P L D 2023 Balochistan 85
Before Muhammad Hashim Khan Kakar, J
MUHAMMAD AZAM KHAN SWATI ---Petitioner
Versus
INSPECTOR -GENERAL OF POLICE, BALOCHISTAN and 2 others --Respondents
Criminal Quashment Petitions Nos. 628 to 632 of 2022, decided on 20th December, 2022.
(a) Criminal Procedure Code (V of 1898) ---
----Ss. 177, 179, 180, 181, 235, 403 & 561 -A---General Clauses Act (X of 1897), S. 26 ---
Penal Code (XLV of 1860), Ss. 123 -A, 124 -A, 131, 153, 500, 501, 504 & 506 ---Constitution
of Pakistan, Arts. 4, 13 & 199 ---Inherent jurisdiction of High Court ---Quashing of FIR ---
Multiple FIRs ---Double jeopardy, principle of ---Applicability ---Petitioner was facing
multiple FIRs on the allegations of condemnation of creation of State and advocacy of
abolition of its sovereignty, sedition, abetting mutiny, attempting to seduce a soldier, sailor
or airman from his duty, wantonly giving provocation with intent to cause riot, defamation,
intentional insult with intent to provoke breach of peace and criminal intimidation ---
Petitioner sought quashing of all FIRs as they contained similar allegations with reference to
one occurrence against which one case had already been pending in another province ---
Validity ---It was neither possible nor convenient for petitioner to obtain bail from various
Courts in various cities joining various investigations and finally defending himself before
various Courts, that too, for one and the same offence ---All FIRs were registered for the
same incident under same provisions of law against same accused ---Taking cognizance by
multiple Courts, having different territorial jurisdiction simultaneously, was in violation of
Arts. 4 & 13 of the Constitution, S. 403, Cr.P.C and S. 26 of General Clauses Act, 1897 ---
Single trial had been envisaged under Part VI, Chapter XV Ss. 177, 179 180 181 & 235,
Cr.P.C. ---Power under S. 561 -A, Cr.P.C. is extraordinary jurisdiction that cannot override
the Court's provisions ---Cases may arise where demands of justice require immediate, real
and substantial justice and in such circumstances, Courts are justified to exercise their
jurisdiction to save a party from harassment and abuse of process of Court ---Powers under S.
561-A, Cr.P.C. may be used sparingly as it confers vast powers on the Court to meet such
eventualities and pass any order which ends of justice may require ---High Court directed to
release petitioner and quashed all FIRs registered against him ---Petition was allowed, in
circumstances.
Mst. Sughran Bibi v. The State PLD 2018 SC 595 rel.
(b) Criminal Procedure Code (V of 1898) ---
----Ss. 61, 167 & 344 ---Remand ---Magistrate, duty of ---Magistrate is not expected to pass
orders granting remand of accused persons in a mechanical manner ---Magistrate has to
examine very carefully the justification for depriving a citizen of his liberty which can only
be done if material justifying such action is available on record ---Deviation made by
Magistrate in such respect, exposes Magistrate to the peril of having committed violations of
mandatory provisions of law.
Ghulam Sarwar v. The State 1984 PCr.LJ 2588 rel.
Naseebullah Tareen, Syed Iqbal Shah, Munir Ahmed Kakar, Muhammad Saleem
Lashari, Barrister Usman, Muhammad Imran Alvi, Dr. Saeed Akhtar Malik, Ali Hassan
Bugti, Salman Langove, Shabbir Ahmed Sherani and Muhammad Raees for Petitioner.
