P L D 2008 Karachi 280 (PLP)

ALI SAIN DINO METLO, J.-Aggrieved by order dated 2-5-2005 of the trial Magistrate (V-Civil Judge and Judicial Magistrate, Karachi South) and order dated 23--2-2007 passed in revision by the Sessions Judge, Karachi South, refusing to join the respondent No.1 as accused, the applicant, who is complainant in the case, has filed this application under section 561-A of the Code of Criminal Procedure, 1898, for joining him as accused.

2. Briefly, the facts, as per applicant's first information report, registered on 1-9-2007, at 1700 hours, at Police Station, Preedy, Saddar Town, Karachi, are that on the same day, at 1300 hours, accused Shahid Bawani and the respondent No.1, attempted to criminally trespass into his cousin's shop known as Akhtar Antena House, bearing No.20, situated in Rehman Mansion, Sarmad Road, Regal Chowk, Saddar, Karachi. His cousin, Chaudhry Mahmood Akhtar was occupying the shop as tenant for the last about 45 years and he (applicant) was also working and doing business in the shop in partnership with him. Accused Shahid Bawani and the respondent No.1 had reportedly purchased the building in question and were in litigation with Chaudhary Mahmood Akhtar since a long time. While they, with the assistance of their servants accused Shahid and Altaf Hussian, were busy in breaking locks of the shop, police, on being informed on telephone, reached there and took away three of the accused and the broken lock with them. The respondent No.1 managed to slip away. However, on record only two of the accused, namely, Muhammad Shahid and Altaf Hussian were shown to have been arrested Shahid Bawani was shown as absconder and the respondent No.1 was exonerated without showing his name in any column of the charge sheet, notwithstanding the fact that' the eye-witnesses, namely, complainant Chaudhary Muhammad Bashir, Zaheeruddin Babar; Saleem Afzal, Umed Ali and Muhammad Arif, had implicated him during, the investigation.

3. After recording his evidence before the trial Magistrate, in which he fully implicated the respondent No.1, the applicant moved application for joining him (respondent No.1) as accused in the trial but his application was dismissed on the ground that police had not joined him as accused and in case he was not satisfied with the report of investigation he should file a direct complaint. His revision, bearing No.9 of 2007, was dismissed by the learned Sessions Judge on the ground that he had made delay in moving the application.

4. The reasons given by the trial Magistrate and the learned Sessions Judge for not joining the respondent No.1 as accused are not tenable in law. The courts are not bound by the ipse dixit of police. Cognizance can be taken even on a negative report of police and a person exonerated by police can be joined as accused, if he is found prima facie involved in the commission of the offence and his exoneration is not supported by evidence or is based upon unsound reasons. Advising the complainant to file direct complaint against such person will have the effect of simply multiplying and prolonging the litigation. There is also no period of limitation prescribed for prosecuting a person involved in the commission of an offence. He can be joined as accused at any stage.

5. For the purpose of commencing proceedings for the trial of a person, the Court is to make only a tentative assessment of material collected by the investigating agency or produced before the Court and if a prima facie case is made out against hint, he is to be joined as accused. It is not necessary to pass an exhaustive order dilating upon each and every aspect of the matter. Detailed and deeper appreciation is to be made at the final stage after recording evidence. Similar view was taken by the Hon'ble Supreme Court in the case of Safder Ali v. Zafar Iqbal reported in 2002 SCMR

63. Nevertheless, a criminal trial has its own implications. For an accused, it brings many disadvantages. Delays have made it both an ordeal as well a jeopardy. Therefore, much care is required to be taken before summoning a person, exonerated by police, to join trial as accused, particularly when a culture of false implication and roping in as many persons of the opposite party as possible is predominantly prevailing in our society. If the pinion of the Investigating Officer is based upon reason and material, it should be given due weight and should not be disregarded lightly. However, the final word is not with police. The Court has the final say and it may, of course for valid reasons, disagree with the opinion of the Investigating Officer and decide to try a person exonerated by police, keeping in view the over all circumstances of a particular case. Here it may also be observed that the Court, again keeping in view the overall circumstances of a particular case, may not adopt the harsh course of straightway issuing non-bailable warrants and may, as observed by the Hon'ble Supreme Court in Criminal Petition No.105-K of 2002 decided on 11-12-2002, issue summons or at best bailable warrants to secure attendance of such person.

6. There is also no hard and fast rule for recording evidence before joining as accused a person not recommended by the investigating agency. Again it will depend upon facts and circumstances of each case. If the opinion of the Investigating Officer is based upon material collected by him, the person not recommended by him may not be joined as accused unless some evidence showing his involvement in the commission of the offence is brought on record. However, in a case where opinion of the Investigating Officer is not based upon any material and there is already ample evidence showing his involvement in the commission of the offence, it will be unnecessary to record evidence before joining such person as accused.

7. It is also not necessary that for the purpose of joining a person as accused, his name must appear in Column No.2 of the charge-sheet. Omission, deliberate or inadvertent, on the part of the Investigating Officer to mention in his report name of a person concerned in the commission of an offence, cannot have the effect of depriving the Court of its power to join him as accused in the trial. The Court will be free to apply its mind and take decision independently of course, on the basis of material available before it.

8. In the case of Mehboob and others v. Emperor reported in 26 Cr.LJ 181, a full Bench of the Sindh Judicial Commissioner's Court observed that a Magistrate taking cognizance of an offence on police report was perfectly justified, rather duty bound, to see that justice was done with regard to, and process was issued against, any person, prima facie found to be concerned in the commission of the offence, notwithstanding the fact that his name was not mentioned in the report; further emphasizing that he would fail in the discharge of one of the principal functions of his office, where he to abstain from doing so, The precedent was referred with approval by the Hon'ble Supreme Court in Safdar Ali's case supra, in which relying upon its earlier precedents, reported in PLD 1967 SC 425, 1972 SCMR 335, 1985 SCMR 1314 and 1988 SCMR 1428 the Hon'ble Court further observed that cognizance is taken of an offence and not only of a particular offender and once a Court takes cognizance of an offence it can issue process against any person prima facie found concerned in the commission of the offence, notwithstanding the fact that he was exonerated or his name was not mentioned in the police report, as police was not the final arbiter and it was the Court to decide finally who should or who should not be tried.

9. In presence of such settled legal position no weight can be given to the arguments of the learned counsel for the respondent No.1 that the name of the respondent No.1, having not been mentioned in the police report, he cannot be joined as accused and, with utmost respect, the authority of a learned Single Judge, reported in 1997 MLD 1430 (Peshawar), being in conflict with the law laid down by the Hon'ble Supreme Court, cannot be followed. The other precedent reported in 1999 PCr.LJ 731 (Karachi), relied upon by the learned counsel for the respondent No.1, does not support his contention. Thus, the orders passed by the learned trial Magistrate and the Sessions Judge cannot be sustained in law. It was for these reasons that after hearing arguments on 13-3-2008 the application was allowed by a short order, the impugned orders were set aside and the respondent No.1 was directed to be joined as accused in the trial and he was directed to appear before the trial Court within 15 days and furnish surety in the sum of Rs.50,000 and in case of his failure to do so the trial Court was directed to secure his attendance by issuing coercive process. N.H.Q./M-17/K Petition allowed.