ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Revision Appln. No.21/2009
Crl. Revision Appln. No.35/2009
Crl. Bail Appln. No. 554 / 2009.
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DATE OF HEARING |
ORDER WITH SIGNATURE OF HON’BLE JUDGE |
FOR KATCHA PESHI.
15.03.2010
Mr. Habibullah Ghouri advocate for applicant in Crl. Revision Appln. No.21/2009 and advocate for complainant in Crl. Revision Appln. No.35/2009.
Mr. Altaf Hussain Surahiyo advocate for respondent No.1 in Crl. Revision Appln. No.21/2009 and advocate for applicant in Crl. Revision Appln. No.35/2009.
Mr. Ghulam Dastagir Shahani advocate for applicant in Crl. Bail Appln. No.554/2009.
Mr. Naimtullah Bhurgari, State Counsel.
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SHAHID ANWAR BAJWA, J- By this order I propose to decide Crl. Revision Appln. No.21/2009, Crl. Revision Appln. No.35/2009 and Crl. Bail Appln. No.554/2009 because all the three cases arise out the same FIR.
FIR No.66/2009 was registered at Police Station Hyderi on 12.8.2007 at 2300 hours for an incident alleged to have taken place on the same day at 2130 hours. Complainant was Hoat Khan. He has stated that because of murder many years ago of one Ameer Ali Metlo, there was enmity between the parties and on the fateful day when the complainant, his uncle Liaquat Ali and his friends Imdad Ali and Sijad Ali went to Larkana in the Car of Liaquat Ali and after finishing work while they were returning, car was stopped due to natural urge of Liaquat Ali. In the light of street bulbs they saw two Motorcycles come there on which were Barkat Ali, Irshad Ali, Mukhtiar Ali, Hussain Ali and Mazher Ali. Barkat Ali was armed with pistol, Irshad Ali with repeater, Mukhtiar Ali with repeater, Hussain Ali with pistol and Mazher Ali was empty handed. Mazher Ali instigated others to kill Liaquat Ali and on his instigation Barkat Ali and Hussain Ali fired from their pistols at Liaquat Ali. Liaquat Ali received two firearm injuries and subsequently on the same day succumbed to his injuries. FIR was registered and police investigation followed.
After investigation, police submitted challan on 31.8.2007. Police showed Mazher Ali and Irshad Ali in column No.2 of the challan. Consequently, application under section 193, Cr.P.C was filed with the prayer that Mazher Ali and Irshad Ali be joined as respondents/accused persons. This application was decided by the Court below vide order dated 19.3.2009. It ordered joining of Mazher Ali as respondents/accused but dismissed application under section 193, Cr.P.C for joining of Irshad Ali. The reasons with prevailed with the Court below are in the following words :
“I have heard applicant’s advocate and advocate for respondents/proposed accused, the allegation against the applicant/accused Mazher Ali is that he has instigated other accused to commit murder of deceased Liaquat Ali and on his instigation accused Barkat ali and Hussain Ali fired at deceased with their pistol and committed his murder, thereby specific role of instigation is attributed to respondent Mazher Ali, therefore at this stage police has no power to release the accused on the statement of DWs only, therefore, he is joined to face trial, he is present in the Court on notice issued by this Court, he is directed to furnish solvent surety in the sum of Rs.1,00,000/- with P.R bond in the like amount, in case of failure he will be remanded to custody.
However case of accused Irshad Ali is on different footing as no any specific role is attributed to accused Irshad Ali. Allegations against him are that he being armed with repeater was present at place of vardat, but he has not taken any active part in commission of offence, therefore looking to he tendency of peoples to rope in falsely innocent persons. He was rightly let of by the police and his name was kept in column No.2 of the challan, therefore application against him is dismissed.”
Crl. Revision Application No.21/2009 has been filed by the complainant with a prayer that Irshad Ali be joined as an accused and Crl. Revision Appln. No.35/2009 has been filed by Mazher Ali with a prayer that order dated 19.3.2009 in respect of his joining as an accused be set aside.
