquiry/investigation by the police at all and it should have to proceed in the matter himself. The High Court set aside the order passed by the Magistrate. Thereafter , the appeal by special leave was presented before the Apex Court, where, it was laid down that:- "It is clear from a perusal of the order made by the learned Magistrate that he has not done anything other than to comply with the provisions of Section 202(1) proviso (b), Code of Criminal Procedure, that after examining the complainant and his witnesses he found that it was necessary to further probed into the matter and, therefore, directed investigation to be done by the police and after the investigation was done by the police and on report being filed by them, he heard the matter afresh and directed issue of summons."
The Supreme Court of India found that the procedure adopted by the learned Magistrate was perfectly in order.
Similarly, in another case "RAJ KUMAR ADALKHA and others vs. STATE OF U.P and another" (2014 (8) ADJ 410), it was held that if after recording the evidence, the Magistrate finds it necessary for proper decision to find out the truth that inquiry/investigation is required by the police, then Magistrate is empowered under Section 202(1) of the Code to issue such direction which is entirely different form the investigation on the direction issued under section 156(3) of the Code.
18. A careful analysis of law on the point leaves no room to doubt that investigation report under section 202(1) of the Code alone cannot be made basis for decision of complaint. The object of investigation under section 202 of the Code is to enable the Court to scrutinize carefully the allegations with a view to protect a person complained against from being summoned to face frivolous accusations. Section 202 of the Code, in fact, is an enabling provision so as to empower the Court to hold an effective inquiry into the truthfulness or otherwise of the allegations levelled in the complaint for the purposes of forming an opinion whether there exist sufficient grounds to proceed further or not. Therefore, inquiry/ investigation under section 202 of the Code is not a futile exercise and is to be taken into consideration by the Court while deciding whether process is to be issued or not.
19. The court is not a silent spectator at the time of recording of cursory evidence before summoning of the person complained against. The Court has to carefully examine the evidence produced on record and may even put questions to the complainant or the witness to elicit answers to find out truth or otherwise and if he feels that further material is required to establish the truth or falsehood he can further inquiry into matter or may direct an investigation as provided in section 202 of the Code.
20. There is difference between investigation under Chapter-XIV of the Code by the police and that ordered by the Court under Section 202, as former investigation is at pre-cognizance stage whereas inquiry or investigation under section 202 of the Code is at post cognizance stage. Furthermore, inquiry or investigation under section 202(1) of the Code by the police or by any other person is for limited purposed i.e. to help the court to decide whether or not there is sufficient ground to proceed further on account of the fact of which cognizance had already been taken by him of the offence disclosed in the complaint but issuance of process had been postponed. The court may entrust the investigation to any person considered fit for the said purpose, but it would be improper to select the one who is or may be interested in the matter. Except arrest without warrant, such person can exercise all powers as conferred on Incharge of a police station.
21. Now coming to the grounds agitated by the learned Prosecutor General and Mr. Azam Nazir Tarrar, Advocate (representing the petitioner in Criminal Revision No.7067/2017) advancing the reasons why the respondents in Criminal Revision No.9027/2017 may not be summoned and summoning order against the petitioner in Criminal Revision No.7067/2017, be recalled, much emphasis has been put on the aspect that first FIR No.510/2014 was registered on 17.6.2014 on the complaint of Rizwan Qadir , SHO Police Station Faisal Town, Lahore, second FIR No.696/2014 was registered on 28.8.2014 at Police Station Faisal Town, Lahore, on the complaint of Muhammad Jawad Hamid, Director Administration, Minhaj-ul-Quran and private complaint was filed on 16.3.2016; hence, this complaint was filed after a period of one year and nine months and this inordinate delay is fatal to the complaint.
Relied upon 2010 SCMR 1816 , 2001 SCMR 1783, 2000 SCMR 1904 , 2017 YLR 533, 2015 MLD 1145 and 2013 P. Cr. L.J. 1 144.
22. Although, by careful perusal of the order passed by the ATC dated 07.02.2017 under section 203 Cr.PC vide which he dismissed the complaint again st private respondents, the Court has discussed the delay and rightly observed that no limitation for filing of complaint has been provided in the Limitation Act, 1908 and considering the number of injuries, material, other eviden ce in the shape of videos and footage, etc. held that the complaint has to be examined on the material available on file. As the complaint has not been dismissed only and only on the ground of delay; hence, no much emphasis is required, however , as issue was discussed at length by relying upon the judgments of apex Court, it is appropriate to discuss the same in some detail.
23. August Supreme Court in the case of "Muhammad Fiaz Khan Vs Ajmer Khan and another " (2010 SCMR 105) in the context of delay in filing of private complaint observed: "6. It is settled proposition of law that each and every case is to be decided on its own peculiar circumstances and facts . Facts highlighted hereinabove clearly depict that respondent No.1/complainant had filed the complaint after a considerable delay after availing different remedies mentioned hereinabove. It is a settled' law that no limitation is provided in criminal law for lodging a complaint. See Queen Empress v.
Ajudhia Singh and others 10 All. 350. In spite of the aforesaid general principle of law when the complaint was filed after a considerable delay which was not explained by the complainant then in such a situation it raises suspicion as to its truthfulness meaning thereby that delay in filing complaint is not by itself fatal except under very special circumstances . The complaint looses its truthfulness with the length of delay , more particularly when it is based on oral evidence. This proposition of law was considered in Mst. Shamim's case 2003 SCMR 1466 and laid down the following principles:-- "Be that as it may, unexplained delay in setting the machinery of law in motion prima facie points to fabrication of the prosecution story , therefore, we would like to observe that if the complainant hibernates after cancellation of the F.I.R. and makes a delayed private complaint the prosecution evidence must be sifted and weighed with' great care and caution." (Emphasis added)
24. In the case of "ZAFAR and others Vs. UMER HAYAT and others" (2010 SCMR 1816 ) it was observed:- "It is also settled principle of law that although no such thing as limitation is prescribed in criminal prosecutions, but yet on the other hand the longer complaint is delayed the less becomes the chance of believing in its truth, more particularly when it is based upon entirely oral evidence. It is also settled principle of law that all the laws of the land must wear in the sleeves of the Judge. It is basic and fundamental principle of law that it is duty and obligation of the trial Court to scrutinize the contents of the complaint, nature of allegation made therein supporting material in support of accusation, the object intended to be achieved, the possibility of victimization and harassment, if any, to ensure itself that no innocent person against whom allegations are levelled should suffer the ordeal of protracted time consuming and cumbersome process of law. It is also settled principle of law that the provisions as contained in sections 202 to 204, of the Code if read together would show that a proper safeguard has been provided by the Legislature which showed its such intention by using the words "if any" and "sufficient grounds for any" in section 203, of the Code and accordingly the frivolous and vexatious complaints must be buried at their inception where no prima facie case is made out. See Abdul Wahab Khan's case (2000 SCMR 1904). It is also settled principle of law that everyone has a right to approach the court for redress of grievances but the same is subject to condition that sufficient grounds for issuance of process is made out. (emphasis added)
25. The Supreme Court of India, in the case of "Assistant Collector of the Customs, Bombay v. L.R. Melwani "
(1970 AIR (SC) 962) observed: "10. This takes us to the contention whether the prosecution must be quashed because of the delay in instituting the same. It is urged on behalf of the accused that because of the delay in launching the same, the present prosecution amounts to an abuse of the process of the Court. The High Court has repelled that contention. It has come to the conclusion that the delay in filing the complaint is satisfactorily explained. That apart, it is not the case of the accused that any period of limitatio n is prescribed for filing the complaint . Hence, the Court before which the complaint was filed could not have thrown out the same on the sole ground that there has been delay in filing it. The question of delay in filing a complaint may be a circumstance to be taken into consideration in arriving at the final verdict. But by itself it affords no ground for dismissing the complaint.
We, therefore, see no substance in the contention that the prosecution should be quashed on the ground that there was delay in instituting the complaint.(Emphasis added)
26. There has been consistent approach of our courts that the delay simpliciter is of no significance and only unexplained delay matters in administration of justice in criminal cases. It is also to be noted that consideration of "delay" in filing of private complaint at the pre-trial stage (of Section 202, 203, of Cr.PC) is only relatable to the sufficiency of grounds for summoning and standard of explanation to prove this delay would not be that which is expected at trial stage. In this regard, further, reference may be made to the case of "ABDUL GHAFF AR and another Ys. Syed SHABBIR SHAH GILLANI " (2013 P Cr. L J 1544); "MUHAMMAD DIN and another Ys. BASHIR AHMAD NASIR and another " (2007 YLR 2195 ); "Mst. SHAMIM GHAFF AR Ys. GHULAM SHABBIR " (2007 YLR 2195 ); "Mst. NASREEN BIBI Ys. ABDUL WAHEE D" (2006 YLR 2934 ); "MUHAMMAD AFZAL Ys. HAJI AHMED "
(2005 PCRLJ 979); "SALEEM Ys. THE STATE" (2004 MLD 424); HAIDRAN BIBI Ys. MUHAMMAD IBRAHIM "
(1986 MLD 2454 ); JAIRAM Ys. JAGDISH (1980 PCRLJ 243); "Pir ALLY IMMRA WAN SAHAR ESSAPHEL Ys.
JUDGE ANTI-TERRORISM COUR T" (2012 P.Cr.L.J 498); IMTIAZ RUBBANI alias BILLU Ys. State (2008 PLD 441); "NOOR KHAN Ys. THE STATE (1993 PCRLJ 511); "MUHAMMAD ARSHAD Ys. STATE" (1989 PCRLJ 389); "S.M. YAQOOB Ys. TALAT HUSSAIN " (1987 PCRLJ 1624 ); "SHER ALI Ys. THE STATE" (1985 PCRLJ 349) and "JODA T ALI Ys. THE ST ATE" 1969 PCRLJ 1532 ).
27. The learned Prosecutor General along with his team, the learned law officers as well as Mr. Azam Nazir Tarrar, Advocate assisted by his Associates pressed a hard that when the accusations against the persons complained, are frivolous, malicious and vexatious then the complaint must be dismissed at very inception. From the tenor of arguments advanced by learned Prosecutor General it appeared that he was of the view that order qua non- summoning of respondents No.1 to 12 has rightly been passed.
The argument was that it is duty and obligation of the trial court to scrutinize the contents of the complaint, nature of allegations made therein, material in support of the accusations, the object intended to be achieved, possibility of victimization and harassment and accordingly vexatious and frivolous complaints must be dismissed. Cases of "ZAF AR and others versus UMER HAYAT and others" (2010 SCMR 1816 ), "ABDUL WAHAB KHAN versus MUHAMMAD NAWAZ and 7 others " (2000 SCMR 1904 ), 2017 YLR 533, 2010 P.Cr.L.J. 575 and 2017 YLR 57), were referred in support of their contentions.
28. The terms "frivolous", "malicious" and "vexatious" have not been defined anywhere in the Code, therefore, we need to explore their lexical meanings and use in the judicial context.
"Frivolous "
The expression (frivolous) was used in case of "RIASA T ALI versus ELECTION TRIBUNAL " (PLD 1961 B.J 11) to the effect that it means unworthy of credence on face of it, impossible to be substa ntiated and requiring no proof to expose it. In HANDBOOK OF LEGAL TERMS & PHRASES (Judicially defined), with reference to the same citation, it was defined as "An allegations is frivolous if on the face of it, it is unworth y of credence and impossible to be substantiated and does not require any proof to expose it as such. WEBSTER' s unabridged dictionary (SECOND EDITION), defines it as:- "1. Characterized by lack of seriousness or sense,
2. Self-indulgently carefree; unconcerned about or lacking any serious purpose, 3. (of a person) given to trifling or undue levity , 4. of little or no weight, worth, or importance; not worthy of serious notice.
"Malicious"
WEBSTER's unabridged dictionary (SECOND EDITION), defines it as:- "1. Full of, characterized by, or showing malice; malevolent; spiteful: malicious gossip,
2. Vicious, wanton, or mischievous in motivation or purpose."
In ENCYCLOPEDIC LAW DICTIONAR Y 3 EDITION 2008, the phrase "malicious prosecution" has been defined as:- "A malicious prosecution is an abuse of the process of the Court by wrongfully setting the law in motion on a criminal charge. To be actionable as a tort the process must have been without reasonable and probable cause and must have been instituted or carried on maliciously ."
"Vexatious"
In HANDBOOK OF LEGAL TERMS & PHRASES (Judicially defined), with reference to case law "ABID Y. KHAN versus MUHAMMAD BASHIR " (1965 PLC 22), provides ."
"The word vexatious indicates an accusation merely for the purpose of annoyance and the word, frivolous means an accusation which is futile not serious or without foundation."
WEBSTER' s unabridged dictionary (SECOND EDITION), defines it as:- "troublesome; annoying, instituted witho ut sufficient grounds and serving only to cause annoyance to the defendant, disorderly; confused; trouble."rd
29. After examining the dictionary meanin gs of the above phrases and the judgments on the proposition, I am of the view that in order to hold a complaint as frivolous, malicious or vexatious, following elements must exist:- I) Where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety , do not prima facie constitute any of fence or make out a case against the accused.
II) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any of fence and make out a case against the accused.
III) Where the allegations made in the FIR or complaint are so absurd and inhere ntly improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
IV) Where there is an express legal bar engrafted in any of the provisions of the Code or any other law (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party .
V) Where a criminal proceeding manifestly tainted with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge and also having no suf ficient material in support of allegations.
VI) If the acts of accused or person complained against are protected by the Cons titution or any other relevant law for the time being in force.
VII) If the accused or person complained against discharges his legal duties and also obeys the direction, command or order of his superior or any court, legal authority or tribunal.
VIII) Where the concerned court has fully satisfied after examining all material aspects that in all probability the complainant may not succeed in bringing charge home against the accused.
IX) Where the averments/contents of the complaints/ allegations from any angle are reflecting to the abuse of process of law.
30. Now, combined reading of sections 203 and 204 of the Code in the light of definitions of words "frivolous, malicious and vexatious", makes clear that the complaint could be dismissed either as a whole or to the extent of some persons, firstly when the court would conclude that no sufficient ground is available to proceed, and secondly there is no material available for issuing the process from the material available on the file, the complainant has moved baseless complaint without any material just to harass, victimize, pressurize or blackmail the person complained against or there is civil dispute and no criminal offence is made out. It is duty of the state and the court being organ of the state to see that no criminal should go unpunished, if the arguments advanced by the other side are appreciated it means that the crime which is governed under any statute and is punishable even if there is some material for summoning of the persons complained, the complaint be buried on the argument that it has been made against senior officers, it is based on political or religious rivalry and meant to harass or pressurize the opponents. To declare a complaint as such at the stage of Section 203 of the Code, is only possible if the court conclude that no material whatsoever is available against the person complained against and if there is material then such declaration can be made that the complaint is frivolous, malicious or vexatious only at the time when acquittal of the person complained agains t is recorded and then the remedy is provided in Section 250 of the Code.
