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Petitioner: MUHAMMAD ANWAR VS Respondent: STATE
1984 P Cr
1984 P Cr. L J 794
[Lahore]
Before Gulbaz Khan, J
MUHAMMAD ANWAR-Petitioner
versus
THB STATE-Respondent
Criminal Revision No. 15 of 1982, decided o4 9th January, 1984
(a) Evidence Act (I of 1872) --
Ss. 32 & 33-Scope. Section 32 of the Evidence Act simply states that the statements, written or verbal, of relevant facts, made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense, which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts. It is provided in section 33 1872 of the Evidence Act "evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving in a subsequent judicial proceeding, or in a later state of the same judicial proceeding, the truth of the facts, which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party; or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable." Three provisos have been added to section 33, firstly, that the proceeding was between the same parties or their representatives in interest ; secondly, that the adverse party in the first proceeding had the right and opportunity to cross-examine ; and thirdly, that the questions in issue were substantially the same in the first as in the second proceeding. An explanation has also been added to section 33 stating, "a criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section."
(b) Evidence Act (I of 1872)-
-- Ss. 74, 61 & 65-Public document, primary evidence and secondary evidence-Definitions.-[Evidence]. Public document has been defined in section 74 of the Evidence Act. Chapter V of the Evidence Act deals with the documentary evidence. It is provided in section 61 of the Evidence Act that the contents of document may be proved either by primary or secondary evidence. Primary evidence has been defined as document itself produced for the inspection of the Court. Secondary evidence means and includes certified copies made from the original by mechanical process which in themselves insure the accuracy of the copy and copies compared with such copies, copies made from or compared with the original, etc.
Secondary evidence is permissible under section 65 (e) of the Evidence Act.
Allah Ditta v. The State P L D 1958 S C (Pak.) 290 and Muhammad Siddique and another v. The State 1974 P Cr. L J 180 ref.
(c) Evidence Act (I of 1872)-
--- Ss- 67 & 79-Penal Code (XLV of 1860), Ss. 342, 343, 319, 323, 330, 392/109--Wrongful confinement-Hurt -- Complainant leading primary as well as secondary evidence in producing original medico-legal register and its certified copies-Requirements of S. 67, Evidence Act, 1872 meet out when witness stating that relevant entry in said register contained signature of doctor and witness could recognize same--Court competent to look into such medico-legal report-Presumption of genuineness attached to medico-legal report under provisions of S. 79, Evidence Act, 1872.
(d) Penal Code (XLV of 1860)-
- Ss. 342, 343, 319, 323, 330, 392/109 & 511 - Wrongful confine ment-Hurt-Statement of complainant corroborated by medico legal report-Evidence proving that complainant was kept in illegal custody by three Police Officers for 6 days without any justification and wrongfully confined for more than 3 days-Conviction of such public officers under S. 343, P. P. C.; held, justified.
(e) Penal Code (XLV of 1860)-
--- S. 319-Hurt-Definition-Person causing bodily pain to another person, held, guilty of causing hurt.-[Words and phrases].
Hurt has been defined in section 319, P. P. C. It is provided in the said section that whoever causes bodily pain, disease or infirmity to any person is said to cause hurt. It is not necessary that in fact, there should be marks of violence. If a person causes bodily pain to another person he is guilty of causing hurt.
(f ) Penal Code (XLV of 1860)-
---- S. 392/109-Robbery-Ample evidence on record showing that Police Officer robbed complainant at instance of his Senior Officer Conviction of officer under whose instance robbery committed under S. 392/109, P. P. C., held, proper.
(g) Penal Code (XLV of 1860)-
-- Ss. 392 & 511-Robbery--Attempt to commit robbery by Police Officer-Such officer, held, guilty under S. 392 read with S. 511, P. P. C.
