IN THE HIGH COURT OF SINDH, KARACHI.
Cr. Revision Application No. S-69 of 2011.
Akhtar Pervaiz Qureshi.……..……….………….….Applicant
For the Applicant: Mr. Nadeem Pirzada Advocate.
For the State: Mr. Shahid Ahmed Shaikh, Assistant Prosecutor General.
Date of hearing: 17th February, 2012.
Muhammad Ali Mazhar J., This criminal revision application has been preferred against the order dated 8.4.2011, passed by learned Vth Additional Sessions Judge, Karachi West in Cr. Bail Application No. 1569 of 2010.
2. Succinctly, facts of the case are that an FIR No. 447 of 2010 was lodged on 4.12.2010 by complainant Sajid at Police Station Baldia town, under Sections 452, 354, 506 (b) & 457 PPC against Abdul Qayyum. Charge-sheet No. 386 of 2010 was submitted on 16.12.2010, in which name of accused Abdul Qayyum was shown in Column No.4 for trial. On 6.12.2010, accused Abdul Qayyum was granted interim pre arrest bail by learned Vth Additional Sessions Judge, Karachi West in Cr. B.A. No. 1569 of 2010 and vide order dated 28.2.2011; bail granted to him was confirmed on the same terms and conditions. While confirming the bail, learned Additional Sessions Judge, observed that the act of the accused as per tentative assessment not only gruesome but grave in nature as he has trespassed the house of the complainant for commission the offence of outraging the modesty of the victim/wife of the complainant, is purely against the Islamic ethical and moral. However the bail was confirmed on the ground that that Section 354 PPC is bailable while ingredients of sections 457 PPC requires further inquiry and sections 452/506-B PPC does not fall within purview of section 497 (1) Cr.P.C.
3. In addition to confirmation of bail in the same order, learned Additional Sessions Judge further held as under:
“It has been noticed while passing this order that the present investigation has been conducted by the investigation officer under the supervision of SPO Baldia Town Karachi who while verifying the investigation of present FIR No. 447/2010 on printed case diary No.6 with his name and designation as Akhter Pervaz Qureshi, SPO Baldia Town Karachi have recommended the case for disposal under ‘A’ class untraced/un evident. The manner in which SPO Baldia Town Karachi had proceeded prima facie proved glaring example apparently of intentionally avoiding official duties and negligence must not go unnoticed by hierarchy of Police. Nevertheless, this court is directing the DIG Zone, West Karachi to look into matter and submit detail report within (7) days lime-lighting action taken against delinquent officers those are found negligent”.
4. The applicant being aggrieved and dissatisfied by the aforesaid findings and stricture passed by the learned Additional Sessions Judge against him, preferred a Cr. Revision No. 39 of 2011 in this court and the learned Judge, of this court vide order dated 5.4.2011, held that though the order is well reasoned but the applicant was not given a chance to defend him before passing an adverse order and opportunity should have been given to him, therefore, the aforesaid Cr. Revision Application was allowed and the observations against the applicant in bail application were set aside with directions to the learned Additional Sessions Judge to hear the applicant and pass an appropriate order in accordance with law.
5. After remanding the matter by this court, the learned Additional Sessions Judge heard the applicant and while disbelieving or discarding the explanation of the applicant, further drastic actions were recommended which were initially not recommended in the original order. The directions issued and recommended actions in the impugned order are as under:
“Under the circumstances, the directions are issued to the DIG (operation) West Zone Karachi to order for taking criminal proceedings against Inspector Akhter Pervaz Qureshi SPO Baldia Town West Karachi and against any person besides those who are guilty and/or abetted the commission of the act. The further direction are issued to the CCPO Karachi, to order initiation of departmental proceedings against aforesaid police officer and against any person besides those who are guilty and/or abetted the commission of the act after providing them proper opportunity of personal hearing in addition to their prosecution as directed by the court hereinabove. In the intervening period, till the outcome of the findings of the proposed prosecution and/or departmental proceedings, exonerating the aforesaid police officer and any person besides those who are guilty and/or abetted the commission of the alleged act, they should not be given any field posting by the department. Violation of this order would be treated as contempt of the order of the court and the person responsible violating the order would be proceeded against under contempt of court Act. Office is directed to send this order to DIG (Operation) West Zone Karachi and the CCPO Karachi for compliances and this file be fixed on 30.04.2011 in court. On such date report compliance is received or not, in both situations, the matter be placed for further orders”.
