SHAUKAT HUSSAIN ZUBEDI, J.- As common questions of law are involved in all these matters, the same are being disposed of by this consolidated judgment.
2. Petitioner Muhammad Sadiq Umrani in CP No. D-1164 of 1991 and petitioner Shahnawaz Shani in CP No. D-1136 1991 of have alleged that they were arrested by the law enforcing agencies on 28.9.1990 and 13.9.1990 respectively. Thereafter, they were never produced before any Magistrate as neither any remand was obtained to regulate their custody not any case was registered against them at the time of their arrest. The petitioners have further alleged that they were in illegal custody, of the law enforcing agencies where they were tortured and severely beaten in 6rder to obtain their confessions and, on 17.10.1990, the then SDM Eidgah, Mr. Zamir Ali, was called by the Army personnel at their Head Quarters where the judicial confessions of both the petitioners were obtained under duress. Subsequently, on 31.10.1990, the custody of the petitioners was handed over by the law enforcing agency to the local police. The custody was taken by Sub-Inspector Gul Salam Khan of Special Investigation Cell, East, Karachi, after executing handing over and taking over documents. On 1.11.1990, the petitioners were formal arrested by the police under a mashirnama of arrest, and, on the same day, SI Gul Salam Khan lodged a report against the petitioners and others, being FIR Crime No. 436/1990 at PS Jamshed Quarters for offences under Sections 121, 121-A, 122 PPC read with Section 13 of the Prevention of Anti National Activities Act, 1974.
The said FIR is reproduced as under:- "It is reliably learnt that an anti-state Organization styled as "Al- Zulfiqar" is busy in terrorist/subversive and anti-state activities in Sindh. Five members of this Organization belonging to Karachi Range were apprehended by law enforcing agencies (some with assault weapons) and handed over to Police. These persons who are the members of Al-Zulfiqar Organization conspired against the Sovereignty and integrity of Pakistan in that they got themselves employed/engaged, took oath for antistate activities and were sent to India for terrorist training. They were deputed to different places in Sindh to carry out their anti state mission and to wage war against Pakistan.
These names are:-
1. Aijaz Ali Khoso s/o Pir Bux Khoso.
2. Maqbool Channa s/o Ali Nawaz Channa.
3. Shahnawaz Shani s/o. Usman.
4. Jahangir Khan s/o Juma Khan.
5. Muhammad Sadiq Umrani s/o Haji Khan Muhammad."
After the completion of investigation, the challan was submitted before the Special Court, Suppression of Terrorist Activities No. 1, Karachi. The trial Court took cognizance on Police challan and also framed the charges against the petitioners on 15.6.1992. Thereafter the case was transferred to the Special Court No.111 STA where the petitioners are now facing the trial. It is in these circumstances that both the petitioners have challenged their arrest, detention, registration of FIR No. 456/1990 and the proceedings pending before the Special Court, in their respective Constitutional Petitions, on the ground that the same are illegal and without lawful authority. The petitioners have prayed for the quash ment of the said proceedings and to order their release.
3. Petitioner Muhammad Ibrahim in CP No. D-1497/90 alleges that he was arrested by the law enforcing agencies on 16.10.1990 from Thatta District and, on 17.10.1990, his father filed CP No. D- 1238/1990 in this Court seeking liberty of the petitioner. In this latter petition also the date of arrest of the petitioner was mentioned as 16.10.1990. In the said petition, a letter was placed on record to show that the custody of the petitioner and others was handed over to the local police on 31.10.1990.