Meanwhile Hussain Ali who was arrested on 05.7.2008 filed application for bail. That bail application was dismissed by the learned Court below vide order dated 28.9.2009 and for the following reasons :
“Co-accused Barkat Ali was arrested and a pistol was recovered from his custody which has been allegedly used by him in the commission of offence. The chemical report which has been produced by the prosecution shows that crime weapon do not match with the empties recovered from the place of incident. Therefore, in the above circumstances, Honourable High Court of Sindh, Circuit Court Larkana was of the opinion that case of the co-accused Barkat Ali requires further inquiry and he was admitted on bail. Complainant’s advocate further informed that he has challenged the order of Honourable High Court of Sindh, Circuit Court Larkana granting bail to co-accused Barkat Ali before Honourable Supreme Court of Pakistan. He produced the copy of such application along with statement. Applicant/accused was arrested after about one year of the incident, during that period he remained absconder. He has been specifically nominated for causing fatal shot to the deceased Liaquat Ali. There is no delay in recording the statements of witnesses under section 161, Cr.P.C as alleged by the complainant’s advocate. Perusal of record reveals that case of applicant/accused is not identical to the case of co-accused as the co-accused has undergone the investigation and a pistol was recovered from him and according to chemical examiner same did not match with the empties recovered from the place of incident. The other accused who has fired at deceased was applicant/accused, therefore there was no possibility that if the applicant/accused would have been arrested and the pistol would have been recovered from him the empty bullets would have been match with his pistol which was used by him but due to his absconsion no recovery was effected from him. One accused Barkat ali was granted bail after about two years of his arrest but the applicant/accused is in custody since last about one year, therefore he is not entitled for equal treatment to that of co-accused he has failed to explain absconsion of one year plausibly. Offence alleged falls within the prohibitory clause of section 497, Cr.P.C, hence applicant/accused is not entitled for grant of bail as rule of consistency will not apply in the case and his case is on different footings from the case of co-accused Barkat Ali who has been granted bail by Honourable High court of Sindh, circuit Court Larkana. Consequently bail application stands rejected.”.
Criminal Bail Application No.554/2009 was filed by the said Hussain Ali with the prayer that he be enlarged on bail.
Mr. Ghouri, who appeared for the applicant in Crl. Revision Appln. No.21/2009 and for complainant in Crl. Revision Appln. No.35/2009 and Crl. Bail appln. No.554/2009, in respect of the Crl. Revisions made the following submissions :-
1. Section 149, Cr.P.C says that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the member of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. He submitted that Irshad Ali was vicariously liable and in any case the liability is to be determined ultimately at the end of the trial and therefore he should have been joined as an accused persons.
2. Defense taken by both Mazher Ali and Irshad Ali was same i.e alibi and therefore it was not appropriate for the trial Court to join one person as an accused while refusing to join the other person as an accused
3. Version of the complainant is fully supported by his witnesses. Mr. Ghouri relied upon the case of Safdar Ali Versus Zafar Iqbal and others 2002 SCMR 63.
Mr. Altaf Hussain Surahiyo who appeared for the private respondents in Crl. Revision Application No.21/2009 and for applicant in Crl. Revision Appln. No.35/2009 submitted that while order passed by the court below in respect of not joining of Irshad Ali is perfectly in accordance with the law, order in respect of Mazher Ali is not sustainable and that is so for the following reasons :
1. Mazher Ali is stated to be with the assembly but not armed. Nobody in his right mind would presume a person going with his relatives without having any arms as having intention of committing murder.
2. Unless evidence is recorded, the trial Court does not have the power to join a person who has been let of by the police after due and thorough investigation. He relied upon the cases of Muhammad Khan versus Haji Ghulam Qadir Brohi and another 1996 P.Cr.L.J 99. S. Akhtar Sher versus The State and another 1991 MLD 1977. Inayatullah and 4 others versus The State and another 1999 P.Cr.L.J 731 and Ghulam Hussain alias Nangar and 2 others versus State PLJ Cr.C (Karachi) 749.
