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PLJ 2022 Islamabad 200

PLJ 2022 Islamabad 200

Present: Aamer Farooq, J.

MUHAMMAD SHAHBAZ SHABEER–Petitioner

versus

ADDITIONAL SESSIONS JUDGE and others–Respondents

W.P. No. 3035 of 2022, decided on 22.8.2022.

Constitution of Pakistan, 1973–

—-Art. 199–Writ petition–Criminal Procedure Code, (V of 1898), Ss. 435/439 & 167–Request for further remand–Turned down–Criminal revision filed by state, was allowed and petitioner remanded in police custody for period of 48 hours hence petition against order of physical remand–Fundamental rights of prisoner–Stage to examine legality or otherwise of proceedings shall be when Court will take cognizance and objections raised regarding failure to take sanction might be material at said time, if there does not exist any such approval or sanction–Petitioner has completed period of remand hence no further remand can be granted–No interference is required in order of revisional Court; it is expected that Ministry of Interior shall do needful in light of observations and hold an impartial inquiry on subject–It is only appropriate that during physical custody when police authorities has remand of petitioner same be directly supervised by a senior police officer not below rank of Senior Superintendent Police–Petition disposed of.

                                                                           [Pp. 213] K, L & M

PLD 2017 Islamabad 64, PLD 2020 Lahore 285, 1993 SCMR 71, PLD 2012 SC 892, 2011 YLR 2821 ref.

Criminal Procedure Code, 1898 (V of 1898)–

—-S. 435–Revision–Proceedings under Section 435, Cr.P.C.–The referred provision of law grants Sessions Court as well as High Court to call for and examine record and propriety of any proceedings, order or sentence regarding its correctness, legality or propriety (Section 435, Cr.P.C.). [P. 207] A

Constitution of Pakistan, 1973–

—-Art. 199–Scope of judicial review–High Court cannot hear and adjudicate a petition under Article 199 of Constitution like an appeal and replace its findings with that of Court of first instance or Court hearing revision petition as all it has to do is that whether there is any error of law or of jurisdiction–It is trite law that no interference in investigation can be made by any Court except in certain circumstances. [P. 207] B

2010 SCMR 624.

Remand–

—-Question of mistake or inaccuracy of law–It is settled proposition of law that remand should not be allowed in a mechanical way or refused on basis of conjectures or surmises without application of mind rather ought to be done on basis of material available on record including police diaries and examination of police diaries led revisional Court to conclusion that further 48 hours of remand in police custody is required. [P. 208] C

1984 PCr.LJ 2588.

Prison Code Rules–

—-R. 20–Under Rule 20 of Prison Code Rules for Superintendence and management of Prisons in Pakistan when a prisoner with injuries on his body is admitted into a prison from police custody he shall be examined immediately by Medical Officer–It is also provided that if examination reveals unexplained injuries not already recorded in medico legal report accompanying prisoner, a report shall at once be made to Sessions Judge and officer Incharge of prosecution and Superintendent police. [P. 209] D

Constitution of Pakistan, 1973–

—-Art. 14(2)–Prohibition of torture–Dignity and fundamental rights of prisoners–Torture in any form to extract evidence is prohibited–The basic prohibition exists in Article 14(2) of Constitution which provides that no prisoner shall be subjected to torture for purpose of extracting evidence–Much judicial ink has been expended safeguarding rights of prisoners and accused persons and to protect them from torture. [P. 209] E

PLD 2020 Islamabad 268.

Fundamental Rights of Prisoner–

—-Duty of prison functionaries–Jail authorities–Dignity and fundamental rights of prisoner–A prisoner either facing trial or serving sentence has all rights which an individual has otherwise and it is duty of prison functionaries that if a prisoner suffers from serious disease, he was not only provided with highest attainable standard of health services but is to be treated in accordance with law. [P. 210] F

PLD 2017 Lahore 342; 2020 PCr. LJ 1.

Right of Prisoners–

—-Rights of prisoners–Allegation levelled on behalf of petitioner that he was subjected to torture, matter cannot just simply be ignored as it can entail serious consequences for future investigations–Though no specific prayer has been made for doing anything about torture with which petitioner has been allegedly subjected to, Court is making observations and delving in issue as arguments were addressed on it and matter caught media attention which led to concerns being raised to unlawful practices, allegedly, adopted by police during investigation. [P. 210] G

1995 PCr.LJ 97.

Criminal Procedure Code, 1898 (V of 1898)–

—-S. 196-A–No Court is to take cognizance of offence of criminal conspiracy punishable under Section 120-B of PPC as mentioned in subsections 1 & 2 respectively. [P. 211] H

PLD 2017 Islamabad 64, 1993 SCMR 71.