The custody of the petitioner was taken by DSP Atta Muhammad Qureshi of CIA Hyderabad, who then arrested the petitioner along with 27 others under a mashirnama of arrest dated 1.11.1990. On the same date, DSP Atta Muhammad Qureshi lodged FIR Crime No.248/1990 at Police Station Cantonment, Hyderabad against the petitioner and others for offences under Sections 121, 121-A, 122 PPC read with Section 13 of the Prevention of Anti National Activities Act, 1974, contents whereof are reproduced as under:- "It is reliably learnt that an anti state Organization Styled as "AL ZULFIQAR" is busy in terrorist/subversive and anti state activities in Sindh. 28 (Twenty eight members of this organization belonging to Hyderabad Range were apprehended by law enforcing agencies, (some with assault weapons) and handed over to Police. These persons who are members of "AL ZULFIQAR" Organization conspired against the sovereignty and integrity of Pakistan in that they got themselves employed/engaged tool oath for anti state activities and were sent to India for terrorist training. They were deputed to different places in Sindh to carry out their anti state missions and to wage war against Pakistan. Their names are:-
1. Faqir Muhammad./o Ali Muhammad Kathi Kumhar,
2. Muhammad Alam s/o Muhammad Yousuf Brohi.
3. Mohd sulman s/o Mohd Yousuf Soomro,
4. Zaheeruddin s/o Bashir Din Soomro,
5. Mehboob Ali s/o Ali Mohd Chandio,
6. Qurban Ali s/o Limo Khan Dahri,
7. Ansar Hussain s/o Khair Mohd Mari,
8. Comrade Ali Mohd: s/o Nabi Bux Jamila,
9. Ghulam Abbas s/o Darya Khan Mir Bahar,
10. Bashir Ahmed s/o Haji Koora Khan Magsi,
11. Mumtaz Hussain s/o Sadar Din Kazi,
12. Mir Hassan s/o Imam bux Imran,
13. Mohd: Hashim s/o Mohd: Ramzan Memon,
14. Shaukat Mehmood s/o Haji Mohd: Usman Memon.
15. Pir Mohd: s/o Lakha Dino Bumbharo.
16. Mohd: Musa Alias Ashiq s/o Mohd. Bachai Soomro,
17. Abdul Malik s/o Jalal Din Gakharo.
18. Haji Khan s/o Mohd;Ibrahim Buraro,
19. Najam Din s/o Muhammad Umar Memon.
20. Muhammad Younis s/o Haji Bahan,
21. Ahsan Ali s/o Muhammad Ramzan Bhatti,
22. Mohd: Yousuf s/o Haji Khuda Bux,
23. Mohd Ibrahim s/o Muhammad Ramzan Kumhar,
24. Abdul Majid s/o Abdul Baqi,
25. Noor Muhammad./o Qamar Ali Shah,
26. Ali Ahmed s/o Ali Bakhsh,
27. Nek Muhammad./o Imam Din,
28. Inayat Hussain s/o Abdul Rashid, These acts of persons named above constitute the offence punishable u/Ss. 121, 121-A, 122 PPC read with section 13 of Prevention of Anti National Activities Act, 1974.".
After completing the investigation, challan was submitted before the Special Court, Suppression of Terrorist Activities, Hyderabad, where the petitioner is now facing trial.
In the above circumstances, the petitioner has invoked the Constitutional Jurisdiction of this Court seeking declaration that his arrest, detention, registration of FIR No.248/1990 and the trial proceedings before the Special Court (STA) Hyderabad are illegal, without lawful authority and of no legal effect. Thus the petitioner has prayed for the quash ment of the said proceedings and to order his release.
4. It may be noted that when CP No. D-1497/1990 came up for hearing before a Division Bench of this Court on 31.1.1991, it was ordered that criminal Misc: Applications No. 352/90 and 353/1990 admitted by a Sukkur Bench of this Court be called and fixed for hearing along with CP No. D-1497 of 1990. Accordingly the case files of Cr. Misc: Application No.352/1990 and 353/90 have been called and they are fixed for hearing along with the above petitions.
