' MUHAMMAD ROSHAN ESSANI, J.--- We propose to dispose of Criminal Appeal No,76 of 1999 (Muhammad Rahim Rajer v. The State) and Criminal Appeal No,77 of 1999 (Muhammad Sharif Shar v. The State), by this single judgment as both appeals arise out of same judgment.
' The appellants Muhammad Rahim Rajer and Muhammad Sharif Shar were convicted and sentenced by the learned Special Judge, Anti-Terrorism Court, Mirpurkhas by judgment, dated 7-7- 1999 to suffer two years' imprisonment each and to pay fine of Rs,5,000 each. In default of payment of fine they were awarded three months' simple imprisonment more.
3. Brief facts of the case are that appellants Muhammad Rahim Rajer, Investigating Officer in Crime. No,64 of 1998, investigated a case under section 465-K, P.P.C. During the course of investigation he produced the accused involved in the case Crime No,64 of 1998 before the Sub- Divisional Magistrate for the purpose of identification test which was supervised/held before S.D.M.
The case of prosecution is that after the completion of investigation the appellant failed to mention the names of the Mashirs of identification parade in charge-sheet, with the result those Mashirs were not examined by the trial Court and the case resulted in acquittal of accused.
4. The brief facts of the case of the appellant Muhammad Sharif Rajer are that the appellant Muhammad Sharif Rajer who was then Sub-Inspector of Police and who, according to the impugned judgment, was subsequently, reverted as Assistant Sub-Inspector, Police investigated the case Crime No,69 of 1998 under sections 353 and 324, P.P.C. The impugned judgment disclosed that during the course of investigation he did not mention about the "sugarcane crop" wherefrom the accused involved in Crime No,69 of 1998 slipped away. It is also alleged that he failed to recover the empties from the place of Wardat and sealed the Kalashnikov, which was recovered from the accused at the spot.
5. The trial Court consolidated both the cases and tried the accused together with the case, which arose out of Crime No,70 of 1998 under section 13-D, Arms Ordinance.
6. The accused involved in the aforesaid cases were tried and acquitted by the trial Court by judgment, dated 20-5-1999. The learned trial Court issued show-cause notices against the appellants. The contents whereof are reproduced hereinbelow in extenso:-- "Whereas investigation in Crime No,64 of 1998, of the Policat Station Samaro Crimes Nos.69 of 1998 and 70 of 1998, both crimes of Police Station Khipro is not conducted properly and is defective, therefore, prosecution could not prove this case and accused in the above crime have been acquitted by this Court.
' You are, therefore, called upon to submit your explanation as to why action under section 27 of Anti-Terrorism Act, 1997, should not be taken against you. The reply should be submitted to this Court within 3 days after receipt of this notice.
' Given under my hand seal of this Court on 22-5-1999."
7. The appellants submitted reply to the notice reproduced hereinabove before the trial Court. The 'contents whereof are reproduced hereinunder for the sake of convenience:-- "Respectfully I beg to state as under:--
(1) That the show-cause notice under reference was received by me on 25-5-1999, accordingly I am submitting my reply partly within specified period, because I continuously remained present in this Honourable Court uptil now and the required documents including copy of judgment not available for preparation of reply duly complete in all respects. Hence the final reply will be submitted later on for which sufficient time may kindly be granted.
(2) That as far as the investigation in Crime No,64 of 1998 is concerned, I had investigated and collected .The evidence properly and honestly under the supervision of my superiors. The case was examined and found fit for trial by the superiors.
(3) That in absence of documents and record as well as specific allegations I am unable to submit the reply within prescribed time.
(4) That mere allegation of defective investigation did not depict specific allegation for submission of reply.
(5) That the show-cause notice contains three crimes, which were investigated by different Investigation Officers, hence the show-cause notice did not show specific allegations against me in order to submit reply.
(6) That my humble prayer is that any omission on my part may kindly be excused and I assure for future carefulness.
