2022 P Cr. L J 1659
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ
AJMAL and 2 others ---Petitioners
Versus
ADDITIONAL SESSIONS JUDGE -IV, QUETTA and 4 others ---Respondents
Constitutional Petition No. 1591 of 2021, decided on 30th November, 2021.
Criminal Procedure Code (V of 1898) ---
----Ss. 169 & 204 ---Penal Code (XLV of 1860), Ss. 302 & 365 ---Discharge --- Resummoning
of accused ---Jurisdiction ---Petitioners were arrested for committing Qatl -i-amd and
abduction who assailed their arrest warrants issued by Judicial Magistrate in same case in
which they had already been discharged ---Validity ---Discharge order of petitioners was only
amenable before Trial Court, which had taken cognizance of the case after submission of
Challan ---Judicial Magistrate was alien in all respects and did not have any jurisdiction to
initially issue warrants of arrest and thereafter grant remand in police custody ---Matter was
already subjudice before Trial Court and Judicial Magistrate who iss ued warrants of arrest
and thereafter granted remand of petitioners was not empowered to have passed any order in
the matter --- High Court set aside warrants of arrest and orders issued by Judicial Magistrate -
--Constitutional petition was allowed according ly.
Hayatullah Khan v. Muhammad Khan 2011 SCMR 1354; Yasir Khan v. Imtiaz and
others PLD 2013 Pesh. 46 and The State through DPG v. Muhammad Rafique through Naib
Tehsildar 2016 PCr.LJ 1711 rel.
Jameel Ahmed v. The Superintendent of Police Range 1999 PCr .LJ 310 and Adeel
and another v. The State 2016 YLR 2212 ref.
Habibullah Nasar and Aurangzaib Kakar for Petitioner.
Tahir Ali Baloch for the Complainant.
Abdul Mateen, Deputy Prosecutor General for the State.
Date of hearing: 22nd November, 2021.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---This Constitutional petition
has been preferred by petitioners against the order dated 23rd October 2021, passed by
Judicial Magistrate -XIII, Quetta, whereby warrants of arrest of the petitioners were issued
and order dated 27th October 2021, passed by the Judicial Magistrate -XII, Quetta, whereby
the petitioners were remanded to the police custody and against the order dated 30th October
2021, passed by Additional Sessions Judge -IV, Quetta, whereby the criminal revision
petition filed by the petitioners was dismissed.
2. It was case of the petitioners that they being nominated in case FIR No. 07 of 2021,
lodged with Levies Thana Khanozai, on complaint of one Abdul Malik under sections 302,
365, Pakistan Penal Co de (P.P.C.) were arrested and thereafter their physical custody was
given to the police. Meanwhile, on basis of Call Data Record (CDR), two other accused
persons namely Shoaib son of Abdul Hakeem and Zia -ur-Rehman son of Saad Malook were
also arrested, who during police remand, recorded their confessional statement under Section
164 Criminal Procedure Code (Cr.P.C.); that on basis of their confessional statement, since
no evidence was available against the petitioners, therefore, they were discharged under
section 169, Cr.P.C. by the Investigating Officer, while challan against the aforesaid two
accused persons was submitted before the Additional Sessions Judge, Khanozai (Trial court);
that the complainant being dissatisfied of investigation conducted by the Levies Khanozai,
submitted an application under section 22 -A, Cr.P.C before Additional Sessions
Judge/Designated Ex -Officio Justice of the Peace, Khanozai for transfer of investigation to
the Crimes Branch; that the application under section 22 -A, Cr.P.C. was dismissed vide order
dated 07th June 2021, the order impugned whereof was assailed before this court in
Constitutional Petition bearing No. 899 of 2021; that the Constitutional Petition was finally
decided vide order dated 01st September 2021, operati ve part whereof stipulates as under:
"Since investigation has not yet been completed, complete challan has also not yet
been submitted and the petitioner is not satisfied with the investigation so far
conducted by the Investigating Officer of Levies Thana Khanozai, therefore, to meet
the ends of justice and fair trial, without touching merits of the case, the instant
constitution petition is accepted and further investigation of FIR No. 07/2021 Levies
Thana Khanozai is immediately transferred to the Crimes Branch Police, Quetta with
directions to conduct fair and impartial investigation, to complete the investigation
within a period of two months of receiving copy of the instant order and to submit
challan."