Criminal Procedure Code, 1898 (V of 1898)–

—-S. 195(1)(c)–Cognizance–While interpreting Section 195 (1)(c) Cr.P.C. which provides similar effect that no cognizance by any Court is to be taken unless a complaint is taken in writing by such Court or some other Court with respect to any document.

                                                                                         [Pp. 211] I

PLD 2012 SC 892.

Criminal Procedure Code, 1898 (V of 1898)–

—-S. 195(1), 196, 196-A–Cognizance–The word cognizance means that when matter comes to Court and Section 195 (1)(c), Cr.P.C. or for that matter Sections 196 and 196-A, Cr.P.C. do not hamper investigation of a report conducted by police or any other investigation agency. [P. 213] J

Ref. PLD 2017 Islamabad 64, PLD 2020 Lahore 285 & 1993 SCMR 71.

M/s. Barrister Suleman Safdar, Muhammad Shoaib Shaheen, Faisal Fareed Chaudhary, Fahad Arslan Chaudhary, Malik Naseem Abbas Nasir, Malik Fiaz Ahmed Kandwal, Mirza Asif Abbas, Ch. Khalid Yousaf, Ali Ijaz Buttar, Intizar Hussain Panjotha, Naeem Haider Panjotha & Ch. Istiaq A. Khan, Ashiq Hussain Tarar, Ch. Tanveer Ahmed, Mubashar Najeeb, Dr. Zubair Sarfraz, M. Saeed Khan Sadozai, Mirza Aslam Baig, Sardar Masroof Abid, Attiq-ur-Rehman Siddiqi, Faisal Nawaz Jadoon, Tanveer Hussain, Kalsoom Khaliq, Ayesha Tabassum and Shaheena Shahabud Din, Advocates for Petitioner.

M/s. Jahangir Khan Jadoon, Advocate-General, Islamabad Capital Territory, Raja Rizwan Abbasi, Special Public Prosecutor, Barrister Qasim Ali Chohan, Additional Advocate-General Punjab, Zohaib Hassan Gondal, State Counsel, Khalid Mehmood Awan, DSP, Sajid Abbas Cheema, DSP, (Legal), Kashif Ali, Additional Superintendent, Syed Tahir Saddique, Deputy Superintendent and Noman-ul-Haq, Medical Officer, Central Jail Adiyala, Rawalpindi for Respondents.

Date of hearing: 22.8.2022.

Judgment

Muhammad Shahbaz Shabeer (the petitioner) was arrested on 09.08.2022 in case FIR No. 691/2022 dated 09.08.2022 under Sections 124-A, 120, 131, 153, 153-A, 505, 506, 121, 109 & 34, PPC Police Station, Kohsar, Islamabad. He was brought before the concerned Judicial Magistrate for obtaining his physical custody/remand under Section 167 Criminal Procedure Code, 1898 (Cr.P.C.) on 10.08.2022. Learned Magistrate, pursuant to request of the police allowed 48 hours remand to the police authorities i.e. to retain the custody of the petitioner. On lapse of 48 hours the petitioner was again presented before the learned Magistrate on 12.08.2022 and a request for further remand in custody was made which was turned down. Against the referred order a criminal revision was preferred before Respondent No. 1 which was dismissed on the same day i.e. 12.08.2022. The referred order of Respondent No. 1 as well as the order refusing remand was challenged through a petition under Article 199 of Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution) (W.P. No. 2995/2022); the said writ petition was allowed on 16.08.2022 and order dated 12.08.2022 of Respondent No. 1 was set aside, resultantly the criminal revision was held to be pending.