While observing so, I am fortified by a three member Bench judgment of the Hon'ble Supreme Court of Pakistan in the case "NOOR MUHAMMAD versus THE STATE and others " (PLD 2007 Supreme Court 9). We have also gone through the judgment "ABDUL WAHAB KHAN versus MUHAMMAD NAWAZ and 7 others" (2000 SCMR 1904 ) and observe that in para-5 of this judgment is in line with the above referred judgment "Noor Muhammad Vs. State "
(PLD 2007 SC 9) to the extent that frivolous and vexatiou s complaints must be buried in its incep tion where no prima facie case is made out or where no suf ficient grounds for issuing the process exist.
31. By careful perusal of the judgment passed by the superior courts on the principle of vexatious and frivolous prosecution it is observed that at least it has been held that the prosecution was launched without probable grounds and no material or evidence was produced before the court.
Hence, if any material is available on the file against the "person complained against", then at the stage of summoning of the "person complained against", it cannot be said that the complaint is frivolous, malicious, vexatious or baseless.
32. The learned counsel for the petitioner argued that as the court is to draw an inference of the conspiracy from the circumstances and in this respect newspaper clippings and video clips were produced before the court as Mark.C/1-59, D/1-14, P/3-9 which is important and corroborative evidence, therefore, the trial court wrongly brushed aside the same by ignoring the law on the subject. Further argued that at the stage of passing an order under section 203 or 204 of the Code only it was sufficient to place the material before the court and during trial the relevant Reporters, Photographers or media anchors could have been summoned. The learned counsel in support of his arguments placed reliance on the case "Mohtarma BENAZIR BHUTT O AND ANO THER versus PRESIDENT OF PAKIST AN and others " (PLD 1998 SC 388 ).
33. In reply to the arguments of learned Prosecutor General and the learned Additional Prosecutor General, submitted that when news clips had been placed before the court then the names of the Reporters, Photographers or anchors could be submitted later-on and even the court had ample jurisdiction under section 540 of the Code to summon them as it will not amount to filling the lacunae. The learned Prosecutor General submitted that news clipping is not admissible in evidence in criminal cases unless reporter/author is examined in the court as a witness.
He placed reliance on the case PLD 2016 SC 17 and 1996 SCMR 1747. The learned Additional Prosecutor General with reference to section 265 of the Code argued that list of witnesses had to be provided with the complaint itself, which has not been done in this case, therefore, the newspaper clippings should be ignored from consideration and put into dust bin, as the same do not have evidentiary value. Added that many statements are given only for political purposes and they could not create a legal right or obligation, hence no evidentiary value could be attached to such press report. In support of his arguments, placed reliance on 2010 YLR 975 and PLD 2004 SC 583.
34. It may be observed that the case of Mumtaz Qadri (PLD 2016 SC 17) and "Muhammad Ashraf Khan Tareen and another v. The State and another " (1996 SCMR 1747 ) referred by the learned Prosecutor General pertain to the "admissibility" of evidence, whereas, this Court at the moment is not sitting as an appellate court upon the final judgement of trial court. It has already been held that during inquiry under Section 202 of the Code the Court has to consider "material" and not the evidenc e in terms of QSO 1984. Therefore, at this stage, critical element is "relevance" of such material and not the admissibility or evidentiary value, which is to be established at trial stage.
35. The case "Mohtarma BENAZIR BHUTT O AND ANOTHER versus PRESIDENT OF PAKIST AN and others "
(PLD 1998 SC 388) pertains to exercise of powers of the President under Article 58(2)(b) of the Constitution of Islamic Republic of Pakistan 1973. The said case may hardly be treated as precedent in the present case.
However , the parallels may be drawn that in both cases powers is to be exercised after "satisfaction" and to reach such satisfaction the trustee of such powers, inter alia, may consider news items and press clippings. In both cases, Qanun-e-Shahadat Order 1984 is not applicable.
36. As regards the argument that petitioner/complainant has not attached list of witnesses, I am of the view that it is not the requirement of proceedings unde r section 200, 201 or 202 of the Code that lists of witnesses must be appended with the complaint or all the documents must be mentioned or appended therewith. The stage of section 265-C of the Code comes afterwards when trial commences. Although in Section 265 C(2), the word "shall" has been used but it is settled proposition that sometimes the word "shall" may be read as the word "may" and further the same has no penal clause, therefore, this sub-section is directory in nature, therefore, at this stage not attaching the list of witnesses along with the complaint or non-mentioning the names of reporters, photographers, anchor persons, is not an illegality and on this score alone the press clippings, etc. could not be ignored.
37. During arguments, a question arose that as in this case two FIRs were regist ered i.e. FIR 510/2014 at police station Faisal Town on the complaint of Rizwan Qadir SHO and FIR No.696/2014 on the complaint of Jawad Hamid, Director (Admn) Idara Minhaj ul Quran at police station Model Town, whether while examining the material before this court, the court could examine police files and JIT reports of above referred FIRs ?
38. The learned counsel for the petitioner/complainant argued that as the complainant was not satisfied with the conduct of the police officers and a large number of police officials were the persons complained against and they have been summoned including the I.G, Police Punjab, in such circumstances these reports should not be considered as they were prepared by biased officers and may prejudice the mind of the court. On the other hand, learned PG assisted by his team and Mr. Azam Nazir Tarrar Advocate, argued that court has powers to examine all such material. He submitted further, under Section 202 of the Code while inquiring into truthfulness or falsehood of the complaint, the court has ample powers to examine the police files, final reports prepared by the police or JIT reports in order to reach at a final conclusion. Both of the parties have placed reliance on 1984 P.Cr.L.J. 2545 and 1968 P.Cr.L.J 1526.
39. Section 202 of the Code bestows vast powers upon the court to ascertain the truth or falsehood of the complaint and in this respect as it could direct any inquiry or investigation and during inquiry it could examine the police file and final reports including report of JIT to come to a definite conclusion, as it is covered under the definition of material and if felt necessary may examine the members of JIT, I.O in a private complaint or any other witness recorded during investigation of said case so that complete picture of the occurrence supported by relevant material must be before him while passing an order under section 204 (for summoning the accused), so that no innocent person should face agony of trial and no culprit should go unpunished. Reference may be made to the judgement of august Supreme Court in case of "S. M. H. Rizvi v. Abdus Salam and anoth er" (PLD 1960 SC 358) wherein it was observed:- "We are conscious of the importance of allowing to each Court how- low-so ever full scope to exercise its powers within the law in the discharge of its functions. In a case where the initial complaint or report is of such a nature that it is doubtful whether a prima facie case of the offences alleged is made out, a Magistrate would be fully within his rights in calling for evidence before deciding that the complaint or report should be rejected. "
It is pertinent to note that the use of police report in case of "Muhammad Ismail v. The State and 3 others " (1984 P Cr. L J 2545) the court observed that police report cannot be read to detriment of the complainant (for dismissing complaint under Section 203 of Cr.P.C) but it may be read and considered in favour of the complainant (for issuing process under Section 204 of Cr .P.C).
In the case of "Allah Yar v. The State " (1968 (P.Cr.L.J 1526) similar observation s were made by the learned single judge of Sindh High Court in the following terms:- "4. There is no doubt that it is for the trial Magistrate during a preliminary enquiry to sift the truth and that his discretion for arriving at the truth on the record before it is unfettered but the further consideration in the peculiar circum stances of this case in the context of Muhammad Ashraf v. Zafar Muhammad alias Master Khaki Zaman and others is that even though justice has to he administered without fear or favour regardless of the parties, it should appear to have beers done arid, therefore, the Court concerned must nevertheless guard against any suspicion of the "assumption of the role either of a prosecutor or of acting in favour of the defence. The order of the learned trial Magistrate dated the 16th of June 1967, stated that it was necessary to have the Police papers to be made available to him. At the stage of the impugned order all the witnesses of the complainant had been examined in the preli- minary enquiry. At that juncture the counsel for Pir Shamsuddin applied for examination of witnesses who are obviously only defence witnesses on the point of his alibi and had nothing to state for the complainant case. In that one respect the order to examine Pir Ghulam Hyder as a witness does appear to be unjustifiable and to savour as an act advancing the case of the defence setting it at motion at that stage. Process in law can only issue after a proper enquiry and in the interests of justice and on the ground that Inspector Muhammad Pinjal had made the final investigation and submitted the challan and that the papers of the investigation contained documents referring to the movements of Pir Shamsuddin on the day previous to and the day of the incident, in which this applicant was a complainant, his examination at that stage in a preliminary enquiry on the other hand was fully justified. A reference with advantage may also be made to the following observations of Farooqi, J., in Syed Wahid Bux Shah v. the State and another where section 202, Cr. P. C. and its purpose in law was under discussion: "The whole purpose of the preliminary inquiry under sec-tion 202, Cr. P. C. 1898 is to avoid the issue of process to the accused person in a case, and it is not to be held as if it was a fulldress rehearsal for the trial. If, therefore, the purpose of section 202 of the Code is to enable Magistrate to postpone the issue of process, how then can- that purpose be allowed to be frustrated when the Magistrate decides to hold a preliminary inquiry in which he issues notice to the accused and "allows most of the things to be done which, properly, must wait until the issue of process. Therefore, though there may be no contravention of any specific provision of the Code it appears to be clear that it was not intended that in a preliminary inquiry, under section 202 of the. Code, the accused should be summoned by notice and allowed to have the prosecution witnesses crossexamined and produce his own side of the case either orally or in writing. In the case the purpose of inquiry ostensibly was to determine whether process should be issued or not, and, therefore, the Magistrate did not act properly in permitting accused to be present by notice, allowing them to be represented by counsel and have the prosecution witnesses crossexamined."
40. The contention that if the complaint is filed against any officer or group of officers or department then examination of such report may prejudice the mind of the court, has no wisdom at all because judicial officers are trained to examine the material from both the sides during trial or during other proceedings and then without being prejudiced always apply their independent judicious mind to come to a definite conclusion on material in issue.
There is no intention of legislature in Section 202 of the Code to bind the court only to the extent of complaint and the evidence produced by him, as the court has vast powers of inquiry and investigation, therefore, unambiguously the court is not bound by only and only evidence of the complainant, therefore, power of the court cannot be curtailed and court can examine the police file, report under section 173 or JIT report, prepared in a state case registered about the same occurrence.
41. This has become a trend in our courts that at the time of recording cursory evidence in complaint cases they take the matter without considering its importance and only rely upon the evidence/material produced by the complainant before the court. In routine matter this procedure may be sufficient to establish the truthfulness or falsehood of complaint but in number of cases any material may be beyond the control of the complainant or he may not be aware whether such witness will appear and support the complaint or not or there is official record to be placed on the file and there is requirement of recording of statements of different officers including senior officers or high political figures then either the court should broaden its canvass of inquiry and summon all concerned and also direct relevant material/documents to be submitted on record, relevant documents or may investigate the case and for the purposes of investigation the court has again vast powers. It could get the matter investigated through Magistrate or Ex-Justice of Peace or through police or any other person. The word "any other person" used in this section carries vast impression. As discussed earlier, it includes officer(s) of any rank of any government, agency or even a retired officers and this investigation would be under the direct control and direction of the court and to the extent of scope provided in Section 202 of the Code. At this stage we are mindful of the fact that court in this case is performing its functions under the relevant law but as per separation of powers between the province and the federation within the limits of province, but for the purposes of justice if court feels necessary it may approach the federal government to get the services of any of its employees or agency like FIA, etc, or any officer of any agency or officer related to federal establishment division or federal agency and performing duty in the control of any province but that too with the permission of both, but the court shall while appointing any officer as inquiry or investigation officer shall ensure that no person should be appointed as inquiry or investigation officer who has any direct or indirect interest in the complainant or the person complained against.
SECTION III
42. Learned counsel for the petitioner argued that one-man tribunal under the Punjab Tribunal of Inquiries Ordinance 1961 was headed by Hon'ble Judge of High Court with the approval of the Hon'ble Chief Justice and they were trying to get report of this commission in support of their stance and also to produce evidence recorded by the Hon'ble Tribunal to be placed before the court under proceedings in the complaint. On court question whether the report of the commission and witnesses could be considered as material under section 202 of the Code, learned counsel submitted that evidence recorded by the commission could be used as material.
43. On the other hand, learned PG submitted that the report of the commission could not be used in any subsequent proceedings and same protection has been provided to the witnesses who appear before the tribunal and their statements could only be used for the purposes of prosecuting for giving false evidence before the- - tribunal, hence both i.e. report of the commission as well as evidence recorded by the commission could not be considered as material under section 202 of the Code, hence the same could not be produced. Further submits that even evidence of CW-18 (Muhammad Shakil) is not admissible in evidence at all because this relates to the statement of a witness before the tribunal and as the evidence by the witness has been protected in the statute not to be used against him, hence, any such evidence before the tribunal is irrelevant material for the purposes of inquiry or investigation under section 202 of the Code.
44. Subject to certain exceptions, it is settled principle of criminal jurisprudence that, evidence of one case cannot be read into another case. Reference may be made to "Natho v. The State PLD 1986 SC 146, Akbar Ali v. Qazi Javed Ahmad and others " (1986 SCMR 2018 ), Ali Sher v. The State " (PLD 1987 Kar. 507), "Umer Hayat v.
Additional Sessions Judge-III, Khushab and 2 others " (2008 P Cr. L J 523) and Malik Aman v. Haji Muhammad Tufail" (PLD 1976 Lah. 1446) However , the analysis of Article 140, 151 and 153 of QSO clearly indicates that there are two purposes for which a previous statement of a witness can be used. One is for cross- examination and contradiction and the other is for corroboration. Section 6 of the Punjab Tribunals of Inquiry Ordinance, 1969 puts embargo upon the use of statement recorded before Tribunal/Commission established under the said Act, against the witness except to prosecute him for giving false evidence before the Tribunal.
45. It may be important to note that Section 6 of the Punjab Tribunals of Inquiry Ordinance, 1969 is pari materia with Section 16 of Pakistan Commissions of Inquiry Act, 2017, Section 6 of the Pakistan Commissions of Inquiry Act, 1956 (Repealed) and Section 6 of Indian Commissions of Inquiry Act, 1952. Since there is very little case on Section 6 of the Punjab Tribunals of Inquiry Ordinance, 1969, therefore, case law available on the identical provisions of statutes of same nature may be useful to understand its proper scope. Relevant provisions are reproduced as under:- THE PUNJAB TRIBUNALS OF INQUIRY ORDINANCE, 1969 "6. Statements made by persons to the Tribunal. -- No statement made by a person in the course of giving evidence before the Tribunal shall subject him to, or be used against him in, any civil or criminal proceeding except a prosecution for giving false evidence by such statement: Provided that the statement--
(a) is made in reply to a question which he is required by the T ribunal to answer; or
(b) is relevant to the subject matter of inquiry.
PAKISTAN COMMISSIONS OF INQUIRY ACT, 2017
16. Statements made by persons before the Commission. No statement made by a person in the course of giving evidence before the Commission shall, except in accordance with law, subjec t him to, or be used against him in, any civil or criminal proceeding except a prosecution for giving false evidence by such statement: Provided that the statement,---
(a) is made in reply to a question which he is required by the Commission to answer; or
(b) is relevant to the subject matter of inquiry.
