' By means of this judgment Criminal Appeal A.T.A. No,78 of 2002 Ashrafullah Khan v, State and Criminal Appeal A.T.A. No,80 of 2002 Asmatullah v. State are disposed of as both the appeals are directed against the judgment dated 4-9-2002 passed by Special Judge, Anti-Terrorism Court-I, Quetta, whereby the appellants have been convicted under section 27 of Anti-Terrorism Act, 1997 and sentenced to six months' R.I. And fine of Rs,5,000 each in default of payment of fine to undergo further term of one month's S.I.
2. Brief facts leading to the appeal are that on 4-1-2002 one Abdullah Khan, submitted an application to Assistant District Administrative Officer, Zhob, stating that on 4-1-2002 the V.H.F. PCO situated in their village known as Mir Ali Khel was fired at by Rocket Launcher. The V.H.F. And all its machinery were damaged while two original machines/repeaters were taken away. Request for action was made.
3. Application was marked by A.D.A.O. To Naib-Tehsildar Sherani, on whose report F.I.R. No,1 of 2002 under sections 4/5, Explosives Act and 427, P.P.C. Against unknown accused persons was registered with Levies Thana Sherani on 4-1-2002.
4. After registration of the case investigation was taken in hand by Sheikh Asmatullah Khan, Naib- Tehsildar, Sherani who arrested six persons namely Malik Haji Muhammad Alam, Muhammad Ghaffar, Muhammad Karim sons of Malik Haji Adam Khan, Malik Jamal Khan son of Malik Haji Kandari, Abdul. Ahad son of Badool and Suleman Shah son of Haji Wazir. Statements of all the above six accused were recorded under section 161, Cr.P.C. Finally challan was submitted by Investigating Officer/Naib-Tehsildar, Sherani on 21-1-2002, to Assistant District Attorney, Zhob, who forwarded the same to Judicial Magistrate, Zhob for its onward submissions to the Court of Sessions Judge for trial against accused persons under sections 4/5 of Explosives Act, 1884. The learned Judicial Magistrate, Zhob on 8-2-2002 forwarded the challan to Anti-Terrorism Court, Zhob under section 193, Cr.P.C. However, after establishment of Anti-Terrorism Court-I, Quetta, the challan was transferred to the said Court and cognizance of the offence was taken by the said learned Court.
5. After having scrutinized the entire material produced/appended with the challan, the learned Court failed to find any ground for proceeding with the trial of accused persons for want of any incriminating material likely to expose, them or either of them to any criminal liability, therefore, the learned Court, summoned the Investigating Officer on 6-8-2002 but he also failed to point out any material, on the basis of which the arrested six persons could be charged for offence alleged to have been committed by them. Meanwhile the defence filed application under section 265-K, Cr.P.C. Which was accepted by the learned trial Court whereby all the six accused persons named above were acquitted and following observation was made regarding investigation of the case and the 'officers/officials involved with the same:-- "In view of above circumstances of the case and material collected by Investigating officer and submitted alongwith the challan prima facie no case made out against accused persons, therefore, I am inclined to accept the application under section 265-K, Cr.P.C. And discharge the accused persons of the case/allegations as levelled against them in the F.I.R. They, are on bail their bonds be discharged. The investigation of the case has not been conducted properly and under these circumstances the accused persons discharged, therefore, I direct that proceedings be initiated against the Investigating Officer of the case and concerned Officers under section 27 of Anti-Terrorism Act, 1997."
6. Accordingly as per above observation show-cause notices were issued to both the appellants as to why action under section 27 of Anti-Terrorism Act, 1997 may not be initiated against them as they were held responsible for improper investigation. Reply was submitted by both the appellants wherein appellant Ashrafullah Khan Kakar, D.A.O., denied any role in the investigation of the case while appellant Asmatullah, Naib-Tehsildar, Sherani, stated that the arrest of six persons named in the challan was made as per direction of D.A.O. i,e, the appellant Ashrafullah Khan Kakar. However, appellant Asmatullah, admitted that there was no material to show involvement of any of these six persons despite which he submitted challan against them.