3. The learned counsel propounded that after tran sfer of investigation to the Crimes
Branch, the report was submitted before the Judicial Magistrate -XIII, Quetta and warrants of
arrest of the petitioners and others were issued on 23rd October 2021 and in pursuance
thereof they have been arrested on 26th October 2021, and produced before the Judicial
Magistrate -XII Quetta on 27th October 2021, the Judicial Magistrate by excluding the earlier
six days remands prior to the petitioners discharge under section 169, Cr.P.C, granted seven
days remand in favour o f Crimes Branch; that the petitioner being aggrieved of remand order
assailed the warrants dated 23rd October 2021, and remand order dated 27th October 2021
before the Sessions Judge, Quetta in a criminal revision petition, which was transmitted to
the fil e of Additional Sessions Judge -VI, Quetta (Revisional Court), who vide short order
dated 30th October 2021, dismissed the petition, hence this petition.
4. The learned counsel vehemently urged that initially successive remand orders are not
permissible und er the law as laid down by the Hon'ble apex Court and secondly, since the
challan against the other accused persons has already been submitted before the Additional
Sessions Judge, Khanozai, and therefore, subject to provision of section 204, Cr.P.C, the
Judicial Magistrate was neither competent to issue warrant of arrest on 23rd October 2021,
nor he was competent to grant remand vide order 27th October 2021; that though the referred
to orders were assailed before the Revisional Court, but without adhering to the principles of
law as laid down by the Hon'ble apex Court, the petition was dismissed vide short order
dated 30th October 2021. He further propounded that after submission of challan the learned
Judicial Magistrate has become functus officio, therefo re, the warrants of arrest dated 23rd
October 2021 and remand order dated 27th October 2011, were altogether coram non judice.
In support of contention so raised the reliance was placed on the following judgments:
"Hayatullah Khan v. Muhammad Khan" (2011 SCMR 1354)
"Yasir Khan v. Imtiaz and others" (PLD 2013 Peshawar 46)
"Jameel Ahmed v. The Superintendent of Police Range" (1999 PCr.LJ 310)
"Adeel and another v. The State" (2016 YLR 2212)
On the other hand the Deputy Prosecutor General assisted by the learned counsel for
the complainant informed the court that the investigation has been completed and challan to
the extent of the petitioners have already been submitted before the trial court, therefore, the
petition has become infructuous, and is liable to be dismissed.
5. Section 204(1), Cr.P.C is applicable in the instant case, which stipulates as under:
"204. Issue of process: (1) If in the opinion of a [Court] taking cognizance of an
offence there is sufficient ground of proceeding, and the case appe ars to be one in
which, according to the fourth column of the Second Schedule, a summons should
issue in the first instance, [it] shall issue his summons for the attendance of the
accused. If the case appears to be one in which, according to that column, a warrant
should issue in the first instance, [it] may issue a warrant, or, if [Court] or if [it]
thinks fit, a summons, for causing the accused to be brought or to appear at a certain
time before such [Court] if as if it has no jurisdiction itself some oth er Court having
jurisdiction.
6. Moreover, the judgment relied upon by the learned counsel rendered in "Hayatullah
Khan v. Muhammad Khan and others" (2011 SCMR 1354), and it is instructive to reproduce
the relevant passage, which stipulates as under:
"….. The pivotal question which needs determination would be as to whether the
learned Judicial Magistrate and Investigating Officer have exercised their discretion
judiciously and in accordance with law or otherwise? We have carefully examined the
order passe d by the learned Judicial Magistrate which mainly revolves around the
points prevailed upon the Investigating Officer to discharge the petitioner. It is worth
mentioning that the said order has not been passed by the learned Judicial Magistrate
with dilige nt application of mind and has toed the line of action as suggested by the
Investigating Officer by ignoring the fact that the question of determination of guilt or
innocence squarely falls within the jurisdictional domain of learned trial court. The
learn ed Judicial Magistrate has no authority to endorse the view of Investigating
Officer where sufficient incriminating material connecting the accused, prima facie,
with the commission of alleged offence has come on record. The question of alibi, its
repercus sion and implication, medical evidence which corroborates the ocular version
and evidentiary value of firearm expert's report can only be decided by the learned
trial court having substantial bearing on merits of the case. Let we mention here at
this junct ure that the plea of alibi being a distinct plea is required to be substantiated
by adducing cogent and concrete evidence which aspect of the matter has been
altogether ignored by the Investigating Officer as well as the learned Judicial
Magistrate. Beside s that the Investigating Officer cannot be considered such a skillful
person to give his opinion on the medical evidence and the question as to whether it
corroborates the ocular version or otherwise cannot be determined by him. We have
not been persuaded to agree with the learned Senior Advocate Supreme Court for the
petitioner that Constitutional jurisdiction should have not been exercised and the
learned High Court was competent to pass impugned order in exercise of powers as
conferred upon it under sect ion 561 -A, Cr.P.C. which is not the correct legal position.
