Quashment of FIR on the illegality of Police

PLJ 2012 Lahore 763 [ Rawalpindi Bench Rawalpindi ] Present: Sagheer Ahmad Qadri , J. MUHAMMAD MUNIR--Petitioner versus STATION HOUSE OFFICER, POLICE STATION DHUMAN, DISTRICT CHAKWAL and 2 others--Respondents W.P. No. 543-Q of 2012, decided on 9.5.2012. Constitution of Pakistan , 1973-- ----Arts. 410 & 199--Criminal Procedure Code, (V of 1898), S. 561-A--Pakistan Penal Code, 1860, S. 216--Quashing of FIR-- Harbouring of an offender--No evidence to connect accused with commission of offence--Validity--Facing trial after going through procedural pre-requisites was just a futile effort rather putting innocent person under agony of trial which likely to result in his acquittal--Whenever an act or omission constitutes an offence committed by a person he in accordance with provisions provided under laws was to be penalized but at same time every body had a right to be provided safeguard against his false implication under charges with mala fides--Right of individual citizen is to be dealt with accordance with law as guaranteed u/Art. 4 of Constitution--When police had committed a patent illegality while getting registered FIR, basic ingredient of which was lacking, registration of FIR and subsequent proceedings including investigation and submission of challan were void ab -initio and liable to be quashed--FIR was quashed. [Pp. 767 & 768] A & C Constitution of Pakistan , 1973-- ----Art. 10--Right to fair trial--To level an allegation against a person is easy but to rebut same is very difficult task--Rights guaranteed under Constitution to protect innocent citizens from involvement is false, motivated and groundless charges, which would result in acquittal--Courts were bound to decide of such like cases at initial possible stages. [P. 767] B Mr. Abdul Jabbar Awan , Advocate for Petitioner. Mr. Saif-ur-Rehman , AAG for Respondents. Date of hearing: 9.5.2012. Order This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with Section 561-A, Cr.P.C . is moved by petitioner Muhammad Munir who is an accused in case FIR. No. 236 of 2011 dated 20.12.2011 registered under Section 216, PPC at Police Station Dhuman District Chakwal . 2. FIR mentioned above was lodged by Abdul Jalil , ASI of Chowki Mulhal Mughlan , Police Station Dhuman mentioning that on that day he along with other officials in connection with investigation of case FIR. No. 186 dated 30.9.2011 under Section 496-A, PPC for the arrest of proclaimed offenders Tafseer , Jahangir and Adeel Ahmad sons of Muhammad Munir , the present petitioner, was present at Ijaz Abad Picket, when complainant of said case informed that Muhammad Munir along with his two sons Jahangir and Adeel (Proclaimed Offenders) was present at Dhok Taliyan Chowk opposite the Farm owned by Raja Altaf and if raided the P.Os could be arrested. On this information complainant Abdul Jalil , ASI along with other police officials reached at Dhok Taliyan Chowk at 10:00 a.m. and on seeing police party, Jahangir and Adeel managed to escape from the spot while Muhammad Munir present petitioner was apprehended, who was arrested. As he harboured Jahangir and Adeel and managed their escape from the arrest by police, hence, committed offence under Section 216, PPC, on this report instant FIR mentioned above was registered. 3. Petitioner was interrogated and was sent to judicial lock up. The Investigating Officer during investigation recorded statements of two witnesses namely Nauman Tariq and Muhammad Baqir Constables under Section 161, Cr.P.C . showing that they accompanied the complainant under information at the specified place and on seeing them the accused/P.Os fled away while petitioner was apprehended and challan has been submitted in the trial Court. 4. Learned counsel for the petitioner contends that no evidence is available on record to connect the petitioner with the commission of the alleged offence rather if contents of the FIR and evidence collected is seen, no offence under Section 216, PPC is shown committed by the petitioner. Contends that although it is alleged that petitioner harboured his two sons, who were declared P.O in case registered under Section 496-A, PPC but they both were granted bail by this Court on 19.12.2012, hence, they cannot be termed as P.Os; that there is no evidence available on record that two sons of the petitioner namely Jahangir and Adeel if ever were declared P.Os by any competent Court of law. No such evidence was collected nor placed on record with the report under Section 173, Cr.P.C .; that registration of FIR, arrest of the petitioner, subsequent proceedings and submission of challan thus are nullity in the eye of law rather illegal and without any lawful justification, hence further proceedings against the petitioner before the learned trial Court are clear abuse of process of law, hence, liable to be quashed. 5. Conversely, learned AAG has opposed the arguments advanced by learned counsel for the petitioner on the grounds that as report under Section 173, Cr.P.C . has already been submitted before the learned trial Court, therefore, if petitioner has any grievance he may move petition under Section 249-A, Cr.P.C . before the learned trial Court. Prayed that as prima-facie offence under Section 216, PPC is made out, therefore, this petition be dismissed. 6. I have heard the learned counsel for the parties and have gone through the record. 