' I propose to dispose of Criminal Miscellaneous No,106-Q of 1998 and Criminal Miscellaneous No,113-Q of 1998 together through the present consolidated judgment.
2. A dead man has been found guilty and punished and three other persons, who had never been charged or tried, have also been convicted and sentenced in this case. One would have thought that it would never happen in a Court of law but, unfortunately, this had happened in the present case. The bizarre fashion in which it has happened is evidenced by the following facts.
3. At about 7-30 p.m. On 8-7-1994 one Daulat Khan was allegedly fired at by Masood Ahmed alias Kaka when the said Daulat Khan was present in his 'Pan Centre' in the area of Gurumangat within the jurisdiction of Police Station Ghalib Market, Lahore. Allegedly three other persons namely Muhammad Rafique, Muhammad Amin and Muhammad Safdar had abetted the said Masood Ahmed in that respect behind the scene. F.I.R. No,172 was lodged at Police Station Ghalib Market, Lahore on the same day by Daulat Khan complainant against the said four persons for an offence under section 324, P.P.C. After due investigation the local police submitted a challan in that regard only against Masood Ahmed accused after finding the other three accused persons innocent.
Resultantly, a charge was framed by the learned trial Court against the said Masood Ahmad accused alone. On 1-11-1994 the learned Judicial Magistrate Section 30, Model Town, Lahore was pleased to acquit the said Masood Ahmed accused and the operative part of that judgment is reproduced below for facility of reference: ' On his appearance, copies under section 161, Cr.P.C. Given, charge framed, on denial P.Ws. Called.
Affidavit of Masood accused, Muhammad Amin attached. Daulat Khan complainant appeared in the Court on 1-11-1994. He produced compromise/affidavit. His statement was recorded. He has forgiven all the accused. Offence under section 324 is compoundable as complainant injured has forgiven all the accused, no cause of action is left behind, accused Masood Ahmad is acquitted under section 345, Cr.P.C."
' The record of the learned trial Court shows that the said order had been passed by the learned trial Court after affidavits had been filed by Muhammad Amin and Muhammad Safdar (accused persons in the F.I.R) to the effect that they had been forgiven by Daulat Khan complainant. Another affidavit had been filed by Muhammad Rafique (accused persons in the F.I.R.) to the effect that he had entered into a compromise with Daulat Khan complainant and the complainant had, thus, forgiven his right of Qisas in that respect but the amount of Diyat shall be payable by the said Muhammad Rafique to Daulat Khan complainant. The said judgment passed by the learned trial Court also shows that a statement of Daulat Khan complainant had also been recorded by the learned trial Court on that date to that effect although the judgment is completely silent about any understanding between Muhammad Rafique and Daulat Khan complainant regarding payment of Diyat. It is an admitted position between the parties that this judgment passed by the learned trial Court assumed finality inasmuch as no appeal or revisions petition was filed against that judgment in the next almost three years. It is also an admitted position between the parties that on 15-10-1996 Masood Ahmed alias Kaka the acquitted accused person in that case, died.
4. An off-shoot of that case F.I.R. No,172 mentioned earlier was that on 22-7-1995 F.I.R. No,169 was lodged by the same Daulat Khan complainant at Police Station Nasirabad, Lahore against Dr. Maqsood Ahmed and Masood Ahmed alias Kaka (mentioned earlier) for having committed offences under sections 420, 468, 471 and 109, P.P.C. The allegation against the accused persons therein was that they had removed the original Medico-Legal Report from the record of the case F.I.R. No,172 of 1994 and had placed a photo copy of the same on the record. Subsequently two other persons namely Dr. Mazhar and Dr. Shahzad were also implicated in this case but they had reportedly become fugitives from law. After investigation of that case the local police had submitted a challan before the Court of competent jurisdiction. An application under section 249- A, Cr.P.C. Was then moved by Dr. Maqsood Ahmad accused seeking his premature acquittal in that case. It is noteworthy that by that time Masood Ahmed alias Kaka had already died. On 26-10-1996 the learned Judicial Magistrate Section 30, Model Town, Lahore was pleased to acquit the said Dr. Maqsood Ahmed accused by accepting his application under section 249-A, Cr.P.C. It was observed in the judgment of acquittal recorded by the learned trial Court that the complainant Daulat Khan had made a statement that he did not wish to prosecute the said Dr. Maqsood Ahmed accused.