It is well settled by now that "the High Court has no power under section 561 -A of the
Cr.P.C. to interfere with police investigations into criminal offences. In the case of
Ghulam Muhammad v. Muz ammal Khan PLD 1967 SC 317 the Supreme Court had
occasion to point out that the power given by section 561 -A, Cr.P.C., "can certainly
not be so utilized as to interrupt or divert the ordinary course of criminal procedure as
laid down in the procedural stat ute." If an investigation is launched mala fide or is
clearly beyond the jurisdiction of the investigating agencies concerned then it may be
possible for the action of the investigating agencies to be corrected by a proper
proceeding either under Article 9 8 of the Constitution of 1962 or under the provisions
of section 491 of the Criminal Procedure Code, if the applicant is in the latter case in
detention, but not by invoking the inherent power under section 561 -A of the
Criminal Procedure Code." (Shashadha r Acharya v. Sir Charles Tegart AIR 1932 Cal.
229, Muhammad Hussain v. Inspector -General of Police PLD 1967 Lah. 1123,
Shamsuddin v. Captain Gauhar Ayyub PLD 1965 SC 496, Crown v. Muhammad
Sadiq Niaz PLD 1949 Lah. 562, Emperor v. Kh. Nazir Ahmad AIR 1945 P C 18, State
of West Bengal v. S. N. Basak AIR 1963 SC 447, Sher Khan and others v. The State
1968 SCMR 62, Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317, M. S.
Khawaja v. The State PLD 1965 SC 287, Shahnaz Begum v. The Hon'ble Judges of
The High Court o f Sindh and Baluchistan (PLD 1971 Supreme Court 677)."
7. Similarly, in another reported judgment of Hon'ble Peshawar High Court passed in
case of "Yasir Khan v. Imtiaz Khan (PLD 2013 Peshawar 46)" while placing reliance on
various judgments of Hon'ble Sup reme Court, it was observed as under:
However, it would not be correct to totally oust the jurisdiction of the Sessions to
order arrest of an accused released by a police officer under section 169 of Cr.P.C. In
this regard, some of the circumstances include, when the Sessions may order the
arrest of such a released accused, if he on being summoned under section 204 of
Cr.P.C. or he absents to appear during the trial may lead to the issuance of warrant of
arrest by the Sessions; the Court may order the arrest of released accused during the
trial, if it finds that the prosecution witnesses are being pressurized or threatened to
render their testimony or the process of the Court is being abused or threatened; in
case of certain later developments or bias or mala fide, which require reinvestigation,
and the same cannot be carried out without the arrest of the released accused fearing
interference in a fair investigation therein, that the Sessions may order the arrest of
the released accused. It would be pertinent to note that re -investigation after t he
submission of 'challan' and during the trial of the offence, though disapproved, yet is
not legally barred, as elaborately explained in Bahadur Khan's Case (2006 SCMR
373).
8. In view of the law laid down by Hon'ble apex Court and relied upon by the Hon 'ble
Peshawar High Court, read with provisions of section 204, Cr.P.C, it is by now well settled
that the discharge order of the petitioners, was only amenable before the trial court, which
takes cognizance of the case after submission of the challan, thus the learned Judicial
Magistrate was alien in all respects and was having no jurisdiction initially to issue warrants
of arrest on 23rd October 2021 and thereafter grant remand in police custody vide order
dated 27th October 2021. Reliance can also be plac ed on judgment of this court in case of
"The State through DPG v. Muhammad Rafique through Naib Tehsildar" "2016 PCr.LJ
1711".
Since, the matter was already subjudice before the trial court, thus, the learned
Judicial Magistrates, who issued warrants of a rrest and thereafter, granted remand of the
petitioners, were not empowered to have passed any order in the matter.
Even otherwise, as stated by the learned Deputy Prosecutor General, the challan has
already been submitted before the trial court to the e xtent of petitioners, but since, the
warrants and orders passed by the courts below, have been passed in excess of jurisdiction,
therefore the same are set aside.
The petition stands accepted in the above terms, with no order as to costs.
MH/2/Bal. Petit ion allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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