(h) Penal Code (XLV of 1860)-
.-- Ss. 392/109, 342, 343 & 319-Robbery-Wrongful confinement Hurt--Delay in trial---Accused themselves responsible for delayed disposal of case by sending medical certificate and making requests for adjournment-No lenient view, held, could be taken on account of delay in disposal of case in circumstances.-[Delay].
Rafique Ahmad Bajwa for Petitioner.
Altaf Muhammad Khan for the State.
Date of hearing : 25th September, 1983.
JUDGMENT
Muhammad Anwar Muharrir A. S.-I. filed this revision petition against the judgment of learned Sessions Judge, Lahore, dated 7th January, 1982 whereby his appeal was dismissed. He was ordered to be sentenced to undergo rigorous imprisonment for three months and a fine of rupees five hundred or in default in payment thereof to suffer S.-I. for one month, under section 342, P. P. C. His convictions and sentences under sections 323, 330, 392/109, P. P. C. were set aside. The appeal of Shafqat Ali Chathha S.-I, was accepted and his convictions and sentences were set aside. Nawazish Ali filed petition under section 417 (2), Cr. P. C. against Muhammad Anwar Muharrir A. S. I. and Shafqat Ali Chathha S.-I. After hearing the counsel and perusing the record, notices were issued to Muhammad Anwar Muharrir A. S.-I. and Shafqat Ali Chathha S.-I. The revision petition and the appeal filed by Nawazish Ali are being disposed of together as they arise out of the same judgment.
2. The case was tried by the Assistant Commissioner, Sadar, Sub Division/Magistrate Section 30, Lahore, who, vide his judgment dated 3rd June, 1980 convicted Shafqat Ali Chathha S.-I. and Muhammad Anwar Muharrir A. S.-I. for offences under sections 323, 330, 343 and 392/1.09, P. P. C. Both of them were sentenced to undergo rigorous imprisonment for one year and a fine of rupees five hundred or in default in payment of fine to undergo simple imprisonment for two months under section 323, P. P. C. They were sentenced to undergo R. I. for two years under section 330, P. P. C. They were sentenced to undergo rigorous imprison ment for two years and a fine of Rupees one thousand each or in default to suffer simple imprisonment for three months each under section 343, P. P. C. They were also sentenced to undergo R. I. for. two years and a fine of rupees one thousand or in default in payment of fine to undergo S.-I. for three months each under section 392/109, P. P. C. All the sentences were ordered to run concurrently. Both of them had filed appeal against their convictions and sentences. The learned Sessions Judge accepted the appeal of Shafqat Ali Chathha and altered the convic tion of Muhammad Anwar Muharrir A. S.-I. from sections 343 to 342, P. P. C. and reduced his sentence to rigorous imprisonment for three months and a fine of rupees five hundred or in default in payment of fine to suffer S.-I. for one month. His convictions and sentences under other offences were, however, set aside.