3. There is an admitted enmity between the parties and enmity is a weapon which cuts both ways.
Mr. Ghulam Dastagir A. Shahani, while arguing his bail application made the following submissions :-
1. The applicant was arrested on 05.7.2008 and has been since that date behind the bars.
2. Identification in street light is a week type of identification and, therefore, it is a case of further enquiry.
3. Statements under section 161, Cr.P.C was recorded after three days and the trial Court has not at all appreciated this aspect of the matter.
4. There are general allegations in the incident and it is alleged that two persons fired with pistols and it is not yet determined as to who fired which shot.
5. Co-accused Barkat Ali has been granted bail by this Court in Crl. Bail Appln. No.273/2009 and principle of consistency demands that bail be also allowed to the present applicant. Present applicant’s case is still on stronger footings because in case of co-accused Barkat the High Court while granting bail observed that report of the ballistic expert produced in the Court indicates that the weapon allegedly recovered did not match with empties recovered from the place of incident. Learned counsel submitted that in the case of present applicant he has been acquitted for an offence under section 13-(d) of the Arms Ordinance which was in respect of alleged recovery of the same pistol with which the applicant is alleged to have shot at the deceased. He submitted that his case is still on stronger footings because there is not report of Chemical Analyzer on record available in his case. He relied upon the case of 2002 P.Cr.L.J 494, Muhammad Ramzan Versus Zafarullah and another 1986 SCMR 1380.
While replying to the arguments of Mr. Ghulam Dastagir Shahani, Mr. Ghouri submitted that case of Barkat is distinguishable from the case of present applicant because in Barkat Ali’s case report of ballistic expert had been received whereas in the case of applicant Hussain Ali no such report has yet been received. He further submitted that bail granted to Barkat Ali has been challenged in the Supreme Court in criminal petition No.99-A/2009. He however stated that, that petition is still pending and has not been decided. As far as acquittal under the Arms Ordinance is concerned learned counsel submitted that, that is a different matter and cannot have any bearing on the finding of criminal trial under section 302, PPC. On merits of the bail application learned counsel relied upon 2008 SCMR 1451 and also on Ghulam Rasool Versus the State 2007 MLD 1203.
I have considered the submissions made by the learned counsel. I have gone through the record of all the three matters as well as the case law cited at the bar.
First ground urged by Mr. Ghouri in support of his application (by which application he wants Irshad Ali to be joined as an accused persons) is with reference to section 149, PPC. The said section is in following words :
149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.—If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.”
Precisely Mr. Ghouri’s contention was that Irshad Ali was accused of vicarious liability and it can only be determined after evidence is recorded. He relied upon Safdar Ali’s case (supra). Facts of that case were that it was an offence under section 302, among others of PPC. After completion of investigation an application was made for discharge of the respondents which was turned down by the Judicial Magistrate. Criminal Revision followed before the Additional Sessions Judge which was dismissed. Writ petition followed which was also dismissed. Thereafter, application under section 265-K, Cr.P.C was filed. This application was dismissed but the High Court remanded the matter to the trial Court. This order was challenged in the Supreme Court. What prevailed with the High Court was that the order passed by the Judicial Magistrate was not a speaking order. The Supreme Court observed as under :-
“….It is well settled by now that the Magistrate can take cognizance of an offence even in case of negative report submitted by police that accusation is baseless and no case is made out against the delinquents. There is no cavil to the proposition that the accused placed in column No.2 of challan cannot be summoned by the learned trial Court to face the trial and there is no legal bar whatsoever that at first instance the evidence should be recorded to ascertain as to whether the prima facie case is made out against them……”
Answer to Mr. Ghouri’s submission by Mr. Surahiyo was that nobody would go with an unlawful assembly empty handed with an intention to commit murder. A perusal of the FIR reveals that no role whatsoever has been assigned to Irshad Ali, though he was carrying weapon. It is alleged hat there is no report whatsoever that he fired from that weapon or he instigated any one else to fire upon Liaquat Ali. FIR also reveals that it is not a case where the accused party was standing on the road with the Naka. It was case of only co-incidence that Liaquat Ali had natural urge and vehicle was stopped and two Motorcycles came from other side. Pre-knowledge of the common object or the likelihood is not even alleged in the FIR. Thus prima facie even, ingredients of section 149 have not been made out by a bare reading of FIR even.