' It is, therefore, requested and prayed that this Honourable Court may very kindly be withdrawn the notice or sufficient time for submission of complete reply may kindly be granted. Yours obediently (Sd.) 27-6-1999 (Muhammad Rahim Rajar), S.I.P., C.I.A. Police, Mirpurkhas.
' In obedience to the above-cited show-cause notice issued by this Honourable Court vide Cr.
No,130 of 1999, dated 22-5-1999, I Muhammad Rahim, S.H.O./Investigating Officer of the case most respectfully beg to submit my humble reply as under for favour of kind consideration in the interest of justice with mercy:
(1) That with all due respects and full regards, I beg to seek unconditional apology from this Honourable Court with regard to the allegation of defective investigation of the case.
(2) That, however, to elucidate and to explain my position, I beg to submit the list of my investigation made in the under reference case as under:-- On 7-12-1998 on the report of one Syed Nadeem Shah, resident of Mirpur Khas the duty officer, A.S.-I.
Nabi Bux registered the instant case in respect of the kidnapping of 3 persons alongwith their car by some unknown culprits on 5-12-1998 on their way from Mirpurkhas to Umerkot.
' Being a special reported case, I issued the requisite S.P.L. Report and took up the investigation on the same night. I made strenuous efforts to find out any clue of the unknown bandits and to recover the abductees safely from the clutches of culprits. On the next day of the F.I.R. I found the car belonging to abductees parked duly unattended from Mithrao Canal path and was brought at police station during the same process, complainant party got some forms of identity card etc. Lying in the bushes of the nearby area. The same was also secured. These forms were said to be in the abductees' vehicle. Since the same were not any relevant piece of evidence against the culprits, no Mashirnama was prepared.
' On 11-12-1998, my sepoys informed me that dacoit Karo Chandio has kept confined the abductees in his village alongwith his associate dacoits. As such after informing the high-ups, a plan was made and a special raid was arranged in the company of many officers including the concerned high-ups of the relevant jurisdiction. During the raid, on 12-12-1998 at about 9-40 hours, I alongwith other police staff including officers, met an encounter near the village/hide-out of Karo Chandio alongwith Roshan Khoso fled away in a Margalla Car of Grey Colour while his other associates opened fire upon the police party. In this way the encounter started. Thereafter, fortunately or unfortunately the car stunned in the mud. Thereafter, the dacoits Karo Chandio and Roshan also started to make fires upon the police party. Ultimately, Karo Chandio was killed while. Roshan was apprehended alive.
' Thereafter, the associates made their escape good and encounter ended. Necessary search of the nearby bushes and sugarcane cultivations were conducted to arrest the absconding culprits but with no results. Thereafter, I went to Police Station Khipro where I got registered the encounter Case Cr. No,69 and Arms Ordinance case Cr. 70 against arrested accused Roshan Khoso for want of jurisdiction. S.I.P. Muhammad Sharif, S.H.O. Khipro who was also taking part in the encounter registered the cases and started the investigation. , ' Later on I brought accused Roshan Khoso and Hashim Kalar, they were remanded up to further one week and got their identification parade before the learned S.D.M., Umerkot because on 16-12- 1998 learned Judicial Magistrate, Samaro directed me for identification on next day. I issued notice to abductees for their appearance before Judicial Magistrate, Samara on 17-12-1998 but abductees moved application to me that on 17-12-1998 they were busy at Karachi to meet with Governor, therefore, they were unable to appear on 17-12-1998 on this position and verbal orders of my S.D.P.O./D.S.P., Samaro I appeared before S.D.M., Umerkot and requested for identification parade in written and he accepted my request and parade held, the abductee were also released and by the culprits and they directly reached and appeared before the worthy D.I.-G. Police, Mirpurkhas. I recorded their 161, Cr.P.C. Statements wherein they disclosed their abduction, keeping them in wrongful confinement and names of certain co-accused.