Muhammad Ali Reki, Advocate General, Abdul Mateen, D.P.G., Muhammad Ali
Rakhshani, Addl. A.G. Zahoor Baloch, Asstt. A.G., Wajahat Khan Ghaznavi State Counsel,
Asad Nasar, SSP (Investigation) Quetta, Gul Baran DSP/AIG (Legal) CPO Quetta, Naseer
Shah, SP (Investigation) Quetta, Raheem Khan, SP (Legal) Quetta, Hassan Abbas Malik,
PDSP Quetta and Muhammad Imran, (SI/Investigating Officer) for Respondents.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Since common questions of law and
facts are involved in all the above mentioned petitions, as such, I propose to dispose of the
same through this common judgment. The petitioner, in all the above mentioned petitions has
prayed for quashment of the following FIRs:
"1) FIR No. 133 of 2022 dated 28.11.2002, PS. Zhob, under sections 131,153, 500, 501,
504 and 109, P.P.C.
2) FIR No. 148 of 2022 dated 26.11.2002, PS. City Khuzdar, District Khuzdar, under
section 29 Telegraph Act, 1885 read with sections 153 -A, 123 -A, 124 -A and 504,
P.P.C.
3) FIR No.118 of 2022 dated 26.11.2002, PS. Bairot Hub, district Lasbella, under
sections 123 -A, 124 -A, 153 -A, 504 and 505, P.P.C.
4) FIR No.141 of 2022 dated 27.11.2002, PS. City Pasni, district Gwadar, under section
20 of Prevention of Electronic Crimes Act (PECA), 2016 read with sections 131, 153,
500, 501, 504, 505 and 109, P.P.C.
5) FIR No. 161 of 2022 dated 26.11.2002, PS. Kuchlak, district Quetta, under section 20
of Prevention of Electronic Crimes Act (PECA), 2016 read with sections 131, 153,
500, 501, 504, 505 and 109, P.P.C. "
2. It is case of the prosecution in all the aforementioned cases that the petitioner,
Muhammad Azam Khan Swati son of Muhammad Yusuf Khan resident of Orchard Scheme
near Margalla Town, Islamabad, with mala fide intention and ulterior motives has started
highly obnoxious campaign of intimidating tweets through his personal account against state
institutions and senior functionaries, including Chief of Army Staff of Pakistani Army and
such mischievous act of subversion to create a rift between personnel of armed forces to
harm the State of Pakistan.
3. Messrs Naseebullah Tareen, Saleem Lashari and Munir Kakar Advocates,
representing the petitioner, submitted that in view of the dictum, laid down by the honorable
Supreme of Pakistan in the case of "Mst. Sughran Bibi v. The State", (PLD 2018 Supreme
Court 595), lodging of subsequent FIRs in respect of the same occurrence is not permissible.
The learned counsel also referred to Article 13 of the Constitution of Islamic Republic of
Pakistan, 1973 ("the Constitution") and section 403 of the Criminal Procedure Code relating
to the principle of double jeopardy and stated that no person can be waxed twice for one and
the same offence, therefore, the subsequent FIRs for the same act are liable to be quashed.
While concluding their arguments, they further submitted that the prosecution's allegations
can, at the most, constitute an offence under section 20 of the Prevention of Electronic
Crimes Act, 2016 (PECA), which is non -cognizable and compoundable in terms of section
43 of the said Act and after lodging of FIRs Nos.159 and 185 of 2022, registered by the FIA
authority at Islamabad, there was no occasion with the respondents to lodge the aforesaid
FIRs.