3. On 15th August, 1974, Syed Nawazish Ali filed complaint against Shafqat Ali Chathha S. H. O., Muhammad Anwar Muharrir A. S.-I. and Zahoor Ahmad A. S.-I., all attached to Police Station Wahdat Colony, Lahore. He alleged in the complaint that on 22nd June. 1974 at about 9/10-00 p. m. he was returning to his house from cinema house and when he reached near Naqsha Bus Stop, he was stopped by Muhammad Anwar Muharrir A. S.-I. who was in plain clothes alongwith two other persons ; that Muhammad Anwar A. S.-I. wanted to take out rupees thirty from his pocket but he held the amount in his grip ; that Muhammad Anwar A. S.-I., and his two companions threatened him to part with the money but he refused whereupon he was forcibly taken to Police Station Wahdat Colony ; that Shafqat Ali Chathha S. H. O. and Zahoor Ahmad A. S.-I. were present at the Police Station ; that on the false representation of Muhammad Anwar Muharrir A. S.-I., Shafqat Ali Chathha S. H. O. and Zahoor Ahmad A. S.-I. abused him (complainant) ; that Zahoor Ahmad A. S.-I. snatched rupees thirty from him and put the same in his pocket ; that Shafqat Ali Chathha S. H. O. and Zahoor Ahmad A. S.-I. told Muhammad Anwar Muharrir A. S.-I. and other Constables to strip him (complainant) naked and teach him lesson for his misconduct towards the police whereupon he was stripped naked and his hands were tied down with his shalwar and was felled with his face downwards ; that he was beaten by the three police officers, namely, Shafqat Ali Chathha S. H. O., Zahoor Ahmad A. S.-I., and Muhammad Anwar Muharrir A. S.-I. that he became unconscious and he regained senses after half an hour ; that he was further beaten with cane by the S. H. O. and Zahoor Ahmad A. S.-I., that he was hung up and down and was further beaten by the three accused with cane on the buttocks and dorsum of the foot ; that he was made to run by Muhammad Anwar Muharrir A. S.-I. at the instance of the other two accused in order to avoid clotting of blood on the feet ; that he was handcuffed by the Muharrir A. S.-I. and kept in illegal confinement in Police Quarter No. M/1 till morning of 23rd June, 1974 ; that on 23rd June, 1974 at 3-00 p.m., the S. H. O. and Zahoor Ahmad A. S.-I. came to the quarter and both of them tortured him (complainant) ; that the accused kept him in illegal confinement as he had many injuries on his person ; that his father filed habeas corpus petition bearing Criminal Miscellaneous No. 473-H/74 on 26th June, 1974 and a bailiff was deputed to recover him ; that the bailiff came to Quarter No. M/1 accompanied by his father and found him (complainant) in illegal confinement ; that till then no case had been registered against him nor he was arrested in a case nor produced before any Court ; that the accused wanted to send him to judicial lock-up in a police van but the Incharge declined to take him on account of his injuries ; that the accused took him in a taxi car and sent him to the judicial lock-up on 29th June, 1974 ; that under the order of the High Court he was medically examined on 2nd July, 1974 by the Medical Officer Camp Jail, Lahore ; that on 2nd July, 1974 at the instance of the accused he was made to join an identification parade but nobody identified him ; that the High Court allowed him bail and released him from illegal custody and also issued contempt notice to the accused on 12th July, 1974 ;that it was observed by the High Court that he had nine injuries on his person and the duration of injuries fitted in with the date of illegal confinement ; that he (complainant) was directed by the High Court to proceed against the accused.
4. The learned Magistrate recorded the statement of Syed Nawazish Ali complainant and issued process against the accused vide order, dated 17th August, 1974 for offences under sections 323, 343, 330, 392/ 109, P. P. C.
5. The complainant produced Rana Abdullah Khalid Dispenser, Camp Jail, Lahore (P. W.-1), Muhammad Munir, Assistant, Accounts Branch, High Court, Lahore (P. W.-2), Sabir Hussain Muharrir malkana, Wahdat Colony, Lahore (not numbered), Syed S. M. Ijaz Ali (P. W.-3). The complainant himself was examined as (P. W.-4). Besides his state ment, he produced medico-legal report Exh. P. A., copy of the order of the High Court, dated 12th July, 1974 Exh. P. B., copy of the order of the High Court dated 27th January, 1975 Exh. P. C., whereby the accused were convicted for contempt ; copy of the order of the Supreme Court Exh. P. D. whereby the appeal of Shafqat Ali Chathha S. H. O. against his conviction for contempt of Court was dismissed and copies of reports Nos. 10, 12 and 14, dated 28th June, 1974 Exh. P. E. of Police Station, Wahdat Colony.