THE P AKIST AN COMMISSIONS OF INQUIR Y ACT, 1956
6. Statements made by persons to the Commission. No statement made by a person in the course of giving evidence before the Commission shall subject him to, or be used against him in, any civil or criminal proceeding except a prosecution for giving false evidence by such state ment : Provided that the statement,
(a) is made in reply to a question which he is required by the Commission to answer; or
(b) is relevant to the subject -matter of inquiry .
[INDIAN] THE COMMISSIONS OF INQUIR Y ACT, 1952
6. Statements made by persons to the Commission - No statement made by a person in the course of giving evidence before the Commission shall subject him to, or be used against him in, any civil or criminal proceeding except a prosecution for giving false evidence by such statement.
Provided that the statement -
(a) Is made in reply to a question which he is required by the Commission to answer , or
(b) Is relevant to the subject matter of the inquiry ."
46. In the case "Kehar Singh v. State " (AIR 1988 (SC) 1883) question before the Supreme Court of India was, whether the appellants i.e. the accused before the trial court were entitled to use the copies of the statement of those prosecution witnesses who were examined before the Thakkar Comm ission for purposes of cross- examination or to use the report of the Commission or whether it could be handed over or given over to the accused for whatever purpose they intended to use? While answering the question His Lordship Oza J. concluded that "Without going into the wider question s even a plain reading of Section 6 as discussed above will prohibit the use of the previous statements at the trial either for the purposes of cross-examination to contradict the witness or to impeach his credit. His lordship K. Jagannatha Shetty , J. (agreeing with Oza, J.) observed that the statement given before a commission shall not be admissible against the person in any subsequent civil or criminal proceeding save for perjury . It may be observed that in a considerable number of cases the subsequent use of statement recorded before the Inquiry Commission came under consideration but it pertained to "use against the witness himself" and the courts consistently ruled that such statement cannot be used against such witness in any manner whatsoever . However , there has been no question ever that the witness examined before the Commission cannot be summoned or produced witness in any subsequent proceedings . In this regard, reference may be made to "Ram Krishna Dalmia v. Justice Tendolkar "
(1959 SCR 279); "Sohan Lal v. State " (AIR 1965 Bombay 1) and "State of Maharashtra v. Ibrahim Mohd., " (1978 Cri LJ 1 157).
47. In the case "Sajjan Kumar vs Central Bureau Of Investigation " (CRL.REV .P.328/2012) the question of admissibility of evidence (recorded before commission) in another criminal case, came under consideration. In the cited case, the prosecution raised objection that accused cannot use the previous statements of prosecution witnesses for purpose of contradiction. The prosecution argument was based on the observation made by Apex Court in Kehar Singh's case (cited supra), wherein, the honourable court observed:- "26. At this stage, it would be appropriate to take note of the fact that in Kehar Singh's case, the prosecution did not rely upon any affidavit filed or statement made before the Commissions. It was the accused who requested for the copies of the statement of witnesses made before the Commission, to contradict the witness with reference to such statements as part of defence. Therefore, the facts of the case before this Court are altogether different.
27. The contention of learned Senior Advocate for CBI that the affidavits filed and statement made before the Commissions are admissible in examination-in-chief of PW-1 Smt. Jagdish Kaur but accused is precluded from contradicting the witness on Ex.PW1/A to C during cross examination in view of bar of Section 6 of Commissions of Inquiry Act, is devoid of any merit as no examination in-chief which is not allowed to be subjected to cross examination can be read in evidence, since a person against whom a deposition is made/examination-in-chief is directed, has a legal right to cross examine the witness who has deposed against him.
28. Neither the part of examination-in-ch ief which referred to affidavits Ex.PW1/A & B and statement Ex.PW1/C, nor these documents can be read in evidence against the accused unless he is given an opportunity to cross examine PW -1 Smt. Jagdish Kaur with respect to affidavits filed and statement made before the Commissions. "
48. It may be concluded that the report is a recommendation of the Commission/ Tribunal for consideration of the Government. It is the opinion of the Commission based on the statements of witnesses and other material. It has no evidentiary value in the trial of the criminal case (in this regard reference may be made to "Kehar Singh v. State "
(AIR 1988 (SC) 1883). However , the material collected or evidence recorded by the Inquiry Commission (i.e. oral depositions, affidavits, site inspection note, electronic and print media reports etc.) may be used by the prosecution and the embargo of Section 6 of the Punjab Tribunals of Inquiry Ordinance, 1969 only affords protection to such witness. The trial court may, on its own motion or at the request of the complainant may call the concerned persons to appear in investigation or inquiry for the purposes of recording of evidence or direct them to produce the relevant documents or to produce the record of electronic and print media and its transcript if required. However , while passing an order under section 203 or 204 of the Code, the court has to adjudge the relevance of the material so produced and not its admissibility which is the subject of regular trial.
49. It may further be noted that the Tribunal report has already been made public on the direction of this court in case of "PROVINCE OF PUNJAB versus QAISAR IQBAL and others " (PLD 2018 Lahore 198). This report is no more a privileged document as it has become a public document. The complainant has a right to produce the evidence/material collected by the one-man Tribunal in case of inquiry/investiga tion Under Section 202 of the Code. Therefore, there is every possibility that such material may or may not qualify as an admissible piece of evidence in subsequent trial proceedings. However , such "material" may be capable of being translated into admissible piece of evidence, leads to the discovery of admissible evidence or it is helpful to the court in reaching the conclusion that order under Section 204 of of the Code may be passed for the summoning of the accused.
50. The question before this court is, whether Judge Anti-Terrorism Court while conducting inquiry under Section 202 Cr.PC was justified in refusing to consider statements recorded before Inquiry Commission to ascertain the facts/allegations made in the private complaint? It has been noted above that in proceedings under Section 202 Cr.PC, Court is required to satisfy himself as to the truth or falsehood of the facts narrated in the complaint on the basis of material already available to him or that came to his knowledge during inquiry/investigation process. The term "material" used in Section 202 of the Code connotes something relevant---not necessarily admissible piece of evidence. It has already been noted that a witness before the Inquiry Commission may be a good and competent witness during subsequent trial or proceedings.
Therefore, at inquiry stage, Judge ATC was bound to consider the statements made before the Inquiry Commission to reach the conclusion whether these statements are "relevant" to the case and if, he reaches the conclusion that those statements are relevant, then on the basis disclosure of facts made therein, he could have summoned those witnesses at the inquiry stage under Section 202 of Cr.PC for the purpose of ascertaining the truth or falsehood of complaint. It may be called as a "pre-ascertainment of purpose stage". There arises no question of using it against the witness who made the same before the Inquiry Commission. Therefore, Judge ATC altogether misapplied and misquoted Section 6 of the Punjab Tribunals of Inquiry Ordinance, 1969.
SECTION IV
51. It has been argued before us that no complaint under Section 120-B of PPC can be lodged except by Federal or Provincial Government or by a person authorized by either of the said Governments by virtue of bar contained in Section 196-A read with Section 196 Cr .PC. The said provisions are reproduced hereunder for ready reference:- CODE OF CRIMINAL PROCEDURE 1898 "196. Prosecution for offences against the State: No Court shall take cognizance of any offence punishable under Chapter VI or IX-A of the Pakistan Penal Code (except Section 127), or punishable under Section 108-A, or Section 153-A or Section 294-A, or Section 295-A or Section 505 of the same Code, unless upon complaint made by order of or under authority from, the Federal Government or the Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments.
196-A. Prosecution for certain classes of criminal conspiracy . No Court shall take cognizance of the offence of criminal conspiracy punishable under section 120-B of the Pakistan Penal Code, (XL V of 1860).
(1) in a case where the object of the conspiracy is to commit either an illegal act other than an offence, or a legal act by illegal means, or an offence to which the provisions of section 196 apply , unless upon complaint made by order or under authority from [the [Federal Government], or the Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments], or
(2) in a case where the object of the conspiracy is to commit any non-cognizable offence, or a cognizable offence not punishable with death, 8[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, unless the [Provincial Government], or a [Officer incharge of the prosecution in the district] empowered in this behalf by the [Provincial Government], has, by order in writing, consented to the initiation of the proceedings: Provided that where the criminal conspiracy is one to which the provisions of subs ection [(4)] of section 195 apply no such consent shall be necessary .]"
The plain reading of Section 196-A of the Code suggests that "certain classes of criminal classes" have been subjected to aforesaid condition i.e. if the criminal conspiracy is to commit an offence to which the provisions of section 196 apply . Section 196 of the Code applies to the offences punishable under Chapter VI or IX-A PPC (except Section 127), or punishable unde r Section 108-A, or Section 153-A or Section 294-A, or Section 295-A or Section 505 of the same Code. Therefore, the offence of criminal conspiracy (section 120-B PPC) would ordinarily be coached by Section 196-A of the Code if it has any connection with the offences controlled by Section 196 of the Code. Even otherwise, Honourable Supreme Court of Pakistan in the case "JAVED IQBAL and others Vs The STATE" (2016 SCMR 787 ) observed:- "6. Another legal aspect of the case argued before us by the learned Sr. ASC was regarding non-compliance of the mandatory requirement of section 196, Cr.P.C., about seeking sanction/permission for trial of an accused charged under sections 295-A, P.P.C., which was lacking in the present case. In this context, he relied upon the case of Nawaz Sharif v. The State (2000 MLD 946). Indeed, section 196 of Cr.P.C. bars the Court from taking cognizance of an offence under section 295-A of P.P.C., without requisite sanction/approval/permission and failure to obtain such mandatory permission renders the proceedings to that extent a nullity in law.
However, we are not impressed by this submission of the learned Sr. ASC, as bar of taking cognizance provided under section 196,of the Code will not apply to the proceedings before the Anti-Terrorism Courts in view of the combined effect of Sections 12, 19, 30 and the overriding effect of section 32 of the ATA, being proceedings under a special statute, which provides exclusion of those provisions of the Code and other laws which are inconsistent with the provisions of ATA. In this context, a glance at these provisions of the ATA goes to show that section 12, which starts with non obstante clause, deals with the jurisdiction of Anti terrorism Courts; section 19 provides for a detailed procedure under subsections (1) to (14), regarding the procedure and powers of Anti-terrorism Court; section 30, which also starts with non-obstante clause, provides for modified application of certain provisions of the Code (Criminal Procedure Code), during the proceedings before the Anti-terrorism Court, and lastly section 32 gives overriding effect to the provisions of ATA, and provides that notwithstanding anything contained in the Code or any other law but, save as expressly provided in this Act, the provisions of the Code shall, in so far as they are not inconsistent with the provisions of this Act, apply to the proceedings before an Anti-terrorism Court, which shall be deemed to be a Court of Session.
The case of Nawaz Sharif (supra) relied by the learned Sr. ASC in support of his submission about the applicability of section 196, Cr.P.C. to the proceedings before the Anti-Terrorism Courts, also negates his arguments. For ease of reference, relevant conclusion in this judgment is reproduced as under:- "Thus, there being inconsistency and the difference between the provisions of section 30 of the Act and section 196 of the Code, the provisions contained in the latter will not be applicable to the proceeding before the Special Court.
Therefore, in view of the inconsistency , as discussed above, section 32 of the Act would come into play and the bar contained in section 196, Cr.P.C would not in any way affect to the taking of cognizance by this Court in exercising power under section 19 of the Act. Consequently , the application is dismissed." (Emphasis added)
The interpretation offered by august Supreme Court of Pakistan fully covers the proposition in hand and the bar on taking cognizance provided under section 196-A of the Code will not apply to the proceedings before the Anti- Terrorism Courts in view of the combined effect of Sections 12, 19, 30 and the overriding effect of section 32 of the ATA, being proceedings under a special statute, which provides exclusion of those provisions of the Code and other laws which are inconsistent with the provisions of ATA.
52. Now I will take another important allegation of conspiracy advanced in the complaint against private respondents and argued before us with full vigour . The August Supreme Court in the case of "ZULFIKAR ALI BHUTT O Vs. THE STATE" (PLD 1979 SC 53) while interpreting Section 120 A of the Pakistan Penal Code observed:-
733. This section makes criminal conspiracy a substantive offence on the statue book like every other offence in the Penal Code. By its very definition criminal conspiracy consists in the mere agreement between two or more persons to do an illegal act, or an act which is not illegal by illegal means. However, as pointed out in Mulcahy's case a conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an illegal act, or to do act by illegal means. As long as the design rests in intention only it is not indictable. The proviso to this section, however, expressly lays down that no agreement, except an agreement to commit an offence, shall amount to a criminal conspiracy unless some overt act besides the agreement is done in pursuance thereof.
734. This in essence is the whole gist of the offence of conspiracy and its characteristics. At the core, in a conspiracy , lies some sort of agreement, be it express, implied or implicit, or in any other form, between the parties thereto to do an illegal act or to do a legal act by unlawful means . Indeed, this is common ground, and on this there was no difference betw een the parties at the hearing before us, It is, therefore, not necessary to labour the point any further ." (Emphasis added)
53. I am benefitted from a number of judgements of the Supreme Court of India i.e. Devender Pal Singh v. State N.C.T. of Delhi (2002 AIR (SC) 1661, K. Hashim v. State of Tamil Nadu (AIR 2005 SC 128) and State (N.C.T. of Delhi) v. Navjot Sandhu @ Afsan Guru (AIR 2005 SC 3820), and deduce the pivotal points relating to the offence of criminal conspiracy:-
(i) An object to be accomplished,
(ii) A plan or scheme embodying means to accomplish that object,
(iii) An agreement or understanding between two or more of the accused persons whereby they become definitely committed to co-operate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means,
(iv) In the jurisdiction where the statute required an overt act,
(v) Essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed,
(vi) Unless the statute so requires, no overt act need be done in furtherance of the conspiracy , and that the object of the combination need not be accomplished, in order to constitute an indictable of fence,
(vii) Encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment.
(viii) The conspiracy is held to be continued and renewed as to all its members whenever and wherever any member of the conspiracy acts in furtherance of the common design ,
(ix) For an offence punishable under Section 120-B, prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act; the agreement by may be proved by necessary implication,
(x) A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means,
(xi) So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and an act of each of the parties, promise against prom ise, acts contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for use of criminal means.
(xii) Essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by the direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available.
(xiii) There is distinction between the conspiracy and offences committed pursuant to conspiracy . Conspirators who did not commit the offence are liable for the offence committed by some of them in execution of the common design. xiv) Exact when the conspiracy was hatched can be spelled out. It is not always possible "to give affirmative evidence" about the date of formation of the criminal conspiracy ."
54. Moreover , in the case of "Yakub Abdul Razak Memon v. State of Maharashtra, through CBI, Bombay " (2013(13)
SCC 1) it has been observed by the Supreme Court of India that the gist of the offence is an agreement to break the law. It is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. It observed further , "Since conspiracy is hatched in secrecy , to bring home the charge of conspiracy , it is relevant to decide conclusively the object behind it from the charges leveled against the accused and the facts of the case.
Object behind it is the ultimate aim of the conspiracy . Further , many means might have been adopted to achieve this ultimate object. The means may even constitute different offences by themselves, but as long as they are adopted to achieve the ultimate object of the conspiracy , they are also acts of conspiracy .