5. Daulat Khan complainant underwent a change of heart in that respect subsequently and filed a revision petition before that learned Court of Session, Lahore whereby he challenged the acquittal of Dr. Maqsood Ahmed accused recorded by the learned trial Court. It is interesting to point out that in that revision petition he not only impleaded Dr. Maqsood Ahmed accused as a respondent but he also went on to implead Masood Ahmed alias Kaka accused (already dead) and one Dr. Mubashar who was never involved in this case in any capacity. On 6-12-1997 the learned Additional Sessions Judge, Lahore recorded the statement of Daulat Khan complainant's learned counsel and dismissed the said revision petition as having been withdrawn. However, the said order went on to observe "learned counsel can move the learned trial Court for modification of the order pertaining to Qisas and Diyat". It is surprising to notice that the said case F.I.R. No, 169 of 1995 was in respect of offences under section 420/468/471/109, P.P.C. To which Qisas and Diyat Law did not apply.
Equipped with that order passed by the learned Revisional Court. Daulat Khan filed an application before the learned trial Magistrate seeking de novo trial of the case F.I.R. No,196 of 1995 and on the same date the learned trial Magistrate was pleased to order that Dr. Shahzad and Dr. Mazhar accused persons were fugitives from law and Masood Ahmed accused had admittedly died by that time. Therefore, an order was passed summoning Dr. Maqsood Ahmed accused to face a trial in that case. This order of summoning has been challenged by Dr. Maqsood Ahmed accused before this Court through Criminal Miscellaneous 113-Q of 1998.
6. As regards the earlier case F.I.R. No,172 of 1994 registered at Police Station Ghalib Market, Lahore, wherein Masood Ahmed alias Kaka had already been acquitted vide judgment dated 1-11-1994, Daulat Khan complainant filed an application before the learned Judicial Magistrate Section 30, Model Town, Lahore on 23-9-1997 praying therein that the trial of the accused persons in that case should be held for an offence under section 337-F (iii), P.P.C. Through another application filed by him before the learned trial Court on 18-12-1997 the said Daulat Khan complainant sought a direction to Muhammad Rafique (accused person in the F.I.R.) to pay Diyat according to Qisas and Diyat Ordinance. It was alleged in that application that despite a commitment having been made by the said Muhammad Rafique regarding payment of Diyat to Daulat Khan complainant the former had failed to make that payment and to honour his commitment. On the receipt of those applications filed by Daulat Khan complainant the learned trial Court summoned the said Muhammad Rafique. Upon his appearance before the learned trial Court the said Muhammad Rafique filed two successive applications before the learned trial Court claiming therein that the said two applications field by Daulat Khan could not be proceeded with and the same merited to be dismissed. On 1-4-1998 the learned Judicial Magistrate Section 30, Model Town, Lahore passed an order the operative part whereof reads as follows:-- ' "I have summoned the record from the Record Room Police Station Ghalib Market but the record was not procured. From the perusal of the documents produced by the petitioner Daulat Khan a compromise was effected between the parties and by virtue of that compromise Masood Ahmad etc. Were acquitted under section 345, Cr.P.C. Vide my order dated 1-11-1994. At the time of compromise they had submitted their affidavits as desired by the applicants. From the Medico- Legal Report the injuries were caused on the vital parts of the body resulting in 337-F(3). According to the compromise between the parties Muhammad Rafique Patwari had submitted an affidavit dated 22-10-1994 in favour of Daulat Khan that he had made the payment of Diyat. As provided under Qisas and Diyat Ordinance they had to pay Daman as actual expenses occurred on the treatment of the victim. So, the order dated 1-11-1994 is modified to this extent that Masood Ahmed etc. Had to pay Rs,15,000 to Daulat Khan complainant/victim as Daman, within the period of 1 month. The application is accepted. File be consigned to Record Room."
' This order has been challenged before this Court by Muhammad Rafique petitioner through Criminal Miscellaneous No,106-Q of 1998.