6: Nawazish Ali complainant while appearing in Court supported his version as given in his complaint. His father, Syed S. M. Ijaz Ali fully, corroborated his statement. Muhammad Munir was deputed as bailiff to recover Nawazish Ali complainant from the illegal custody of the accused. He deposed that under the order of Mr. Justice Saleem Mazhar, he visited Police Station, on 28th June, 1974 at 1-15 p.m. ; that he was accompanied by the father of the detenu ; that he visited quarter No. M/1 of the Police Station and found the complainant in handcuff; that two Constables were sleeping in the same room ; that the complainant and two other persons who were also in handcuff informed him that they were being kept by Zahoor Ahmad A. S.-I. that he went to Anwar Ali Muharrir A. S.-I. and after introducing himself asked for the roznamcha, which was delivered by the Muharrir A. S.-I. ; that he examined the roznamcha in order to find out any entry about the custody of the complainant but he did not find any ; that he asked Muharrir A. S.-I. as to who was in possession of the papers against the complainant and was told by the Muharrir that the same were with Zahoor Ahmad A. S -I. ; that report No. 9 was last entry in the roznamcha, dated 28th June, 1974 ; that he met the S. H. O. and Zahoor Ahmad A. S.-I. in the adjoining room and told them that he wanted to examine the documents in respect of complainant whereupon Zahoor Ahmad A. S.-I. went to the room of Muharrir A. S.-I. ; that two minutes later he saw Zahoor Ahmad A. S.-I. running out of the Police Station holding raznamcha in his hand ; that he drew the attention of the S. H. O. to the conduct of Zahoor Ahmad A. S.-I. and himself wanted to chase him but was held by the S. H. O. who stated that there was nothing to worry and that the roznamcha would be brought back ; that it was 1-45 p.m. whereafter S. H. O. sent a Constable in order to bring back the rozrnamcha and ten minutes later, the Constable brought back the roznamcha ; that on opening the roznamcha he found that report No. 10 in respect of the arrest of the complainant and report No. 11 (a miscellaneous report) had been inserted ; that he asked the S. H. O. to show him the file of Case No. 130/74 in respect of which the arrest of the complainant had been shown and the S. H. O. sent a Constable to Zahoor Ahmad A. S.-I. to fetch the file ; that at 2-25 p.m. the Constable brought the file stating that he was unable to meet Zahoor
Ahmad A. S.-I. and simultaneously stated that Zahoor Ahmad A. S.-I. had given him the key of the almirah and he had brought the file from the almirah ; that zimni No. 3 dated 28th June, 1974 was the last zimni in respect of the arrest of the complainant ; that he (bailiff) recorded report No. 12 in the roznamcha giving all the details ; that he asked the Muharrir to hand- over the copies of reports Nos. 10, 11 and 12 and while those copies were being prepared, D. S. P. Bajwah entered the room of the S. H. O. and he narrated the entire facts to him ; that the S. H. O. told him to come at 5-00 p. m. for the copies as he was leaving the Police Station with the D. S. P. in order to conduct a raid for the arrest of Farid Paracha; that the father of the complainant told him (bailiff) that the complainant be got medically examined who was seriously injured but he informed him that it could be done only under the order of the High Court ; that he again went to the Police Station in order to obtain the copies where Zahoor Ahmad A. S.-I. met him and threatened him with serious consequences and also threatened him to involve him in a theft case ; that the S. H. O. kept quiet during those threats and at the end pleaded for mercy as Zahoor Ahmad was about to retire soon. He further stated that the accused were convicted by High Court in Criminal Original No. 64 of 1974 (contempt case) and were sentenced to imprison ment and fine.
7. Muhammad Anwar Muharrir A. S.-I. and Shafqat Ali Chathha S.-I. were examined under section 342, Cr. P. C. They denied the prosecu tion allegations. Muhammad Anwar A. S.-I. stated that he did not know as to why the case had been made against him. He added that instead of two Muharrirs, he alone was working for twenty four hours at the Police Station. Shafqat Ali Chathha stated that he did not make any entry in the roznamcha. He stated that he had been convicted for contempt of Court although he was not guilty of such an offence.