5. Applicant Sher Ali in Cr. Misc: Application No. 352/1990 states that on 19.10.1990 he was arrested by the law enforcing agency who subsequently handed over the applicants custody to the local police on 4.11.1990. The custody of the applicants was taken by Inspector Nazir Ahmed Abbasi of CIA Sukkur, who on the same date lodged FIR Crime No. 189/90 at police Station "A" Section Sukkur against the applicant for offences under Section 121,121-A, 122 PPC read with Section 13 of the Prevention of Anti National Activities Act, 1974. The same is reproduced as under:- "I Nazir Hussain Abbasi, In charge CIA, Sukkur was present at PA A Section Sukkur on 4.11.1990 at 4 PM when law enforcing agency of Cantt: Pano Akil handed over accused Sher Ali s/o Ghulam Akbar Chandio i.e Village Saeed Khan Chandio Tah:Pano Akil for legal action. Accordingly, I registered the FIR that it is reliably learnt an anti state organization styled as "AL ZULFIKAR" is busy in terrorist/subversive and anti state activities in Sindh. The said members -of this organization belonging to Sukkur Range was apprehended by law enforcing agencies (with assault weapons) and was handed over to Police. This man who is member of A1 Zulfiqar Organization conspired against the sovereignty and integrity of Pakistan in that he got himself employed/engaged, took oath for anti state activities and was sent to India for terrorist training. He was deputed to different places in Sindh to carry out his anti state mission and to wage war against Pakistan.
This act of the above named person constitute the offence punishable u/Ss. 121,121-A, 122 PPC read with Section 13 of Prevention of Ant) National Activities Act, 1974. Hence this FIR. 1 After completing the investigation, Police submitted the challan before the Special Court, Suppression of Terrorist Activities, Khairpur, where the applicant is now facing trial. The applicant has sought quash ment of the proceedings pending before the trial Court on the ground that the said proceedings are an abuse of the process of Court as the cognizance taken by the trial Court is in violation of Section 196 Cr.P.C, which vitiates the said proceedings.
6. The applicants Syed Zafar Ali Shah and nine others in Cr. Misc: Application No.353 of 1990 have alleged that they were arrested by the law enforcing agencies on different dates and were kept in illegal custody for several months without any remand order and without registration of any case.
On 1.11.1990, the law enforcing agencies handed over the custody of the applicants to the local Police. The custody of the applicants was taken by Inspector Nazir Ahmed Abbasi of CIA Sukkur who on behalf of the State also lodged FIR Crime No. 188/1990 against the applicants for offences under Sections 121, 121-A, 122 PPC read with Section 13 of the Prevention of Anti National Activities Act, 1974.
The same is reproduced as under:- "On receipt of the directions from my authority I proceeded to Pani Akil (Cantonment) and duly received the custody of the following ten (10) accused persons from the law enforcing agency.
Accordingly I, register the case on behalf of State and complain that it is reliably learnt that an anti state organization styled as "AL ZULFIQAR" is busy in terrorist/subversive and anti state activities in Sindh the said ten (10) members of this Organization belonging to Sukkur Range were apprehended by law enforcing agencies, (some with assault weapons) and handed over the police. These persons who are members of A1 Zulfiqar Organization conspired against the sovereignty and integrity of Pakistan in that they got themselves employed/engaged, took oath for anti state activities and were sent to India for terrorist training. They were deputed to different places in Sindh to carry out their Anti State mission and to wage war against Pakistan. Their names are 1. Zafar Ali Shah s/o Syed Ghulam Qadir Shah 2. Akbar Sodar s/o Muhammad Saleh 3. Mustafa Bugti s/o Ghulam Abbas 4. Mushtaq Ahmed s/o Ali Murad 5. Abdul Latif s/o Khair Bux 6. Ghulam Mustafa s/o Ghulam Nabi 7. Atta Ullah s/o Shah Ali Noonari 8. Muhammad Murad Soomro s/o Abdul Hakeem Soomro 9. Mohd Ali s/o Abdul Haq 10. Saleh Muhammad./o Dur Muhammad. These acts of persons named above constitute the offence punishable under Section 13 of Prevention of Anti National Activities Act, 1974. Hence this FIR ...."
After completing the investigation of the case, the challan was submitted before the Special Court, Suppression of Terrorist Activities, Khairpur, where the applicants are facing trial. The applicants have challenged the proceedings before the trial Court and have sought its quash ment on he ground that the cognizance has been taken by the trial Court in disregard of the mandatory provision of Section 196 Cr.P.C, which vitiates the trial and therefore it is an abuse of the process of Court.
