ZAKI UR REHMAN LAKHWI Versus Malik MUHAMMAD AKRAM AWAN

March 9, 2010 — LAHORE HIGH COURT LAHORE — — Khawaja Sultan Ahmad , Ch. Zulfiqar Ali
and Malik Rab Nawaz Noon — 2010 PLD 270
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ORDER

Petitioner Zaki-ur-Rahman Lakhvi accused in case F.I.R. No.1/2009 dated 12-2-2009 registered
under sections 7, 11-F (5)(6), 11-J, 11-N, 11-V, 21-C, 21 OF the Anti-Terrorism Act, 1997 read with
sections 302, 34, 109 OF the P.P.C. and sections 11, 17, 19 OF the PECO, 2008, Section 6 OF the
Passports Act, 1974 and section 14 OF the Foreigners Act, 1946 at Police Station SIU, FIA,
Islamabad has preferred this writ petition against the order dated 6-1-2010 passed by learned
Judge, Special Court No.1 Anti-Terrorism, Rawalpindi whereby petitioner's application under
section 265-K, Cr.P.C. was dismissed.

2. Brief facts in order to dispose OF this writ petition are that petitioner Zaki-ur-Rahman Lakhvi
along with his six co-accused whose names are mentioned in Column No.3 OF the report under
section 173, Cr.P.C. along with twenty co-accused (P.Os.) whose names are mentioned in Column
No.2 OF the report under section 173, Cr.PC are facing TRIALbefore respondent No.1 learned
Judge, Special Court No.1 Anti-Terrorism, Rawalpindi. The F.I.R. above mentioned was recorded on
the direction OF Ministry OF Interior, Government OF Pakistan as a result OF inquiry as allegedly
on 26-28 November, 2008 alleged terrorist attack was made by one Ajmal Qasab alias Abu
Mujahid along with his nine other associates in connivance with present petitioner and his co-
accused as a result OF which allegedly number OF people were killed and injured, the
detail OF which is given in the report under section 173, Cr.PC. The petitioner subsequently was
apprehended and remained under investigation and sent to judicial lock up. The three successive
interim challans/reports under section 173, Cr.P.C. were submitted before the
learned TRIAL Court/respondent No.1. The last one was submitted on 19-9-2009.

3. The petitioner earlier raised objections before the learned TRIAL Court that whatever evidence
so far allegedly collected by the prosecution and placed on record through report under section
173, Cr.P.C. was insufficient to connect the petitioner with the commission OF alleged offence;
that whatever the evidence was collected it was inadmissible; that on the basis OF that
record/evidence collected the petitioner could not be charged; that the earlier objections raised
by the petitioner were dismissed by the learned TRIAL Court and the petitioner moved W.P.
No.3580/2009 (Zaki-ur-Rahman Lakhvi versus The State), which was disposed OF by a learned
Division Bench OF this Court vide order dated 3-12-2009 while observing that--

Learned counsel for the petitioner submits that he would opt to move an application under
section 265-K, Cr.P.C. before the learned TRIAL Court and the learned TRIAL Court shall allow the
petitioner to raise all the objections particularly objections OF the petitioner with regard to the
admissibility OF evidence which may be available to the petitioner in respect OF the evidence to
be produced by the prosecution in the case and after hearing both the parties. Request is
reasonable and is allowed. The learned TRIALCourt shall dispose OF the application OF the
petitioner to be moved under section 265-K, Cr.P.C. strictly in accordance with law in the
light OF above observations."

Therefore, the above mentioned writ petition was disposed OF and the petitioner subsequently
moved application under section 265-K, Cr.P.C. before the learned TRIALCourt. He also raised
certain objections about the inadmissibility OF the evidence especially in respect OF statement
recorded under section 164, Cr.P.C. made by Ajmal Qasab, an accused in a case registered in
Indian jurisdiction at Mumbai recorded by a Magistrate in Mumbai, India. The said application
under section 265-K, Cr.P.C. was dismissed by learned TRIAL Court/respondent No.1 vide order
dated 6-1-2010. Feeling aggrieved the petitioner has challenged the said order through this writ
petition.