7. Admittedly, petitioner's two sons namely Jahangir and Adeel were accused in case FIR. No. 186 dated 30.9.2011 under Section 496-A, PPC registered at Police Station Dhuman District Chakwal . Except mere assertion in the FIR by the complainant that they were declared Proclaimed Offenders, no evidence was collected by the Investigating Officer to prima-facie prove them as such. It is alleged in the FIR lodged by the complainant Abdul Jalil , ASI that he was provided information by the complainant of case FIR. No. 186 of 2011 that petitioner Muhammad Munir along with his two sons Jahangir and Adeel (P.Os) was present at Dhok Taliyan Chowk opposite the Farm owned by one Raja Altaf . Statement of said complainant has not been recorded by the complainant/I.O of that case in this respect. As far as the allegation about harbouring of an offender is concerned, the word " harbour " is defined under Section 52-A of, PPC, which reads as under : -- "Except in Section 157, and in Section 130 in the case in which the harbor is given by the wife or husband of the person harboured , the word "harbor" includes the supplying a person with shelter, food, drink, money, clothes, arms, ammunition or means of conveyance, or the assisting a person by any means whether of the same kinds as those enumerated in this section, or not, to evade apprehension." Harbouring is punishable under Section 216, PPC wherein it is provided:-- " Harbouring offender who has escaped from custody or whose apprehension has been ordered: Whenever any person convicted of or charged with an offence being in lawful custody for that offence, escapes from such custody; Or whenever a public servant, in the exercise of the lawful powers of such public servant, orders a certain person to be apprehended for an offence, whoever, knowing of such escape or order for apprehension, harbours or conceals that person with the intention of preventing him from being apprehended shall be punished in the manner following, that is to say;" -------------- -------------- -------------- If report under Section 173, Cr.P.C . along with documents produced before the learned trial Court in the light of record produced before this Court is seen, the I.O/complainant Abdul Jalil , ASI only sent complaint on the basis of which above mentioned FIR was recorded. He prepared a site plan showing the alleged place of arrest of the accused/petitioner, as well as wherefrom allegedly Jahangir and Adeel (P.Os) were able to fled away. He only recorded statements of two witnesses namely Nauman Tariq and Baqir Constables supporting his version about the provision of information by the complainant of case, then reaching at the spot and escaping of the accused/P.Os and arrest of the petitioner from the spot. If the above mentioned definition of harbouring as provided under Section 52-A, PPC and Section 216, PPC is seen, it is clear that harbouring is an offence if a person knowingly provides shelter, food, drink, money, clothes, arms, ammunition or means of conveyance, or the assistance by any of the means to evade his apprehension. Under Section 216, PPC in order to penalize a person for harbouring an offender it is essential that a public servant must have issued orders for the apprehension of a person who is involved in commission of an offence and a person knowingly provides assistance to that person for evading his apprehension as defined under Section 52-A, PPC. Herein this case, firstly, the Investigating Officer/complainant only alleged that information was provided to him by the complainant of case FIR No. 186 of 2011 registered under Section 496-A, PPC that petitioner along with his two sons Jahangir and Adeel , allegedly declared P.Os in the above mentioned case, were present at the given place but no such orders whereby petitioner's sons were declared P.Os either were obtained or annexed with the file. Secondly, he did not record statement of the complainant showing his presence at the alleged place of apprehension or escape by the P.Os. These are mere assertions brought on record through registration of FIR as well as statements of two alleged witnesses under Section 161, Cr.P.C ., who were also the police officials. Keeping in view the above circumstances, offence under Section 216, PPC is not made out. Hence, registration of FIR itself is illegal rather abuse of the process of law. 8. The argument advanced by learned AAG that as report under Section 173, Cr.P.C . has already been submitted in the learned trial Court, therefore, petitioner may move petition under Section 249-A, Cr.P.C . in the Court concerned, is not a valid argument in the peculiar facts and circumstances of the present case, wherein registration of FIR itself is without any lawful justification. Facing trial after going through the procedural pre requisites in these circumstances is just a futile effort rather putting the innocent person under the agony of trial which ultimately likely to result in his acquittal. No-doubt, whenever an act or omission constitutes an offence committed by a person he in accordance with the relevant provisions provided under the relevant laws is to be penalized but at the same time everybody has a right to be provided a safeguard against his false implication under such charges with malafides . Right of an individual/citizen is to be dealt with in accordance with law as guaranteed under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. Under Article 10-A further right to fair trial has been guaranteed recently. It is commonly known to everybody that to level an allegation against a person is easy but to rebut the same is a very difficult task. Keeping in view the rights guaranteed under the Constitution of Islamic Republic of Pakistan, 1973 to protect the innocent citizens from their involvement in false, motivated and groundless charges, which ultimately would result in their acquittal, the Courts are bound to decide/dispose of such like cases at earliest/initial possible stages. Keeping in view the facts and circumstances mentioned above when complainant Abdul Jalil , ASI has committed a patent illegality while getting registered instant FIR in respect of an offence, the basic ingredient of which is lacking, therefore, registration of FIR and all subsequent proceedings including investigation and submission of challan are void ab initio and liable to be quashed. So far as the arguments advanced by learned AAG that petitioner may avail the remedy under Section 249-A, Cr.P.C . is a futile effort just to linger on the agony of the petitioner. Resultantly, while allowing this writ petition FIR. No. 226 of 2011 dated 20.12.2011 registered under Section 216, PPC at Police Station Dhuman District Chakwal is hereby quashed. (R.A.) FIR quashed