7. The learned Special Judge, Anti-Terrorism Court-I, Quetta being dissatisfied with the reply to the show-cause notice proceeded with the matter by framing of formal charge against both the appellants for offence under section 27 of Anti-Terrorism Act, 1997. The charge was denied by appellant Ashrafullah Khan Kakar, whereas, appellant Asmatullah, impliedly admitted the charge and shifted the liability on appellant Ashrafullah Khan Kakar, stating that he acted as per his direction. The learned Special Judge, Anti-Terrorism Court-I, Quetta, thereafter, recorded the statement of both the appellants under section 342, Cr.P.C. While both the appellants also got recorded their statements under section 340(2), Cr.P.C. Appellant Asmatullah produced copies of Letter No,2123/Admn dated 10-1-2002 addressed by D.A.O., Zhob i,e, appellant Ashrafullah Khan, to the Chief Secretary, Government of Balochistan, Letter No,48-50, dated 17-1-2002 addressed by D.A.O. To the Deputy Secretary to Chief Secretary, Government of Balochistan, Letter No,80- R/DSP/IV, dated 11-2-2002 addressed by D.S.P., Crime Branch of D.A.O., Zhob.
8. The learned Special Judge, Anti-Terrorism Court-I, Quetta taking into consideration all the material available on the record and the submissions made by both the appellants reached to the conclusion that appellants have committed Offence under section 27 of Anti-Terrorism Act, 1997 and they were accordingly convicted and sentenced as hereinabove mentioned.
9. Feeling aggrieved of their conviction, both the appellants preferred appeals challenging their conviction and sentence.
10. Mr. Shakeel Ahmed, the learned counsel for appellant Ashrafullah Khan Kakar, contended that the appellant being D.A.O. Was not directly involved with the investigation of the case, who however; made efforts to trace out the culprits. All the six persons are stated to have been arrested by Investigating Officer who was not under his direct control. The trial Court is stated to have erred in shifting the responsibility on appellant as there was no material which could reflect that the appellant had failed to carry out the investigation properly and diligently.
11. Mr. Amir Rana, the learned counsel for appellant Asmatullah, Naib-Tehsildar, Sherani, contended that the investigation of the case was supervised by D.A.O., Zhob, directly and the arrest of all six persons was also made under his direction. The appellant is stated to have been protected by section 76, P.P.C. As he was duty bound to comply with the direction of his superior. It is claimed that the appellant conducted the investigation honestly and there was no mala fide on his part. It is further contended that challan was not submitted by him directly to the Anti-Terrorism Court, as the same was routed through the Magistrate who was to point out any irregularity or illegality, therefore, the responsibility of any defective investigation does not rest on appellant.
12. The learned State Counsel Mr. Jamshad Malik, Advocate, vehemently opposed both the appeals and contended that defective investigation was carried out by the appellant Asmatullah, under supervision of Ashrafullah, which is apparent from the record. The available material abundantly shows direct involvement of both the accused in the arrest of six persons without any evidence whereas, no effort was made to trace out the real culprits. Statements of all the six arrested persons were recorded under section 161, Cr.P.C. Wherein all of them denied any involvement in the commission of offence while the record was silent as to on what basis these six persons were arrested. Furthermore, the challan was submitted by Naib-Tehsildar who had been admitting throughout the proceeding that there was no incriminating material against any of the arrested persons. The letters produced by appellant Asmatullah, before the trial Court clearly show involvement of accused Asmatullah, who undisputedly took upon himself the responsibility of supervising the investigation, therefore, the trial Court is stated to have properly assessed the evidence and reached to the conclusion; free from any impropriety material, irregularity or illegality.