4. Learned counsel for the petitioner contends that the allegations levelled against the petitioner
in the F.I.R. as well as report under section 173, Cr.P.C. are baseless without any foundation and
there is no evidence available on record to connect the petitioner with commission OF any OF the
offences; that except a reference is mentioned in the F.I.R. that said Ajmal Qasab allegedly an
accused facing TRIAL before a Court at Mumbai, India in respect OF alleged terrorist attack who
allegedly made judicial confession recorded under section 164, Cr.P.C. before a Magistrate at
Mumbai, there is no evidence on record against the petitioner to connect him with any OF the
alleged offences; that said Ajmal Qasab has not been shown as an accused in report under section
173, Cr.P.C., therefore his statement cannot be used against the petitioner as it is hit by Article
43 OFthe Qanun-e-Shahadat Order, 1984; that as said Ajmal Qasab is not shown accused,
therefore, his statement as an accused has no relevancy, therefore, the
finding OFlearned TRIAL Court while disposing OF application under section 265-K, Cr.P.C. moved
by the petitioner showing him as co-accused is based on misapplication OF facts and law on the
subject; that teamed TRIAL Court, although prosecution has not cited said Ajmal Qasab as an
accused, exempted his appearance while applying section 540-A (2), Cr.P.C. and separated the
case OF said accused from the petitioner and, thus, committed material illegality. Had said person
was an accused in this case then he should have been proceeded under section 87, Cr.P.C. to
declare him PROCLAIMED OFFENDER and then his case could be separated to be proceeded
under section 512, Cr.P.C. Learned TRIALCourt wrongly separated the case OF said Ajmal Qasab
and the order passed is totally illegal. Learned counsel further argued that except
statements OF five police officials recorded under section 161, Cr.P.C. that too at belated stage,
there is no other evidence available on record to show that present petitioner had any connection
whatsoever with Lashkar-e-Tayyiba, a defunct organization; that learned TRIAL Court did not
advert to all these aspects and decided petitioner's application under section 265-K, Cr.P.C. along
with application OF the co-accused; that the impugned order is illegal, it be declared without
lawful authority and set aside and application under section 265-K, Cr.P.C. be allowed.

5. On the other hand, learned Special Prosecutor opposed this writ petition on the grounds that
there was sufficient material available on record to connect the petitioner with the
commission OF alleged offences; that as many as 116 PWs have been cited by the prosecution to
connect the petitioner and his co-accused with the commission OFalleged offence; that the
application under section 265-K, Cr.P.C. was moved at the early stage only on the basis that in
view OF learned counsel for the petitioner the statement under section 164, Cr.P.C. recorded by
an Indian Magistrate made by Ajmal Qasab is inadmissible it cannot be said there is no sufficient
material available and that there is no probability to convict the petitioner in this case. Learned
counsel further argued that charge has already been framed and prosecution evidence is to be
recorded but due to the act and conduct OF the petitioner, the TRIAL is being delayed; that
learned TRIALCourt rightly separated the case OF the said Ajmal Qasab who is an accused in this
case while applying the provisions OF section 540-A(2), Cr.P.C. as said accused was
incapable OF remaining present before the TRIAL Court; that the impugned order is perfectly
lawful and justified. While relying upon Hashim v. Gul Muhammad and 2 others (2009 PCr.LJ 36);
State through Director-General, Pakistan Coast Guards, Turbat v. SABRO and another (1992 PCr.LJ
1795); Malik Muhammad Ibrahim v. The State and 4 others (1985 PCr.LJ 929); The Karachi Electric
Supply Corporation v. Naseer Ahmad (1986 PCr.LJ 1684), Mamaras v. State & others (PLD 2009 SC
385); Mst. Naseem Akhtar and another v. The State (1999 SCMR 1744); Babar Shah v. The State
(2006 PCr.LJ 174); and Nazir Muhammad v. The State and another (2004 PCr.LJ 1684) learned
counsel prayed that this writ petition be dismissed.