  1. The matter was taken up by Respondent No. 1 on 17.08.2022 when the criminal revision, filed by the State was allowed and the petitioner was remanded in custody of police for a further period of 48 hours. The order passed in the criminal revision on 17.08.2022 (the impugned order) is subject matter of the instant petition.
  2. Learned counsel for the petitioner, inter alia, contended that during the course of investigation the petitioner has been subjected to torture. It was contended that the same could not have been done as torture in the police custody is not permissible under the law. It was further contended that when on 12.08.2022 the petitioner was remanded in judicial custody his medical examination was conducted which showed bruise marks which is axiomatic that the petitioner was subjected to torture. Learned counsel further contended that the order impugned suffers from fundamental flaws inasmuch as never ever when an accused has been remitted to judicial custody she/he has been remanded again in police custody. It was added that the impugned order is vague and non-speaking hence is violative of Section 24-A of General Clauses Act, 1897. Learned counsel took the Court through various aspects of the order to show that reliance has been made to the vague arguments by the prosecution and even findings made are not specific as to for what purpose physical remand of the petitioner is required. It was further contended that the FIR could not have been lodged and proceeded inasmuch as under Sections 196 and 196-A, Cr.P.C. sanction of Federal Government was required which means the Prime Minister and the Cabinet which has not been done, hence the FIR is liable to be quashed. In support of his contentions learned counsel placed reliance on the case titled General (R) Pervez Musharaf v. Federation of Pakistan and others (PLD 2020 Lahore 285), Jawan Saal v. DPO etc. (2011 YLR 2821), Ali Raza and another v. Federation of Pakistan and another (PLD 2017 Islamabad 64), Salman Taseer v. Judge, Special Court (1993 SCMR 71), Ghulam Raza Soomro v. The State (2000 SCMR 1645), Mumtaz Hussain v. Deputy Inspector General etc. (PLD 2002 Lahore 78), Mian Touseef v. District Police Officer etc. (2017 PCr.L.J. 1140).
  3. Raja Rizwan Abbasi, Special Public Prosecutor, inter alia, contended that the petitioner was not subjected to any torture during the course of investigation. It was contended that no allegation regarding the torture was ever made and it is only a result of afterthought. It was submitted that when the petitioner was being admitted in the custody to jail authorities it was the duty of the competent authority to refer the matter to Sessions Judge, Islamabad for probing in the matter which accordingly was not done. It was submitted that the order passed by the learned Additional Sessions Judge, Islamabad is well reasoned and does not suffers from any illegality or jurisdictional error. In this behalf, it was contended that a specific request for retaining the remand of the petitioner was made which was turned down initially by the learned Magistrate without any cogent reason as he did not made reference to any police diaries or other material to refuse the remand rather the same was passed on general estimation that the petitioner has remained in police custody for a period of 72 hours which is a sufficient time to investigate the matter. Learned counsel took the Court through Section 167, Cr.P.C. to highlight the importance of the police diaries and opinion of the Investigating Officer. It was submitted that where the allegations against the petitioner are well founded and the investigation has not been concluded within the period of 24 hours and the Investigating Officer is of the opinion that the physical custody of the accused is required, the matter is to be sanctioned by the Magistrate under Section 167, Cr.P.C. and the Magistrate can authorise the physical custody of the petitioner for a cumulative time of 15 days. Learned counsel further contended that basically the opinion of the Investigating Officer is of paramount importance which as a safeguard the Magistrate has to monitor and give reasons. It was further submitted that another protective measure is the report to the Sessions Judge when the physical custody of the accused is granted to the police. It was further added that the period of 15 days has, as such, not expired inasmuch as the time which the petitioner has spent in hospital could not be counted. It was submitted that under Sections 196 and 196-A, Cr.P.C. it is for the Court to take cognizance of the offence and failure to do so has consequence only when report under Section 173, Cr.P.C. is presented. It was further added that the cognizance means calling the accused before the Court and not otherwise. It was contended that even otherwise, the Federal Government i.e. the Prime Minister and the Cabinet on 11.12.2020 authorized the Secretary M/o Interior to file a complaint with respect to complaints under Sections 108-A or Section 153-A, Or Section 294-A, or Section 295-A or Section 505 of Pakistan Penal Code, 1860 (PPC). It was contended that in the instant case the Chief Commissioner Office, which is the Provincial Government for the purpose of Islamabad Capital Territory did authorize the initiation of process.
  4. Barrister Qasim Ali Chohan, Additional Advocate- General Punjab submitted that explanations have been filed and the record of the jail authorities does show some bruises and marks. It was contended that the delay in handing over the custody of the petitioner to the Islamabad Capital Territory Police was only because of ailment of the petitioner and no other extraneous reason.
  5. Mr. Jahangir Khan Jadoon, Advocate-General, Islamabad Capital Territory submitted that the report by the Inspector-General of Police, Islamabad Capital Territory is being submitted as a preliminary report pursuant to order of this Court and in the same, as such, no concrete evidence is available with respect to torture practiced to extract evidence.
  6. The Investigating Officer, in the Court, was specifically inquired as to the purpose for which physical remand of the petitioner is required and he responded that the petitioner during investigation disclosed that phone number from which he made a statement or gave interview to ARY Channel was a landline number connected to residence in Banigala, Islamabad; however, he submitted that he also stated that the statement he made is contained in a cellular phone, which needs to be recovered to establish that the petitioner had support and alliance in commission of the alleged offence. It was further submitted that the petitioner also is to be subjected to polygraphic test which can only be done in Lahore; he needs to be taken for the said purpose. It was generally inquired from all the learned counsel, present in the Court, whether the investigation can be conducted in the jail, if any accused is in judicial custody and unanimously the answer was in affirmative; however, learned Special Public Prosecutor contended that since the recovery is to be effected from the petitioner, hence no rule or law exists that the same can be done in jail. Likewise, it was submitted that since the facility of polygraphic test is only available perhaps with the Federal Investigation Agency Cyber Crime, Islamabad he has to be taken there for the said purpose.
  7. Arguments advanced by the learned counsel for the parties have been heard and the documents placed on record examined with their able assistance.
  8. The factual aspect of the controversy is mentioned hereinabove, hence need not be repeated. The arguments advanced by learned counsel for the parties reflect that there are three aspects of the controversy raised in the instant petition which are as follows:

i. Subjection of torture on the petitioner while in police custody and its effect on further remand.

ii. The legality of the impugned order dated 17.08.2022.

iii. Non-compliance of Sections 196 and 196-A, Cr.P.C. and its effect on the issue of remand.

  1. Since the basic question pertains to the legality or otherwise of the impugned order, hence the same shall be taken up first.
  2. Learned Additional Sessions Judge, Islamabad, Respondent No. 1 while allowing the criminal revision and granting the physical custody of the petitioner with the police for further 48 hours has relied heavily on the police diaries. It is the case of the petitioner that the impugned order is vague as no specific reason for granting the physical custody of the petitioner has been mentioned. It has been written in the impugned order that the offences in question are serious and the case diaries reflects that the investigation is still under way and the recovery is still to be effected and certain facts are to be probed. It has also been observed that the police diaries reflect that the attitude of the police is not lethargic. Keeping in view the referred observations and comparing the same with the observations made by the learned Magistrate in order dated 12.08.2022 where the physical remand was refused for the reasons that the cellular phone is in custody of the driver and there is nothing on record that it is the same phone from which the matter was read out by the accused and that the police custody was for 72 hours which is a sufficient time. The referred findings of learned Magistrate were set aside by Respondent No. 1 in the proceedings under Section 435, Cr.P.C. The referred provision of law grants the Sessions Court as well as High Court to call for and examine the record and the propriety of any proceedings, order or sentence regarding its correctness, legality or propriety (Section 435, Cr.P.C.). On the touchstone of the above provision the learned Additional Sessions Judge, Islamabad was of the view that since no reference to the police diaries has been made or record examined, hence the order is untenable.
  3. This Court in exercise of jurisdiction under Article 199 of Constitution has to see whether there is any jurisdictional defect or error of law in the order impugned before it. The matter was argued by both the sides on factual aspect of the controversy rather on the scope of judicial review which is much narrow in a petition under Article 199 of the Constitution. This Court cannot hear and adjudicate a petition under Article 199 of the Constitution like an appeal and replace its findings with that of the Court of first instance or the Court hearing the revision petition as all it has to do is that whether there is any error of law or of jurisdiction. It is trite law that no interference in the investigation can be made by any Court except in certain circumstances. The referred circumstances were spelt out by the august Apex Court in Ghulam Sarwar Zardari v. Piyar Ali alias Piyaro and another (2010 SCMR 624) and it was observed as follows:

“Investigation can be corrected and necessary orders can be passed, if aggrieved party alleges and proves one or other of the following conditions:–

(1) Investigation initiated beyond jurisdiction of investigating agencies;

(2) Investigation initiated with mala fide intention;

(i) in bad faith out of personal motives either to hurt the person against whom action is taken or to benefit oneself;

(ii) in colourable exercise of powers;

(iii) not authorized by law under which action is taken;

(iv) action taken in fraud of law; and

(v) abuse of process of law.