' After completing the investigation, as per rules, I submitted the case papers to my D.S.P./S.D.P.O., Samaro who after issuing his case diary (copy enclosed) submitted the case papers for scrutiny and prosecution sanctioned to my worthy S.P., Umerkot. The S.P., Umerkot as per rules got the papers scrutinized from branch and then passed the necessary prosecution sanction order (copy enclosed).
' The case was then sent up before the Military Court where it was tried but after my examination- in-chief the Court was abolished and the case was sent before this Honourable Court, my cross- examination was started. After further trial the accused were acquitted due to contradictory evidence and defective identification parade held by learned S.D.M., Umerkot.
(3) That I according to ability, knowledge and experience collected all material evidence against the accused. It may be pointed out that no defects in the investigation made by me were pointed out by the scrutinizing officer and as such in compliance with the prosecution sanction order I submitted the challan before the Honourable Court for trial.
(4) That the names of Mashirs of identification were not mentioned by the W.H.C., which could not be detected by me also due to hurry. However, these Mashirs could be called by the learned Special Prosecutor through an application under section 540, Cr.P.C. If their evidence in addition to the evidence of S.D.M. Was necessary.
(5) That the car secured which was stopped in the mud and was in possession of accused Karo Chandio and Roshan belonged to abductees whose case was previously registered at Police Station Karyoganhwar in respect of their kidnapping alongwith the said car. This point was clarified by me in my cross but it was not made clear by the learned Special Prosecutor.
(6) That as far as the point of identification parade of accused Roshan and Hashim before S.D.M., Umerkot is concerned, it was not in an unlawful act. The same was held on 16-12-1998 whereas the Secretary, Law vide his Circular No,OP.8(131/98/531), dated 6-12-1998 had very clearly empowered the Revenue Magistrate to do this job like other Judicial Magistrate (copy of the same is enclosed).
In this way I, in the circumstances, knowingly did not create any defect.
(7) That as far as the evidence of abductees and S.D.M. Is concerned they themselves are responsible for their changing statements, which they had given in their 161, Cr.P.C. Statements, recorded without any intentional delay.
(8) That I am a young man having minor babies. I am sincerely serving the department without any complaint from any corner. I am the man who did not care of his own life, took an active part in the encounter and arrested the culprits on the spot who were fully armed with deadly weapons.
(9) That looking to the entire investigation made by me, it is clear that neither I knowingly nor intentionally made any defective investigation. However, even then if any lacuna is left, I am very sorry for that and shall be very careful in future.
(10) That in the end I once again seek apology and pray to this Honourable Court to kindly excuse me and to vacate this show-cause notice in the circumstances, I pray for mercy.
(Sd.) Respondent Muhammad Rahim, S.I.P., District Mirpurkhas
8. The explanation submitted by the appellants before the trial Court was held to be unsatisfactory.
9. The trial Court framed charge against both the appellants under section 27 of the Anti-Terrorism Act, 1997 to which the appellants pleaded not guilty and claimed to be tried.
10. The trial Court examined Shamim Ahmed Baig, Reader of the Court, who produced true copy of judgment passed in case which arose out of F.I.R. No,64 of 1998 under section 365-A, P.P.C. And F.1.R.
No,69 of 1998 under sections 353 and 324, P.P.C. As Exh.5-A. He also produced show-cause notice as Exh.5-B and reply to show-cause notice as Exhs.5-C to F and thereafter, prosecution closed its side by statement.
11. The learned trial Court recorded statements of the appellants under section 342, Cr.P.C. Vide Exhs.6 and 7 in which they denied the allegations and they stated that they did not commit the defects intentionally and that they acted under the supervision of their high-ups. The appellant Muhammad Rahim Rajar in his statement under section 342, Cr.P.C. Stated that he wants to examine himself on oath but subsequently he made statement that he did not want to be examined on oath as appellant Muhammad Sharif had declined to examine himself on oath. They also did not examine any person in their defence. The trial Court framed the following points for determination:-- Point No,1.--- Whether accused S.I.P., Muhammad Rahim Rajar conducted 'defective investigation of Cr. No,64 of 1998 registered under section 365-A, P.P.C. And others intentionally?