Prosecution need not necessarily prove that the conspirators expressly agreed to do or cause to be done the illegal act, the agreement may be proved by necessary implication. It is not necessary that each number of the conspiracy must know all the details of the conspiracy. All of them need not be present in Pakistan or continue to remain in Pakistan. The entire agreement must be viewed as a whole and it has to be ascertained as to what in fact the conspirators intended to do or the object they wanted to achieve. Accused need not be present at each and every meeting for being held to be a part of the conspiracy.
It is also not necessary that each member of the conspiracy should know all the details of the conspiracy .
Conspiracy is a continuing offence. Thus, If any act or omission which constitutes an offence is done in Pakistan or outside its territory, the conspirators continue to be the parties to the conspiracy - The conspiracy may be a general one and a smaller one which may develop in successive stages. It is an unlawful agreement and not its accomplishment, which is the gist/essence of the crime of conspiracy. In order to determine whether the conspiracy was hatched, the court is required to view the entire agreement and to find out as in fact what the conspirators intended to do."
55. Dr. Sri Hari Singh Gour in his well-known 'Commentary on Penal Law of India', (Vol. 2, 11th Edn. page 1138) s ummed up the legal position in the following words : "In order to constitute a single general conspiracy there must be a common design . Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he has a part to play in a general conspiracy though he may not know all its secrets or the means by which the common purpose is to be accomplished. The evil scheme may be promoted by a few, some may drop out and some may join at a later stage, but the conspiracy continues until it is broken up. The conspiracy may develop in successive stages. There may be general plan to accomplish the common design by such means as may from time to time be found expedient. "
56. In case of "Regina v . Murphy " [(1837) 173 E.R. 502] Coleridge, J. of Supreme Court of Canada observed:- "[...J I am bound to tell you, that although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have this common design and to pursue it by common means, and so to carry it into execution. This is not necessary , because in many cases of the most clearly established conspiracies there are no means of proving any such thing and neither law nor common sense requires that it should be proved . If you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of an act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, 'Had they this common design, and did they pursue it by these common means - the design being unlawful ?' .... "If you are satisfied that there was conc ert between them, I am bound to say that being convinced of the conspiracy , it is not necessary that you should find both Mr. Murphy and Mr. Douglas doing each particular act, as after the fact of conspiracy is already established in your minds, whatever is either said or done by either of the defendants in pursuance of the common design, is, both in law and in common sense, to be considered as the acts of both ."
57. In the case of "Ajay Agarwal v. Union of India" (1993 AIR (SC) 1637 the Supreme Court of India as to the nature of criminal conspiracy as a continuing of fence, observed:- "29. A conspiracy thus, is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of acts. So long its performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity. A crime is complete as soon as the agreement is made, but it is not a thing of the moment. It does not end with the making of the agreement. It will continue so long as there are two or more parties to it intending to carry into effect the design. Its continuance is a threat to the society against which it was aimed at and would be dealt with as soon as that jurisdiction can properly claim the power to do so. The conspiracy designed or agreed abroad will have the same effect as in India, when part of the acts, pursuant to the agreement are agreed to be finalized or done, attempted or even frustrated and vice versa."
58. United States Federal Court in case "Van Riper v. United States" (13 F 2d. 961) observed, "When men enter into an agreement for an unlawful end, they become ad hoc agents for one another and have made a partnership in crime." In the case "Ram Narain Poply v. Central Bureau of Investigation" (2003 AIR (SC) 2748) the Supreme Court of India observed:- "349. No doubt in the case of conspiracy there cannot be any direct evidence . The ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidenc e or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstanc es proved before, during and after the occurrence have to be considered to decide about the complicity of the accused .
It was observed further:- We are aware of the fact that direct independent evidence of criminal conspiracy is generally not available and its existence is a matter of inference. The inferences are normally deduced from acts of parties in pursuance of a purpose in common between the conspirators. This Court in V.C. Shukla v. State (Delhi Admn.), (1980(2) SCC 665) held that to prove criminal conspiracy there must be evidence direct or circumstantial to show that there was an agreement between two or more persons to commit an offence. There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances give rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of the minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits thereon which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied for the purposes of drawing an inference should be prior in time than the actual commission of the offence in furtherance of the alleged conspiracy."
59. In the Case of "IMRAN ASHRAF and 7 others Vs. THE STATE" (2001 SCMR 424 ), it has been held:- "As far as commitment between two or more persons who have conspired together to commit an offence etc., is concerned it is a relevant fact as against each of the persons believed to be so conspiring as well as for the purpose of proving the existence of the conspiracy as far as the purpose of showing that any such person was a party to it within the meaning of Article 23 of Qanun-e Shahadat Order , 1984 . For convenience it is reproduced hereinbelow:-- "23. Things said or done by conspirator in reference to common design.---Where there is reasonable ground to believe that two or more persons have conspired together to commit an. offence or an actionable wrong anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such persons was a party to it."
A perusal of above Article of Qanun-e-Shahadat Order suggests that the Court seized with the matter has a duty to satisfy itself that there is a reasonable ground to believe the existence of conspiracy in pursuance of an agreement among them to commit an unlawful act etc. existed, therefore, it becomes obligatory upon the prosecution to produce evidence for the purpose of establishing that two or-more persons have conspired for the commission of a crime or unlawful act by way of entering into an agreement and making commitment to fulfill it for the purpose of achieving the object. If the prosecution has failed to bring on record evidence to show that before the actual commission of the offence there was any agreement may be oral or written amon gst two or more persons for the commission of the offence then it would not be possible to conclude that prior to the commission of the offence any criminal conspiracy was hatched to attract the provisions of section 120-B, P .P.C."
60. August Supreme Court in the case "ZULFIKAR ALI BHUTT O Vs. THE STATE" (PLD 1979 SC 53) while interpreting Section 10 of Evidence Act 1872 (corresponding to Article 23 of QSO 1984) held:- "100. The methodology employed in the actual application of section 1 of the Evidence Act is fully demonstrated in these cases to the effect that its actual application follows and does not precede the finding that there is reasonable ground to believe that a conspiracy exists and certain persons are conspirators. It merely speaks of the use of evidence in the case, and the section does not control the sequence in which the evidence should be let in. It appears to that these are but only two phases in the exercise of the application of section 10 of the Act, and not two distinct and separate stage laying down the order in which evidence is to be led. In the initial phase and as a condition precedent under this section; the Court has got to find from evidence aliunde on the record that there are reasonable grounds to believe that two or more persons have conspired together to commit an offence or ar; actionable wrong. After having passed this test, the next phase ire the exercise consists in the actual application of the operative part of this section whereby anything said, done or written by any one of such persons in reference to their common intention, during the continuance of the conspiracy, is treated as a relevant fact against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of conspiracy as for the purposes of showing that any such person was a party to it. In fact this section deals with the mode of evaluation and the use of the evidence brought on the record. It does not provide that the proof of existence of the conspiracy must necessarily precede any proof of the acts and declarations of the co-conspirators of the accused for usel against them." "101. To sum up, it will be seen that the facts in issue in a case under section 10 of the Evidence Act are, whether there was an agreement for the alleged purpose and whether the accused was a party to it.
Evidence in support of either may be given first. It may be that evidence is first allowed to go on the record about anything said done or written by one of the accused in reference to their common intention during the continuance of the alleged conspi racy for use against the other accused of their participation in the offence, subject to the condition that there were reasonable ground to believe about the very existence of the conspiracy and the partners in it This course is thus provisionally admitting the evidence has a merit in it and is conducive to the expeditio us disposal of the trial and, if I may say so, suited to the prevailing conditions in this country where the delays in the administration of justice have become proverbial and moral especially because, as in this case, the trial is not by jury. So that the trial Court at the same time is the Judge both on facts and law in the case". (Emphasis added)
These principles were also followed by a learned full bench of Karachi High Court in the case "Mian MUHAMMAD NAWAZ SHARIF and others Vs. THE STATE and others " (PLD 2002 Karachi 152). In the case "MUHAMMAD AZIM MALIK Vs. GOVERNMENT OF PAKIST AN and others " (PLD 1989 SC 519) it was held by the august Supreme Court:- "15. Conspiracy has been made an offence under section 963 of the United States Code Annotated. At serial No.134 of United States Code Annotated, Title 18, Cumulative Annual Pocket Part for use in 1983 mentions the following case:- "Accused who allegedly conspired with persons who were in Canada to have a murder committed and who allegedly made one or more telephone calls to those people in Canada had sufficient nexus with Canada, even though he did not enter Canada, to justify Canada's exercise of jurisdiction over charges that he conspired to kill someone outside of Canada. Melia v. U.S., C.A. Conn. 1981, 667 F.2d 300.1
16. Article 23 of Qanun-e-Shahadat contains an illustration of conspiracy which is relevant to the matter under consideration. It is reproduced as hereunder:- "Reasonable ground exists for believing that A has joined in e conspiracy to wage war against Pakistan.
The facts that B procured arms in Europe for the purpose of the conspiray , C collected money in Peshawar for a like object D persuaded persons to join the conspiracy in Karachi, E published writings advocating the object in view at Multan and F transmitted from Lahore to G at Kabul the money which C had collected at Peshawar and contents of a letter written ...."by H giving an account of the conspiracy are each relevant, both to prove the existence of the conspiracy , and to prove A's complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him and although they may have taken place before he joined the conspiracy or after he left it."
These two illustrations, one from the United States Law and the other from our own are sufficient to establish that in a case of conspiracy physical presence within the Court's jurisdiction is not necessary ."
61. The "design" is a very critical component as to constitute criminal conspiracy . The said term has not been defined anywhere in Code of Criminal Procedure or Pakistan Penal Code. Black' s Law Dictionary TENTH EDITION defines design asunder:- Design, n. (16c)
1. A plan or scheme.
2. Purpose or intention combined with a plan.
Formed design. (1861) Criminal law. The deliberate and fixed intention to kill, though not necessarily a particular person. See PREMEDIT ATION.
3.--- Advance Law Lexicon (4 Edition, V olume 2) explains the term in the following manner:- Design, Purpose, Intend. To design denotes an object or attainment placed before the mind, with a calculati on of the steps necessary for it. It is a complicated intention carried into action, or proposed for it.
The intention is a movement or inclination of the mind in regard to a distant object, which causes it to stretch forward toward that object. The design is an idea chosen and adopted, which implies method and mediation. An intention is pure or otherwise; a design is suddenly or deliberately formed, and may be good or bad, but is seldom entirely good.
One may be mistaken in one's intentions, and thwarted in one's design. (Smith Syn. Dis.)
IN THE LAW OF EVIDENCE Design denotes purpose, or intention, combined with plan, or implying a plan in the mind.
It may also not be out of place to note that the term "design" has been used in Section 6 of ATA. The said term came under consideration before august Supreme Court of Pakistan in the case "KASHIF ALI Vs. The JUDGE, ANTI-TERRORISM, COUR T NO.II, LAHORE and other " (PLD 2016 SC 951 ), the honourable court observed:- "11. The term "design" has been defined in the Words and Phrases, Permanent Edition - V ol.12 as under:- "Act is done "designedly" when done by design, on purpose, intentionally; "design" is plan or scheme conceived in mind and intended for subsequent execution, preliminary conception of idea to be carried into effect by action, contrivance in accordance with pre conceived plan; and "to design" is to form plan or scheme of conceive and arrange in mind, originate mentally, plan out, contrive."
12. The term "design" now used in Section 6 of the Act has widened the scope of the Act and the terms "intention" and "motive" previously used have been substituted with the sole object that if the act is designed to create a sense of fear or insecurity in society, then the Anti- Terrorism Court will have the jurisdiction. From the above definition of the term "design" it is clear that it means a plan or scheme conceived in mind and intended for subsequent execution."
In the case "Mirza Shaukat Baig and others Vs. Shahid Jamil and others " reported as (PLD 2005 SC 530) it has been observed:- "[T]he words "designed to" as used in section 6 of the Act can be equated to that of `willful' "which means intending the result which actually comes to pass; design; intentional; not incidental or involuntary . Again it says `willfully is generally used to mean with evil purpose, criminal intent or the like. In R.V. Senior , willfully , was interpreted to mean deliberately and intentional, not accidentally or inadvertently ." [(1899) 1 Q B 283]. (Words and Phrases, permanent Edn. V ol. 45, p.275).
17. According to Halsbury's Laws of England, Fourth Edition, Vol.11, para. 1252 `wilfully' means deliberately and intentional, not accidentally or inadvertently . Frank R. Prassel in his Criminal law, Justice and Society 1979 Edition,th page 150 says that "Intent is probably the most common, at least for the major traditional offences, but some L codes call the proof of `wilful' `voluntary', `malicious', `corrupt', or `purposeful' product instead. These terms are generally accorded similar legal meanings, subject to limited variation from one jurisdiction to another .
According to Black's Law Dictionary, Fifth Edition, "an act is done wilfully and knowingly when the actor intends to do it and knows nature of the act. Further that an act or omission is `wilfully' done, if done voluntarily and intentionally and with the specific intent to do something the law forbids, or with the specific intent to fall to do something the law requires to be done; that is to say, with bad purpose either to disobey or to disregard the law.
It goes on to say that when used in criminal context it generally means an act done with a bad purpose, without justifiable excuse; stubbornly, obstinately, perversely. The word is also employed to characterize a thing done without ground for believing it is lawful or conduct marked by a careless disregard whether or not one has the right so to act."
18. Stroud's Judicial Dictionary Vol. 4, third Edition, says "that the legal meaning of wilful is purposely without regard to bona fides or collusion and delib erately and intentionally but does not involve obstinacy of an obstructive kind and it means an intentional disobedience. In the Law Terms and Phrases Judicially Interpreted, by Sardar Muhammad Iqbal Khan Mokal, the term "wilfully' amounts to nothing more than this that the person whose action is in question, mows that he is doing and intends to do what he is doing and is free agent. He further says that wilful means wantonly , intentional, deliberately and consciously and not accidentally or by inadvertence. Reference is made there to Madras State Waqf Board v. Tajammal Hussain (AIR 1968 Mad. 332) and Kedar Nath v. The State (AIR 1965 All. 233)."
19. According to Cyclopaedic Law Dictionary , 2nd Edition, the word `wilfully' "means in the common sense, voluntary or intentional. In criminal law the term generally means more than 'voluntary' and implies as evil mind or intent. "
20. In the light of above mentioned discussion the only inescapable conclusion would be that the words "designed to" are equated to that of wilfully , knowingly and deliberately .
62. I am cognizant of the fact that terms, phrases and definitions used in one statute cannot be imported into another unless the law expressly provides for the same. However, if the context and object of the two different statutes is the same, the terms used in either of them may be used to understand the purpose of the same.
63. Ordinarily , a person cannot be made responsible for the acts of others unless they have been instigated by him or done with his knowledge or consent. However , Article 23 of QSO (which corresponds to Section 10 of repealed Evidence Act 1872, which is still in vogue in India) provides an exception to that rule, by laying down that an overt act committed by any one of the conspirators is sufficient, (on the general principles of agency) to make it the act of all. In this context it would useful to reproduce the pari materia provisions of both Acts:- INDIAN EVIDENCE ACT, 1872
10. Things said or done by conspirator in reference to common design Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. "
Illustration Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the [Government of India] The facts that B procured arms in Europe for the purpose of the conspiracy, C collected in Calcutta for a like object D persuaded persons to join the conspiracy in Bombay, E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta , and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A's complicity in it, although he may have been ignorant of all of them,11 11 and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it.