7. We have heard Mr. Muhammad Yousuf Leghari, Advocate along with Mr. S. Amjad Ali Shah Advocate, Mr. Muhammad Aslam Butt Advocate, Mr. Rashid A. Rizvi Advocate and Mr. K.M. Nadeem, Assistant Advocate General, Sindh. The latter has opposed in all the above matters.
8. The learned counsel appearing in all these matters have raised common points and the arguments in support of the said points are also similar. In order to appreciate these points, the same are reproduced as under:-
(a) In all these matters, the petitioners/applicants were arrested by the law enforcing agencies who virtually kept them in wrongful confinement without any remand order and without registration of any case.
(b) Instead of releasing the petitioners/applicants for want of evidence, the law enforcing agencies handed over their custody to the local police who registered false cases for offences under Sections 121,121- A, 122 PPC read with Section 13 of the Prevention of Anti National Activities Act, 1974.
(c) That the challan in all these cases have been submitted by the police before the Special Court, Suppression of Terrorist Activities when the evidence against the petitioner/applicants is entirely based on hearsay.
(d) The confession/admission made by any of the petitioners/applicants while in illegal custody of the law enforcing. Agencies before the registration of the FIR is in-admissible in evidence and cannot be used against them.
(e) In all these cases, the Special Court could take cognizance only on a complaint in writing- by an authorised person as provided by Section 196 Cr.P.C, but the trial Court has taken cognizance on a Police report/challan and therefore the proceedings are an abuse of the process of Court.
9. We have carefully considered the points raised by the learned counsel and we have also gone through the entire material available on record. From what we have observed, in all these matters, there is no denial of the fact that all the petitioners/applicants in these cases were taken in custody by the law enforcing agencies as distinct from being arrested in any fresh or pending case or cases against them. Therefore, the detention of the petitioners/applicants (hereinafter called the said persons) with the law enforcing agencies (hereinafter called the Agency) clearly amounted to illegal detention. It is an admitted position that while the said persons remained in the custody of the Agency they were neither produced before any Magistrate nor any remand orders were obtained as none has been produced. There is no law authorising either the Agency or the Police to detain any person in their custody for an indefinite period as there are restrictions and conditions imposed by the Code of Criminal Procedure. In the normal Course also if ah accused is arrested by the Police, even then the police cannot retain his custody beyond a period of twenty four hours as provided by Section 61 Cr.P.C and thereafter the police has to physically produce the accused before a Magistrate for remand either in police custody or judicial custody along with a proper remand report which indicates the number of FIR, the nature of offence committed, the date of arrest and the reasons for grant of remand. Only then the Magistrate concerned passes the necessary order under Section 167 CrP.C And this is done for regulating the custody. At any stage thereafter, if it is to be ascertained when the accused was arrested and how long he has remained in Police custody, in that event, all that one has to do is to go through the remand papers to get the necessary information. In so far as the said persons are concerned, the prosecution is not in a position to show when and from where the said persons were arrested by the Agency and how long they remained in their custody. Moreover, when the custody of the said persons was handed over to the Police by the Agency, the Police Officers taking the custody were obviously well aware of the fact, that the said persons were in wrongful confinement of the Agency, as they only received their bare custody without any remand papers and neither any case was shown to have been registered against them nor they were required in any pending case. As such the subsequent action taken by the Police in arresting the Said Persons afresh and thereafter lodging fresh reports against them on hearsay evidence, is nothing but a colourful exercise of power, as in doing so, they have not only obliged the Agency by retaining their custody, but it also amounts to continuation of their wrongful confinement under a legal cover. Specially so, when the various reports lodged against the said persons by the concerned Police officers, appears to be a managed affair under a pre-planned scheme, to be discussed by us shortly. In the circumstances, the submissions of the learned counsel that the said persons were kept in wrongful confinement without any remand order and without registration of any case is well founded.
