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Official Citation: 2024 YLR 1565
Court / Jurisdiction: Sindh High Court
Year of Decision: 2025
Decision Date: 2025-06-27
Parties: Rasool Bux (present on bail) vs The State
Ruling Summary: This decision was rendered by the Sindh High Court on 2025-06-27, officially reported as 2024 YLR 1565. In this matter between Rasool Bux (present on bail) and The State, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 YLR 1565
Court Name: Sindh High Court Judge(s): Riazat Ali Sahar Title: Rasool Bux (present on bail) vs The State Case No.: Criminal Appeal No. S-48 of 2023 Date of Judgment:2025-06-27 Reported As: 2025 SHC HYD 1787 Result: Appeal Allowed
JUDGMENT
JUDGMENT RIAZAT ALI SAHAR, J: Background The Appellant, Rasool Bux, was implicated by the Anti-Corruption Establishment, Hyderabad City, in Crime No. 09 of 1999 for offences under s. 409 of the Pakistan Penal Code, 1860 ("PPC") read with s. 5(2) of the Prevention of Corruption Act, 1947("1947 Act") which formed Sessions Case No. 103 of 1999 titled The State v Rasool Bux and was taken up by the learned Special Judge, Anti-Corruption (Provincial), Hyderabad for trial. The First Information Report The contents of the First Information Report ("FIR") lodged against the Appellant read: "This case is registered as per approval of the Chairman ACC-III-Hyderabad dated 19-4-1999 and competent authority his Dy: Director ACE Hyderabad vide No: ACH/99/R/4124 dt: 15.4.1999, which was initiated on the report of Miss Shagufta Kaka Ist Ext: Joint Civil Judge & FCM Hyderabad vide his No. 1st/Ext: /55 of 1999 dated 24.9.1999. On the allegations that accused Rasool Bux Mallah Ex: Reader was posted in this court from 2.6.1997 to 20.11.1998. On coming to know that he has mis- appropriated the case properties, under the orders of Honourable District & Sessions Judge Hyderabad, I along with Khalid Tipu Rana, learned Civil Judge and FCM Hyderabad, checked the record and verified the articles and found the following articles were missing from the court record has mis-appropriated by accused Rasool Bux Mallah. Such properties were received by the accused: 1) Cash Rs. 30,000/- in case No: 89/94 St vs. Mohd Iqbal and others U/ss 457, 380 PPC P.S. Bhitai Nagar, Hyderabad.
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2) Cash Rs. 43,250/-, one gold chain, one gold ring in case No. 30/1996 (St vs: Wishnu Das and others) (U/s 3/4 Proh: Crime No. 38/96 P.S. Bhitai Nagar (case has been disposed of u/s 249 CrPC on 27-5-1998). 3) Cash Rs. 200/-, one gold ring in case No. 21/98 (St vs. Ghulam Raza alias Khalid u/s Proh: Crime No. 14/98 P.S. Bhitai Nagar). 4) Cash Rs. 29,500/-, 07 pints of Vat One Whiskey, 05 pints of Dry Gin, 05 nips of Whiskey, 08 nips of Dry Gin, in Case No. 29/98 (St Vs. Parbhoo Lal and others) Crime No. 35/98 U/s 3/4 Proh: P.S. Bhitai Nagar). 5) Cash Rs. 545/- in case No. 13/98 (St vs: Ghulam Qadir) U/s 13-D A.P. P.S. Bhitai Nagar. 6) Crime No. 62/98 U/s 5-A Gambling Act of P.S Bhitai Nagar, neither challan nor case properties vi: each appears to be available in court. Hence the Accused Rasool Bux Mallah Ex: Reader Court of Ist Extra Joint Civil Judge and FCM Hyderabad committed offence punishable U/s 409 PPC r/w Sec: 5(2) Act-II 1947. Therefore this case is registered on behalf of state." The Trial 2. After investigation, a challan was submitted before the learned Trial Court. The Appellant received the relevant papers (Exh-1) and then a charge was framed against him (Exh-2). He pleaded innocence and claimed trial (Exh-3), which began with the prosecution examining the following seven (7) witnesses: i. PW-1Haji Khan son of Muhammad Usman (Exh-4), who produced a photocopy of Charge Fard showing the taking over of charge from the Appellant (Exh-4/A); ii. PW-2 Muhammad Akbar son of Ali Muhammad (Exh-6), who did not produce any document; iii. PW-3 Nazeer Ahmed son of Bashir Ahmed (Exh-7) who produced a photocopy of R.C. No. 71 dated 06 August 1997 (Exh-7/A); iv. PW-4 Khuda Bux son of Khaliq Dino (Exh-8), who produced submission note dated 14 January 1999 (Exh-8/A), attested copy of R.C No.49 