Point No,2.--- Whether accused S.I.P. Muhammad Sharif Shar (now reverted as A.S.-I.) conducted defective investigation of case/Crime No,69 of 1998 under sections 353 and 324, P.P.C. Intentionally?
Point No,3.--- What conviction, if any, should be awarded to the accused?
12. The learned trial Court answered the points Nos.1 and 2 in affirmative and convicted the appellants as stated hereinabove.
13. We have heard Mr. Qurban Ali Chohan, learned counsel for the appellants and Mian Khan Malik, learned Additional Advocate-General, Sindh, on behalf of the State. The latter conceded to the extent that the show-cause notices issued to the appellants were not in accordance with law and their joint trial was illegal. We have also perused the material placed on record as well as R & Ps of the trial Court alongwith the main judgment with the assistance of learned counsel for the parties.
14. Before divulging on the points urged by the learned counsel for the parties, it will be pertinent to reproduce herein under section 27 of the Anti-Terrorism Act, 1997, for ready reference:-- "Section 27. Punishment for defective investigation.--- If Special Court or an Appellate Court comes to the conclusion during the course of or at the conclusion of the trial that the Investigating Officer or other concerned officers have failed to carry out the investigation properly or diligently or have failed to pursue the case properly and in breach of their duties, it shall be lawful for such Court or, as the case may be, Appellate Tribunal to punish the delinquent officer with imprisonment which may extend to two years or with fine or with both by resort to summary proceedings."
15. The plain reading of above provisions of law show that if Special Court or Appellate Court comes to the conclusion during the course of proceedings or at the conclusion of the trial that the Investigating Officer or other concerned officer have failed to carry out the investigation properly or diligently or have failed to pursue the case properly and in breach of their duties, it shall be lawful for such Court, or, as the case may be, Appellate Court to punish the concerned officer for imprisonment.
16. It will also be pertinent to briefly refer to the history of legal jurisprudence for the sake of safe dispensation of justice.
17. The law as defined by Black's Law Dictionary, is a rule of action and to be applied indiscriminately to all kinds of action. The science of jurisprudence was developed. It was intended to classify and estimate for the purpose of critical approach and appreciation of law. The philosopher i,e, Hugo Grocious, Ammaubal Kant, Hagal from 15th Century to 18th Century are founders of the scientific historical school of jurisprudence. The modern jurists of this school are Holland and Salmand. They propounded the jurisprudence, therefore, they are known as modern philosophers and scholars of this School of Thought. The jurisprudence has covered the entire field of law. The law enacted by the Legislature is interpreted at the touchstone of jurisprudence. Thus, the jurisprudence is concerned with the fundamental principles of law.
18. Light Wood defines law as a science of attainment of justice by means of rules of law. The Demosthenes has said that every law is a gift of God Solmand has defined that the law is not right alone or might alone, but a combination between the two. He further says that the law may be defined as the body of principles recognized and applied by the State in the administration of justice. Many critics have criticised this definition but the same is more plausible. The law is meant to do justice. To summarise, I will advert to the case in hand. It is cardinal and well-settled principle of criminal jurisprudence that for constituting a criminal offence, mens rea/intention is very essential. Therefore, it will be expedient to appraise/evaluate the present case in the light of what has been mentioned hereinabove.
19. The perusal of judgment in Special Case No,1 of 1998 (Muhammad Hashim and Roshan Ali) under section 365-A, P.P.C. Which arose out of F.I.R. No,64 of 1998 of Police Station Samaro, District Umerkot and No,70 of 1998 of Police Station Khipro, District Sanghar, shows that the accused involved in the cases were extended benefit of doubt by the trial Court and they were acquitted accordingly.
20. Now, we first advert to the case of appellant Muhammad Rahim. According to the impugned judgment the allegation against him was that appellant did not mention the names of Mashirs of identification parade in the charge-sheet submitted before the trial Court with the result those Mashirs were not examined.