8. Four witnesses were examined in defence. Muhammad Ashiq (D. W. 1) and Fateh Ali (D. W. 3) stated that they had not gone to the Police Station, Wahdat Colony with the father of the complainant. State ment of Muhammad Aslam A. S.-I. could not be recorded as he had not prepared the copies of various reports. Zamin Abbas A. S.-I. (D. W. 4) produced the report of case F. I. R. No. 130/74 under section 382, P. P. C. This case was filed as untraced. He stated that zimni No. 2 dated 23rd June, 1974, zimni No. 2-A dated 23rd June, 1974 and Zimni No. 30 dated 28th June, 1974 were prepared by Zahoor Ahmad A. S.-I. He also produced copies of reports D-4 and D-18.
9. The complainant had produced certified copies of the orders of this Court, dated 12th July, 1974 Exh. P. B. and 28th January, 1975 ExH. P. C. It was clear from the certified copy Exh. P. B. that this Court issued notices to Zahoor Abroad A. S.-I., Shafqat Ali Chathha S.-I. and Muhammad Anwar Muharrir A. S.-I. in the following terms :-
"Zahoor Ahmad, S.-I.
That in the presence of the bailiff in the Police Station Wahdat Colony, Lahore, with a view to defeat the order of this Court, he took away the roznamcha outside the Police Station with an ulterior motive and recorded report No. 10 therein regarding the arrest of Nawazish Ali, giving the time as 11-00 a. m. on 28th June, 1974,.the day bailiff raided the Police Station and he also wrote zimni No. 3, dated 28th June, 1974 of the arrest of Nawazish Ali even though the said person was with him since 22nd June, 1974 as alleged in the petition, and which prima facie proves to be correct, and that he also threatened the bailiff of this Court with the registra tion of a false case of theft against him. By reason of the above, he is prima facie guilty of the contempt of this Court."
"S.-I. Shafqat Ali Chathha, S. H. O.
That in spite of the fact that the bailiff brought the factum of the taking away of the roznnmcha by A. S.-I, Zahur Ahmad, for making false entries therein, to his notice, yet he failed to take any action in the matter, that when the bailiff tried to run after the A. S.-I. Zahur Ahmad for taking back the roznamcha, he caught hold of the bailiff from his arm and thus abstained him from going after the A. S.-I. Zahur Ahmad. Moreover, by misusing his position as S. H. O. of the Police Station, he recorded report No. 14, dated 28th June, 1974, in the roznamcha making certain allegations against the bailiff of this Court with a view to make a defence for himself, A. S.-I. Zahur Ahmad and Muharrir A. S.-I. Muhammad Anwar for their illegal acts. By reason of the above, it is obvious that he is not only an abettor of the offence but he has also actually worked illegally for A. S.-I. Zahur Ahmad and Muharrir A. S.-I. to save them and also himself and that this act of him was also to defeat the order of this Court. He is, therefore, prima facie guilty of the contempt of this Court."
"Muhammad Anwar Moharrir, A. S.-I.
That he also failed to take any action in the matter when the roznamcha was taken away from him by A. S.-I. Zahur Ahmad outside the Police Station with a view to making certain wrong and bogus entries therein about the arrest or otherwise of Nawazish Ali, for which purpose the bailiff had raided the Police Station. He has also abetted the offence by helping A. S.-I. Zahur Ahmad in handing over the roznamcha to him with a view to defeating the order of this Court. He is, therefore, prima facie guilty of the contempt of this Court."
