This order shall dispose of Writ Petition No,6035 of 1998 filed by Mahfooz Ahmad as also Writ Petition No,7792 of 1998 filed by Masood Ahmad Malik as they are relatable to the same case registered (on the statement of Masood Ahmad Malik) vide F.I.R. No,50 of 1997 dated 24-1-1998 under section 436/34, P.P.C., Police Station Islampura, Lahore and they raise issues which have nexus with each other.
2. Facts giving rise to the filing of the fore-referred petitions are that respondent Masood Ahmad Malik (petitioner in W.P. No,7792 of 1998) who is real brother of the petitioner, got the fore-referred criminal case registered wherein it was alleged that on the night of 24-1-1997 somebody knocked at the main gate of his house and as he came out he saw his car (MNB/4949) on fire and his neighbours, namely, Muhammad Ahsan and Ahmad Sarfraz were trying to put out the same. He also saw a Petrol Can lying nearby. It was alleged that the petitioner (Mahfooz Ahmad) who allegedly is of a criminal bent of mind had got the car put on fire through his younger brother Mansoor who was a drug edict. The said Mahfooz, it was further alleged is settled in England and comes to Pakistan off and on and a day prior to the incident he had threatened him and his family of dire consequences. The case was investigated by two different agencies and the same was found to be false where after a discharge report was submitted by ,the Police to the Judicial Magistrate 1st Class, Lahore on 28-10-1997. Agreeing with the said report, the Judicial Magistrate discharged the petitioner with the following observation:-- "The investigation was conducted by different police officers, namely, S.H.O., Police Station, Islampura, D.S.P., Old Anarkali and Muhammad Sharif, Inspector Crimes Branch and all of them have found the accused persons not guilty in this case. The record reveals that the complainant himself admits that neither he nor any other witness saw the accused persons setting the car of the complainant on fire. Record reveals that the complainant avoided to join the investigation and no witness against the accused persons has been produced. In' view of the investigations conducted by the above said police officials and the absence of any evidence against the accused persons, no offence is prima facie made out against the accused."
3. Respondent No,2 (Masood Ahmad Malik) who is complainant in the case in question challenged the discharge order of the Magistrate in revision and the learned Additional Sessions Judge while admitting the same, suspended the operation of the order. The proceedings in revision and the order of suspension dated 17-11-1997 passed by the learned Additional Sessions Judge are impugned in this petition.
4. Learned counsel for the petitioner in support of the petition made following submissions:--
(i) That the order passed by the Magistrate discharging petitioner was an administrative order and was not amenable to revisional jurisdiction;
(ii) that no offence whatsoever was committed and the, police rightly submitted report before the Magistrate under section 63, Cr.P.C. A bare reading of the F.I.R. Would itself indicate that neither the complainant nor y other witness saw anybody sprinkling petrol on the car.
5. Learned counsel for respondent Masood Ahmad Malik (petitioner in W.P. No,7792 of 1998 and complainant in the F.I.R.) appearing in Court frankly conceded that the order of discharge passed by the Magistrate was an administrative order and was not amenable to the jurisdiction of the Additional Sessions Judge. He, however, made his submissions in W.P. No,7792 of 1998. In the said petition the discharge order of the Magistrate passed in favour of Mahfooz Ahmad petitioner (respondent in W.P. No,7792 of 1998) has been challenged. The precise contention of learned counsel is that the case was registered \under section 436/34, P.P.C. Which was triable by the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 and the report under section 63, Cr.P.C. Should have been submitted before the said Special Court and the order of the Magistrate was coram non judice. He relied on Syed Azmat Ali Shah and another v. The State and another PLD 1999 Pesh. 39; Azhar Hussain and others v. Government of Punjab and others 1992 PCr.LJ 2308; Allah Diwaya v. The State 1997 PCr.LJ 571 and Sardar Muhammad Tariq and another v. Special Judge of the Court for Suppression of Terrorist Activities, Rawalpindi Division, Rawalpindi and 2 others 1996 PCr.LJ 58.