QANUN-E-SHAHADA T ORDER 1984
23. Things said or done by conspirator in reference to common design.--Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving that existence of the conspiring as for the purpose of showing, that any such person was a party to it.
Illustrations Reasonable ground exists for believing that A has joined in A conspiring to wage war against Pakistan.
The fact that B procured arms in Europe for the purpose of the conspiracy, C collected money in Peshawar for a like object, D persuaded persons to join the conspiracy in Karachi, E published writings advocating the object in view at Multan, and F transmitted from Lahore to G at Kabul the money which C had collected at Peshawar and contents of a letter written by H giving an account of the conspiring are each relevant, both to prove the existence of the conspiracy, and to prove A's complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him and although they may have been taken place before he joined the conspiracy or after he left it."
64. In the case "Kali Ram v . State " 2010(6) AD(Delhi) 45 a Division Bench of Delhi High Court observed:- "47. Since more often than not, conspiracy would be proved on circumstantial evidence, four fundamental requirements as laid down as far back as in 1881 in the judgment reported 60 years later at the suggestion of Rt.
Hon'ble Sir Tej Bahadur Sapru i.e. 1941 All ALJR 416, Queen Empress v . Hoshhak may be re- emphasised :- I. That the circumstances from which the conclusion is drawn be fully established; II. That all the facts should be consistent with the hypothesis of guilt; III. That the circumstances should be of a conclusive nature and tendency; IV. That the circumstances should, by a moral certainty , actually exclude every hypothesis but the one proposed to be proved;"
65. In "Kehar Singh v . State" (cited supra) Jagannatha Shetty , J., has analysed this particular section as follows: "278. From an analysis of the section, it will be seen that Section 10 will come into play only when the court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence. There should be, in other words, a prima facie evidence that the person was a party to the conspiracy before his acts can be used against his co conspirator. Once such prima facie evidence exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was first entertained, is relevant against the others. It is relevant not only for the purpose of proving the existence of conspiracy, but also for proving that the other person was a party to it."
68. Section 10 of the Evidence Act is based on the principle of agency operating between the parties to the conspiracy inter se and it is an exception to the rule against hearsay testimony. If the conditions laid down therein are satisfied, the act done or statement made by one is admissible against the co conspirators."
66. In "Sardul Singh Caveeshar v . State of Bombay " (AIR 1957 Supreme Court 747), it was held: "The principle underlying the reception of evidence under Section 10 of the Evidence Act of the statements, acts and writings of one co conspirator as against the other is on the theory of agenc y. The rule in Section 10 of the Evidence Act, confines that principle of agency in criminal matters to the acts of the co-conspirator within the period during which it can be said that the acts were in reference to their common intention `that is to say' things said, done or written, while the conspiracy was on foot `and' in carrying out the conspiracy . It would seem to follow that where, the charge specified the period of conspiracy , evidence of acts of co-conspirators outside the period is not receivable in evidence."11
67. The Supreme Court of India in "Central Bureau of Investigation v. V.C. Shukla and Ors." (1998) 3 SCC 410, held: "40. ... ... .In dealing with this Section in Sardul Singh v. State of Bombay, 1957 CriLJ 1325, this court observed that it is recognised on well-established authority that the principle underlining the reception of evidence of the statements, acts and writings of one co-conspirator as against the other is on the theory of agency. Ordinarily, a person cannot be made responsible for the acts of others unless they have been instigated by him or done with his knowledge or consent. This section provides an exception to that rule, by laying down that an overt act committed by any one of the conspirators is sufficien t, (on the general principles of agency) to make it the act of all. But then, the opening of words of the Section make s in abundantly clear that such concept of agency can be availed of, only, after the Court is satisfied that there is reasonable ground to believe that they have conspired to commit an offence or an actionable wrong. In other words, only when such a reasonable ground exists, anything said, done or written by any one of them in reference to their common intention thereafter is relevant against the others, not only for the propose of proving the existence of the conspiracy but also for proving that the other person was a party to it. In Bhagwan Swarup v . State of Maharashtra, 1976 CriLJ 860 , this court analysed the section as follows:- "(1) There shall be a prima facie evidenc e affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the cons piracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a co conspirator and not in his favour ." (Emphasis Supplied)
68. In the case "Mohd. Khalid v. State of West Bengal " [2002(7) SCC 334], Supreme Court of India stated the legal position thus: "We cannot overlook that the basic principle which underlies Section 10 of the Evidence Act is the theory of agency .
Every conspirator is an agent of his asso ciate in carrying out the object of the conspiracy . Section 10, which is an exception to the general rule, while permitting the statement made by one conspirator to be admissible as against another conspirator restricts it to the statement made during the period when the agency subsisted. Once it is shown that a person became snapped out of the conspiracy , any statement made subsequent thereto cannot be used as against the other conspirators under Section 10."
69. Adrian Keane and Paul McKeown in their book "The Modern Law of Evidence" (9th Edition, Oxford University Press, London, 2011, pp 398 400) have made exhaustive discussion on the issue of admissibility confessional statement/statement of an accused against co-accused. They have categorised three exceptions to the general rule (as to inadmissibility). The third exception relates to case in hand. They observe:- "The third exception, which is perhaps best understood in terms of implied agency, applies in the case of conspiracy: statements (or acts) of one conspirator which the jury is satisfied were said (or done) in the execution or furtherance of the common design are admissible in evidence against another conspirator, even though he was not present at the time, to prove the nature and scope of the conspiracy, provided that there is some independent evidence to show the existence of the conspiracy and that the other conspirator was a party to it. Thus in R v Blake and Tye, where the accused were charged with conspiracy to pass goods through the Custom House without paying duty, it was held that whereas a false entry by T in a counterfoil of a cheque, by which he received his share of the proceeds of the crime, was not admissible against B because it was not made in pursuance of the conspiracy, but simply as a matter of record and convenience, another false entry by T in a day book could be used in evidence against B since it was made in the execution or furtherance of their common design. It does not matter in what order the evidence of the statements (or acts) of the conspirator and the 'independent evidence' is adduced. Evidence of the statements (or acts) may be admitted conditionally, ie conditional upon some other evidence of the common design being adduced; if it transpires that there is no other evidence of common design, then the statements (or acts) should be excluded.
R v Blake and Tye was applied in R v Devonport, in which the prosecution were allowed to rely on a document, dictated by one accused, which showed the proposed division of the proceeds of the conspiracy among all five accused. The following elaborations on the principle derive from R v Platten. (1) The exception does not cover narrative, after the conclusion of the conspiracy , describing past events. (2) It covers statements made during a conspiracy and as part of the natural process of making the arrangements to carry it out, which are admissible not just as to the nature and extent of the conspiracy , but also as to the participation in it of persons absent when the statements were made. (3) Such statem ents can be admitted against all the conspirators even if made by one conspirator to a non-conspirator . (4) Statements about a conspirator having 'second thoughts' would be made in furtherance of the common design, because it is typical of a conspiracy for one conspirator to have doubts and to be persuaded by his co-conspirators to forget them. (5) Statements made before a conspirator was alleged to have joined the agreement can only be evidence of the origin of the conspiracy , not evidence of his part in it."
70. From our above survey it may be summarized that Sections 120-A and 120-B were introduced in the Penal Code by way of amendment in the year 1913. Underlying purpose was to make a mere agreement to do an illegal act or an act which is not illegal by illegal means punishable under law. For an offence punishable under Section 120-B, prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act; the agreement may be proved by necessary implication. It is not necessary that all the conspirators must know each and every detail of the conspiracy. It will be difficult to get direct evidence of the agreement, but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. If encouragement and support which co-conspirators gives to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. Mostly, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The exact period when the conspiracy was hatched can be spelled out. It is not always possible "to give affirmative evidence" about the date of formation of the criminal conspiracy. Usually both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. Moreover, there is distinction between the conspiracy and offences committed pursuant to conspiracy. Conspirators who did not commit the offence are liable for the offence committed by some of them in execution of the common design.
71. It appears that the learned trial court was not fully conversant with the princip le of law of criminal conspiracy and how the conspiracy will be inferred and in order to prove the case of conspiracy , normally no direct evidence is available and inference is to be drawn through circumstantial evidence. The court below has not passed any order that newspapers are not piece of material to be ignored, rather the court took defence point of view that these statements were political in nature and there was no intention of these persons to have conspired. The Court adopted a different approach while direc ting summoning of Muhammad Usman (DCO), Tahir Mehmood Chandio and Ali Abbas (TMO).
72. It has been argued by Mr. Azam Nazir Tarrar, Advocate and his team that allegation against his client is of having conspired the occurrence, however, no such information was previously provided in FIR No.696/2014 which was registered on 28.08.2014 and even after a considerable delay this fact was not disclosed in the application filed before JOP. He argued that the complainant party made a number of applications to Respondent police high ups and they had exhibited confidence in them. Therefore, in the given circumstances, delay is to be considered fatal to the case of the complainant. He argued further that action of the police force was taken under the authority of law with complete bona fide and same is protected by Section 79 of Pakistan Penal Code 1860 and Article 171 of e Police Order, 2002 (C.E. Order No.22 of 2002).
73. I would like to address the issue of "good faith" first. There is no cavil to the proposition that "acts or omissions" done by a public servants in good faith, bona fide or with legal justification are protected under the law. However , at the same time, it is relevant to observe that these stances may be offered as a defence in the appropriate proceedings and ordinarily do not bar the initiation of proceedings out rightly . In the case "State of Orissa v.
Bhagaban Barik " (1987 AIR (SC) 1265) the Supreme Court of India observed:- "3. Section 79 of the Indian Penal Code provides that nothing is an offence which is done by any person who is justified by law, or who by reason of mistake of fact and not by reason of mistake of law, in good faith, believes himself to be justified by law, in doing it. Under this section, although an act may not be justified by law, yet if it is done under a mistake of fact, in the belief in good faith that it is justified by law it will not be an offence. Such cases are not uncommon where the Courts in the facts and circumstances of the particular case have exonerated the accused under section 79 on the ground of his having acted in good faith under the belief, owing to a mistake of fact that he was justified in doing the act which constituted an offence. As laid down in section 52 of the Indian Penal Code, nothing is said to be done or believed in good faith which is done or believed without due care and attention.
The question of good faith must be considered with reference to the position of the accused and the circumstances under which he acted. 'Good faith' requires not logical infallibility but due care and attention. The question of good faith is always a question of fact to be determined in accordance with the proved facts and circumstances of each case ."
In the case "Oriental Insurance Co. v. State of Bihar , (Patna)(DB) " (2004(2) PLJR 458) Patna High Court observed:- "[---]The plea of 'good faith', therefore, is not a ground on which alone the prosecution can be quashed at the threshold stage itself . It is in the nature of defence which an accused may take in a criminal case and, therefore, whether under the General Insurance Business Act read with the General Clauses Act or under the Indian Penal Code when the question arises as to whether the particular act was done in good faith within the meaning of Section 38 of the General Insurance Business Act, the party taking such defence is required to prove it by evidence. "
In the case "Assistant Commissioner Anti Evasion Commercial Taxes, Bharatpur v. M/s Amtek India Limited "
(2007(1 1) SCC 407) Supreme Court of India held in express terms:- "10. Whether an act has been done in good faith would depend upon the factual scenario. In order to establish "good faith", it has to be established that what has been imputed concerning the person claiming it to be so, is true. "
In the instant case, it is very much unclear as to, "what was the legal mandate of police to use the force? Whether the magnitude of such mandate was proportionate to the object to be achieved? Whether such mandate was exercised within the legally prescribed limits?" These all are the questions of facts and may be adjudicated upon at the appropriate stage of the proceedings keeping in view the defence of fered for the same.
74. The second argument of Azam Nazir Tarrar Advocate learned counsel for the petitioners that complainant were addressed number of applications to the police officers and hence, he had expressed confidence in them and the allegation as to their involvement is afterthought. This argument is misconceived on the very premise that complainant party moved various applications to various State Agencies and in the same way application was moved to the head of the Department of police i.e. Inspector General of Police in his official capacity , not to the petitioner in Criminal Revision No.7067/2017 in his personal capacity . Suffice it to say that to move an application to register a criminal case against an SHO is addressed to the Station House Officer even he may himself be an accused.
75. Now, I would like to discuss the alleged delayed introduction of allegation of criminal conspiracy . From the documents placed on the direction of this Bench by the learned PG and his tea m it appears that the occurrence commenced in the midnight of 16/17.03.2014. First FIR was registered on 17.06.2014 by SHO Rizwan Qadir and second FIR was registered on 28.06.2014 and per report and documents placed on the file application was filed on 19.06.2014 before the police and then on the same facts without any addition or deletion application was moved before the learned Ex-of ficio Justice of Peace and accordingly second FIR was registered on the basis of same allegations. I will not like to further comment on this aspect as it may prejudice the rights of the parties, sufficient to observe that in the application moved on 19.06.2014 it was carried out and ultimately the FIR was registered wherein it was written :- {{URDU TEXT}} From above reproduced excerpt from FIR No.696/2014 registered on the application of Jawad Hamid as well application dated 19.06.2014 filed by the same complainant before the police authorities; it appears that in the FIR as well as application same words have been written. It therefore appears that from the very beginning the complainant party was levelling allegation of conspiracy against the Chief Executive of the country and Chief Executive of the province along with other political personalities, Federal and Provincial ministers and senior bureaucrats and it was investigating agency which, later on, had to record evidence of the witnesses and collect all the evidence to dig out the truth. Although the learned PG submits that the witnesses were summoned again and again yet they did not appear before the investigating agency . On the other hand, as discussed above, in the complaint it is stated that the witnesses appeared before the JIT and their statements were not recorded and further mentioned that they moved number of applications for constitution of a new JIT as they had no confidence on the JIT constituted by the government. When these facts are examined, prima facie the stance of the complainant appeals to mind that JIT had not recorded their statements and for the same reason details of the facts were for the first time narrated before the court during recording of cursory evidence. There is nothing on the record that witnesses of abetment (Khuram Nawaz Gandapur & Fayyaz Ahmad Chaudhry , Muhammad Tayyab Zia Norani and Hafiz Muhammad Waqar who had heard I.G Police, earlier before any authority deposed different as to their statements in the proceedings during complaint before the court, hence, their statements for the first time surfaced and could not be brushed aside simply on the ground of having no supporting documentary evidence. Our apex court and the superior courts of many other foreign jurisdictions in a number of judgments, as we have discussed above, are of the view that normally there is no direct evidence as to the proof agreement between the conspirators and from the circumstances of the case inference is to be drawn. This important aspect has altogether been ignored by the learned Trial Court while passing the impugned order .