Next contention of Mr. Ghouri was that defence taken by both Mazher Ali and Irshad Ali i.e. defense of alibi is the same. That may be so. However, the trial Court has refused to join Irshad Ali not because of his defense of alibi but because of non assigning to him of any role either in the FIR or in the statement recorded under section 161, Cr.P.C. Therefore, Crl. Revision Appln. No.21/2009 is dismissed.
As far as Crl. Revision Appln. No.35/2009 is concerned Mr. Surahiyo’s prime contention was that unless evidence is recorded, the trial Court cannot summon a person who has been shown in column No.2 by the police. His first reliance was of on Muhammad Khan’s case (supra) decided by a single Bench of this Court. Factual context was that complainant Haji Ghulam Qadir lodged FIR and stated that he and his brother and two sons went to purchase meat and while they were standing there accused Zulifqar armed with DBBL gun and Manzoor empty handed came there; Manzoor instigated Zulifqar to murder Muhammad Soomar and on his instigation Zulifqar fired two shots and thus killed Muhammad Soomar. He also fired at other persons. It was contended by the petitioner’s counsel in the High Court that the petitioner was neither alleged in the FIR to be present at the place of incident nor any role had been ascribed to him. The High Court agreed with the following observations :
“I agree with the argument advanced by learned counsel for applicant and counsel for State and have gone through the contents of the FIR, 161 and 164, Cr.P.C statements and find that the role assigned to the applicant in the case of prosecution is that incident occurred at the instance of applicant. The arguments of learned counsel for respondent No.1 that applicant is liable under section 109, PPC is not sustainable as he has not been able to show that any criminal conspiracy was arranged for the commission of this offence by applicant prior to happening of this incident. He has also not been able to satisfy this Court that any prior meeting has also happened in between applicant and co-accused so that common intention could also have been gathered with regard to this incident.”
The second case relied upon by Mr. Surahiyo was the case of S. Akhtar Sher (supra). Facts of this case were that Abdul Latif, Chowkidar filed a complaint before the Assistant Commissioner Hub alleging dishonest removal of scrap of petitioners in connivance with two others. Complaint was forwarded to Tehsildar for enquiry who after investigation submitted his report indicating that allegation of theft was not made out. Magistrate sent up only one accused to Additional Sessions Judge for trial. Later on an application for joining the petitioner was submitted which application was accepted. The High Court observed as under :
“As regards merits, it may be seen that on the basis of final report, petitioner was not sent up to face trial before Session Court. In the circumstances it has to be seen whether without recording evidence, learned Session Judge had the jurisdiction to summon petitioner for facing prosecution, specially when Session Court does not have jurisdiction in view of mandatory provisions of section 190(3) and 193(1), Cr.P.C as held in case Doran Khan v. State P L D 1985 Quetta 188. Apparently without commencement of trial or recording evidence, Sessions Court has no jurisdiction to summon accused mentioned in Col. No.2 or against whom evidence is found deficient during enquiry or investigation. This view finds support from the observation in case Muhammad Ibrahim and others v. Qudratullah Ruddy and others P L D 1986 Lahore 256. Relevant portion is reproduced below :-
“10. In the face of the amendments made in 1972, the question that arises is whether a Court of Session can summon an accused, who has been earlier discharged, if during the course of trial, it finds material against him showing his involvement in any of the offences imputed to him and if so, on what material or evidence. The answer is obviously in the affirmative. The proceedings under Chapter XVI, are not higher than those under Chapter XXII-A. If in proceedings under Chapter XXII-A, the Court of Session considers, on the basis of evidence recorded, that there are sufficient grounds for proceedings against a person who is discharged, it should have the right to summon him. How much evidence should be recorded would depend upon he facts of each case. No hard and fast rule can be laid down in this respect. Since in proceedings under Chapter XVI, the complainant’s witnesses are not liable for cross examination and the accused need not produce his defence, a Court of Session, when starting a trial, may feel tempted, in order to determine whether an accused discharged by a Magistrate should be summoned, to first frame a charge against the accused named in column No.3 