6. Mr. Imtiaz Ahmad Kaifi, the learned Assistant Advocate-General defended the order of the Magistrate discharging Mahfooz Ahmad petitioner (respondent in W.P. No,7792 of 1998) by submitting that in three successive investigations the case was found to be false, that admittedly no one witnessed as to who sprinkled the oil on the car and in that eventuality there was no occasion for the police to submit a report under section 173, Cr.P.C. The report praying for discharge under section 63, Cr.P.C. Was in order and no exception can be taken to it which itself is a speaking and well-reasoned order. In support of his submissions, he relied on a judgment of this Court reported in Nazir Ahmad v. The State PLD 1987 Lah.236.
7. Heard. Record perused.
8. The precise questions which have cropped up for consideration are twofold:--
(i) Can the police submit report in terms of section 63, Cr.P.C. Before the Ilaqa Magistrate seeking discharge of the accused of a case triable by a Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975?
(ii) Can the Magistrate seized of the fore-referred report, if he agrees with the said report, pass an order of discharge or he is mandated to refer the matter to the concerned trial Court?
9. For a better appreciation of the points in issue it is necessary to refer to some of the relevant provisions o; law which have an important bearing section 63, Cr.P.C. Reads as under:-- "Discharge of person apprehended.--No person who has been arrested by a Police Officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate."
Section 167, Cr.P.C.-- "Procedure when investigation cannot be completed in twenty-four hours.--(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 61, and there are grounds for believing that the accusation or information is well-founded, the officer-in-charge of the police station or the police officer making the investigation if he is not below the rank of the sub- inspector, shall forthwith to the nearest Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the cases, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has no jurisdiction to try the case or (send) it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that no Magistrate of the Third Class, and no Magistrate of the Second Class not specially empowered in this behalf by the Provincial Government shall authorize detention in the custody of the police.
(3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing.
(4) The Magistrate, giving such order shall forward a copy of his order, with his reasons for making it, to the Sessions Judge."
Section 169, Cr.P.C.
"Release of accused when evidence deficient.--If upon an investigation under this Chapter, it appears to the officer-in-charge of the police station or to the police officer making the investigation that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or send him for trial."
Section 5(1) of the Suppression of Terrorist Activities (Special Courts) Act 1975: "Taking of cognizance.--(1) The officer-in-charge of a police station shall complete the investigation and forward directly to the Special Court a report under section 173 of the Code within fourteen days in respect of a case triable by such Court: Provided that the Special Court may extend the time within which such report is to be forwarded in a case where good reasons are shown for not doing so within the time specified in this subsection."
10. A perusal of the fore-referred provisions of law would show that all offences have to be tried and otherwise dealt with in accordance with the procedure laid down in the Criminal Procedure Code unless there is a specific provision to the contrary in any Special law. A police officer can detain a person if there is material to the effect that he is connected with the commission of a cognizable offence. However, section 61 of the Cr.P.C. Mandates that he can do so without an order of the Magistrate for not more than twenty-four hours and if for purposes of investigation he needs further detention of the person concerned he has to remand under section 167, Cr.P.C. The Magistrate concerned after perusing the record has either to grant the remand or can refuse further physical remand and send him to judicial remand or the third option would be that in case the evidence against 'the person concerned is deficient, he can discharge the said accused.
Section 173, Cr.P.C. Stipulates that a police officer has to complete the investigation within a period of fourteen days from the date of recording of first information report but in several cases investigation is not completed within this stipulated period and for variety of reasons the Investigating Officer needs more time to submit a final report in terms of section 173, Cr.P.C. Section 344, Cr.P.C. Caters to such situation and enables the Court to remand the accused to judicial custody for a period not exceeding fifteen days at a time. If the investigation of a case is complete and the police intends to challan some accused and not to challan the other co-accused the discharge order can be passed by the trial Court under section 173, Cr.P.C. In the instant case three different Investigating Officers found the case against the Petitioner (Mahfooz Ahmed) to be false and had submitted report to that effect before the learned Ilaqa Magistrate who having agreed with the report passed the well-reasoned order of discharge. In the facts and circumstances of this case it was not necessary for the police to submit a report under section 173, Cr.P.C. And then pray for the discharge order from the trial Court. Because none of the accused named in the F.I.R. Were found to be involved in the alleged offence, therefore, there was no necessity for forwarding the case to the trial Court. This is in line with the law laid down by this Court in Nazir Ahmad v. The State (PLD 1987 Lahore 236) wherein, at page 245, it was observed as under:- "In the present case, the investigation disclosed that no case was made out against Watiar Hussain Shah, respondent No,3. The police could not have submitted an incomplete challan qua him alone showing his innocence, as a challan is submitted when some case fit to go for trial is made out against some person. The investigation qua the other accused was not complete to justify submission of a complete or incomplete challan against any one of them. As such, the power of securing the discharge of the said respondent from the case obviously fell under section 167, Cr.P.C.