6. The learned counsel for the applicant argued that the impugned order is contrary to law. Charge sheet has already been submitted in the trial court in which name of accused is mentioned in column No.4. It was further averred that FIR was registered at P.S. Baldia Town and investigation was carried out by ASI Jamshed Khan. The case file was placed before the applicant for approval and after his approval Challan was forwarded to SSP, Investigation Zone-1, West Zone, CCP Karachi and after his approval Challan was handed over to the concerned I.O. to submit in the court. He further argued that at the time of hearing of bail application, police officials of P.S. Baldia Town presented police file for the perusal of the court in which printed Case Diary No.6 was mistakenly attached in which it was mentioned that the applicant was present in his office and case report under Section 168 Cr.P.C. was received through post, in which I.O. recommended case for disposal in A-class. The learned counsel further argued that the applicant appeared before the learned Additional Sessions Judge and clarified that this was merely a clerical mistake and also tendered apology with promise to remain careful in future. Police diary is meant for police reference for internal record. The applicant never approved any report under Section 173 Cr.P.C. in A-class rather it is a matter of record that Challan was submitted in the court for trial of accused and bail was granted by learned Additional Sessions Judge to accused on its own merits and not on the basis of alleged diary and after submission of Challan, trial is pending before Judicial Magistrate-VII, Karachi West.
7. The learned APG argued that since the Challan has already been submitted and the accused has been sent up for trial and his name is placed in Column No.4, therefore, case diary, if any, inadvertently produced before the learned Additional sessions Judge, has no significance or relevance. From the conduct of the applicant, it shows that it was a bona fide mistake without any intention to cause damage to the trial. The court decides the case on the basis of charge sheet submitted under Section 173 Cr.P.C. Even the report submitted by I.O. recommending the cancellation of case under A, B or C class, it is not binding upon the court and the court in appropriate cases may take the cognizance and join the let off accused persons in the trial. The learned APG did not support the impugned order and he is of the view that merely on the basis of police diary which was submitted due to bona fide mistake, the applicant cannot be held liable for the drastic actions proposed in the impugned order.
8. Heard the arguments of learned counsel. The main cause of proposing and or recommending the penal actions against the applicant was the production of diary. The applicant had received the report under Section 168 Cr.P.C through post in which I.O. of the case recommended the disposal in A-class and SIO has also seconded the opinion. The diary available at page 37 of the case file does not show that the applicant has recommended the disposal of case in A-class but he simply reiterated the opinion of the SIO and forwarded the same for legal opinion.
9. Section 168 Cr.P.C, provides that when any subordinate police officer has made any investigation under this Chapter, he shall report result of such investigation to the officer incharge of the police station. While Section 172 Cr.P.C pertains to the diary of proceedings in investigation in which it is mentioned that every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary and any criminal court may send for the police diaries of a case under inquiry or trial in such court and may use such diaries not as evidence in the case but to aid it in such inquiry or trial. For the ready reference and convenience, Section 172 Cr.P.C. is reproduced as under:
“172. Diary of proceedings in investigation. (1) Every police-officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.
(2) Any Criminal Court, may send for the police-diaries of a case under inquiry or trial in such Court, and may use such diaries not as evidence in the case, but to aid it in such inquiry or trial. Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but if they are used by the police-officer who made them, to refresh his memory, if the Court uses them for the purpose of contradicting such police-officer the provisions of the Evidence Act, 1872 section 161 or section 145 as the case may be, shall apply”.
10. The object of subsection (2) of section 172, Cr.P.C. is to enable the court to direct the Police Officer, who is giving his evidence, to refresh his memory from the notes made by him in the course of his investigation of the case or to question him as to contradiction which may appear between the statements so recorded and the evidence he is giving in court. The court may also use the diaries in the course of the trial for the purpose of clearing up obscurities in the evidence or bringing out relevant facts which the court thinks are material in the interests of a fair trial. It was held in the case of Habeed Muhammad vs. State AIR 1954 SC 51 that a Judge is in error in making use of the police diaries at all in his judgment and in seeking confirmation of his opinion on the question of appreciation of evidence from statements contained in those diaries, it has been observed in the said judgment that the only proper use of a diary which a court can make is the one allowed by section 172, Cr.P.C. It has been made abundantly clear in the section that the police diaries cannot be treated as evidence in the case and the court should not take the statement contained in the diaries as the material which would help it to come to a decision of the case. Where a Court peruses the diary it is impossible to avoid the conclusion that it has allowed its mind to be influenced by what it found in the diary and what was not before it in evidence at the trial. Entries in the diary prepared under section 172, Cr.P.C. are only notes of secondary evidence of witnesses, who cannot be examined in the first instance, and whose evidence, if necessary, should be taken in open court in the presence of the accused. These diaries cannot be used either as substantive or corroborative evidence. Nor can a court look into them and take the facts and statements written therein as material which would help it to come to a finding on the evidence in the case. Reference can be made to the case of Allah Yar v. The State (1984 P.Cr.L.J 2934). The honorable Supreme Court in case of Subhanuddin vs. State (1976 SCMR 506) held that the police-diaries being evidently inadmissible in evidence were merely perused by the learned Judges for their moral satisfaction.