13. Submissions made by the parties learned counsel have been considered in the light of the record of the case which has been gone through carefully including the impugned judgment. The appellants do not dispute the fact that Rocket was fired on V.H.F. P.C.O. Stated at Village Mir Ali Khel, causing extensive damage to the machinery, equipment etc. Of the station.. Further taking away of two original repeaters is also not denied. It is admitted that the report of the incident was lodged on 4-1-2002 by Abdullah Khan, on which F.I.R. No,1 of 2002 was registered by Naib-Tehsildar, Sherani, namely Sheikh Asmatullah Khan, who also took the investigation, in his hand and finally submitted the challan.
14. Apart from inspection of the site and taking into possession the shell of Rocket, he also arrested six persons who were sent up for trial As per challan on 7-1-2002 three accused namely Malik Haii Muhammad Alam, Malik Jamal Khan and Abdul Ahad, were arrested. On 10-1-2002 two other accused persons namely Muhammad Ghaffar and Muhammad Karim, were arrested, whereas; the sixth one namely Suleman Shah was arrested on 17-10-2002. Statements of all the above six persons were recorded wherein they expressed their ignorance about the incident and claimed to be innocent.
15. The record shows that during investigation other than inspection of the site of incident, seizure of the shell of rocket, preparation of site plan, arrest of above said six persons who were examined under section 161, Cr.P.C, stated to be accused and recording of the statements; no incriminating evidence was collected to connect. The accused, persons with the commission of offence. The entire record is silent as to on what basis or material the above said six persons were arrested and sent up to face trial. The trial Court after submission of challan could not even frame charge for want of any incriminating material against any of the accused persons, consequently, the Investigating Officer i,e, appellant Asma tullah, Naib-Tehsildar, Sherani, was called upon to point out the evidence connecting accused persons with the commission of offence but with no positive answer, therefore, the Court was left with no other option but to acquit the accused persons, with observations that investigation was not conducted properly.
16. The counsel for both the appellants are in agreement with the observation made by Special Judge, Anti-Terrorism Court-I, Quetta, in its judgment dated 9-8-2002 regarding non-availability of any evidence against the six persons and it is not disputed by the appellants that all the six persons, made accused in the case under F.I.R. No,1 of 2002 were arrested without any justification.
Hence apart from the fact that on the one hand proper and diligent investigation to trace out and arrest the real culprits involved in the incident was not made and on the other hand admittedly innocent persons were arrested and sent up for trial, who have suffered a lot till acquitted by the Court, which the appellants failed to account for.
17. Appellant Asmatullah, in reply to the show-cause notice issued by Special Judge, Anti-Terrorism Court-I, Quetta, without disputing the fact that he was the Investigating Officer, defended himself in the following terms, to get himself exonerated and shift the responsibility on appellant Ashrafullah Khan Kakar, Ex-D.A.O., Zhob:-- "It is respectfully submitted as under:-- ' That on the report of Abdullah Khan son of Haji Zarif Khan on 4-1-2002 an F.I.R. Was lodged under sections 4/5 of Explosives Act and section 427, P.P.C. Against unknown persons. Subsequently, the undersigned conducted the investigation, went at the place of incident, prepared the map and recorded the statements under section 161, Cr.P.C. Prepared the seizure memo. And tried his level best to have any hint/clue of the accused who had committed said offence. But nothing was coming on record especially the people of vicinity were not cooperating. In these circumstances it was very difficult to reach at any conclusion with regard to the identity of real culprit.
' That during the course of investigation the District Administrative Officer called me and informed me that he is of the knowledge that certain persons' namely Malik Haji Muhammad Alam son of Haji Adam Khan, Muhammad Ghaffar son of Malik Haji Adam Khan, Muhammad Karim son of Malik Haji Adam Khan, Malik Jamal Khan son of Malik Haji Khidrai, Abdul Ahad son of Badole and Suleman Shah son of Haji Wazir all by Caste Sherani Muhammadzai, resident of Mir Ali Khail, Tehsil Sherani, District Zhob, have been involved in the said case. On this information from D.A.O. I conducted raids at different places and resultantly arrested all of them.
