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 Judg e Anti-T errorism, 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}}
8. Whereas, the story/roles attributed to respondent Nos. 1 to 12 in the state case registered as FIR No. 696 of 2014, on the basis of written complaint/application dated 19 06-2014, which was duly signed by the petitioner/complainant and received through dairy No. 657- 5B-FT/19-06-2014 in the police station Faisal Town, Lahore, are reproduced in verbatim as under:- {{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 respo ndent 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.
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.