11. It is clear from what is stated above that the diary of proceedings in investigation as required to be maintained under Section 172 Cr.P.C. is for internal record. However, court may send for the police-diaries of the case under inquiry or trial and may use such diaries not as evidence in the case but to aid it in such inquiry or trial. Neither accused nor his agents shall be entitled to call for such diaries nor shall he or they be entitled to see them merely because they are referred to by the court but if they are used by the police officer who made them to refresh his memory or if the court uses them for the purpose of contradicting such police officer, the provisions of Evidence Act, section 161 or section 154 as the case may be, shall apply.
12. The learned counsel also placed on record certified copy of charge-sheet submitted in the crime in question on 16.12.2010 in which the name of accused Abdul Qayyum is mentioned in Column No.4. When the investigation is completed as envisaged under Section 156, 157 Cr.P.C, report under Section 173 Cr.P.C. is required to be submitted to the Magistrate concerned with the opinion of the investigating officer whether he found the accused guilty or innocent and challan can only be submitted when the I.O. comes to the conclusion that the accused is found guilty and recommended to be tried under the relevant offences. Even in the case of recommendations of the I.O. disposing of the FIR in A, B or C class, the opinion is not binding upon the court and court may take cognizance if deems fit and proper on the basis of incriminating material available on record. However, it is incumbent upon the court to advert to it, examine it and to take cognizance in the matter, as envisaged by Section 190 Cr.P.C. Under Section 173 Cr.P.C, court may agree or may not agree with the police report and notwithstanding the recommendations of the I.O. regarding cancellation of case could decline to cancel the case and proceed to take cognizance as provided under Section 190 Cr.P.C. and summons the accused to face trial. Magistrate when sees final report should act fairly, justly and honestly by applying his mind to material placed before him, he should pass a speaking order and well reasoned order after duly considering pros and cons of matter. He is not expected to put his signatures on dotted line, or blindly ditto report of police which could signify his lack of application of mind or give impression of being led by nose by police. Reference can be made to NLR 1991 AC 145 and 1997 SCMR 299.
13. In the judgment reported in 1993 SCMR 550, (Syed Saeed Muhammad versus State.), detailed discussion was made in relation to the registration of FIR, provisions relating to the investigation by the police, submission of challan/charge sheet, Police Rules and powers of the court. The honorable court was of the view that in Part V of the Criminal Procedure Code there is Chapter XIV containing sections 154 to 176 which relate to the information to the police and their powers to investigate. These provisions cover information in cognizable cases as well as in non‑cognizable cases. Under section 154, Cr. P.C. it is mandatory bounden duty of the police officer to register F.I.R. of a cognizable offence. Under section 157, Cr. P.C. he has to send his report to the Magistrate and if he does not want to investigate a case for reason of insufficient grounds then also he has to send his report to the Magistrate with reasons for his such conclusion. Under section 159, Cr. P.C. the Magistrate may direct an investigation or hold a preliminary enquiry or otherwise dispose of the case in the manner provided in the Code. Under section 169, Cr.P.C. if there is insufficient evidence or reasonable grounds do not exist to justify forwarding the accused to the Magistrate such police officer can release him on his executing a bond with or without sureties and such report is to be sent to the Magistrate under section 173 for appropriate orders. Section 173. Cr.P.C. is most important section in this Chapter for the reason that under this section final report of investigation is to be sent by the police officer to the Magistrate empowered to take cognizance of offence. This report is to contain names of the parties, nature of information and names of persons who appeared to be acquainted with the facts and circumstances of the case. Names of accused are to be mentioned whether in custody or not. Report of police officer under section 173 is merely an information of the police officer and the same is not admissible in evidence. Presumption of innocence of accused involved in it is not diminished by mere fact that the case has been sent up for trial or that particular witness or person formed opinion against the accused. In support of this proposition, reference can be made to the case of Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others 1986 SCMR 1736. Police Rules, Chapter XXV relates to investigation. In the said Chapter Rule 55 (2) onwards relates to the investigation of the case by a police officer in cognizable as well as non‑cognizable cases. These rules cover almost all steps necessary may be taken in the course of investigation