' That there is no denial of the fact that no recovery was effected from the said accused, neither any independent iota of evidence was available against them but D.A.O. Bent upon to implicate the said accused in the instant case and I being a Naib-Tehsildar had to follow the instructions/orders of D.A.O. In this regard it is pertinent to mention here that the said D.A.O. Had even written to the Deputy Secretary to Chief Secretary, Government of Balochistan for transfer of said case to Crimes Branch/C.I.A., Quetta through Home Department for proper investigation but the same was replied by the Deputy Superintendent, Police Crimes Branch, Balochistan, Quetta but at that point of time the accused had been given in judicial custody.
' That after the completion of the investigation was incumbent upon me to send a challan to the competent Court of law for commencement of trial. But it is important as well as pertinent to mention here that the said challan had been passed by Assistant District Attorney, Zhob who after perusing all the documents as well as the material available on record had reached at the conclusion that it is a fit case to be tried by the competent Court of law. Your honour is very much aware of the fact that it is the obligatory duty of the Assistant District Attorney to examine the challan properly before sending it to competent Court of law for trial. But in the instant case I was acting under the directions of my superiors so had to prepare a challan so under the impression that the same challan had to pass to the filter of the office of Assistant District Attorney so it was the duty of the concerned Assistant District Attorney to see as to whether the said challan was fit to be forwarded to competent Court of law.
' That I have narrated the facts, best of my knowledge and belief and nothing material has been concealed therefrom. I have honestly conducted the investigation. I have not tried to implicate any persons falsely if there had been any mala fide on my part in order to achieve ulterior motive, it was quite easy for any Investigating Officer to incorporate incriminating material which I have not done, so there is absolutely no mala fide on the part of the undersigned. Apart from it as far mentioning of date is concerned that has been mentioned in the F.I.R. As 4-1-2002 even the time of the incident has been mentioned as 2-00 a.m. While the time of report has been mentioned as 2- 00 p.m.
' It is, therefore, respectfully prayed that in view of the above mentioned humble submissions/explanations the show-cause notice, dated 15-8-2002 bearing No,210 may kindly be withdrawn, in the interest of justice."
18. Appellant Ashrafullah Khan Kakar, disowned any responsibility or liability regarding investigation and arrest of the persons, challaned in case under F.I.R. No,1 of 2002 made following reply to the show-cause notice:-- "Kindly refer to Show-Cause Notice. No,211, dated 15-8-2002 served upon the undersigned for submission of explanation, the undersigned submits the following explanation to the show-cause notice referred above.
' That investigation in the criminal cases in "B/Levies" area is conducted by Tehsildar/Naib- Tehsildar under the direct and legal supervision of Judicial Magistrate who is empowered to grant remand of the accused arrested on the basis of material implicating/incriminating evidence available on record against the accused person. It is also not irrelevant to mention that challans of the criminal cases to the competent Courts are submitted by the Investigating Officers through D.A./A.D.A., who are supposed to remove the legal lacunas and guide the Investigating Officer in submission of the challan in accordance with requirement of law. In case of deficient evidence the Investigating Officer as well as the Judicial Magistrate are competent to discharge the accused from the case. The undersigned being a D.A.O. Commander of the Levies Force is not assigned any role to supervise the investigation in criminal cases which is otherwise conducted under the direct supervision of Judicial Magistrate and D.A./A.D.A. Therefore, in the presence of responsible Judicial and Law Officers there arises no question of my directions in the investigation of criminal cases.
' In view of the position explained above it is submitted that neither the undersigned has any authority, legal obligation in investigation of the criminal cases nor had' the undersigned issued any directions to the Investigating Officer in the instant case.
' It is, therefore, humbly submitted, that' in view of the explanation offered above the show-cause notice may kindly be withdrawn in the interest of justice and equity. Submitted please."
