1. ' This Criminal Miscellaneous Application under section 561-A, Cr.P.C, has been filed on behalf of the applicants who are facing trial for offences punishable under sections 395 and 427, P.P.C., sections 147 and 148 read with section 149, P.P.C. In the Court of the Sessions Judge, Karachi South.
2. ' The brief facts leading to the filing of this Criminal Miscellaneous Application as stated in F.I.R. No, 88 of 1998 Police Station Artillery Maidan dated 23-2-1998 are that on 15-1-1998 complainant Muhammad Siddique Balwani, the then President of Haji Abdullah Haroon Muslim Gymkhana, Karachi received a telephonic call from Haroon Rauf Ratadia, the then Secretary of Haji Abdullah Haroon Muslim Gymkhana informing him that about 30/40 persons which included the applicants entered the said Gymkhana. Some of them were having arms while some of them snatched the weapons from Gymkhana staff. They started beating the office members, took keys, occupied the office and broke opened the tables drawers. At about 12 O'clock in the night the complainant went to his office in Muslim Gymkhana where the Counter In charge disclosed to him that the applicants and other persons had taken away the files, and other books after breaking the lock of his table drawers. Some of the applicants took away 15,000 U.S. Dollars and eleven Lacs Pakistani rupees which were missing from his drawers. He sent information of the incident of C.M. House on Telephone No, 134 and also sent telegrams to higher authorities in this regard, F.I.R. Was recorded under sections 147, 148, 149/395 and 427, P.P.C. And investigation was undertaken by S.-I. Khalid Zaman of Police Station Artillery Maidan. After conducting the investigation the Investigating Officer, and D.S.P.. Prosecution Branch submitted their report and requested that the case may be disposed of under the cancelled class due to lack of evidence. The Superintendent of Police. Crimes Branch agreed with the aforesaid recommendation and directed that the papers may be forwarded to the P.D.S.P. For legal opinion. However, in spite of the aforesaid recommendation and reports, challan was submitted against the applicants under sections 147, 148, 149, 427 and 451.
3. P.P.C., in the Court of VIIth Judicial Magistrate. Karachi South.
4. ' On behalf of the applicants an application under section 249, Cr. P.C, was moved in the Court of VIIth Judicial Magistrate. During the pendency of this application, complainant Muhammad Siddique moved an application under section 190(3), Cr.P.C, praying therein that the facts and circumstances of the case disclosed the commission of an offence under section 391, P.P.C., which section was wrongly not included in the charge-sheet submitted by the Investigation Officer, therefore, a prayer was made that section 35, Cr.P.C., may be added in the charge-sheet submitted against the applicants. The VIlth Judicial Magistrate after hearing the arguments of the learned counsel for the parties came to the conclusion that the material, evidence and the circumstances of the case prima facie made out the commission of offence under section 391, Cr.P.C, and ordered inclusion of this offence in the charge-sheet whereafter he sent the case to the Court of the Session Judge, for the trial as the side offence punishable under section 395, Cr.P.C., was exclusively triable by the Court of the Sessions. The applicants felt aggrieved and dissatisfied with the aforesaid order and challenged the same by way of a revision application in the Court of Sessions Judge, Karachi South. Before this revision application could be disposed of they approached this Court by way of the aforesaid Criminal Miscellaneous Application.
5. ' The maintainability of this Criminal Miscellaneous Application was vehemently attacked by M/s. Ch. Iftikhar Ahmed, Syed Amj ad Hussain and Shahnawaz Awan, learned counsel for, the complainant, on the ground that before approaching this Court for abashment of proceedings under section 561-A, the accused did not have recourse to the provision of section 265-K, Cr.P.C., which according to them was an essential requirement. In support of their objection and contention that the applicants should have first taken recourse to section 265-K, Cr.P.C. They referred me to the cases of (1) State through Advocate-General, N.-W.F.P., Peshawar and others v.
6. Gulzar Muhammad and others reported as 1998 SCM R 873, (2) Muhammad Khalid Mukhtar v. The State through Deputy Director, F.I.A. (C.B.A.), Lahore, reported as PLD 1997 SC 275: (3) Mian Munir Ahmed v. The State reported as 1985 SCM R 257, (4) Nasir Ali v. Munshi Mehar Khan, reported as PLD 1981 SC 607 and (5) Khushi Muhammad and 4 others v. The State reported as 1979 SCM R 94. They also placed reliance on the order of this Court dated 2-11-1999 in Criminal Miscellaneous Application No,464 of 1999 Naeem-urRehman v. The State, wherein relying on the first two cited cases, this Court dismissed an application under section 561-A, Cr.P.C., solely on the ground that the concerned party had not taken recourse to section 265-K, Cr.P.C.