and to bring the investigation to a close and final report as contemplated under rule 25.57. This rule envisages that on completion of investigation final report is to be submitted to the Magistrate and in a case in which police are unsuccessful and it is considered advisable to suspend the investigation, final report is to be submitted as required under section 173. Cr. P.C. In the book titled Police Laws of Pakistan by Shaikh Abdul Haleem (1979 Edition) at the end of the Police Rules, 1935 there are prescribed forms and at page 1166 there is Form No.25.57 (2) depicting format of final report under section 173, Cr. P.C. and column No.8 whereof reads brief description of information or complaint, action taken by police with result and reasons for not proceeding further with investigation. The form mentioned above clearly shows that final report is to be sent to the Magistrate under section 173, Cr. P.C. in the case in which investigation is not completed for some reason. Under section 190 the Court taking cognizance has very vast powers to do so upon receiving a complaint of facts which constitute such offence or upon a report in writing made by police officer or upon information received from any person other than police officer car upon knowledge of Magistrate/Judge or his suspicion that such offence has been committed.
14. It is clear beyond any shadow of doubt that accused Abdul Qayyum neither applied bail on the basis of police diary nor learned Additional Sessions Judge was misguided by the police diary but the bail application was disposed of on merits and the accused was granted bail after considering the pros and cons. It is also an undeniable fact that challan was submitted on 16.12.2010 which was much earlier than the date of confirmation of bail on 28.2.2011. After remand order passed by this Court in Cr. Revision Application No. 39 of 2011, SPO submitted his reply in the court of learned Vth Additional Sessions Judge, Karachi West, in which it was stated that SSP called explanation from the applicant and he clarified the entire situation. He further stated that challan has been duly submitted in the concerned court and trial in the above matter is being conducted on merits. He further submitted that there was a clerical mistake in diary No.6 in type form mention A-class, whereas it is a fact that accused has been challaned and case is being proceeded before the trial court. The applicant also tendered apology and undertook to be careful in future. He further stated that “A” Class was mentioned due to bona fide mistake which was merely a typographical error and has not prejudiced the interest of any party. The explanation tendered with apology was not accepted by the learned court and directions were given in the impugned order for strict disciplinary actins.
15. The purpose of highlighting and or discussing the details of Sections 168, 172, 173 and 190 Cr.P.C. is to show that the court may take cognizance under Section 190 Cr.P.C even if the I.O. proposes the cancellation of FIR under A, B, or C class and police report is not binding upon the court which is now well settled. Any criminal court may send for the police diaries under inquiry or trial in such court and may use such diaries not as evidence in the case but to aid it in such inquiry or trial before the court. While deciding the bail application by the learned ADJ, neither any inquiry was pending nor any trial in his court and before confirmation of bail, charge sheet was already submitted in the competent court which shows that the said police-diary submitted either inadvertently or due to some bona fide mistake which did not cause any prejudice to the trial nor it misguided the court nor accused was granted bail on the basis of that police-diary. The acquittal or conviction can not be based on police diary but it depends upon the outcome of trial on merits. However, at the same time, I would like to observe that the police officials are responsible to perform their duties vigilantly and ought to maintain case-diaries properly with due care and cautions in order to avoid any clerical or typographical error. In the present case, it does not come into sight that the police-diary was submitted to lend a hand or benefit the accused in any way. The applicant tendered unconditional apology and showed his remorse and left him at the mercy of the court, therefore, in my view as a matter of grace, any further action could have been dropped on admonition and warning to the applicant to remain careful and vigilant in future instead of proposing or recommending various drastic and severe penal actions for a deed which apparently committed inadvertently or due to some bona fide mistake which did not affect at all the merits of the case.
16. As a result of above discussion, this Criminal Revision Application is allowed and the impugned order dated 8.4.2011 is set aside. However, the applicant is admonished to remain precautious and vigilant and in case of any complaint against him of any negligence or recklessness in performance of his duties in future, the competent authority shall initiate stern action against him in accordance with law.
Dated. 14.4.2012 Judge