' In addition to above reply both the appellants made statement on oath under section 340(2), Cr.P.C. Wherein they reiterated the averments made by them in their reply to the show-cause notice and appellant Asmatullah, placed on record Mark D/1 copy of Memorandum No,2123/Admn., dated 10-1-2002 addressed to Chief Secretary, Government of Balochistan by D.A.O., Zhob i,e, appellant Ashrafullah Khan Kakar. Mark D/2 Memorandum Nos.48-50, dated 17-1-2002 addressed to the Deputy Secretary, to Chief Secretary, Government of Balochistan by Ashrafullah Khan Kakar, D.A.O. Mark D/3 Letter No,80-R/DSP/IV, dated 11-2-2002 addressed to D.A.O., Zhob by Deputy Superintendent of Police, Crime Branch, Quetta. None of the above letters was disputed by the appellant Ashrafullah Khan Kakar.
19. In letter Mark D/1 the appellant Ashrafullah Khan Kakar, has conveyed the progress of the investigation in the following words:-- "Kindly refer telephonic conversation with your goodself dated 6th January, 2002 on the subject noted above.
' On receiving the information the undersigned directed Assistant District Administrative Officer, Sherani to send Naib-Tehsildar, Sherani alongwith the Defedar Levies, who had informed the undersigned about the incident.
' It was also directed to Naib-Tehsildar, Sherani, to visit the place of incident, immediately submit detail report and take necessary legal action.
' The case is multi-dimensional and complicated due to the following reasons: ' The complainant Defedar Zareef Khan, who belongs to Hayeezai Tribe of Sherani and is close relative of Maulana Muhammad Khan Sherani is not in a position to nominate some one directly.
However, he one way or the other implicates Haji Muhammad Alam son of Haji Adam and his party.
Therefore, Muhammad Alam, Muhammad Ghafoor, Muhammad Karim alias Badool sons of Haji Adam, Jamal Khan and Abdul Ahad have been arrested in the case. They have differences and dispute on land with Maulana Muhammad Khan Sherani.
' Another dispute of Hayeezai Tribe is with the Sulemankhel residing in Afghanistan. On 7th September, 2001 one person namely Spin Gul took away 19 cows of the Hayeezai Tribe to Afghanistan. The undersigned sent a tribal delegation to Spin Gul and that delegation brought back these cows. There are murder cases between Hayeezai and Sulemankhel Tribe.
' Sheranies have another dispute with Dotanees residing in Afghanistan.
' It has also been reported that three months ago some relatives of Maulana Muhammad Khan Sherani, who were demanding land distribution, which is the property of Maulana Muhammad Khan Sherani. On the refusal of Maulana Muhammad Khan Sherani they shifted from the village to Zhob Town.
' Keeping in view the above narrated facts, each and every aspect of the case is being considered and investigation is in hand and the undersigned personally supervise the investigation ' Submitted for information please."
20. Letter Mark D/2 shows that appellant Ashrafullah Khan Kakar, approached the Deputy Secretary to Chief Secretary with the suggestion and recommendation that the case alongwith accused may be shifted/transferred to Crime Branch/C.I.A./J.I.T., Quetta through Home Department. Mark D/3 shows that Government of Balochistan, Home Department transferred the investigation to Crime Branch Police. Accordingly the Superintendent, Police Crime Branch, Quetta vide Mark D/3 approached appellant Ashrafullah Khan Kakar, for deputing the Investigating Officer to hand over the file of the case alongwith all relevant documents so that the real culprits are arrested but instead of transferring the record/file to Crime Branch the challan was submitted showing the six persons as accused against whom admittedly no evidence was available.