7. ' M/s. Nooruddin Sarki and Khawaja Naveed Ahmed, learned counsel appearing on behalf of the applicants Nos.1 and 7 and 2, 3, 4, 5 and 6 respectively refuted the objections raised by the learned counsel for the complainant and submitted that they had greatest respect for the pronouncements made by the Supreme Court and this Court in the cases referred to by the learned counsel for the complainant but submitted that in the present case there were some extraordinary and exceptional circumstances which warranted the applicant to approach this Court directly without having recourse to section 265-K, Cr.P.C. Elaborating their arguments they submitted that the applicants were challaned on the basis of F.I.R. No, 88 of 1998 the contents whereof did not prima facie make out the commission of the offences for which they were charged with but because of outside pressure and other circumstances a frivolous charge-sheet was submitted against the applicants/accused. They further submitted that a bare perusal of the F.I.R.
8. Would be sufficient to conclude that there were some disputes with regard to the management and working of Muslim Gymkhana between two different groups of members and with a view to coerce and pressurise one group the other group levelled false and uncalled for allegations. They further submitted that the aforesaid facts coupled with the delay of 38 days in lodging the F.I.R.
9. Was sufficient to hold that the complainant party was trying to harass, humiliate and pressurise one group or some of the members in respect of disputes which were of civil nature and ought to have been agitated in a Civil Court. They further submitted that the order of the Judicial Magistrate adding section 395, Cr.P.C., in the charge-sheet was illegal and without any basis inasmuch as no valid, plausible and cogent reasons were assigned for such action in his order. In this connection it was further submitted that the Judicial Magistrate was under .An obligation to refer to The material, evidence and to the circumstances which in his opinion raised a prima facie presumption of the commission of the offence punishable under section 395, Cr.P.C., moreso, where there were recommendations and reports for cancellation of the case against the applicants under cancelled class for lack of evidence and on a specific investigation a challan was submitted under sections 147, 148, 149, 427 and 451, P.P.C. Mr. Nooruddin Sarki, in support of his above contention place reliances on the cases of (1) Inayatullah and 4 others v. The State and 4 others reported as 1999 PCr.LJ 731 and (2) Ghulam Qasim v. Nazir Ahmad and 3 others reported as 1996 PCr.LJ 1187.
10. ' I have taken into consideration the respective arguments advanced by the learned counsel for the parties and have perused the order of the Judicial Magistrate directing addition of section 395, P.P.C. In the charge-sheet submitted against the applicant, the order passed by the Additional Sessions Judge, in Revision Application No, 10 of 1999, and other material on record.
11. ' At the outset it may be pointed out that the order of the Additional Sessions Judge, dated 26-7- 1998 has nothing to do with the maintainability of this Criminal Miscellaneous Application, inasmuch as the order related to upholding the action of the Judicial Magistrate in inserting/adding section 395 in the charge-sheet and the concerned Additional Sessions Judge had confined himself to the righteousness of such order of the Judicial Magistrate and had not considered the question that on the basis of the evidence in possession of the prosecution there was absolutely no possibility of conviction of the applicants. In the circumstances, the contention that this criminal miscellaneous application was maintainable for seeking abashment of the case pending against them without having recourse to section 265-K, Cr.P.C. Is without any substance and not tenable. As such the scope of this Criminal Miscellaneous Application would be confined to the scrutiny of the orders of the concerned Additional Sessions Judge, upholding the order of the VIIth Judicial Magistrate adding section 395 in the charge-sheet, M/s. N000ruddin Sarki and S. Amjad Ali Shah stated that in view of the above observation they would not press this criminal miscellaneous application for abashment of the case pending disposal against the applicants and would be satisfied if the validity and propriety of the impugned order of the Additional Sessions Judge was examined in order for satisfy with regard to correctness and righteousness of the order of the Judicial Magistrate dated 15-2-1999 it will be appropriate to reproduce the relevant/operative portion of the order which is as under:--- "After a thoughtful consideration given to the arguments of both the counsel, I am of the consideration view that there is much weight into the arguments of learned counsel for the complainant and a prima facie offence under section 395, P.P.C., stands made out against the accused persons after going through the material on record and as such this Court has no jurisdiction to try. Consequentially the file is submitted to the Honorable Court of Session for proceedings against the accused persons as required under section 190(3), Cr.P.C."