76. There is another important aspect of the case that the FIR is not substant ive piece of evidence, it is just information of an offence which is provided in FIR No.610/2014 and allegations of abetment have been levelled. It is duty of the IO to dig out the truth and collect all evidence and not to bank upon the complainant alone. Quite recently , August Supreme Court in "Mst. SUGHRAN BIBI Versus The STATE" (PLD 2018 SC 595), has held that each and every detail is not required to be provided in the FIR. It is not requirement of law that the complaint should provide full details to canvass the whole scene of the occurrence, describe the weapon of offence, number of witnesses, motive, the role played by the accused or details of the conspiracy . The relevant portion of FIR states:- {{URDU TEXT}} Moreover , in case of "Ali Muhammad and others v . Syed Bibi and others " (PLD 2016 SC 484 ) it was held:- "10. As could be seen from the plain reading of above reproduced provision of law, the requirement of Section 154 of the Code is to enter every information of commission of a cognizable offence, whether given orally or in writing to the officer-in-charge of the police station, which shall then be reduced into writing and signed by the person giving it and the substance thereof shall be entered in a book to be kept by such officer in the form prescribed by the Provincial Government in this behalf. Meaning thereby, that it is not a legal requirement for provider of such information to canvass the whole scene of occurrence of a cognizable offence giving description and details of accused, details of weapons used by them, their specific role, motive behind the occurrence, and the names of eye-witnesses etc. But it is a matter of common experience that usually the entries made in Section 154 of the Code book, as per practice, contain invariably all such details so much so that in the ordinary parlance/sense it is considered as the gist of the prosecution case against the accused. In such state of affairs, if a collusive, mala fide or concocted FIR, registered at the instance of some individual with some ulterior motive, is taken as sacrosanct, it is likely to divert the whole course of investigation in a wrong direction and spoil the entire prosecution case on that premise. The Court while considering the crucial point of registration of another FIR cannot remain oblivious of these ground realities so as to non-suit the aggrieved party from agitating his grievance in an honest manner, or ensure regulating proper investigation of a crime in the right direction, or apprehend the real culprits and brought them before the Court of law for justice."
77. In line with the above referred judgment, a three member Bench of honoura ble Supreme Court, in the case "Mst. SUGHRAN BIBI V ersus The ST ATE" (PLD 2018 SC 595 ), held:- "(i) According to section 154, of the Code an FIR is only the first information to the local police about commission of a cognizable offence. For instance, an information received from any source that a murder has been committed in such and such village is to be a valid and sufficient basis for registration of an FIR in that regard.
(ii) If the information received by the local police about commission of a cognizable offence also contains a version as to how the relevant offence was committed, by whom it was committed and in which background it was committed then that version of the incident is only the version of the informant and nothing more and such version is not to be unreservedly accepted by the investigating officer as the truth or the whole truth.Upon registration of an FIR a criminal "case" comes into existence and that case is to be assigned a number and such case carries the same number till the final decision of the matter .
(iii) During the investigation conducted after registration of an FIR the investigating officer may record any number of versions of the same incident brought to his notice by different persons which versions are to be recorded by him under section 161, of the Code in the same case. No separate FIR is to be recorded for any new version of the same incident brought to the notice of the investigating officer during the investigation of the case."
78. Hence, in the first application moved on 19 July, 2014 they have provided the information and it was duty of the concerned investigating agency to dig out the truth, call the witnesses and collect the material in this respect.
It appears that when the petitioner was not satisfied with the investigation as senior officers and political high-ups were involved and complainant was of the view that fair independent JIT had to be constituted, and after his failure he filed this complaint and disclosed the facts in detail. The observations of trial court for disbelieving the cursory statements on the ground that they had not provided number of the vehicle, colour of the vehicle, number of the building where meeting was convened, CDR was not placed on the record or the way of departure was not mentioned, does not appeal to reason. It appears that the court was considering the case with the angle of the defence. Qanoon-e-Shahadat Order 1984, provides opportunity of cross examination under section 151 QSO to impeach credibility of the witnesses and even the court itself did not put questions to the complainant or his witnesses while recording their cursory statements to get detailed information. Such observations have no legal support at all. The court while passing the impugned order ignored the provisions of QSO which although lay down strict principle for proving a case yet where there is allegation of criminal conspiracy then the principle applicable to normal cases would not be applied and the rule embodied in Article 23 QSO would come into play.
79. Another reason advanced by the learned trial court is that holding of three meetings were not flashed in the electronic or print media and same were also not disclosed in FIR No.696/2014. I cannot lose the sight of the fact that Dr. Tahir ul Qadri along with his allies had expressed his intention to launch a campaign against the government. The said declaration made the Federal and Punjab Governments perturbed. In such circumstances, if some secret meetings were held between the two political parties, this was nothing unusual.
Secret meetings especially in our country are not a new dimension. In order to prevent any sort of distrust amongst their followers, if any political party thought of not making such secret meeting public, there does not appear to be any serious wrong with it. Therefore, the reasoning advanced by the learned trial court is totally alien to our social context. At the same time it appears that the court did not fulfil its obligation to determine truth or falsehood and even the court did not examine the report under section 173 Cr.P.C. and report of the JIT in the state case registered regarding the same occurrence. The report of JIT is equated with report under section 173 Cr.P.C. in a recent judgment of the apex Court in the case "PROVINCE OF PUNJAB through Secretary Punjab Public Prosecution Department and another Versus MUHAMMAD RAFIQUE and others" (PLD 2018 SC 178) held:- "13. The learned counsel has mainly relied upon the report of JIT and also read certain paragraphs therefrom but the said report is an opinion of the members of JIT, and it can be considered, at the most as a report under Section 173 Cr.P.C. It is settled by now that report under Section 173, Cr.P.C. is inadmissible in evidence, as laid down by this Court in the case of Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550). The trial Court will appreciate the same if supported by some admissibleth material/evidence because the Court has to see the material and cannot decide the case upon any opinion of Police Officer/s, even of a high rank of Inspector General of Police." [Emphasis added] After conclusion of hearing of this case when trial court was asked whether there is any JIT report available on its record, it was reported in the negative, whereas the learned PG and his team submitted all JIT reports informing that all these were part of the police files already submitted before the learned trial court. It therefore, appears that the court even did not bother to examine JIT report and material collected by them. The JIT report establishes that meeting of 16 was held and such meeting is corrobora ted by one witness who heard statement of the witnesses before the tribunal and in said meeting it has been admitted that all high ups were present, matter about removal of barrier was discussed along with overall situation of the country , but i) No attempt was made by the learned trial court to probe about minutes of the meeting, ii) no attempt was made to probe that barriers on other roads of Lahore city were also removed or not, whereas it is admitted position that so many roads had been cleaned from barriers recently by the orders of the Hon'ble Supreme Court of Pakistan and by the orders of this Court. iii) Meeting is admittedly part of the JIT, but courts failure to examine those parts especially that he failed to fulfil his liability under section 202 of the Code or where big political figures or bureaucrats were the persons complained against, principle of law has been violated by the court. iv) The court also did not discuss that according to JIT report more than five hundred police men were present, along with police, private persons were also there, one of whom is Gullu Butt who has been separately tried and sentenced and video clips show that one SP rank officer could be seen embracing him. Therefore, such large number of police contingent and private persons under the command of the D.I.G Police was not required just for the removal of barriers. Further it has also come on record that occurrence spread over a vast area of bout 2 /2 kilometre radius. The Chief Minister had joined JIT proceedings on 14.03.2015 and told that he asked his secretary to disengage; the secretary joined JIT proceedings on 15.03.2015 and submitted that he had conveyed this message to the law minister and the Law Minister submitted before the JIT that he onwards directed the CCPO to complete the task. The post mortem reports and MLCs show that lot of injuries were caused after 9/20 a.m. All these aspects established during JIT, are material as required by the law and admissible in evidence under Article 23 QSO. In this situation, another important aspect is that as a normal course government agencies carry out their such operations like removal of barricades in broad day light but here in this case no justifiable explanation has come on the record as to what forced the police or what was the urgency so as to rush to the troubled area at about 12.00 midnight and that too while armed with heavy weaponry, especially when the opposite party at the most had batons with them. All these facts when considered, lead us to infer that same were continuation of one mind set.
Although it has come on the record that two police men also sustained fire arm injuries, but admittedly those were simple in nature. However we would not like to further comment on the veracity of such injuries. Such brutality unleased by the police against unarmed men, with whom they also had no enmity, just for the purposes of removing the barriers, is sufficient to infer something seriously wrong or fishy and when these facts are read along with statements of Shahbaz Sharif, Rana Sana Ullah, Secretary to Chief Minister Syed Tauqeer Shah and Secretary Home Major Azam Suleman, during investigation of case FIR No.696/2014, an inference in favour of the stance taken by the complainant becomes obvious.
80. A news item was flashed in number of newspapers and there is no rebuttal from any authority that why does the flight boarding Dr. Tahir ul Qadri bound for Rawalpindi was diverted to Lahore? As discussed earlier , these clippings were relevant material and trial court was bound to consider the same at inquiry stage. However , the learned trial court:- i) Did not bother either to hold inquiry itself or get the matter investigated on the lines that how many flights on the crucial date were diverted? ii) What were the weather conditions on the said date? Whether report from meteorology department was called for? iii) What was the justification behind diversion of the flight?th 1 iv) Whether "Tarmac" where the said flight landed after diversion was under the control of Civil Aviation? If not then why?
Such material was beyond the reach and access of the complainant and the trial court could have call for the same in the inquiry proceedings or it conveniently , could have directed the investigation under Section 202 of the Code.
81. From the above discussions, especi ally the principles derived from the judgments of the Hon'ble Supreme Court of Pakistan and the High Courts, I am convinced that sufficient material for summoning of the petitioner in Criminal Revision No.7067/2017 was available before the learned trial court and I could not find out any illegality , irregularity or jurisdictional defect in the impugned order to his extent. Moreover , the said petitioner also has a remedy before the learned trial court to move an application under section 265-K Cr.P.C. for redress of his grievance; therefore, Criminal Revision No.7067/2017 is dismissed.
82. Criminal Revision No.9027/2017 is allowed, the impugned order to the extent of non-summoning respondents No.1 to 12 is held to be against law as the sufficiency of material available on file has not been properly appreciated, thus the same is set-aside. The case is remanded to the trial court with the direction that it is duty of the court, during proceedings under section 202 of the Code, to determine the falsehood or truthfulness of allegations levelled in the complaint and in the light of above made observations, the court may hold further inquiry into the matter or get it investigated throu gh any person/agency or a team of exper ts, as the investigation by police officers does not appear to be appropriate exercise for the reason that number of police officers are involved in the case and have already been summoned. While holding so, I am influenced by the judgement "NOOR MUHAMMAD vs THE ST ATE, etc " (2007 SCMR 9), wherein, their lordships held that:- "The burden of proof in a preliminary inquiry for the issuance of process is quite lighter on the complainant as compared to the burden of proof on prosecution at the trial of an offence as the prosecution is to prove the case beyond reasonable doubt and at the preliminary stage the complainant is not required to discharge above heavy burden of proof. The Court cannot overstretch the proceedings as to convert the preliminary inquiry or the averments made in the complaint to a stage of full-fledged trial of the case. It is quite an initial stage whereafter the accused is having the opportunity, apart from showing his innocence in the case at the final stage, to have a recourse of an intermediatory remedy by moving the Court showing the complaint to be false and frivolous one and requesting the Court for his acquittal under section 249-A or 265-K, of the Code prior to further proceeding in the case to be taken. Mere summoning of an accused by the Court to answer the charges levelled against him does not tantamount to any infringement of any right of a person but rather an opportunity afforded to him to explain his position. During the investigation of a F.I.R. case, where the police is empowered to arrest without warrant i.e., in cognizable case, such a process i.e., arrest etc. is resorted to by the police, even in a case where the person accused of the charge pleads innocence before the police and he succeeds in his efforts to some extent and the police agrees with him, yet before any recommendation by the police for his discharge an insistence is made on his surrender before the authorities/Courts. The possibility of accusation turning out to be false or frivolous at the trial should not overbear the Court from issuing the process if the material available, prima facie discloses the case against the accused. At this stage a protracted inquiry or full dress rehearsal of trial is not required." [Emphasis added]
83. In the meanwhile, to avoid complexity and multiplicity of the trial, the proceedings of the case to the extent of already summoned accused persons shall stand suspended till the conclusion of inquiry/investigation as already directed. Afterwards, if the remaining persons complained against are summoned by the trial court, it shall hold denovo trial and if it does not find sufficient grounds to proceed against the remaining persons complained against, then it shall proceed against the already summoned accused persons from its current stage and decide the matter strictly in accordance with law.
84. Before parting with this judgment, I would like to appreciate the legal acumen and the worth exhibited by the learned counsel representing the petitioners and similarly the assistance rendered by the learned Prosecutor General, Additional Prosecutor General and the law officer has also been marvellous. I gratefully acknowledge the material assistance rendered by Lahore High Court Research Centre (LHCRC) headed by Mr. Qaisar Abbas.
Proper and comprehensive assistance of all above, on different and somewhat unique multiple questions of law, helped this Bench to analyse the law in its true perspective.
Aalia Neelum, J. By this revision petition, Muhammad Jawad Hamid (petitioner), who is complainant in a private complaint titled, " Muhammad Jawad Hamid versus Mian Muhammad Nawaz Sharif etc." filed under section 190(1)(a) of the Code of Criminal Procedure Code, 1898 and section 19(3) of the Anti-Terrorism Act, 1997, for offences under sections 302/324, 295-B/452, 395/427, 365/506, 120-B, 148/149, 337-F(vi), 337-C, 337-F(iii), 337-A(v), 337-L(ii), 337 F(i), 337-A(i) Pakistan Penal Code 1860 read with Section 7 of the Anti-Terrorism Act, 1997 and section 155-C of Police Order, 2002 before Special Anti-Terrorism Court, Lahore, challenges order to the extent of non-summoning of respondent Nos. 1 to 12 passed by learned Judge ATC-II, Lahore dated 07-02- 2017.
2. The incident as per the complaint (Ex.P A) took place on 16-06-2014 at 01:00 am (midnight) and continued till forenoon on 17-06-2014. The District administration of Lahore with the help of police attempted to remove the alleged illegal barriers/encroachments on public roads around Minhaj-ul-Quran Academy and its Secretariat in Model Town, Lahore, resulting in clash between police and workers of Pakistan Awami Tehreek. According to the petitioner/complainant, 10 persons lost their lives, whereas, 66 persons sustained injuries. Thereafter, the petitioner/complainant went to the Police Station Faisal Town, Lahore and lodged a complaint, orally. But police refused to lodge the FIR. Rather, on the basis of false and concocted story, on the complaint of SHO of the police station Faisal Town, Lahore a case FIR No. 510 of 2014 (Ex.PMMMMMM/1-3) was registered on 17-06-2014, for offences under sections 302/34, 324/353, 186/148, 149/290, 291/427, 506/B, 109 Pakistan Penal Code (Act XLV of 1860) read with Section 7 of the ATA and under section 13/20/65 under Arms Ordinance, 1965, at police station Faisal Town, Lahore against 52 nominated and unknown accused persons, who are office bearers and workers of Idara Minhaj-ul-Quran and Pakistan Awami Tehreek. After the investigation conducted by JIT, report was filed against 42 civilians and seven police officers/officials. Meanwhile, the petitioner/complainant moved an application under section 22-A, 22-B of Cr.P.C (Ex.PNNNNNN/1-7), for registration of the second FIR as per version of the petitioner/complainant, before learned Ex-officio Justice of Peace/ASJ, Lahore on 04 07-2014. Vide order dated 16-08-2014 (Ex.POOOOOO/4-4) learned Ex-officio Justice of Peace/ASJ, Lahore accepted the application under section 22-A, 22-B of Cr.P.C and directed to the concerned police to register the FIR on the application of the petitioner and then to proceed with investigation under the law.