6. We have heard the learned counsel for the parties and perused the record.

7. It is already mentioned that as a result OF an alleged terrorist attack on 26-28 November, 2008
in Mumbai, India by one Ajmal Qasab who was reportedly arrested alive along with his nine co-
accused caused intentional deaths OF huge number OF people and also caused injuries to so
many people and as a result certain informations which were provided by Indian authorities to
Pakistan Government, an inquiry was conducted and instant case was registered. Allegedly said
Ajmal Qasab got recorded his statement under section 164, Cr.P.C. before Additional Chief
Metropolitan Magistrate, Mumbai on 17-2-2009, copy where OF is provided to the Pakistan
Authorities. The said statement was recorded in Hindi language, therefore, it was translated into
English and placed on record. As it is already mentioned that three successive interim challans
under section 173, Cr.P.C. were submitted by the prosecution before the
learned TRIALCourt/respondent No.1 but in each OF the report said Ajmal Qasab has not been
shown as an accused although names OF twenty persons as having been
declared PROCLAIMED offenders are shown in Column No.2 but name OF Ajmal Qasab either as
absconder or otherwise is not found mentioned in any OF these reports although in F.I.R. it is
recorded that said Ajmal Qasab was arrested in Mumbai, India as a result OF terrorist attack and
his statement subsequently was recorded who disclosed certain facts on the basis OF which
present petitioner and his co-accused were arrested. The objection raised by the learned counsel
for the petitioner before the learned TRIAL Court as well as in this writ petition was that as said
Ajmal Qasab is not shown an accused in any OF the capacities either as an absconder or
otherwise, therefore, his statement recorded under section 164, Cr.P.C. by Metropolitan
Magistrate, Mumbai, India under Article 43 OF the Qanun-e-Shahadat Order, 1984 is inadmissible
in evidence. The question, whether said Ajmal Qasab is an accused or otherwise in the
light OF the record available can be seen and decided by the learned TRIAL Court.
Learned TRIAL Court has perhaps taken him as an accused but the facts remain that his name is
not mentioned in report under section 173, Cr.P.C. as an accused in any capacity such as
absconder or otherwise. It is admitted proposition OF law that confessional statement made by an
accused person can be used against co-accused in the same case but until and unless a person is
shown as accused his statement cannot be used against his co-accused which is the pre-condition
for application OF Article 43 OF the Qanun-e-Shahadat Order 1984. In these circumstances, the
arguments advanced by learned counsel for the petitioner that as said Ajmal Qasab has not been
shown as accused in report under section 173, Cr.P.C. and by mere mentioning OF his name in the
F.I.R. and on the basis OF alleged confessional statement before a Magistrate in India does not
give said person a status OF co-accused OF the present petitioner, seems to be technically very
sound, however, if the order sheet OFthe learned TRIAL Court is seen, vide order dated 25-11-
2009 learned TRIAL Court has observed as under:---

"Vide my separate detailed order in English OF today, the objections petition filed by the accused
Zaki-ur-Rahman Lakhvi is rejected. However, it has transpired from the above said objections
petition as well as from the record that the process regarding procuring the presence OF accused
Ajmal Qasab and another namely Faheem Arshad Ansari, who are facing TRIAL in India, is still
incomplete and inconclusive. On query OF this Court, the Special Prosecutor Ch. Zulfiqar Ali states
that the attendance OF both the above said accused persons before this Court cannot be
procured as they are facing TRIAL in India, therefore, the case OF said accused be separated from
the case OF the present accused. His statement in this regard has been recorded separately. In
view OF this statement OF learned Special Prosecutor as well as in the light OF report and
statement OF the process server, it is clear that accused namely Ajmal Qasab and Faheem Arshad
Ansari are in judicial custody OF Indian court facing TRIAL in Mumbai attack case and their
presence before this Court cannot be made available, as such this Court is satisfied that both
these accused are incapable OF being present in this Court. Therefore, under subsection
(2) OF section 540-A, Cr.P.C., the case OF both the above said accused persons is hereby
separated from this case."

If the above mentioned order is seen it seems that the learned TRIAL Court on the basis OF report
under section 173, Cr.P.C. and whatsoever material available on record has taken said Ajmal
Qasab and one Faheem Arshad Ansari as accused in this case and while applying
provision OF section 540-A (2), Cr.P.C. their cases were separated from the accused persons facing
the trial.