4. I have heard learned counsel for the parties and carefully gone through the available
record, relevant provisions of the Constitution as well as law which reveal that in respect of
the same occurrence, Crime No. 159/2022 was lodged with FIA Cyber Crime Reporting
Centre, Islamabad, which reads as under:
"Consequent upon the conclusion of enquiry No. RE -818/2022 of FIA, Cyber Crime
Reporting Centre, Islamabad, it transpired that Muhammad Azam Khan Swati having
CNIC 13101 -6947397 -7 resident of Farm No. 71, Orchard Scheme Near Margalla
Town, Islamabad, with mala fide intentions and ulterior motives,
twitted/uploaded/publicly projected, highly obnoxious and intimidating message
through Twitter Account having Handle: @AzamKhanSwatiPK, Display Name:
"Senator Azam Khan Swati " and URL: https://twitter. com/AzamKhanSwatiPk,
against the State Institutes of The Islamic Republic of Pakistan and its Senior
Government Functionaries including Chief of The Army Staff of Pakistan Army. The
accused Muhammad Azam Khan Swati, through his aforementioned personal Twitter
Account, shared a Tweet on 12th October, 2022 at 19:00 PM, having URL:
https://twitter. com/AzamKhanSewatiPk/status/ 1580196735288107010, by stating
therein that "Mr. Bajwa congratulations to you and few with you. Your plan is really
working and all criminals are getting free at cost of this country. With these thugs
getting free You have legitimise corruption. How you predict now the future of this
country?" Such intimidating Tweet/s of blaming and naming through Twitter account
i.e. @AzamKhanSwatiPk, is a mischievous act of subversion to create a rift between
personnel/s of The Armed Forces and an attempt to harm the State of Pakistan.
Through the aforementioned Tweet, the accused undermined the Judicial System of
the country and also attempted to seduce Army Personnel/s from their allegiance to
their duties as subordinates."
5. The record further depicts that besides lodging of aforementioned FIR, Crime No.
185/2022 was also lodged with the same Cyber Crime Reporting Centre, which speaks as
under:
"Consequent upon the conclusion of enquiry No.907/2022 of FIA, Cyber Crime
Reporting Centre Islamabad, it transpired that the accused Muhammad Azam Khan
Swati son of Muhammad Yousaf Khan having CNIC 13101 -6947397 -7 resident of
Farm No. 71, Orchard Scheme Near Margalla Town, Islamabad, having twitter handle
@AzamKhanSwatiPK and twitter accounts having twitter handles @Wolf1AK
@HaqeeqatTV_20 and @Azaadi99 with mala fide intentions and ulterior motives,
started highly obnoxious campaign of intimidating tweets through Twitter aforesaid
accounts against state institution of Islamic Republic of Pakistan and its senior
government functionaries including Chief of Army Staff of Pakistan Army."
6. At the very outset and without burdening the judgment in hand with scholarly
discussion, I have observed that multiple FIRs across the country have been registered
against the petitioner. The moot question for consideration arises as to whether investigation
and further proceedings on the basis of all the FIRs are permissible? Though a strait Jacket
formula cannot be laid down, yet the only test whether multiple FIRs can be permitted to
exist. In such case, the Court has to examine the facts and circumstances giving rise to all the
FIRs and the test of sameness is to be applied to find out whether all the FIRs relate to the
same incident in respect of the same occurrence or are in regard to the incidents, which are
two or more parts of the same transaction. If the answer is in affirmative, the second or the
remaining FIRs are liable to be quashed. However, in case, the contrary is proved, where the
version in the second FIR is different and they are in respect of the two different
incidents/crimes, the second FIR is permissible.
7. Considering the instant case on the touchstone of aforesaid settled legal proposition, I
am of the view that it is neither possible nor convenient for the petitioner to obtain bail from
various Courts in various cities joining various investigations and finally defending himself
before various Courts, that too, for one and the same offence. Admittedly, all the
aforementioned FIRs have been registered for the same incident under the same provisions of
law against the same accused and in such state of affairs, taking cognizance by multiple
Courts, having different territorial jurisdiction simultaneously, seems to be in violation of
Articles 4 and 13 of the Constitution, section 403 of the Cr.P.C and section 26 of the General
Clauses Act 1897. Similarly, Part VI -Chapter XV sections 177,179 180 181 and section 235 of
the Cr.P.C also envisage a single trial.