The order supra was assailed through constitutional petition No. 22661 of 2014 before this Court by respondent No. 7 etc., dismissed by this court vide order dated 26-08 2014 (Ex.PPPPPPP/1-4). Thereafter, FIR No. 696 of 2014 (Ex.PQQQQQQ/1-4) was registered on 28-08-2014 and JIT was constituted by the I.G Punjab Mushtaq Sukhera to carry out the investigation of the case registered at the petitioner's stance. But the members of the JIT carried out dishonest investigation of the case because of the nomination of Prime Minister of Pakistan, Chief Minister Punjab, Federal and Provincial Ministers and high ranked police officials being accused. The JIT challaned only two police officials and no action was taken with regard to principal accused nominated in FIR No. 696 of 2014 (Ex.PQQQQQQ/1-4). The registration of FIR No. 696 of 2014 was result of sit-in made by Dr. Muhammad Tahir-ul-Qadri. As a result of sit-in and negotiation the government promised with the petitioner/complainant and participants of sit-in that the neutral JIT will be formed with the consensus. But the government resiled from its commitment and appointed their favorite officer, who earlier had earlier served under the subordination at Gujranwala and Lahore, to get favorable report. Thereafte r, Pakistan Awami Tehreek got registered their protest, but the government did not provide justice. Then, the petitioner/complainant through letter dated 28-12 2014 asked the I.G Punjab for constitution of neutral JIT, same was ignored. Till the date of filing private complaint, the petitioner/complainant was trying to get the report of judicial commission through legal process, but could not get the same. Hence, private complaint.
3. After recording cursory evidence, vide order dated 07.02.2017 the accused-respondent Nos.13 to 138 in a private complaint were summoned and are facing trial before the ATC, Lahore. Vide the same order dated 07.02.2017 the learned trial court opined that there was no evidence to prove prima facie case against respondent Nos.1 to 12, as such, they were not summoned and their names were ordered to be deleted being respondent Nos.
1 to 12 in the private complaint. The impugned order dated 07.02.2017 to the extent of non-summoning of respondent Nos.1 to 12 is under challenge by the petitioner/complainant through the instant criminal revision.
4. We have heard the learned counsel for the petitioner and learned Prosecutor General Punjab at length. We have also gone through the record annexed with this petition and the copies of relevant documents from both criminal cases pending on the file of Special Judge Anti-Terrorism, Lahore placed on the record by the learned counsel for the petitioner through criminal miscellaneous petitions.
5. It is an admitted position that FIR No. 510 of 2014 (Ex.PMMMMMM/1-3) was registered on 17-06-2014 at Police Station Faisal Town, Lahore on the complaint of Rizwan Qadir Hashmi, Inspector/SHO, police station Faisal Town, Lahore. As per contents of FIR No. 510 of 2014 till lodging of the FIR seven (07) persons lost their lives and 100 persons sustain injuries. Whereas, on the basis of written complaint/application dated 19-06-2014 (receipt of receiving application through dairy No. 657-5B-FT/19-06-2014 and application were placed on the record through C.M. No. 829 of 2018 at pages Nos. 392-A and 392-B available in volume No. 11) of the petitioner/complainant the criminal case FIR No. 696/14, was registered with Police Station Faisal Town, Lahore on 28-08-2014 and private complaint was lodged on 16-03-2016. It is also admitted fact that the petitioner/complainant boycott the investigations conducted by two JITs constituted by the government in above said both cases. The private complaint was filed by the petitioner/complainant with delay of 21 months from the date of occurrence i.e.16/17- 06-2014, and finally with delay of six months and 19 days from the date of first submission of the report under section 173 Cr.P.C in case FIR No. 696/2014 i.e.27-06-2015.
6. Suffice it to point out here that after submission of reports under section 173 of Cr.P.C in FIR No. 510 of 2014 till 14-03-2016 evidence of 40 prosecution witnesses was recorded by the learned trial court. Similarly , after submission of reports under section 173 of Cr.P.C in FIR No. 696 of 2014 till 14-03-2016 evidence of 21 prosecution witnesses was recorded by the learned trial court and the cross-examination upon the witnesses was reserved on the request of the defence counsel (appointed by court) and case was adjourned to 15-03- 2016. Thereafter, on 15-03-2016, the petitioner/complainant filed a private complaint in the Court of Special Judge Anti-Terrorism, Lahore. In this private complaint, the petitioner/complainant nominated 139 accused persons, whereas, in FIR No. 696 of 2014 nominated 23 accused persons. In addition, the petitioner/complainant has mentioned total number of injured persons as 66, whereas in FIR No. 696 of 2014 mentioned 53 persons as injured persons.
7. Before proceeding further we may observe here that we are considering the case only to the extent of respondent Nos. 1 to 12. According to story/roles in the private complaint related to respondent Nos. 1 to 12 is/are as follows:- {{URDU TEXT}}
9. The story/roles, as described by the petitioner/complainant in the private complaint, is certainly not identical with the story as put up by the prosecution in the state case i.e. FIR No. 696/14. For the purpose of present revision petition, it is necessary to take a note of the roles attributed to the respondent Nos. 1 to 12, in the private complaint, much different than the state case. No doubt private complaint is based on the same incident taken place at midnight between 16-06-2014 and 17-06-2014 till forenoon on 17-06-2014 (as per FIR No. 696 of 2014 till 10/11 a.m. on 17-06-2014). The major details regarding the prosecution story to the extent of the roles of respondent Nos. 1 to 12, as mentioned in the private complaint and state case are given above, for the purpose of decision of present revision petition.
10. We have observed that in the State case i.e. FIR No. 696 of 2014 dated 28-08-2014 the petitioner/complainant impleaded respondent Nos. 1 to 9 as accused but no specific role was attributed to them, whereas, respondents No. 10 to 12 were not impleaded as accused. In the private complaint respondent Nos. 10 to 12 have been impleaded.
That has been so, because the petitioner/complainant with some motive has introduced entirely a new story at the time of the filing of the private complaint.
11. The other addition/dif ference is that in paragraphs Nos, 10, 11, 12 and 13 of the private complaint, some additional allegations have been levelled in continuation of the attempt to connect the respondent Nos. 1 to 12 with the incident. The learned Judge Anti Terrorism Court recorded the cursory evidence of four witnesses i.e. the complainant/petitioner (CW-1), Muhammad Shakeel (CW 18), Fiaz Ahmad Warriach (CW-25) and Khurram Nawaz Gandapur (CW -56), in this regard under section 200 and 202 of the Code of Criminal Procedure, 1898.
12. The object of an inquiry under section 202 of the Code of Criminal Procedure is to ensure that no person shall be compelled to answer a criminal charge unless the Court is satisfied that there is a prima facie case against him/them. The law as to the scope and extent of enquiry under section 202 of the Code of Criminal Procedure is well established and same is limited to finding out the truth or otherwise of the complaint in order to determine whether process should be issued or not. Whereas, section 203 of the Code of Crim inal Procedure lays down what materials are to be considered for the said purpose.? According to Section 203 of the Code of Criminal Procedure, if, after considering the statements on oath (if any) of the complainant and of the witness (es) and the result of the inquiry or investigation (if any) under Section 202 of the Code of Criminal Procedure the Court is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing. If, on the contrary , the Court taking cognizance of the offence is of the opinion that there is sufficient cause for proceeding, he should issue process against the accused in accordance with Section 204 of the Code. It may be that the eviden ce which is required to be adduced by the complainant at that stage may not be sufficient to record a finding of conviction, but that fact would not absolve the complainant who wants Court to issue a process against the accused person from leading some credible evidence as may "prima facie " show the commission of the of fence.
13. For ready reference section 200, 202, 203 and 204 of Code of Criminal Procedure 1898 are reproduced below: Section 200 in the Code of Criminal Procedure, 1898
200. Examination of complainant. A Magistrate taking cognizance of an offence on complaint shall at once examine the complainant upon oath, and the substance of the examination shall be reduced to writing and shall be signed by the complainant, and also by the Magistrate: Provided as follows:
(a) when the complaint is made in writin g nothing herein contained shall be deemed to require a Magistrate to examine the complaint before transferring the case under section 192 or sending it to the Court of Sessions.
(aa) when the complaint is made in writin g nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complainant has been made by a Court or by a public servant acting or purporting to act in the discharge of his of ficial duties:
(b) * * * * *
(c) when the case has been transferred under section 192 and the Magistrate so transferring it has already examined the complainant, Magistrate to whom it is so transferred shall not be bound to re-examine the complainant.
Section 202 in the Code of Criminal Procedure, 1898
202. Postponement of issue of process. (1) Any Court, on receipt of a complaint of an offence of which it is authorized to take cognizance, or which has been sent to it under Section 190, sub-section (3), or transferred to it under Section 191 or Section 192, may, if it thinks fit, for reasons to be recorded postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case itself or direct an inquiry or investigation to be made by any Justice of the Peace or by a police officer or by such other person as it thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint.
Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of Section 200.
(2) A Court of Session may, instead of directing an investigation under the provisions of sub-section (1), direct the investigation to be made by any Magistrate subordinate to it for the purpose of ascertaining the truth or falsehood of the complaint.
(3) If any inquiry or investigation under this section is made by a person not being a Magistrate or Justice of the Peace or a police-of ficer, such person shall exercise all the powers conferred by this Code on an officer in-charge of a police-station, except that he shall not have power to arrest without warrant.
(4) Any Court inquiring into a case under this section may , if it thinks fit, take evidence of witnesses on oath.
Section 203 in the Code of Criminal Procedure, 1898
203. Dismissal of complaint. The Court before whom a complaint is made or to whom it has been transferred or sent may dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the result of the investigation or inquiry if any under section 202 there is in his judgment no sufficient ground for proceeding. In such case he shall briefly record his reasons for so doing.
Section 204 in the Code of Criminal Procedure, 1898
204. Issue of process. (1) If in the opinion of a Court taking cognizance of an offence there is sufficient ground for proceeding and the case appears to be one in which, according to the fourth column of the second schedule a summons should issue in the first instance, it shall issue its summons for the attend ance of the accused. If the case appears to be one in which, according to that column, a warrant should issue in the first instance, it may issue a warrant, or, if, it thinks fit, a summons for causing the accused to be brought or to appear at a certain time before such Court or if it has no jurisdiction itself some other Court having jurisdiction.
(2) Nothing in this section shall be deemed to af fect the provision of section 90.
(3) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid, and, if such fees are not paid within a reasonable time, the Court may dismiss the complaint.
14. The scope of inquiry under section 202 of the Code of Criminal Procedure, 1898 is extremely limited only to ascertain the truth or falsehood of the allegations made in the complaint on the materials placed by the complainant before the Court for the limited purpose of finding out whether a prima facie case for issue of process has been made out. It is true that in coming to a decision as to whether a process should be issued the court can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him/them. The Court has been given an undoubted discretion in the matter but the discretion has to be judicially exercised by him. Once the Court has exercised his discretion it is not for the this Court, to substitute its own discretion for that of the Court or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. However, it is clear that to decide whether a process should or should not be issued, the Court has to consider whether the complaint discloses all the essential ingredients of an offence. If the complaint does not disclose any essential ingredient of the offence, that will be a case where the complaint, taken on its face value, does not make out any case for issue of a process.
15. Before proceeding further it is necessary to reproduce for ready reference sections 107, 109, 120-A, 120 B, 503 and 506 of Pakistan Penal Code 1860 below: Sec.107 PPC
107. Abetment of a thing. A person abets the doing of a thing, who: First. Instigates any person to do that thing; or Secondly. Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy , and in order to the doing of that thing; or Thirdly . Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1. A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Illustration.
1. A public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, willfully represents to A that C is Z, and thereby intentionally causes A to apprehend C.
Here B abets by instigation the apprehension of C.
Explanation 2.Whoever , either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.
Sec.109 PPC
109. Punishment of abetment if the act abetted is committed in consequence, and where no express provision is made for its punishment. Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the of fence.
Provided that, except in case of Ikrah-i-T am the abettor of an offence referred to in Chapter XVI shall be liable to punishment of ta'zir specified for such of fence including death.
Explanation: An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation or in pursuance of the conspiracy , or with the aid, which constitutes the abetment.
Illustrations (a) A offers a bribe to B, a public servant, as a reward for showing A some favour in the exercise of B's official functions. B accepts the bribe. A has abetted the of fence defined in section 161.
(b) A instigates B to give false evidence. B, in consequence of the instigation commits that offence. A is guilty of abetting that offence, and is liable to the same punishment as B.
(c) A and B conspire to poison Z. A, in pursuance of the conspiracy, procures the poison and delivers it to B in order that he may administer it to Z. B, in pursuance of the conspiracy, administers the poison to Z in A's absence and thereby causes Z's death. Here B is guilty of murder. A is guilty of abetting that offence by conspiracy, and is liable to the punishment for murder.
Sec.120-A PPC 120A. Definition of criminal conspiracy .
When two or more persons agree to do, or cause to be done,
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.-It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
Sec.120-B PPC 120-B. Punishment of criminal conspiracy
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards shall, where no express provision is made in this Code for the punishment of such a conspiracy , be punished in the same manner as if he had abetted such of fence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
Sec.503 PPC
503. Criminal intimidation.
Whoever threatens another with any injury to his person, reputation or property , or to the person or reputation of anyone in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
Explanation.-A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.
Illustration A, for the purpose of inducing B to desist from prosecuting a civil suit, threatens to burn B's house. A is guilty of criminal intimidation.
Sec.506 PPC
506. Punishment for criminal intimidation. Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc. and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
16. There being no presumption arising out of the above said contents of the private complaint against the respondent Nos. 1 to 12 for the commission of criminal conspiracy , abetment and criminal intimidation of the occurrence. It is beyond the pale of contr oversy , that the respondent Nos. 1 to 12 could not be proceeded against, without the petitioner/complainant having made a prima facie case against them, that they hatched up conspiracy for commission of this occurrence. At least, what is alleged in the private complaint and by the complainant and witnesses got in their cursory statements are not in line with the contents of written complaint/application dated 19-06-2014. It is admitted fact that the petitioner/complainant submitted written complaint/application dated 19-06- 2014 (written complaint/application was placed on the record through C.M. No. 829 of 2018 at page No. 392-B available in volume No. 11) before the S.H.O. police station Faisal Town, Lahore, after two days of the occurrence.
The belated written complaint/application was totally silent about the three (3) meetings allegedly held on 15-06- 2014 and 16-06-2014. Even we observed that as none of the above said witnesses i.e. Fiaz Ahmad Warriach (CW-25) and Khurram Nawaz Gandapur (CW-56) had stated anything regarding the fact that on 15-06-2014 on their return after attending meeting with respondent Nos. 1 to 10 they informed about the conversation/threats issued by the respondent Nos. 1 to 10 to the complainant/petitioner (CW-1). The complainant/petitioner (CW-1) also had not uttered a single word that when and how he came to know about the conversation between Fiaz Ahmad Warriach (CW-25), Khurram Nawaz Gandapur (CW-56) and respondent Nos. 1 to 10 nor he (the petitioner/complainant) mentioned this fact in the private complaint.