8. It is an admitted proposition that ipse dixit OF police is not binding on the Court and on the
basis OF available material the Court can form its own view and pass any order in
respect OF any OF the persons taking him as an accused, summons him or charge according to
the facts and circumstances OF the case. If it is presumed that on the basis OF above mentioned
order said Ajmal Qasab was taken as an accused the question then arises whatever his status was,
whether he was an absconder or otherwise. The learned TRIAL Court has separated the
case OF said accused persons, namely Ajmal Qasab and Faheem Arshad Ansari from the
case OF present petitioner and other co-accused while applying provisions OF section 540-A(2),
Cr.P.C. Learned TRIAL Court while applying section 540-A (2), Cr.P.C. has exempted the
appearance OF Ajmal Qasab and Faheem Arshad Ansari and separated their case from the
case OF the petitioner and other co-accused and proceeded further and thereafter charge was
framed on that very date i.e. 25-11-2009. If the report under section 173, Cr.P.C. is seen the
Investigating Officer in his report has although mentioned that said Ajmal Qasab who was
arrested by Indian authorities in Mumbai in connection with alleged terrorist attack but he was
not shown as an accused as already mentioned, however, learned TRIAL Court, as it is already
discussed, has taken him as an accused in this case. It is clear from the above mentioned order
dated 25-11-2009 whereby learned TRIAL Court allegedly separated the case OFsaid Ajmal Qasab
from the co-accused and the present petitioner that prior to that certain processes were issued
and the statement OF process server was recorded on the same day, according to which it was
reported that warrants OF arrest allegedly issued against Ajmal Qasab could not be executed as
he was shown in the custody OFIndian authorities in connection with Mumbai terrorist attack. It is
admitted proposition OF law that TRIAL in absentia is alien to the present judicial system
especially under the Criminal Procedure Code and this fact has also been mentioned by the
learned TRIALCourt. The procedure for proceeding against an accused in a criminal case who
according to the prosecution could not be arrested or brought before the Court OFJustice is
provided under Chapter VI, Part-C OF the Criminal Procedure Code. The procedure for such
accused who allegedly are absconding from the process OF law is provided under sections 87/88,
Cr.P.C. If after applying the said procedure an accused person is
declared PROCLAIMED OFFENDER then his case can be separated while applying the
provision OF section 512, Cr.P.C. The procedure for conducting the TRIAL in absentia is provided
under section 512(1), Cr.P.C. In such an eventuality if any evidence is recorded in absence OF an
accused/ PROCLAIMED OFFENDER said evidence in case if during subsequent TRIAL witnesses are
not available or due to certain reasons their evidence cannot be re-recorded, then earlier evidence
recorded can be used against said person/accused. Thus, while applying the procedure provided
above said two-fold objects are achieved, firstly the TRIAL in absentia becomes lawful and
secondly the evidence so recorded is preserved to be used in future against the accused if due to
certain reasons said evidence or witnesses cannot be recalled. Here in this case
learned TRIAL Court while applying section 540-A(2), Cr.P.C. has separated the
proceedings OFAjmal Qasab and Faheem Arsdad Ansari which procedure is totally illegal and
inapplicable to the circumstances OF the case. To understand the intention behind the
provisions OF section 540-A, Cr.P.C. the same are reproduced here:-

"540-A. Provision for inquiries in TRIAL being held in the absence OF accused in certain cases.---

(1) At any stage OF an inquiry or TRIAL under this Code, where two or more accused are before
the Court, if the Judge or Magistrate is satisfied for reason to be recorded, that any one or
more OF such accused is or are incapable OF remaining before the Court, he may, if such accused
is represented by a pleader, dispense with his attendance and proceed with such inquiry
or TRIAL in his absence, and may, at any subsequent stage OF the proceedings, direct the
personal attendance OF such accused.

(2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate
considers his personal attendance necessary, he may, if he thinks fit, and for reasons to be
recorded by him either adjourn such inquiry or trial, or order that the case OF such accused be
taken up or tried separately."

If the first part OF section 540-A, Cr.P.C. i.e. subsection (1) is seen, it is clear that the words are
used that if there are two or more accused before the Court and if Judge or Magistrate is satisfied
that any one or more OF such accused is or are incapable OFremaining before the Court he may if
represented by a pleader dispense with his attendance. Sub-section (2) OF section 540-A, Cr.P.C.
clearly states that if an accused is not represented by a pleader and in that eventuality if the Court
considers his personal attendance then if it is so found then either inquiry or TRIAL be adjourned
or it be directed that case OF said accused be tried separately.