8. I have also noticed that the petitioner has been charge -sheeted in a number of cases
and he shall either be convicted or acquitted on the basis of facts and evidence. In such view
of the matter the simultaneous and continuous trials in presence of same facts and on the
same set of evidence and allegations, would patently result in a duplicate punishment or at
least a duplicate trial in violation of the doctrine of double jeopardy, thus, after lodging of
FIR Nos.159 and 185 of 2022 at FIA Cyber Crime Reporting Centre Circle/Sub -Circle,
Islamabad, FIRs lodged at different cities of Balochistan are liable to be quashed.
9. The manner, in which a number of FIRs have been registered against a member of
upper house (Senate) that too, in different parts of the country regarding one and the same
offence and, subsequently, its investigation and submission of challans before the concerned
Courts, having jurisdiction, clearly indicate that it is abuse of process of law. There has to be
an end to litigation in every legal system. It would be shocking to the judicial conscience to
try a man again and again for one and the same alleged offence and that is what would
happen if we allow such practice. Needless to observe that, as stated above, Article 13 of the
Constitution prescribes that "no person shall be prosecuted or punished for the same offence
more than once". The word 'liberty' under Article 9 of the Constitution is of the widest
amplitude covering variety of rights, which goes to constitute personal liberty of a citizen.
Similarly, Article 4 of the Constitution enshrines that it is inalienable right of every citizen to
enjoy the protection of law and to be treated in accordance with law. Likewise, Article 10 -A
of the Constitution guarantees a fair trial and due process. Thus, deprivation of any citizen
shall only be as per procedure prescribed in the code conformable to the mandate of the
Constitution.
10. I was at great pains to note that the application submitted by the Investigating Officer
before Judicial Magistrate Kuchlak to obtain non -bailable warrant of arrest of the petitioner
in case No. 161/2022, hardly disclosed the grounds for issuance of warrant. Similarly, the
learned Judicial Magistrate, Islamabad has also astonishingly granted 'Safari' remand of
petitioner in his absence for three days, when he was already shifted to judicial custody. It is
also highly disturbing to observe that on 4th December,2022, five (5) days remand was
granted by the learned Judicial Magistrate -X, Quetta in the following terms:
"The above named accused in police custody is present. IO is present, requested for
physical remand of accused namely Azam Sawati. He is nominated in above mentioned
FIR, and, I.O. deposed that the accused is required for further investigation. Hence,
request is accepted, the accused is remanded to police for (5) five days."
11. The aforementioned remand orders would show that the remand orders have been
issued in a mechanical manner. Whatever may be the case, the grant of remand should not be
a mechanical exercise and it must be ascertained by the Magistrate concerned that the
accusation is well -founded and remand would render substantial assistance in investigation
of the matter. It has been observed with grave concern that the procedure as enumerated in
sections 61 and 167, Criminal Procedure Code is not being complied within letter and spirit
and I feel it essential that once again directions should be issued to all concern for
compliance of the mandatory requirement as enumerated in the provisions as contained in
sections 61, 167 and 344, Cr.P.C. The question pertaining to remand was examined in the
case of Ghulam Sarwar v. The State (1984 PCr.LJ 2588) and the following directives were
issued by Lahore High Court:
"(1) During first 15 days, the Magistrate may authorise the detention of the accused in
judicial custody liberally but shall not authorise the detention in the custody of the
police except on strong and exceptional grounds and that too, for the shortest possible
period;
(2) The Magistrate shall record reasons for the grant of remand.
(3) The Magistrate shall forward a copy of his order passed under section 167, Cr.P.C. to
the Sessions Judge concerned.
(4) After the expiry of 15 days, the Magistrate shall require the police to submit complete
or incomplete challan and in case, the challan is not submitted, he shall refuse further
detention of the accused and shall release him on bail with or without surety.
(5) After the expiry of 15 days, no remand shall be granted unless, the application is
moved by the police for the grant of remand/ adjournment.
(6) The application moved by the prosecution/police after the expiry of 15 days of the
arrest of the accused, be treated as an application for adjournment under section 344,
Cr.P. C.