17. The allegations leveled in the private complaint are not based on direct knowledge derived from any individual but on conjectures and presumptions. Evidently , conscious of the fact that the respondent Nos. 1 to 12 are not responsible for offence, the complainant has sought aid of sections 109, 120-B and 506 PPC. But, again the petitioner/complainant could not allege necessary facts to show prior meeting of minds of the accused, essential to make out a case of common intention or participation of the respondent Nos. 1 to 12 in any abetment and criminal conspiracy . The allegations do not also make out a case of abetment, criminal conspiracy and criminal intimidation.
It is not a case of mere embellishment; it is an afterthought plea advanced by the petitioner/complainant and is based on motivation. The petitioner/complainant had not mentioned in the written complaint/application (written complaint/application was placed on the record through C.M. No. 829 of 2018 at page No. 392-B available in volume No. 11) submitted before the S.H.O. police station Faisal Town, Lahore on 19-06-2014 that Khurram Nawaz Gandapur (CW 56) was also with at the time of occurrence. The petitioner/complainant mentioned in the written complaint/application dated 19-06-2014 and FIR No. 696/2014 that he along with Hafiz Muhammad Waqar and Muhammad Tayyab Zia was present at Minhaj-ul-Quran, 365 M Model Town, Lahore. They came outside after hearing noise and witnessed that Rana Abdul Jabbar DIG Operation, Tariq Aziz S.P. Model Town along with a large number of police personnel armed with firearm weapons, crane, bulldozers and loader trucks were gathering around the residence of Dr. Muhammad Tahir-Ul-Qadri No.299-M Model Town, Lahore. On his (the petitioner/complainant) asking DIG replied as under: - {{URDU TEXT}} However , the petitioner/complainant (CW -1) in his cursory statement stated as under:- "I along with Khurram Nawaz Ganda Pur, Hafiz Muhammad Waqar s/o Muhammad Ashraf and Tayyab Zia Norani s/o Mumtaz Ahmad went to police officers mentioned above and made known to them that the barriers outside Idara Minahaj-ul-Quran and residence of Dr. Muhammad Tahir-ul-Qadri were installed by the local police under the orders of Hon'ble Lahore High Court, Lahore in respond whereof said police officers stated that they stood ordered by Mian Muhammad Nawaz Shrif, Mian Shehbaz Sharif, Ch. Nisar Ali Khan, Khawaja Saad Rafiq and Rana Sana Ullah to cause the removal of barriers as well as hurdles from M-Block Model Town, Lahore by all means and to eliminate the family members of Dr. Muhammad Tahir-Ul-Qadri as well as their followers in case of resistance whereupon I along with my companions mentioned above protested."
18. However , from the cursory statement of Khurram Nawaz Gandapur (CW-56) it reveals that he (CW-56) was present at the time of occurrence, but he did not utter a single word that he informed about the meeting held on 15 - 06-2014 after maghrib prayer to the petitioner/complainant before the occurrence or soon after the occurrence.
This creates doubt regarding the authenticity of the allegations leveled by Faiz Ahmad Warriach (CW-25) and Khurram Nawaz Gandapur (CW-56). As the petitioner/complainant came forward with his version in writing through complaint/application dated 19-06-2014 (written complaint/application was placed on the record through C.M. No. 829 of 2018 at page No. 392-B available in volume No. 11) wherein presence of Khurram Nawaz Gandapur (CW-56) and any conversation taken place in between Khurram Nawaz Gandapur (CW-56) and police officers in the presence of the petitioner/complainant was not mentioned.
19. On the other hand, the petitioner/complainant has specifically mentioned in the private complaint that soon after the occurrence he orally lodged complain t to the S.H.O. of concerned police station. But the case FIR No. 510 of 2014 was lodged on the complaint of S.H.O of police station Faisal Town, Lahore. This fact is contrary to the contents of written complaint/application dated 19-06-2014 and FIR No. 696/2014 wherein the petitioner/complainant had not mentioned that earlier he (the petitioner/complainant) had made oral complaint regarding the occurrence to SHO of concerned police station, but his statement was not recorded. It will be relevant to mention here that, this is not the case of the petitioner/complainant that above said application was not moved by him or the contents of the FIR No. 696/2014 were not in line with the contents of above said application/complaint. Relevant portion of the FIR No. 696/2014 at the cost of repetition is reproduced below: {{URDU TEXT
20. It is not a case of mere exaggeration, rather, the plea now advanced is clearly an afterthought to the extent of respondent Nos. 1 to 12. Interestingly, in the written complaint/application for registration of case dated 19- 06 2014, no definite roles are ascribed to the respondent Nos. 1 to 9 and respondent Nos. 10 to 12 have not been arrayed as accused for hatching up conspiracy/abetment.
21. In the absence of the existence of ingredients to constitute the alleged offence of criminal conspiracy , abetment and criminal intimidation, we are of the opinion that proceeding against the respondent Nos. 1 to 12 on the basis of such complaint would be abuse of process of court. We are of the opinion that the respondent Nos. 1 to 12 cannot summoned by invoking section 120-B or section 109 and 506 PPC. The words allegedly stated by the respondent Nos.1 to 10 during the meeting held on 15-06-2014 do not constitute commission of offence of criminal conspiracy , abetment and criminal intimidation. The petitioner/complainant miserably failed to prove the prima-facie existence of factual ingredients constituting the of fence falling under sections 107, 120-A and 503 PPC.
22. Though, the petitioner/complainant boycott the investigations conducted by the two JITs formed in above said two cases as well as proceedings of one man tribunal of inquiry constituted on 17-06-2014 by the Honorable Chief Justice of Lahore High Court on the request of the Government of the Punjab for inquiry and to ascertain the facts and circumstances of the incident at Minhaj-ul-Quran Academy and Secretariat in Model Town, Lahore. But it is admitted fact that the one man tribunal of inquiry submitted report with the competent Authority on 09-08-2014, whereas FIR was lodged on 28-08-2014. Wherein, any information given by Muhammad Shakeel son of Abdul Rasheed (CW-18) to the petitioner/complainant about the alleged confession made by the respondent Nos. 4, 9 to 12 was not mentioned nor in the private complaint it was mentioned by the complainant/petitioner (CW-1) that when Muhammad Shakeel son of Abdul Rasheed (CW-18) and Mahboob Hussain Ch. Advocate High Court informed him (the petitioner) about the alleged confession made by the respondent Nos. 4, 9 to 12. Besides, Muhammad Shakeel son of Abdul Rasheed (CW-18) in his cursory statement has not mentioned that when and where he heard alleged confession made by the respondent Nos. 4, 9 to 12 and when he informed the petitioner/complainant about said alleged confession. Even otherwise the statement made by any person before the commission of Inquiry is inadmissible in evidence in any future proceedings, civil or criminal. For ready reference section 6 of the Punjab Tribunals of Inquiry Ordinance, 1969 are reproduced hereunder:
6. Statements made by persons to the T ribunal: No statement made by a person in the course of giving evidence before the Tribunal shall subject him to, or be used against him in, any civil or criminal proceedings except a prosecution for giving false evidence by such statement: Provided that the statement:
(a) is made in reply to a question which he is required by the Tribunal to answer; or
(b) is relevant to the subject matter of inquiry.
23. Besides, at no point of time, till registration of case, it was the version of the petitioner/complainant that he also attended the meeting chaired by Rana Sana Ullah. Even in the private complaint the petitioner/complainant had not mentioned that he also attended the meeting chaired by Rana Sana Ullah on 16-06-2014. However, during cursory statement the petitioner/complainant (CW-1) stated that he attended the meeting chaired by Rana Sana Ullah on 16-06 2014. The following excerpt of his cursory statement reads as under:- "On 16.06.2014, a special meeting was convened under the chair of Rana Sana Ullah Minister which was attended by the complaint against respondents No.10 to 16 and 18 wherein the planning was made to implement the decision having been taken by Mian Muhammad Nawaz Sharif, Shehbaz Shar if, Hamza Shehbaz and others regarding the arrival of Dr. Muhammad Tahir-ul-Qadri and it was unanimously resolved that the Government officials would visit M-Block Model Town, Lahore under the garb of removing barriers and would launch a massive attack on Idara Minhaj-ul-Quran and whosoever would cause hurdle to achieve the aforesaid object he would be crushed."
24. The petitioner/complainant has not uttered even a single word in his cursory statement about the contents published in different news papers on 05-05-2014, 01-06 2014, 02-06-2014, 03-06-2014, 06-06-2014, 09-06-2014 and 19 06-2014. The alleged statements of the respondent Nos. 4 and 5 are averred in para No. 9 of the private complaint, at the cost of repetition same is reproduced herein below: {{URDU TEXT}} Even, the complainant/petitioner (CW-1) had not mentioned above said facts in the FIR. Although, the petitioner/complainant reported the occurrence through written application/complaint after two days of the occurrence.
25. The claimed media reports are not part of the FIR, although the written complaint/application for registration of case was submitted on 19-06-2014. It is settled law that the news papers cuttings or video recording of the statements of accused, has to be proved by the author or creator and none of the author or creator was named as witness in the calendar of the witnesses. No date, time, name of the program aired, names of the channels flash above said alleged statements and the names of the channels recorded above said alleged statements accept Minhaj TV had been mentioned in the private complaint as well as stated by Kashif Saeed son of Muhammad Saeed (CW -53) in his cursory statement. Relevant part of deposition is re-produced herein below:- "In retaliation of the pronouncement of the Dr. Muhammad Tahir Ul Qadri, Rana Sana Ullah provincial Minister and federal Minister Khawaja Saad Rafique replied and loudly pronounced that if Dr. Muhammad Tahir Ul Qadri shall come to Pakistan then his "giant" (Jinn) shall be removed and they have prepared "DHOONI" which shall be given to him. This replies of Rana Sana Ullah and Khawaja Saad Rafique was flashed in the media and it was also recorded by the different TV channels along Minhaj TV and I prepared the CD from the same and it presented before this court which is P.7 which is true and original copy of the statements of Rana Sana Ullah and Khawaja Saad Rafique.
On 15.06.2014 Mian Muhammad Nawaz Sharif and Mian Muhammad Shahbaz Sharif meet at Jati Umra Raiwind Lahore and they discussed the arrival of Dr. Muhammad Tahir Ul Qadri in Pakistan to agitate against their governments which was also flashed in the electronic and print media."
No authenticity to the newspapers cuttings could be given. Reliance is placed on the judgment of the Honorable Supreme Court of Pakistan titled, "Malik Muhammad Mumtaz Qadri versus The State and others" reported as PLD 2016 Supreme Court 17 .
26. The petitioner/complainant had also not mentioned specific date, time and name of the aircraft, which was diverted to Lahore Airport from Islamabad in the private complaint nor stated in his statement made on oath as CW-
1. Even the petitioner/complainant had not mentioned a single word in this regard in the FIR No.696/14 dated 28- 08-2014. Relevant part of deposition of the petitioner/complainant (CW -1) is as follows:- "The aforementioned conspiracy and abetment on the part of Prime Minister of Pakistan, Chief Minister and others is reflected from the fact that the aircraft of Dr. Muhammad Tahir-ul-Qadri was not allowed to be landed at Islamabad airport rather the same was diverted to Lahore Airport and the aforesaid act on the part of the government has not yet been justified. The clips of daily newspapers are also made available on the file in support of aforesaid contention."
That the statement of the petitioner/com plainant (CW-1) does not disclose the ingredients essential for criminal conspiracy and abetment. The petitioner/complainant (CW-1) had not stated in his statement that any complaint was lodged by any of the passengers or members of crew of the aircraft. Thus the rule of "res gesta" in terms of provisions of Article 19 of Qaunu-e-Shahadat is also not attracted in the instant case.
27. In above said circumstances, the order of non-summoning the respondent Nos. 1 to 12, does not suffer from any illegality as learned Judge ATC-II, Lahore has examined all the witnesses which the petitioner/complainant desired to produce and intended to rely upon. There has thus been substantial compliance of the provisions of Section 202 of Cr.P.C. Learned counsel for the petitioner also stated at the bar that the complainant relied upon the evidence of witnesses produced and that he did not desire to produce or examine any other witness. It is, thus, quite evident that learned Judge ATC-II, Lahore recoded the witnesses which the petitioner/complainant desired to produce and intended to rely upon and thus there was compliance of provisions of Section 202 Cr.P.C. The allegations averred in the private complaint and stated by the witnesses i.e. Muhammad Shakeel (CW-18), Ahmad Warriach (CW-25), Kashif Saeed (CW-53) and Khurram Nawaz Gandapur (CW-56) included petitioner/complainant (CW-1) on oath were found to be afterthought and does not disclose essential ingredients for constituting the offences punishable under section 409, 120-B and 506 PPC. Thus, issuance of process would require availability of proof in terms of Articles 117, 118, 119 and 121 of the Qanun-e-Shahadat Order , 1984. It may not be proper for this Court to enter into reasoning for non-summoning the respondent Nos. 1 to 12 as accused at this point of time when no allegation is made against the respondent Nos 1 to 12 and proceeding against the respondent Nos 1 to 12 on the basis of such complaint would be abuse of process of court. So, in the present case, in above said circumstances, the matter cannot remanded to the learned trial court for the purpose of further enquiry in specified manner. Considering the manner in which the case has been set up, the inconsistent stand taken by the petitioner/complainant, it is found that the learned Judge Anti-Terrorism Court have applied his mind while recording order of non-summoning respondent Nos. 1 to 12 as accused and, therefore, it cannot be said that the reasoning given for non summoning respondent Nos. 1 to 12 as accused by the learned Judge Anti-Terrorism Court is illegal and perverse. We may observe that the order passed under section 204, Cr.P.C., is not a judgment and can be reviewed by the Court, seized with the matter, if some incriminating material is brought on the file during trial. Admittedly, the Court takes cognizance of the case as a whole and not regarding some of the accused, thus, the Court was not debarred to summon a person to face trial if convincing incriminating material is brought on the file. The provisions of section 540, Cr.P.C., can also be pressed into service, during trial, if fresh incriminating material comes to the knowledge of the complainant. Reliance is placed on the cases reported as "Raja Khush Bakhtur Rehman and another versus The State" (1985 SCMR 1314), "Muhammad Sharif versus The State and another" (1995 SCMR 894) and IIIqbal Hussain Shah and another versus The State and 3 others" (2012 PCr.L.J 848). When the reasoning given for non-summoning is not found to be illegal and perverse, it would not be open for this Court to interfere with the said findings while exercising revisional jurisdiction. There is no merit in this revision petition and it is dismissed accordingly.
I fully agreed with the findings entered and the conclusions arrived at by my learned sister Aalia Neelum, J ORDER OF THE COURT By a majority of 2 to 1 (Muhammad Qasim Khan J. dissenting by way of his consolidated judgment in Criminal Revision No.9027/2017, "Muhammad Jawad Hamid versus Mian Muhammad Nawaz Sharif and others & Criminal Revision No.7067/2017, "Mushtaq Ahmad Sukhera versus Judge Anti-T errorism Court and others" instant criminal revision is hereby dismissed