9. If the above mentioned provision OF law is seen it is clear that the presence OFaccused before
a Court for application OF section 540-A, Cr.P.C. is necessary. If after fulfilment OF pre-condition
i.e. presence OF an accused, before the Court and subsequently that accused is
incapable OF remaining before the Court then he may apply for dispensation OF his attendance
and the Court may pass any such order and direct that if he be represented by a pleader or
advocate his attendance be dispensed with. The intention behind this provision is to avoid
absentia TRIAL because in eventuality OF accused being represented through his pleader he will
be deemed present and represented before the Court. The second part OF section 540-A, Cr.P.C.
i.e. subsection (2) makes it clear that if at any stage an accused is incapable OF remaining present
before the Court and he is also not represented by a counsel then if the Court comes to the
conclusion that his attendance must have been dispensed due to the reasons such like serious
illness, etc., the Court may direct that either TRIAL may be adjourned or the case OF such accused
be separated from the other co-accused. The principle behind this provision is also to avoid
absentia TRIAL which is not recognized under the Criminal Procedure Code. An absconder or a
person who never appears before a Court to face TRIAL his case is not covered under section 540-
A(2), Cr.P.C. Reference can be made in this respect to judgment cited as M. Saleem Babar v. The
State (PLD 1987 Lah. 288), wherein at Page 287 OF the said judgment it was observed that:---

"A study OF the section would show that there are two conditions to dispense with
attendance OF an accused during an enquiry or trial. Firstly that the accused should be "before
the Court" and secondly that the accused is "incapable OF remaining before the Court". The
words "before the Court" imply the physical presence OF accused during the TRIAL before Court.
Similarly the words "incapable OF remaining before the Court" also contemplate that an accused
was present in Court and for some reasons is incapable to continue to remain present before
the Court on each and every date OF hearing. Thus an absconding accused cannot claim any
benefit under section 540-A, Cr.P.C.

This view is further fortified by another judgment cited as Sher Muhammad v. Falak Sher and 5
others (1984 PCr.LJ 3002) wherein at Page 3003 in Para No.5 it was held as under:-

"5. It is clear from the perusal OF subsection (2) OF section 540-A, Cr.P.C. that the said provision
has been made in respect OF such accused persons as have already appeared in the Court but
have subsequently absented themselves but the Court considers their personal attendance
necessary. It is only in such a situation that the Court can make an order that case be separated
and tried separately. The case in hand is not a case OF that nature. In this case, it is quite clear
that respondents 5 and 6 had never appeared before the Court. It is clearly recorded in the
impugned order OF the learned Special Judge that the whereabouts OF the two respondents are
not known and they had never been served. The learned Special Judge committed a clear
error OF law in directing the SEPARATION OF their cases on the sole ground that they could not
be served. The correct course for the learned A.D.M./Special Judge, Mianwali to adopt was to
enforce the attendance OF the respondents 5 and 6 under sections 87 and 88 OF the Cr.P.C. and
thereafter, proceed, under section 512, Cr.P.C. and having not made resort to these provisions, the
course adopted by the learned A.D.M./Special Judge, Mianwali was not lawful."

Therefore, procedure adopted by learned TRIAL Court while applying section 540-A(2), Cr.P.C.

for SEPARATION OF TRIAL OF alleged accused Ajmal Qasab and Faheem Arshad Ansari is totally
illegal. Resultantly, to that extent order dated 25-11-2009 passed by learned TRIAL Court is
declared without lawful authority and is hereby set aside.

10. As far as the other contention raised by the learned counsel for the petitioner that application
under section 265-K, Cr.P.C. was dismissed without any lawful justification is concerned, as charge
has already been framed while applying judicial mind by the learned TRIAL Court and the case is
at TRIAL stage, therefore, at this stage it is not appropriate for this Court while exercising writ
jurisdiction to go into deeper appreciation OF evidence or to discuss the merits or
demerits OF evidence on record. The objection raised by the learned counsel for the petitioner
about the admissibility OF evidence in shape OF statement under section 164, Cr.P.C. OF Ajmal
Qasab and other material evidence available on record can be seen after recording some OF the
relevant evidence. As the learned TRIAL Court has framed the charge which according to the
procedure provided under section 265-D, Cr.P.C. presupposes the application OF judicial mind on
the basis OF available record and as subsequently no evidence is recorded, therefore, application
under section 265-K, Cr.P.C. at that stage was not maintainable and it was rightly dismissed by the
learned TRIAL Court. Accordingly, the order OF the learned TRIAL Court to the
extent OF dismissal OF application under section 265-K. Cr.P.C. is upheld. However, the petitioner
may move application under section 265-K, Cr.P.C. at proper stage after
recording OF necessary/relevant evidence. The petitioner may also raise any objections about the
admissibility OF any document/evidence at relevant stage OF the TRIAL before the
learned TRIAL Court. With the above observations, the writ petition stands disposed of.

N.H.Q./Z-
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accordingly.