12. A bare perusal of the portion of the order reproduced above is sufficient to hold that the Judicial Magistrate in ordering the addition of the offence punishable under section 395, P.P.C. Had not applied his mind and had made general and routine observations without specifying the circumstances and material available on the basis of which he opined that prima facie the offence under section 391, P.P.C. Was made out against the applicants. He did not refer to the factual aspect of the case wherein the Investigation Officer and the P.D.S.P, had recommended that the case be disposed of under the cancelled class for lack of evidence. No doubt that the recommendation or the opinion expressed by the investigation officer or the prosecution legal branch was not binding or final but in the face of such opinions and recommendations it was most necessary for the Judicial Magistrate to have referred to or pointed out the evidence, material on record and the circumstances which in his opinion prima facie made out the offence under section 391, P.P.C. In the case of Naim-ur-Rehman v. The State (Criminal Miscellaneous No, 464 of 1999) dated 3-11-1999 relied upon by Mr.Nooruddin Sarki, this Court had made an elaborate pronouncement that an application under section 190(3), Cr.P.C, either for including the name of a person(s) as an accused or addition/insertion for an offence/ section in the charge-sheet was not to be decided mechanically but was required to be decided after taking into consideration the evidence and other material aspects of the case. It is an admitted fact that by virtue of *le' original charge-sheet the applicants were required to face trial before the Judicial Magistrate as they were not charged with an offence which was punishable with imprisonment exceeding seven years.
13. After insertion of section 395, P.P.C., the case against the applicants has assumed more gravity and severity as they are now facing trial for an offence punishable with imprisonment for life or ten years and shall also be liable to fine, and at the same time as pointed out by Mr. Nooruddin Sarki, they are facing trial in a higher forum thereby they would be losing one right of appeal. It were these facts and circumstances which, according to Mr. Nooruddin Sarki, were sufficient to warrant the applicants to do away with the requirement of section 265-K and to approach this Court directly. This aspect of the case has already been discussed hereinabove. On consideration of the facts and circumstances of the case I find myself in agreement with Mr. Nooruddin Sarki, and hold that on account of addition of the offence punishable under section 395, P.P.C., in the charge-sheet the applicants have been made to suffer trial for a much more grave and severe offence which they originally were not to suffer after submission of the charge-sheet and which they could be made to suffer only after plausible, satisfactory and reasonable grounds were mentioned by the Judicial Magistrate for holding that the applicants prima facie appeared to have committed an offence punishable under section 395, P.P.C. However, it may be pointed out that the aforesaid circumstances could be used by the applicants only for the purpose of, seeking remedy for deletion of section 395, P.P.C. From the charge-sheet as the same was illegally and wrongly ordered to be included in the charge-sheet. The applicants would not be entitled to seek abashment of the entire proceedings based on F.I.R. No 88 of 1998.
14. ' Upon consideration of the facts and the circumstances of the case and the arguments advanced by the learned counsel for the parties I have no doubt in my mind that the Judicial Magistrate did not pass a legal and valid order in directing the inclusion of the section 395, P.P.C. In the charge- sheet. He did not refer to any material, evidence and the circumstances which were taken into consideration by him for his such order. The concerned Additional Sessions Judge in deciding the revision application filed to challenge the order of the Judicial Magistrate also did not point out to any fresh evidence or material coming in possession of the prosecution which could warrant modification of the charge-sheet by addition or insertion of the offence punishable under section 395, P.P.C. Therein. He also did not give any plausible and reasonable justification for agreeing with the finding of the Judicial Magistrates that the material/evidence in possession of the prosecution prima facie established the commission of offence of dacoit and that the same was rightly added or included in the charge-sheet.
15. In view of the above discussions, order for addition/insertion of section 395, P.P.C. In the charge- sheet by Judicial Magistrate confirmed by the Additional Sessions Judge and forwarding the case to the Sessions Judge was not a proper and valid order and I hold that section 395 is to be deleted from the charge-sheet and the case is to be returned to the Court of the concerned Judicial Magistrate for trial of the applicants. It has been pointed out by the learned counsel for the complainant that the complainant has been examined by the First Additional Sessions Judge, Karachi South, where the case was transferred by the Sessions Judge, Karachi South. This fact would not preclude this Court from ordering the trial of the case in the Court of Judicial Magistrate.
16. It is declared that if from the evidence recorded before the Judicial Magistrate possibility of commission of the offence punishable under section 395, P.P.C. Is made out, then the Judicial Magistrate would be competent to send the case to the Sessions Judge for trial of the applicants. It has been pointed out that an application under section 249-A, Cr.P.C. Filed on behalf of the application is pending before the concerned Judicial Magistrate since long. The Judicial Magistrate is directed to, dispose of the same on merits before proceeding with the trial.
17. ' This Criminal Miscellaneous Application stands disposed of on the above terms and observations.