21. It is essential to reproduce hereinbelow section 540, Cr.P.C.: "540. Power to summon material witness or examine person present.- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case."
22. The perusal of the above provision of law shows that Part I of this section is mandatory, whereas the Part II of this section is obligatory. This provision of law confers wide powers upon the trial Court.
In order to ascertain the truth and to arrive at a just decision of the case, the trial Court at any stage of the case can summon, examine or recall and re-examine any person, already examined.
The object of this section is to enable the Court to elucidate/ascertain the truth in order to impart justice, which is the primary duty of the Court. In exercise of powers under this provision of law Court is not absolved from performing its duty because of certain technicalities. If evidence of any person is essential for the just decision of the case, irrespective of the fact that his name is mentioned or not mentioned in the charge-sheet, the Court can summon and examine such person. The power of the Court under section 540, Cr.P.C. Are unfettered and they can be exercised at any stage of the case before pronouncement of judgment. It has come on record that the Mashirnama of identification was produced by the S.D.M. In whose presence identification test was held. The names of the Mashirs with addressed transpire in the Mashirnama. If due to any bona fide mistake/omission this irregularity was committed by the Investigating Agency that could have been rectified by the trial Court by summoning the Mashirs. The entire trial was not vitiated due to this irregularity. Moreover, if any irregularity was committed it was curable under section 537, Cr.P.C. The Courts are sanctuaries of the rights of the persons brought before them. They should leave no stone unturned in discharge of their duty conferred upon them by the statute. They should not hesitate in exercising powers to do real and substantial justice.
23. It is common connotation that justice hurried means justice buried.
24. Now, we will advert to the case of appellant Muhammad Sharif. The allegations against him were that he failed to mention about the word "sugarcane crop" in the Mashirnama of the scene of offence through which absconding accused are said to have run away. Moreover, appellant failed to make recovery of the empties from the place of Wardat and sealed the kalashnikov, which was recovered from one of the accused at the spot. In this context, looking towards the -peculiar facts and circumstances, the statement of appellant Muhammad Sharif recorded under section 342, Cr.P.C. Appears to be more plausible and convincing. He has stated that he did not act individually but as per instructions of his superior officers. At the scene of offence there was water, mud etc. With the result that the car of the accused had also stuck up, therefore, it was not possible to find out/recover the empties. He has further stated that apart from this, there were many mobiles and heavy contingent of the police force, therefore, it was impossible for him to recover the empties. It is further stated that soon after the incident, appellant was reverted and he was directed to hand- over the charge and had he remained there for some time he may have tried to recover the empties. The prosecution branch prior to submitting charge-sheet before the trial Court, processes/wets the case and if any flaw or lacuna is left in the investigation it is always pointed out to the Investigating Officer, but in this case no such irregularity was pointed out to him by the said branch. So far the non-sealing of Kalashnikov is concerned he has categorically stated that he was directed by his superior officer to proceed/move ahead. Therefore, in obedience to the orders of his superiors he moved immediately.
25. The learned State Counsel had rightly argued that the joint trial of appellants was illegal as the cases amalgamated by the trial Court pertained to different police stations and investigated by different Investigating Officers. He further argued that no appeal with regard to acquittal of accused against the judgment, dated 20-5-1999 was filed.
26. It is also borne out from the record that no separate and specific particulars or details of defective investigation were mentioned in the show-cause notice, given to the appellants.
27. The upshot of the above discussion is that it is not proved beyond shadow of doubt that appellants intentionally and improperly without due diligence failed to pursue the case and they acted in breach of their duties.
28. Consequently, we are of the considered view that the conviction and sentence awarded by the trial Court is liable to be set aside. Resultantly, both the appeals are allowed and the appellants are acquitted of the charge. They shall be released forthwith if not required in any other case.
29. By our short order, dated 18-1-2000, the above appeals were allowed and these are the detailed reasons for the same.