7. I have heard the learned counsel for the petitioner in both the petitions and the learned counsel for the State as well as the complainant in both these matters and have also gone through the record of these cases with their assistance.
8. It has been contended by the learned counsel for the petitioner that in Criminal Miscellaneous No,113-Q of 1998 the impugned order passed by the learned Judicial Magistrate Section 30, Model Town, Lahore on 18-12-1997 is legally not sustainable and the same was in fact absolutely without jurisdiction inasmuch as the petitioner Dr. Maqsood Ahmed had already been acquitted by the same learned trial Court vide judgment dated 26-10-1996 and the revision petition filed by Daulat Khan complainant against that judgment of acquittal, although not maintainable at all, had also been dismissed by the learned Additional Sessions Judge, Lahore vide order dated 6-12-1997. He has further maintained that the impugned order amounts to holding of a re-trial of an accused person who has already been acquitted by the learned trial Court and which judgment of acquittal has already attained finality. He has also emphasised that the earlier acquittal of the petitioner recorded by the learned trial Court was based on the statement of the complainant himself that he did not want to prosecute the petitioner and, therefore, the complainant could not be allowed to turn around after more than a year of that statement and seek a re-trial of the petitioner in respect of that case. He has in this context referred to Article 13 of the Constitution of Pakistan, 1973, section 403, Cr.P.C. And section 26 of the General Clauses Act, 1897.
9. As regards Criminal Miscellaneous No,106-Q of 1998 the learned counsel for the petitioner has argued that at the time when the learned Judicial Magistrate Section 30, Model Town, Lahore had passed the impugned order dated 1-14-1998 Masood Ahmed alias Kaka accused person in case F.I.R. No,172 had already died and the three other accused persons mentioned in that F.I.R. Had neither been challaned by the local police nor had they been summoned by the learned trial Court to face a trial. He has also pointed out that in the absence of any charge having been framed against the said three persons the learned trial Court could not have proceeded to straightaway record a conviction of "Muhammad Rafique etc." without holding any trial or recording any evidence against them. He has further pointed out that the said three persons had never become accused persons before the learned trial Court in any formal sense and they could not be convicted or punished without going through the procedure prescribed by the Code of Criminal Procedure for holding a trial. He had further stressed that the earlier judgment of acquittal recorded by the learned trial Court on 1-11-1994 regarding Masood Ahmed alias Kaka accused had already attained finality as no appeal or revision had been filed thereagainst by anybody. In this view of the matter, according to him, the impugned order dated 1-4-1998 had resulted in an order of conviction and sentence against a dead person who had already been acquitted and against three other persons who had neither been challaned or charged nor tried by the learned trial Court.
He has gone on to argue that the impugned order passed by the learned trial Court could in no way be considered to be one of modification of the earlier order of acquittal as neither any modification is permissible under section 369, Cr.P.C. Nor alteration of this nature is contemplated by any other provisions of the Code of Criminal Procedure.
10. As against that the learned counsel for the State as well as the learned counsel for Daulat Khan complainant have maintained that these Criminal Miscellaneous Petitions filed under section 561- A, Cr.P.C. Are not maintainable as the orders impugned herein were appealable or revisable orders and due to the availability of those statutory remedies the provisions of section 561-A, Cr.P.C. Could not have been invoked in that regard. They have further submitted that the petitioners in these petitions have not approached this Court with clean hands as a solemn commitment given to a Court of law in respect of payment of Diyat had been violated in that regard. As regards the procedure which was followed by the learned trial Court in both these petitions they have maintained that throughout the impugned proceedings the petitioners had been associated with the same and they got ample opportunity to submit their case and defend themselves before the learned trial Court. It has also been pointed out that by virtue of section 338-F, P.P.C. While interpreting the provisions of Qisas and Diyat Laws in the Code of Criminal Procedure the Courts are required to be guided by the Holy Qur'an and Sunnah. In this context they have referred to a concept of Islamic Jurisprudence that it is not just an accused person who may pay Diyat but the responsibility in that regard can also be shifted to somebody else under the concept of "Aqila".