It stood proved from Exh. P. C. that the three contemners, namely, Zahoor Ahmad A. S.-I., Shafqat Ali Chathha S.-I. and Muhammad Anwar Muharrir A. S.-I. were convicted for contempt of Court and each of them was sentenced to undergo S.-I. for two months and a fine of rupees five hundred each or in default in payment of fine to suffer further S.-I. for one month. The three contemners filed appeal before the Supreme Court. The appeal of Zahoor Ahmad A. S.-I. had abated on account of his death. The appeal of Shafqat Ali Chathha S.-I. was dismissed while that of Muhammad Anwar Muharrir A. S.-I. was accepted for the reason that there was nothing to show that he was also a party to the collusion between his two seniors and was instrumental in allowing Zahoor Ahmad A. S.-I. to slip away from the Police Station alongwith roznamcha. It was further observed by the Supreme Court that the Muharrir acted under the order of the S. H. O. in giving the roznamcha to Zahoor Ahmad A. S.-I. who had been deputed to fetch the same.
The appellate Court set aside the conviction of Muhammad Anwar A. S.-I. and Shafqat Ali Chathha S.-I. under section 323, P. P. C. because the statement of the complainant remained uncorroborated, as the doctor, who medically examined the complainant, was not produced in Court and besides, the medico-legal report was not legally proved as the requirements of sections 32 and 33 of the Evidence Act were not satisfied. It was also observed that no attempt was made to examine the process-server, who was deputed to effect the service of Dr. Shafqat-ur-Rehman, Medical Officer, Camp Jail, Lahore, who had medically examined to complainant.
The conviction and sentence of both the accused under section 330, P. P. C. was set aside on the ground that there was no evidence on the record to show that the accused had made any effort to extract any confession from the complainant.
As regards offence under section 392/109, P, P. C., it was observed by the appellate Court that it appeared to have been committed by Zahoor Ahmad (since dead) who alone had taken out the amount of rupees thirty from the complainant's pocket.
Shafqat Ali Chathha S.-I. was acquitted of the charges under section 343, P. P. C. on the ground that it was Muhammad Anwar Muharrir A. S.-I. who had brought the complainant from Naqsha Bus Stop to the Police Station and by his mere presence at the Police Station, the S. H. O. could not be blamed for the sins of his subordinate staff. It was further observed by the appellate Court that although the complainant charged the S. H. O. for having directed Zahoor Ahmad A. S.-I. to take money from him, yet it could not be an adequate reason to hold that he shared the same intent, neglect, or carelessness, which either of his co-appellants Muhammad Anwar Mubarrir A. S.-I. or Zahoor Ahmad A. S.-I. had shown in this context. There was another observation that even otherwise to show that S. H. O. was keen to. get rupees thirty from the complainant was something unusual and that it was too paltry an amount for which his animous could not be assumed. It was also observed that Muhammad Anwar Muharrir A. S.-I. was guilty for wrongfully confining the com plainant from Naqsha Bus Stop to the Police Station and thereafter, Zahoor Ahmad A. S.-I. was responsible for the wrongful confinement for the remaining period.
10. The appellate Court bad referred cases titled Allah Ditta v. The State (P L D 1958 S C 290) and Muhammad Siddique and another v. The State (1974 P Cr. L J 180) and came to the conclusion that the requirements of sections 32 and 33 of Evidence Act had not been satisfied and thus the medico-legal report was not legally proved.
11. It was contended by the learned counsel for Muhammad Anwar A. S. I. that on the basis of the statements of Nawazish Ali complainant and his father, the conviction of Muhammad Anwar Muharrir A. S.-I. could not be maintained ; that the complainant had made allegation against the other Constables but they were not prosecuted ; that the function of the Muharrir A. S.-I. was to sit in the office and record reports in the roznamcha and thus he could riot move out of the Police Station and the complainant's version was false that he was apprehended by Muhammad Anwar Muharrir A. S.-I. at Naqsha Bus Stop ; and that by taking the complainant to the Police Station, Muhammad Anwar Muharrir A. S.-I. was not guilty of wrongful restraint.
12. The learned counsel for Nawazish Ali complainant submitted that the medico-legal report was a public document and it stood proved in accordance with law and it was wrongfully discarded by the appellate Court. He referred to sections 74, 76, and 79 of…
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