10. Reverting to the second contention of the learned counsel, it is an admitted position that the said Persons were arrested by the Agency, who kept them in their custody for quite some time and thereafter handed them over to the Police. The allegations contained in the belated reports (FIRs) are that the said persons have been described as terrorists belonging to an anti-state organization and are said to have conspired against the sovereignty and integrity of Pakistan. If that was so, than what prevented the Agency from immediately handing over their custody to the Police and directing registration of necessary cases against them. As that was not done, the only plausible explanation which can be inferred, is that, the said persons were detained on the basis of suspicion only and, perhaps, their detention was prolonged by the Agency in the hope 6f discovering some incriminating evidence against them. Undoubtedly the Agency could not find any tannable material against the said persons as no such information was conveyed to the Police. Otherwise, surely the same would have been mentioned in the various reports lodged by the Police after taking over the custody of the said persons from the Agency. In the circumstances, when the Agency could not find any material against the said persons, the proper course would have been to release them. Instead of releasing them, they were handed over to the Police with an obvious understanding that they are not to be released. As such the Police immediately arrested all of them as soon as their custody was handed over by the Agency. The Police in order to justify the arrest of the said persons lodged reports against all of them at Karachi, Hyderabad and Sukkur on the same day of their arrest. In the case of Petitioner Sadiq Umrani and Shahnawaz Shani, the report was lodged by Sub-Inspector Gul Salam Khan being FIR No.456/1990 registered at PS Jamshed Quarters, Karachi. In respect of petitioner Muhammad Ibrahim, report was lodged by DSP Atta Muhammad Qureshi of CIA Hyderabad, being FIR No.248/1990 registered at PS Cantonment Hyderabad. Against applicants Zaffar Ali Shah and nine others, report was lodged by Inspector Nazir Ahmed Abbasi of CIA Sukkur being FIR No.188/1990 registered at PS "A" Section, Sukkur. All the three reports were lodged on 1.11.1990 after the said persons were arrested except for applicant Sher Ali against whom the report was also lodged by Inspector Nazir Ahmed Abbasi of CIA Sukkur, being FIR No.189/1990 registered at PS "A" Section Sukkur on 4.11.1990. In all these cases, the accused have been charged for having committed offences punishable under Sections 121, 121-A, 122 PPC read with Section 13 of the Prevention of Anti National Activities Act, 1974. These cases are now pending trial before the Special Courts, Suppression of Terrorist Activities at Karachi, Hyderabad and Khairpur.
11. If the above mentioned four FIRs are kept side by side and perused, at once it will be noticed that the said reports could not have been lodged in the manner as alleged, as there are some peculiar features about these reports for which the prosecution has no explanation and, therefore, it has led to the conclusion, that the said reports are a managed affair based on a pre-determined decision.
We have minutely perused these reports and it is an admitted position that the same were recorded and registered at Karachi, Hyderabad and Sukkur by Sub-Inspector Gul Salam Khan, DSP Atta Muhammad Abbasi and Inspector Nazir Ahmed Abbasi respectively. In other words these reports are supposed to have been registered at Police Stations of three different districts by three different Police officers, but the surprising aspect is that the contents of all these reports are verbatim the same in sequence, wording and punctuation, except for the total numbers of accused and the district concerned. Obviously this could not have happened due to coincidence, as it is too far-fetched to believe that these reports, registered in three different Districts by different Police Officers could turn out to be verbatim the same. The contents of these reports clearly indicate that the same were prepared by the concerned Police Officers at one and the same time, subsequently they have transcribed it in the 154 Cr.P.C, book at the concerned Police Stations. This is the only plausible explanation, otherwise the prosecution has not been able to explain, how the contents of these reports have turned out to be the same, though the reports were lodged in three Districts. A report lodged in such a manner can only be terms as dubious and it cannot have the sanctity of law. It may be noted if these cases had not been heard together, perhaps it may not have come to light that the reports in all these cases are verbatim the same. In the circumstances, we have no hesitation in observing that on the one had there was no tangible evidence against any of the Said persons, while on the other had a decision seems to have been taken not to release the said persons irrespective of the fact whether there was any evidence against them or not, therefore, they have been implicated in false cases under a pre-planned scheme. The in-evitable conclusion is that, these are false cases in which the said persons have been falsely implicated thus causing untold misery and harassment to the accused who are in custody for the last more than two years in these cases.