21. Submissions made by the appellant Asmatullah, in his reply' to the show-cause notice on the face of it speaks of his incompetency and it also shows that he failed to conduct the proper and diligent investigation, he rather obeyed theorders of his superior without realizing that the same are legal' or illegal. The arrest of six persons on the instance of D.A.O. Without any evidence cannot be termed to be an act which can be covered by the exception of section 76, P.P.C. Because the act of arrest of a person in a case without any reasonable suspicion or grounds is an illegal act which cannot be considered to be a mistake of fact, inasmuch as; they were also sent up for trial. The contention made by the appellant Asmatullah, in his reply rather attract commission of offence under section 220, P.P,C. Which reads as under:- "Commitment for trial or confinement by person having authority who knows that he is acting contrary to law. Whoever, being in any office which gives him legal authority to commit persons for trial or to confinement or to keep persons in confinement, corruptly or maliciously commits any person for trial or confinement, or keeps any person in confinement, in the exercise of that authority knowing that in so doing he is acting contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
22. Notwithstanding the other factors, if the plea taken by the appellant Asmatullah Khan Kakar, before the trial Court is believed and taken into consideration, the same on the face of it shows that instead of making independent investigation as per law, he acted on the directions of D.A.O. And arrested innocent persons against whom even charge could not be framed and were subsequently acquitted, hence with the result that the actual culprits involved in the incident remained out of screen. Had the innocent persons were not arrested and challaned; the investigation could have continued and there was probability of tracing the actual culprits.
23. It would be pertinent to mention that incident took place on 4-1-2002. The accused were arrested during period from 7-1-2002 to 17-1-2002 whereas letter Mark D/2 was addressed, to Chief Secretary, Government of Balochistan for transfer of the case to Crime Branch but without waiting for the result; challan was submitted on 21-1-2002. The permissible course, not resorted by the Investigating Officer was to have discharged the persons apprehended by him under section 169, Cr.P.C. If they were found to be innocent or against whom no evidence of their involvement with the commission of the reported crime as available/ procured. The haste in submission of challan in the circumstances cannot be termed as a bona fide prompt action. Thus appellant Asmatullah, failed to justify his acts. The proceeding carried out by him as E Investigating Officer in view of the plea and submissions made by him alone speaks to improper investigation, which is also in violation of the provisions of Chapter XIV, Cr.P.C.
24. Appellant Ashrafullah Khan Kakar, who has disowned any involvement In the investigation, has failed to dispute issuance of letter Mark D/1 reproduced hereinabove in extenso wherein he admits to have had issued the directions to Naib-Tehsildai. Further he has also stated about the nomination of the six persons as a result whereof they were implicated in the case and eventually were challaned but the basis or the evidence on which they were implicated has not been mentioned and finally he has shown himself responsible for supervising the investigation and such facts stand duly corroborated by the plea taken by the Investigating Officer (Asmatullah). The contents of letter coupled with the statement of co-appellant Asmatullah show that the arrest of the six persons were made on the basis of information and direction of appellant Ashrafullah Khan Kakar. The denial of appellant Ashrafullah Khan Kakar, regarding his involvement in investigation is found to be an attempt to absolve himself of the liability and responsibility of improper and defective investigation carried out under his active supervision and direction which ultimately resulted in arrest of six persons, the consequence of which was failure of case of prosecution at the very commencement of proceeding and because of Jame the real culprits could not be brought to surface and the matter remained a mystery.
25. All the above-narrated facts and circumstances leave no room to doubt that the investigation was improper in violation of law and the responsibility of the same rests on both the appellants as the investigation was being carried out- by appellant Asmatullah and supervised by appellant Ashrafullah Khan Kakar. Therefore, the charge under section 27 of Anti-Terrorism Act, 1997 stood proved against both the appellants. The findings of trial Court, therefore, are unexceptionable.
Hence, the conviction awarded to both the appellants under section 27 of Anti-Terrorism Act, 1997 is found to be in accordance with law. As both the appellants are Government Officers and their conviction entails consequences which will have effect on their services as well, therefore keeping in view the above factor, the sentence awarded to the appellants is reduced from six (6) months to two (2) months' R.I. However, the amount of fine and imprisonment in default of the same shall remain intact. Subject to the above modification in the quantum of sentence of imprisonment, their conviction is maintained.
' As both the appeals in view of above reasons failed, which are accordingly dismissed.