Where application against investigation does not show any of the above mentioned facts alleged and proved, then High Court under constitutional jurisdiction has no jurisdiction to interfere with investigation or pass any order.”

  1. Similar observations were made in Hayatullah Khan and another v. Muhammad Khan and others (2011 SCMR 1354) and Muhammad Hanif v. The State (2019 SCMR 2029).
  2. Examination of the order and submissions of the learned counsel for the parties does not divulge any error of law or jurisdiction. Respondent No. 1 did have the jurisdiction to hear the revision petition against order under Section 167, Cr.P.C. Insofar as the question of mistake or inaccuracy of law is concerned it is settled proposition of law that the remand should not be allowed in a mechanical way or refused on the basis of conjectures or surmises without application of mind rather ought to be done on the basis of material available on record including the police diaries and the examination of police diaries led the revisional Court to the conclusion that further 48 hours of the remand in police custody is required. The Investigating Officer also made the reference to the reasons for which the physical custody is required and i.e. to recover the cellular phone from where the statement was allegedly read out. Hence the order impugned does not suffer from any error of law inasmuch as the yardstick provided under High Court Rules and Orders and the parameters laid down in Ghulam Sarwar and another v. The State (1984 P.Cr.L.J. 2588) were taken into account in coming to the conclusion that the further physical custody is required.
  3. Now this Court adverts to a very serious issue regarding the petitioner being subjected to torture while in custody of the police during investigation. The police authorities vehemently denied allegation of torture even on the last date of hearing i.e. 18.08.2022 when the matter was referred to the Inspector-General of Police, Islamabad Capital Territory for preliminary inquiry. The register/record of the Central Jail Adiyala, Rawalpindi does mention certain bruises and other marks on the body of the petitioner when he was taken in. Under Rule 20 of the Prison Code Rules for the Superintendence and management of Prisons in Pakistan when a prisoner with injuries on his body is admitted into a prison from police custody he shall be examined immediately by the Medical Officer. It is also provided that if the examination reveals unexplained injuries not already recorded in the medico legal report accompanying the prisoner, a report shall at once be made to the Sessions Judge and officer Incharge of the prosecution and Superintendent police. As noted above the Medical Officer does mention certain marks on the body of the petitioner; however, it seems that no further action was taken on the same inasmuch as no communication was made to the Sessions Judge or even to the Superintendent of Police or office of Advocate-General, Islamabad. It is also a fact that on 13.08.2022 & 15.08.2022 the medical examination of the petitioner was sought to be conducted from the Board of the Professors of Pakistan Institute of Medical Sciences, Islamabad (PIMS) and the Board was constituted by the Additional District Magistrate, Islamabad Capital Territory but as per the prosecution the petitioner declined to have himself examined. The examination of body of the petitioner was also made on 17.08.2022 which does mention some infirmity of the health of the petitioner but in conclusion it was clearly mentioned that he needs monitoring and assessment but nothing was stated about physical torture or his condition being in such state due to the same. The torture in any
    form to extract evidence is prohibited. The basic prohibition exists in Article 14(2) of the Constitution which provides that no prisoner shall be subjected to torture for the purpose of extracting evidence. Much judicial ink has been expended safeguarding the rights of the prisoners and accused persons and to protect them from torture. This Court in the celebrated judgment titled Khadim Hussain v. Secretary M/o Human Rights Islamabad etc. (PLD 2020 Islamabad 268) elaborately laid down the law on the issue of dignity of a main and fundamental rights of a prisoner who is in incarceration after making reference to the international treaties as well as provisions provided in the Constitution. It was concluded that a prisoner either facing trial or serving sentence has all the rights which an individual has otherwise and it is the duty of the prison functionaries that if a prisoner suffers from serious disease, he was not only provided with the highest attainable standard of health services but is to be treated in accordance with law. In Ayyaz Ahmed v. Saqib Nazir Superintendent Cental Jail (PLD 2017 Lahore 342) the Hon’ble Lahore High Court held that to provide medical care to the prisoners is the duty of the jail authorities. In Asif Kamal v. The Judge Accountability Court Multan and others (2020 P.Cr.L.J. 1) the Division Bench of Lahore High Court again considered the rights of the prisoners and elaborated the same. Keeping in view the above judgments and the allegation levelled on behalf of the petitioner that he was subjected to torture, the matter cannot just simply be ignored as it can entail serious consequences for future investigations. Though no specific prayer has been made for doing anything about the torture with which the petitioner has been allegedly subjected to, the Court is making observations and delving in the issue as arguments were addressed on it and the matter caught media attention which led to concerns being raised to the unlawful practices, allegedly, adopted by police during investigation. In Muhammad Hussain v. The Illaqa Magistrate 1st Class Lahore and 4 others (1995 PCr.LJ 97) it was held that where an allegation has been made regarding any excess made by the police the matter may be probed by the Magistrate. Likewise, in Nadeem v. Sanaullah Sangi etc. (2004 PCr.LJ 1775) it was observed by the Division Bench of Sindh High Court that where allegation of maltreatment was made by the detenue and the marks of violence were visible; the detenue who has been arrested in a substantive offence and a remand has been obtained from the competent Court, the detenue could seek remedy from the said Court. In view of the said position the petitioner may adopt recourse for further probe in the matter; however, it would be only appropriate that Ministry of Interior, Government of Pakistan should look into the matter and appoint an Inquiry Officer preferably a retired Judge of the High Court to examine the issue and make a detailed findings on the same and also suggest ways to curb the practice.
  4. It is also the stance of the petitioner that the FIR cannot proceed as the permission under Sections 196 and 196-A, Cr.P.C. was not obtained. In this behalf learned counsel for the petitioner made reference to the provisions and submitted that under the same no Court can take cognizance of the offence punishable under Chapter-VI of the, PPC or punishable under Section 108-A, or Section 153-A or Section 294-A, or Section 295-A or Section 505 of the Code unless the sanction has been obtained on order or under authority from the Federal Government or Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments. Likewise, under Section 196-A, Cr.P.C. no Court is to take cognizance of the offence of criminal conspiracy punishable under Section 120-B of the, PPC as mentioned in subsections (1) & (2) respectively. In support of his contentions learned counsel for the petitioner placed reliance on various judgments especially the judgment of this Court in case titled Ali Raza and another v. Federation of Pakistan and another (PLD 2017 Islamabad 64), Salman Taseer v. Judge, Special Court (1993 SCMR 71) wherein the FIR was quashed where no sanction was made. The Hon’ble Supreme Court of Pakistan in case titled Muhammad Nazir v. Fazal Karim and others (PLD 2012 Supreme Court 892) while interpreting Section 195(1)(c), Cr. P.C. which provides the similar effect that no cognizance by any Court is to be taken unless a complaint is taken in writing by such Court or some other Court with respect to any document, held as follows:

“We may observe with respect that the learned Judge-in-Chamber of the Lahore High Court, Lahore seems to have confused the expression “cognizance” appearing in Section 195, Cr.P.C. with the expressions “cognizable” and “non- cognizable” finding mention in Sections 154 to 157, Cr.P.C. and had also failed to appreciate that taking of cognizance of an offence by a court is a thing quite distinct from investigation of a reported offence by the police or any other investigation agency. The learned Judge-in-Chamber ought to have appreciated that the provisions of Section 195(1)(c), Cr.P.C. deal only with taking of cognizance of an offence by a court and the same do not place any embargo upon reporting such an alleged forgery to the police, registration of an F.I.R. in that regard or conducting of an investigation in respect of such an allegation. There may be situations where a court before whom an allegation has been levelled regarding production or giving in evidence of a forged or tampered document may in the first instance like to get the matter of alleged forgery inquired into or investigated by a trained investigating agency or it may require the party levelling the allegation to report the matter to the investigating agency for an inquiry or investigation before making up its mind whether to lodge any complaint in writing under Section 195(1)(c), Cr.P.C. before the trial court or not. In the case of Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others (2006 SCMR 483) it had expressly been held by this Court as follows:

      "Needless to add that the registration of an F.I.R. and taking of cognizance of cases were two distinct and independent concepts under the criminal law; that if the intention of the law-maker was to put any clog on the registration of an F.I.R. then the Legislature would have said so specifically and that if the law put a condition only on the taking of cognizance then it can never be read to imply prohibition on registration of F.I.Rs."