While relying on that concept the learned counsel have maintained that although Masood Ahmed alias Kaka accused, Muhammad Amin and Muhammad Safdar had neither been ordered to pay nor they had undertaken to pay any Diyat to Daulat Khan complainant yet Muhammad Rafique (accused person in the F.I.R.) had undertaken before the learned trial Court to pay the requisite Diyat on his own behalf as well as on behalf of his co-accused. Therefore, it is submitted that the said Muhammad Rafique had acted as an "Aqila" in this case and he could be forced to pay Diyat according to the undertaking given by him. With these submissions the learned counsel for the State and the complainant have forcefully argued that the present petitions do not call for any interference by this Court in the exercise of its inherent jurisdiction under section 561-A, Cr.P.C.
11. After hearing the learned counsel for the parties and going through the record I have no hesitation in accepting both these petitions. As regards Criminal Miscellaneous No,113-Q of 1998 it is quite evident that Dr. Masood Ahmed petitioner herein had been acquitted by the learned trial Court on 26-10-1996 after Daulat Khan complainant had made a statement before the learned trial Court that he did not wish to prosecute his case against Dr. Maqsood Ahmed. There being no other evidence available on the record incriminating the said Dr. Maqsood Ahmed the learned trial Court was quite justified in ordering his acquittal in that case. It is also noticeable that a revision petition filed by Daulat Khan complainant against that judgment of acquittal had also been dismissed as withdrawn by the learned Additional Sessions Judge, Lahore on 6-12-1997. In this view of the matter the acquittal earned by Dr. Maqsood Ahmed petitioner herein had attained finality and the same could not be reopened on a miscellaneous application filed by Daulat Khan complainant before the learned trial Court. The learned counsel for the petitioner is quite right in placing reliance on Article 13 of the Constitution, section 403, Cr.P.C. And section 26 of the General Clauses Act in this regard. Therefore, the impugned order dated A 18-12-1997 whereby the learned Judicial Magistrate Section 30, Model Town, Lahore and issued process against Dr. Maqsood Ahmed petitioned with a view to holding is, hereby, set aside.
12. As regards Criminal Miscellaneous No,106-Q of 1998 the impugned order passed therein by the same learned Judicial Magistrate Section 30, Model Town, Lahore on 1-4-1998 is. On the face of it, an order of conviction of all the four accused persons mentioned in F.I.R. No,172 of 1994. It is noticeable that Masood Ahmed alias Kaka accused in that case had already been acquitted by the learned trial Court on 1-11-1994 and subsequently he had died on 15-10-1996. During that period his acquittal had never been challenged through any appeal or revision petition before any Court.
Thus, through the impugned order dated 1-4-1998 the learned trial Court has convicted a dead person something which is inconceivable in criminal law. As regards the other three accused persons in that F.I.R. Namely Muhammad Rafique, Muhammad Amin and Muhammad Safdar it is quite clear that the local police had found them innocent during the investigation and they had not been challaned. The learned trial Court had also not framed any charge against them. They had also neither been summoned at any stage of case by the learned trial Court not had they ever been tried as accused persons by the learned trial Court. Thus, upon filing of a miscellaneous application by Daulat Khan complainant on 23-9-1997 before the learned trial Court these three persons could not possibly be convicted straightaway without framing of any charge of holding a trial. It has been argued by the learned counsel for Daulat Khan complainant that Muhammad Rafique, petitioner herein, had submitted an affidavit before the learned trial Court wherein he had made a commitment to pay Diyat to Daulat Khan complainant and it was after the said development that the learned trial Court acquitted Masood Ahmed Kaka alias kaka accused on 1- 11-1994. He has maintained that upon failure of Muhammad Rafique to pay Diyat to Daulat Khan a miscellaneous application had been filed by the said Daulat Khan complainant before the learned trial Court on 23-9- I 9 / whereafter the learned trial Court had passed the impugned order on 1-4- 1998. He has further maintained that although Muhammad Rafique was not an accused person facing a trial before the learned trial Court at the time when the order of acquittal was passed on 1- 11-1994 yet the said Muhammad Rafiq acted as an "Aqila" who, in Islamic Jurisprudence, is a person liable to pay Diyat on behalf of an accused person. It has been argued that upon the failure of "Aqila" to commitment in respect of payment of Diyat the trial Court was quite justified in ignoring the earlier order of acquittal and punishing the culprits for their criminal deed. I am unable to subscribe to this submission made by the learned counsel for the complainant. A bare reading of the judgment of acquittal recorded by the learned trial Court on 1-11-1994 shows that the same had not proceeded on any such understanding between the said Muhammad Rafique and the complainant. It was only Masood Ahmed accused who was facing a trial before the learned trial Court and his acquittal was recorded on the basis of a statement made by the complainant that he had forgiven the accused persons and that no cause of action was left in the matter. The said judgment of acquittal bears no mention of any commitment made by Muhammad Rafique or his acting as "Aqila" on behalf of the accused persons.