and perhaps also those named in Column No.2 (who have not been discharged by the Magistrate) and record the examination-in-chief of a number of witnesses, reserving their cross-examination to a future date, and then, finding sufficient grounds, to summon the accused who have been discharged, but this procedure would be highly irregular, if not illegal. On principle, once the Court of Session has started a trial, it must record evidence as in a trial and not adopt a procedure akin to an inquiry. Any tendency to adopt the procedure of an inquiry would be fraught with danger, as it would induce the Court to record minimal evidence, which it would not otherwise do, if it were holding a proper inquiry itself and, worst of all, it would induce complainants in future not to file private complaints, but to take advantage of such summary procedure provided by the trial Court. The advantage and protection gained by an accused who has been discharged after leading convincing evidence before the police during investigation, should be given the respect it deserves and should not be allowed to be lightly disturbed :-
11. In the instant case, the learned Additional Sessions Judge had hardly allowed the examination-in-chief of Qudrat Ullah Ruddy P.W.1 to be completed when he accepted the prayer of the Public Prosecutor to summon the petitioners and nine others to face their trial. One would imagine that he would have allowed his examination-in-chief and cross examination to be completed and also examined some further witnesses. The evidence of a witness at the trial without his cross-examination is no evidence. See Yahya Bakhtiar v. The State. The learned Additional Sessions Judge appears to have acted rather hastily in relying upon evidence which was legally no evidence and his order of 18.2.1986 summoning the petitioners and others to face their trial deserves to be set aside.”
Respectfully following the dictum in afore-quoted report, it is quite obvious, that impugned direction of learned Additional Sessions Judge, Lasbella for summoning petitioner was rather hasty in exercise of powers otherwise not vested in him at that stage. No doubt if during trial, reasonable material is brought on record, Court has plenary jurisdiction to summon the petitioner, . Since impugned direction at the preliminary stage is clearly devoid of lawful authority and tantamount to abuse of the process of Court, consequently, I am inclined to accept the petition and direct quashment of order dated 20.2.1989 passed by learned Additional Sessions Judge, Lassbella.”
Third case relied upon by the learned counsel was Inayatullah’s case, (supra), it was laid down as under :
“Indeed, Trial Court is competent to call/summon any person and to join him as co-accused during the trial but such power is to be exercised when there is sufficient material before the Court connecting such person in the alleged offence. By the term “material before the Court”, I mean the record of the proceedings of the trial or the material collected by the Investigating Agency and not extraneous material which does not form part of the record or of the investigation.”
The fourth case relied upon by Mr. Surahiyo was Ghulam Hussain’s case (Supra). Facts of this case were that the matter related to offence under section 302, PPC. On an application filed by complainant under section 193, Cr.P.C, the applicant was joined. No evidence had been yet adduced by the prosecution. Police had placed the applicant in column No.2 of challan and the applicant had been joined without adducing any evidence. It was also contended that from the material available on the record that there was no prima facie case against the applicant. In this judgment Waqarul Haq alias Nithoo and another versus The State 19988 SCMR 1428 was also referred. It has been observed in Waqarul Haq’s case as under :
“The contention is that first evidence should be recorded and if in the light of such evidence the trial Court deems it proper to summon them only then they may be summoned. The point involved in this case is that three persons have been accused of the offence out of which one Muhammad Rafiq was placed in column No.2. The accused person whose name appears in column No.2 of the challan can be summoned by the trial Court directly to stand the trial and it is not necessary that first some evidence should be recorded. In the present case the challan against the petitioners had not been cancelled by placing them in column No.2. It only meant that according to the police investigation they were found innocent, and therefore, they were discharged under section 63 of the Cr.P.C. However, it does not mean that they would not be summoned to stand trial by the Sessions Court. In that view of the matter we do not find any substance in this petition which is accordingly dismissed.”