As such it is a clear case of abuse of the process of Court and this ground alone is sufficient to quash the proceedings pending against them.
12. It was next urged before us that in all these cases, the evidence against the said persons is entirely based on hearsay and though there is no change of conviction in any of these cases, even than the Police has challaned all of them. It is true that the said persons have been challaned by the Police in all these cases, and it is also correct that on the submission of these challans, the concerned trial Courts have taken cognizance of the offences. Since the police has submitted the challan in all these cases, we presume that the investigation by the Police must have revealed that an offence has been committed by the accused and there was sufficient proof, otherwise the Police would not have submitted the challan. It may be noted we have already observed that these are false cases and the said persons have been falsely implicated in order to keep them in custody regardless of the fact if there was any evidence against them or not. As such, a doubt has arisen in our mind, apprehending, if the Police can arrest the said persons in false cases for detaining them, it will be contrary to their line of action if they were not to challan the accused, as in that event the accused will have to be released. In these circumstances, we have thoroughly scrutinized the record in order to ascertain what is the proposed evidence against the said persons. The FIR in all these cases indicate that the Police Officers who lodged these reports, all of them had "reliably learnt" that the accused have committed the said offences. This means the said Police Officers only "suspected" the accused of having committed the said offences but they had no specific knowledge or information about the involvement of the accused in these cases. We had, therefore, called upon the learned Assistant Advocate General, Mr. K.M. Nadeem, to disclose what is the proposed evidence in had against the said persons. We were informed that while the said persons were in the custody of the Agency, their Audio/Video Cassettes have been prepared in which they have confessed the crime giving the details of their involvement and some of them have also made their judicial confessions. We are surprised at the kind of evidence the prosecution is relying upon, which, apart from being hearsay, also suffer from a legal lacuna rendering the same inadmissible in evidence. In order to deal with this lacuna, it is neither necessary to evaluate or appreciate the evidence, nor do we intend to do the same, as that is primarily the function of the trial Court. We only wish to look for ourselves whether there is any "legal evidence" against the said persons or not. As stated, the only evidence against the said persons comprises of Audio video cassettes and the confession made by the accused while they were in the custody of the Agency.
Now the question is, whatever material the Agency had collected against the said persons, can it be used as legal evidence by the police?
13. To answer the aforesaid question, first of all, it will have to be seen what were the powers of the Agency at the relevant time. In so far as the powers of the Agency are concerned, they are now empowered to "arrest", "search" and "seize" under the various provisions of the Criminal Procedure Code by virtue of Ordinance No. IX of 1992 which was promulgated on 19.7.1992. But the action taken by the Agency against the said persons was in 1991, and, on or about 1.11.1991, they handed over the custody of the said persons to the Police. Therefore, the action taken by the Agency against the Said persons in 1991 was not under a valid authority as none has been produced before us. For the same reason, any material/evidence collected by the Agency against the Said persons in 1991, will also be deemed to be illegal, without lawful authority and of no legal effect. Under the Criminal Procedure Code, an "investigation" takes place when information relating to the commission of a cognizable offence is given to the police and the same is t^ken down in a book contemplated by Section 154 Cr.P.C, as the First Information Report. The procedure for "Information to The Police And Their Powers To Investigate" is provided in Part V, Chapter XIV of the Criminal Procedure Code and it begins with Section 154 Cr.P.C., while "investigation" in cognizable cases is provided by Section 156 Cr.P.C. As such, the scheme of sections as provided in this chapter clearly indicates that an "investigation" always succeeds an FIR. The word "Investigation" has been defined by Section 4(1) of the Criminal Procedure Code, the same is reproduced as under: - "Investigation"
"Investigation" includes all the proceedings under this Code for the collection of evidence conducted by a Police-Officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf."