(7) Before granting remand, the Magistrate shall assure that evidence sufficient to raise
suspicion that the accused has committed the offence has been collected by the police
and that further evidence will be obtained after the remand is granted.
(8) The Magistrate shall not grant remand/adjournment in the absence of the accused.
(9) The Magistrate should avoid giving remand/ adjournment at his residence.
(10) The Magistrate shall give opportunity to the accused to raise objection, if any, to the
grant of adjournment/remand.
(11) The Magistrate shall record objection which may be raised by an accused person and
shall give reasons for the rejection of the same.
(12) The Magistrate shall examine police file before deciding the question of remand.
(13) If no investigation was conducted after having obtained remand, the Magistrate shall
refuse to grant further remand/adjournment.
(14) The Magistrate shall not allow remand/adjournment after 2 months (which is a
reasonable time) of the arrest of the accused unless it is unavoidable.
(15) In case, complete challan is not submitted, the Magistrate shall commence trial on the
strength of incomplete challan and examine the witnesses given in the list of
witnesses.
(16) If the challan is not submitted within 2 months, the Magistrate shall report the matter
to the Sessions Judge of the district and also bring the default of the police to the
notice of Superintendent of Police of the district.
(17) The Magistrate shall not grant remand mechanically for the sake of co -operation with
the prosecution/police.
(18) The Magistrate shall always give reasons for the grant of remand and adjournment."
12. A Magistrate is not expected to pass orders granting remand of accused persons in a
mechanical manner. He has to examine very carefully the justification for depriving a citizen
of his liberty which can only be done if material justifying such action is available on record.
In case any deviation is made by any of the Magistrate in this respect, such Magistrate will
be exposing himself to the peril of having committed violations of mandatory provisions of
law.
13. It is true that the disputed tweets contain highly obnoxious and intimidating language
but it is equally true that multiple registration of FIRs cannot be allowed that too in respect
of one and the same offence in view of the dictum laid down by the honourable Supreme
Court in the case of "Mst. Sughran Bibi v. The State" (PLD 2018 Supreme Court 595).
14. I am conscious of the fact that the inherent power under section 561 -A, Cr.P.C. is an
extraordinary jurisdiction that cannot override the Court's provisions, but; cases may arise
where demands of justice require immediate, real and substantial justice. In such
circumstances, the Courts would be justified to exercise their jurisdiction to save a party
from harassment and abuse of the process of Court. Section 561 -A, Cr.P.C. may be used
sparingly, but; it confers vast powers on the Court to meet such eventualities and pass any
order which ends of justice may require. In my humble opinion, the cases in hand do fall
within the parameters referred to herein.
In view of what has been discussed above, the petitions filed by Muhammad Azam
Sawati son of Muhammad Yousaf Khan, are allowed. The F.I.R.No.133/2022 PS. Zhob,
under sections 131, 153, 500, 501, 504 and 109, P.P.C., FIR No.148/2022, PS. City Khuzdar,
district Khuzdar, under section 29 Telegraph Act, 1885 read with sections 153 -A, 123 -A, 124 -
A and 504, P.P.C., FIR No.118/2022, PS. Bairot Hub, district Lasbella, under sections 123 -
A, 124 -A, 153 -A, 504 and 505 P.P.C., FIR No. 141/2022, PS. City Pasni, district Gwadar,
under section 20 of Prevention of Electronic Crimes Act (PECA), 2016 read with sections
131, 153, 500, 501, 504, 505 and 109, P.P.C. and FIR No. 161/2022, PS. Kuchlak, district
Quetta, under section 20 of Prevention of Electronic Crimes Act (PECA), 2016 read with
sections 131, 153, 500, 501, 504 505 and 109, P.P.C. stand quashed. If the petitioner is still
in custody in connection with the aforementioned FIRs, he shall be released forthwith, if not
required in any other case.
Above are the reasons of my short order dated 09.12.2022.
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