Perusal of the above case law indicates that it has been held by the Supreme Court that if a person’s name appears in Column No.2 of the challan, he can be summoned by the trial Court to stand trial and it is not necessary that first evidence should be recorded. In presence of this clear pronouncement of Supreme Court the law appears to be very clear and very simple if an accused persons’s name is placed in column No.2, the trial Court cannot act mechanically and summon him to stand trial. However, it is not essential, a pre-requisite or a sign qua non for summoning a person placed in column No.2 that evidence be recorded first. If on the basis of record available, the trial Court comes to the conclusion that a person placed in column No.2 should be summoned and should be made to stand trial, the Court can do so not mechanically but for a valid reasons. Therefore, it will have to be seen in each and every case whether the facts of the case and the material collected by the police justifies summoning a person who is placed in column No.2 by the police. In Inayatullah’s case (supra) a single judge of this Court observed that “material before the Court” mean proceedings of the trial or the material collected by the Investigating Agency and not extraneous material.
It is in the light of these principles that it is to be seen whether the act of Court below in joining Mazher Ali is in accordance with law. In the FIR what is alleged against Mazher Ali; it is alleged that Mazher Ali was unarmed but a member of an unlawful assembly. Whereas no role whatsoever is ascribed to Irshad Ali but it is alleged in respect of Mazher Ali that he instigated others to kill Liaquat Ali. What is the effect of this instigation and other elements can only be gone into after evidence is recorded and the trial concludes. Consequently order passed by the learned Court below in respect of Mazher Ali is perfectly sustainable. Crl. Revision Appln. No.35/2009 is, therefore, dismissed.
Now coming to Criminal Bail Application No.554 of 2009, I will first deal the question of effect of acquittal in the case under section 13-(d) of the Arms Ordinance. It is alleged that the weapon was recovered on the pointation of applicant Hussain Ali. Acquittal under section 13-(d) Arms Ordinance has the implication only to the extent that the weapons recovered is not weapon belonging to Hussain Ali. Whether this weapon was recovered on the pointation of Hussain Ali is a totally different question; even if no weapon is recovered cases are not unknown when Courts come to the conclusion that the accused is guilty of offence. Recovery is only a piece of corroboration. Therefore, acquittal in an offence under section 13-(d) of Arms Ordinance does not wipe out offence against Hussain Ali but certainly creates case of further enquiry.
I have quoted above from the order of this Court passed in Crl. Bail Appln. No.273/2009. As far as the present accused is concerned, the role against applicant Hussain Ali is exactly same as the role against Barkat Ali who was granted bail in Crl. Bail Appln. No.273/2009. In case of Hussain Ali the ballistics expert has given a report that the weapon allegedly recovered does not match with the empties stated to be recovered. No such report is available in the case of applicant Hussain Ali. Therefore, it is in any case a case of further enquiry. Mr. Ghouri relied upon the case of Sher Muhammad (supra). In Sher Muhammad’s case, it was laid down that the petitioner had caused firearm injuries on the left eye of the deceased and corroboration to this assertion was provided by the post mortem eport. It was held that the accused did not deserve concession of bail. In the present case there are two persons who are alleged to have fired. It is yet to be seen as to which person caused which injury. Moreover on the principle of consistency Barkat Ali’s case helps the case of present applicant. Mr. Ghouri’s contention that criminal petition has been filed in the Supreme Court does not mean that the applicant is not entitled to the same concession as has been given by this Court to Barkat Ali. In criminal petition before the Supreme Court no interim relief has been allowed. Mere pendency in the Supreme Court does not mean that order of the High Court has ceased to have legal effect or ceased to have persuasive value or has ceased to be of any relevance for the purpose of principle of consistency. Mr. Naimtullah Bhurgari learned State Counsel for this reason did not oppose bail application of Hussain Ali. Consequently, Crl. Bail Appln. No.554/2009 is allowed and following the principle of consistency, the applicant is ordered to be admitted to bail for a sum of Rs.300,000/- with P.R bond in the like amount to the satisfaction of the trial Court.
Result of the above discussion is that Criminal Revision Application No.21 and 35 of 2009 are dismissed and Crl. Bail Application No.554 of 2009 is allowed in the above terms.
Judge
Yousuf Panhwar/**