Read with section 63, Cr.P.C."
11. Argument of the learned counsel for Masood Ahmad Malik respondent that in terms of section 5 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 the police should have submitted a report under section 173, Cr.P.C. Before the Special Judge since section 436, P.P.C. Was alleged is not tenable for yet another reason section 5 of the foregoing Act mandates that the officer-in- charge of a police station shall complete the investigation and forward report under section 173, Cr.P.C. Within fourteen days in respect of "a case triable by such Court" which would mean that mere alleged offence would not confer jurisdiction on a Special Court. It is only if during investigation police finds it a case triable by a Special Court and a report is submitted to that effect that the jurisdiction of the said Court would be attracted. In the instant case admittedly not to speak of a case referable to a Special Court police report is to the effect that no triable case is made out. The case-law relied upon by the learned counsel for the respondent Masood Ahmad Malik(petitioner in W.P. No,6035/98) is distinguishable. In Syed Azmat Ali Shah and another v. The State (PLD 1999 Peshawar 39) bail was sought and one of the grounds was that the accused be released on bail as the case being triable by the Special Court, the accused should have been produced before the trial Court under section 344, Cr.P.C. And not before a Magistrate. As discussed above the Magistrate has the power to remand and adjourn the case for a period stipulated in section 173, Cr.P.C. And judicial remand beyond that period in cases triable by him but in cases which are not triable by him the judicial remand can be given by the trial Court under section 344, Cr.P.C. This is the ratio laid down in this case which is manifest from the observation, at page 43, wherein it was observed as under:-- "In cases in which the cognizance can be taken by the Magistrates of the 1st Class but such Magistrates are not competent to hold trial, they can pass orders under sections 167 and 344, Cr.P.C. Up to the time the challan is not sent up to the higher Court or the Court of Session which is competent to hold the trial. Once the case is sent up for trial to the Court of Session, all the orders passed thereafter under section 344, Cr.P.C. Shall be passed by the trial Court."
The case reported in Azhar Hussain and others v. Government of Punjab and others (1992 PCr.LJ 2308) is of no avail to the respondent (Masood Ahmad Malik) as the ratio laid down therein, at page 2311, is as under:-- "That the jurisdiction of the Court is to be determined on the basis of the allegations contained in the F: I.R. And the case set up by the prosecution. The truthfulness or otherwise of the allegations can only be determined at the time of trial after recording of evidence." In the instant case police has found that the registration of case is false and the trial is not called for. The case reported in Allah Diwaya v. The State (1997 PCr.LJ 571) is a case in which the challan had already been submitted before the Additional Sessions Judge and in which kerosene oil was used in the commission of the offence and the Court held that it was a case triable by Special Court since section 436, P.P.C. Was a scheduled offence. In the said case the State/prosecution had found the case to be triable and there was no finding of innocence against the accused. In Sardar Muhammad Tariq v. Special Judge of the Court of Suppression of Terrorist Activities (1996 PCr.LJ 58) the ratio laid down is similar to the one in Azhar Hussain's case (supra) i,e, the question of jurisdiction of Special Court has to be determined on the basis of contents of F.I.R., the material collected by the prosecution and report under section 173, Cr.P.C. Obviously this case has no relevance because the prosecution has come to the conclusion that no incriminating evidence is available against the accused for their trial not to speak of its trial before the Special Court.
12.For what has been discussed above Writ Petition No,6035 of 1998 filed by Mahfooz Ahmad petitioner is allowed and the order dated 8-12-1997 passed by the Additional Sessions Judge Lahore is set aside and W.P. No,7792/98 filed by Masood Ahmad Malik seeking annulment of the discharge order dated 6-11-1997 passed by Civil Judge/Judicial Magistrate 1st Class, Lahore is dismissed with no order as to costs.