From the above definition, it will appear that "investigation" includes all the proceedings under the Code for the collection of evidence conducted by a Police Officer or by any person other than a Magistrate, who is authorised in this behalf. It consists of steps taken by a Police Officer to ascertain whether any offence has been committed at all and, if so, by whom and what is the evidence on which the prosecution can be based. It is only when the investigation by the Police reveals that an offence has been committed by the concerned accused and their is sufficient proof, the Police submits the challan before the concerned court as provided by Section 173 Cr.P.C. It will thus appear that an investigation is to be conducted by a Police Officer and it is during the course of such an investigation that the Police Officer has to collect the evidence/material against the accused. So far as the said persons are concerned, they were initially in the custody of the Agency.
The Officers of the Agency are not Police Officers, and, therefore, they were not authorised to collect any material/evidence against the said persons. There is no explanation why any Officer of the Agency did not lodge any First Information Report against the said persons, nor any such report was already pending at any Police Station. The Officers of the Agency are said to have prepared audio/video cassettes of the said persons in which they are said to have confessed the crime. The said persons are also supposed to have made judicial confessions while in the custody of the Agency. We have not been shown any valid authority or law under which the Agency could detain the said persons and collect evidence against them, without any FIR and without any remand order. However, the material thus collected by the Agency cannot be deemed to have been collected by a Police Officer during the course of an investigation, as there was no on-going investigation at the time when the said persons were in the custody of the Agency. This is the apparent lacuna which we have noted in all these matters. The material which was collected by the Agency has been borrowed by the Police. It appears that after lodging the FIR, the concerned Police Officers are alleged to have conducted the investigation, but during the course of investigation, they could not find any material to connect the said persons with the commission of these offences. They have simply borrowed the material/evidence already collected by the Agency which, as already mentioned, was without any valid authority. The concerned Police Officers cannot rely on the evidence/material already collected by the Agency, as the same was not collected by the said Police Officers during the course of investigation which they themselves were conducting. If this is permitted, it will amount to validating and legalising the action taken by the Agency in collecting the said evidence/material, which, as already mentioned, was without any valid authority. As such in all these cases, the prosecution cannot be allowed to rely on the material already collected by the Agency. If the material collected by the Agency is to be excluded, then the question arises that investigation was conducted by the Police and what was the evidence/material collected by them during the course of the said investigation. The said persons are charged for having committed offences under Sections 121, 121-A and 122 PPC read with Section 13 of the Prevention of Anti National Activities Act, 1974. Obviously the concerned Police Officers were required to collect the necessary evidence/material in order to prima facie satisfy the ingredients of the said offences. Undoubtedly the Police Officers could not find the necessary material so as to connect the said persons with the commission of the said offences, and, in that event they should not have challaned the accused. Instead the Police Officers have borrowed the material collected by the Agency thereby making their own investigation a force. It will thus appear that not only the reports lodged in these cases are based on hearsay, but even the challans in these cases have been submitted without having any legal evidence in had. In this view of the matter, it has been rightly urged before us that, there is no chance of conviction in any of these cases.
14. In respect of the confessions made by the said persons, it has been submitted by the learned counsel appearing in these matters that the same inadmissible in evidence and have been obtained under duress when the said persons were in wrongful confinement of the Agency. It is an admitted position that the said confessions were made when the accused wherein the illegal custody of the Agency. If during the course of such illegal custody any of the accused has made any confession, the same will not be admissible in evidence for reasons that at the relevant time, neither any case was registered against the said persons in any Police Station, nor they were required by the Police in any pending case. Even otherwise, since the custody of the said persons with the Agency was not under a valid authority, any confession thus made cannot be terms to be voluntarily or genuine. However, there is a legal lacuna in respect of the said confessions rendering the same in-admissible in evidence. If a confession is to be made admissible in evidence, it must be recorded during the "course of investigation".
In this regard we may refer to subsection (1) of Section 164 Cr.P.C, which is as follows:- "Section 164:
(1) any Magistrate of the first class and any Magistrate of the Second Class specially empowered in this behalf by the provincial Govt, may, if he is not a Police Officer record any statement or confession made to him in the course of an investigation under this Chapter or at any time afterwards before the commencement of the enquiry or trial.
(2)
(3) ..............