12. It is shocking to notice that although Muhammad Rafique, Muhammad Amin and Muhammad Safdar had neither been challaned by the police nor the learned trial Court has summoned them to face a trial yet while deciding the miscellaneous applications filed by Daulat Khan complainant on 23-9-1997 and 18-12-1997 the learned Magistrate had proceeded to record their convictions. The learned trial Court, vide its impugned order dated 1-4-1998, had proceeded to convict them for an offence under section 337-F(iii), P.P.C. Sentencing them to pay Rs,15,000 to Daulat Khan complainant/victim as Daman. Daman is a punishment to be awarded against an accused person after he is found guilty for the said offence. In the present case a finding of guilt against the said three persons could not have been recorded without framing any charge and without holding a trial. It has been argued by the learned counsel for the complainant that the said persons had in fact confessed their guilt when they had submitted affidavits before the learned trial Court on 1-11- 1994. Without commenting upon the worth of those affidavits I have no hesitation in observing that even a confession by the said persons could not have been handled by the learned trial Court in the manner it has been handled by it. A confession could have entailed the said persons' conviction only if they had been properly charged before a Court of law or at any stage during their trial. An alleged confession by a person not before the Court as an accused person is no confession in the eyes of law and the same could not have provided the learned trial Court any jurisdiction to convict them straightaway. Therefore, on this score alone the impugned order dated 1-4-1998 was a result of an abuse of the process of law and abuse of the process of Court.
13. Even otherwise, after recording the judgment of acquittal on 1-11-1994 the learned trial Court had become functus officio and the said judgment could not have been modified or altered subsequently so as to substitute an order of conviction for a judgment of acquittal. No such jurisdiction was available to the learned trial Court especially in view of the provisions of section 369, Cr.P.C.
14. The contention of the learned counsel for the complainant that instead of filing this petition under section 561-A, Cr.P.C. The petitioner ought to have filed an appeal against the impugned order of conviction has not impressed me in the circumstances of this case. As observed above a dead person has been found guilty and punished through the impugned order and three other persons who had never been summoned, charged or tried by the learned trial Court had been convicted in this case. I could not think of any worse case than this which could be termed as an abuse of the process of Court or of the process of law so as to attract this Court's inherent jurisdiction under section 561-A, Cr.P.C. Even otherwise section 561-A, Cr.P.C. Itself provides that "nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent an abuse of the process of any Court or otherwise to secure the ends of justice". Thus, availability of any other remedy provided by the Code of -Criminal Procedure does not take away the inherent jurisdiction of this Court where such a balatant abuse of the process of the Court or of law is brought to the notice of this Court or where this Court deems it expedient to interfere in the matter in order to secure the ends of justice. I have no doubt in my mind that in the circumstances of the present petitions this Court would be shirking its responsibility if it refuses to interfere in the matter only on the ground of availability of other remedies to the persons adversely affected by the orders impugned herein.
15. For all these reasons both Criminal Miscellaneous Petitions No,106-Q of 1998 and Criminal Miscellaneous No,113-Q of 1998 are, hereby, accepted F and the impugned orders passed by the learned Judicial Magistrate Section 30, Model Town, Lahore on 1-4-1998 and 18-12-1997 respectively are, hereby set aside.
16. Before parting with this judgment I am constrained to observe that the handling of these cases by Ch. Muhammad Ismail, Judicial Magistrate Section 30, Model Town. Lahore has shown on his part ignorance or disregard of the procedure for trying criminal cases which involve questions of liberty of citizens. Let a copy of this judgment be placed on the personal file of the said Judicial Magistrate and the matter may be placed before the Registrar of this Court for appropriate action.