The said exposition of law was subsequently followed by the Lahore High Court, Lahore in the case of Muhammad Bashir alias Bakola and 8 others v. Superintendent of Police, City Division, Lahore and 9 others (2007 PCr.LJ 864). It may not be out of place to mention here that in the context of the provisions of Section 197, Cr.P.C., which also contemplate a prohibition against taking of cognizance of an offence by a court in the absence of a sanction for prosecution, this Court had observed in the case of Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad v. Zafar Awan, Advocate, High Court (PLD 1992 SC 72) as under:

      "10. There are other cases referred to like R.C. Pollard v. Satya Gopal Mazumdar (AIR 1943 Calcutta 594), Matiar Rahman Dewan v. The State (PLD 1958 SC 21), Syed Ahmad v. The State (PLD 1958 SC 27) and Iqbal Hussain Siddiqui and 2 others v. The State (1970 SCMR 726) followed by Syed Mushtaq Hussain Shah Bokhari v. The State and another (PLD 1981 SC 573), all indicating that proceedings can start in a Criminal Court against the functionary unhampered till the stage when it is found that there is nexus between the act complained of and the official position enjoyed by him in which case and at that stage the sanction of the competent authority is to be sought for and obtained before proceeding further."

An analogy from the last mentioned precedent case could be drawn to conclude that if the provisions of Section 195(1)(c), Cr.P.C. place a prohibition against taking of cognizance of an offence by a court except in the given manner then all prior steps taken before the stage of taking of cognizance by a court could be deemed to be permissible. It appears that this aspect vis- -vis the provisions of Section 195(1)(c), Cr.P.C. had escaped attention of the learned Judge-in- Chamber of the Lahore High Court, Lahore while recording his observations contained in paragraphs numbers 2 and 3 of the impugned order which observations reflect a misconception of the real intent and import of the said provisions and that is why the present clarification has been considered by us to be necessary and called for.”

  1. On the basis of the above judgment it can reliably be concluded that the word cognizance means that when the matter comes to the Court and Section 195(1)(c), Cr.P.C. or for that matter Sections 196 and 196-A, Cr.P.C. do not hamper investigation of a report conducted by the police or any other investigation agency. The judgment of this Court cited as Ali Raza and another v. Federation of Pakistan and another (PLD 2017 Islamabad 64) it seems has not taken into account the referred judgment of the august Apex Court, hence is not a good precedent. There is no cavil with the judgments cited by the learned counsel for the petitioner and other case law General (R) Pervez Musharaf v. Federation of Pakistan and others (PLD 2020 Lahore 285) as well as Salman Taseer v. Judge, Special Court (1993 SCMR 71); the referred judgments are not binding in light of Muhammad Nazir v. Fazal Karim and others (PLD 2012 Supreme Court 892). Moreover, the prosecution has also placed on record copy of the Notification Bearing No. SRO U1335(I)/2020 dated 14.12.2020 whereby the Federal Government has granted authorization to Secretary M/o Interior for filing complaints in respect of certain offences. The stage to examine the legality or otherwise of the proceedings shall be when the Court will take cognizance and the objections raised regarding failure to take sanction might be material at the said time, if there does not exist any such approval or sanction.
  2. Lastly, it was also argued that the petitioner has completed the period of remand i.e. 15 days, hence no further remand can be granted. In this behalf, reliance was placed on Jawan Saal v. DPO etc. (2011 YLR 2821). I am afraid that the referred contention of the learned counsel for the petitioner is without force inasmuch as between 12.08.2022 till 17.08.2022 the petitioner remained in judicial custody and even thereafter he was in the hospital (PIMS) on the direction/orders of the learned Magistrate.
  3. In view of the foregoing, no interference is required in the order of the revisional Court; however, it is expected that the Ministry of Interior shall do the needful in light of observations made hereinabove and hold an impartial inquiry on the subject. It is only appropriate that during the physical custody when the police authorities has remand of the petitioner the same be directly supervised by a senior police officer not below the rank of Senior Superintendent Police.
  4. Disposed of accordingly. All pending applications are disposed of as well.

(A.A.K.) Petition disposed of

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