It will thus appear that the confession can be recorded by a Magistrate either during the course of an investigation or at any time afterwards before the commencement of the enquiry or trial as contemplated by sub Section (1) of Section 164 Cr.P.C. As already mentions hereinabove, an investigation always succeeds a FIR, but in these cases there was no FIR registered against the said persons while they were in the custody of the Agency, therefore, there was no occasion for any investigation. The position which emerges is that, the said persons were taken into custody by the Agency; there was no FIR;the custody of the said persons was not regulated by any remand order; there was no case registered or pending against the said persons and, while in the custody of the Agency, their confessions are said to have been recorded. Clearly these confessions can neither be deemed to be voluntarily or genuine nor they are admissible in evidence. It may also be noted that the FIRs in all these cases have been registered after the custody of the said persons had been handed over to the Police and after their confessions had already been recorded. However, the manner in which these confessions have been recorded is also worth noting. In the case of petitioners Muhammad Sadiq Umrani and Shah Nawaz Shani their judicial confessions were recorded by the then SDM Eidgah, Mr. Zamiruddin, who has already been examined by the trial Court. We were surprised to note that the accused, whose confessions were to be recorded, were not produced before the Court of the learned SDM, but, on the contrary, the learned SDM was called at the Station Head Quarters of the Agency where he recorded the confessions of the accused. In his deposition in Court, the learned SDM has made such admissions in his cross-examination which renders the confessions valueless. The learned SDM has admitted that he has not issued certificate/memorandum at the end of the statement as required by Section 164(3) Cr.P.C, which is a mandatory provision of law. He did not mention when the accused was arrested and the period of his arrest. The time for re-conciliation was also not shown to have been given. He also admitted that it was not mentioned that he had introduced himself as a Magistrate nor he asked the accused why they were making the confessions or if they were making the confessions under any inducement, threat or promise. After recording the confessions, he did not remand the accused to jail custody but instead the custody was retained by the Agency. After recording the confessions, the same was not sealed but instead the learned SDM had taken it to his Court where he had affixed the seal of the Court on the confessions. It is thus apparent that the legal formalities for recording confessions were not observed by the learned Magistrate thereby rendering the confessions valueless. In these circumstances these confessions are in-admissible in evidence and therefore cannot be relied by the prosecution.
15. The learned counsel appearing in these matters have also raised a legal point to the effect that the trial Court could take cognizance only on a complaint in writing by an authorised person as provided by Section 196 Cr.P.C. But, in these cases the cognizance has been taken on a Police report/challan and therefore, the proceedings are an abuse of the process of Court. The point raised by the learned counsel has a It of force, but we do not think it necessary to discuss this point, as we have already formed an opinion that the various reports lodged in these cases are false and this ground alone was sufficient to quash the proceedings pending against the said persons. There has been a further development which also needs to be mentioned. Three co-accused, namely, Aijaz Ali Khoso, Jehangir Khan and Maqbool Ahmed Channa who were facing trial along with petitioner Muhammad Sadiq Umrani have been released by the trial Court on receipt of a report under Section 169 Cr.P.C, by the Police. This has also fortified the view taken by us that the cases against the said persons are false and that they have been detained on the basis of a prior decision to retain then- custody. It appears, for unknown reasons, the three co-accused have been released while cases of all the accused are identical. The relevant order of the trial Court dated 22.3.1993 has been placed on record by Mr. S. Amjad Ali Shah, Advocate.
16. In the light of our above discussion we are satisfied that the various cases registered against the said persons are false, these cases are based on hearsay evidence and there is no possibility of the said persons being convicted in any of the said offences. There is no tangible material against the accused and on behalf of the State no such material or even proposed material was brought to our notice to indicate the implication of the said persons. In the circumstances, we are of the firm view that the proceedings pending against the said persons in all these cases are an abuse of the process of Court. Accordingly, in exercise of our inherent powers, we allow all these petitions/applications and quash the proceedings pending against the said persons before the respective Special Courts, Suppression of Terrorist Activities. If the said persons are in custody, they are to be released forthwith if not required in any other case. The above petitions/applications are allowed with no order as to costs.