dated 14 June 1997 in crime No. 38/1996 U/S 3/4 PEO (Exh-8/B), attested copy of letter dated 18 March 1998 of SHO P.S Bhitai Nagar in crime No. 14/1998 U/S 3/4 PEHO (Exh-8/C), attested copy of letter dated 18 August 1998 of SHO, P.S Bhitai Nagar in crime No.35/1998 U/S 3/4 PEHO (Exh-8/D), attested copy of R.C dated 01 September 1997 of P.S Bhitai Nagar in crime No.53/1997 U/s 402 PPC (Exh-8/E), attested copy of RC No.12 dated 09 October 1998 of P.S Bhitai Nagar in crime No.62/1998 U/S 5-A of Gambling Act (Exh-8/F) and R.C No.71 dated 06 August 1997 in crime No.81/1994 U/S 457 PPC of P.S Fort (Exh-8/G); v. PW-5 Muhammad Ismail son of Haji Ali Muhammad, Investigation Officer (Exh-9), who produced a photocopy of the Letter No. 1st Extra/55/1999 dated 24 February 1999 of Ms. Shagufta Kaka, then Civil Judge (Exh-9/A), photocopy of his Verification Report (Exh-9/B), photocopy of Letter from Deputy Director, ACE Hyderabad (Exh-9/C), FIR (Exh-9/D), photocopy of Enquiry Report of Ms. Shagufta Kaka and Mr.Khalid Tipu Rana addressed to the District and Sessions Judge, Hyderabad (Exh-9/E), photocopies of charge report and case properties (Exh-9/F), mashirnama of arrest (Exh-9/G) and correspondence made during enquiry (Exh-9/H); vi. PW-7 Shagufta Kaka daughter of Allah Bukhsh Kaka (Exh-10), who produced a photocopy of her Report dated 11 February 1998 (Exh-10/A); vii. PW-8 Khalid Tipu Rana son of Muhammad Aslam Rana (Exh-11), who did not produce any document. 3. One witness, PW Asif Ali Qazi, was given up by the prosecution (Exh-12) whereas another witness, PW Mirza Rasheed Ahmed son of Mirza Abdullah Khan died during the proceedings and could not be examined. In this connection, Process Server Abdul Majeed son of Abdul Aziz was examined on Oath (Exh-13) who produced a court summons with his endorsement (Exh-13/A), an attested copy
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of the death certificate of PW Mirza Rasheed Ahmed (Exh-13/B) and a statement by Mirza Feroz Ahmed (Exh-13/C). The prosecution then closed its side for evidence on 19 February 2021 (Exh-14). 4. The statement of the Appellant was subsequently recorded by the learned Trial Court under S. 342 of the Criminal Procedure Code, 1898 ("CrPC"), which is on record at Exh-15. The Appellant then examined himself on Oath under S. 340 of the CrPC (Exh-16) and was cross-examined by the prosecution. In his statement on oath, the Appellant again denied the charge against him and pleaded his innocence. The Appellant had named a witness, Ghulam Mustafa Subhopoto, to examine in his defence; however, he could not be deposed on the account of his death. Consequently, the Appellant's side was also closed on 16 May 2022 (Exh-17). Judgment in Trial 5. The learned Trial Court finally passed Judgment on 21 February 2023 ("Trial Judgment"). It found the Appellant guilty, convicted him of the offences for which he was charged, and passed the following concurrent sentences while allowing the benefit of S. 382-B of the CrPC to the Appellant: Three (3) years of rigorous imprisonment (RI) and fine of Rs.50,000/- for the offence under S. 409 of the PPC, and simple imprisonment (SI) of three (3) in the event of default in the payment of the fine imposed. Three (3) years of RI and fine of Rs. 50,000/- for the offence provided in S. 5(2) of the 1947 Act, and SI of three (3) months in the event of default in the paym ent of the fine imposed. Proceedings in Appeal 6. This case came to be heard before me as an appeal under S.410 of the CrPC against the impugned Judgment, and it was, on 26 May 2025, reserved. Mr. Mir Muhammad Buriro, learned Advocate for the Appellant, submitted a synopsis of his arguments, whereas the case was argued orally by Mr. Shawak Rathore, the learned Deputy Prosecutor General Sindh. 7. Heard. Perused. Opinion 8. I have noticed that the following points require consideration in this appeal: The prosecution's evidence, particularly in the light of: * Discrepancies in witness testimonies * The signatures of the Appellant in evidence Admissibility of photocopies in evidence Standard and burden of proof and the shifting thereof to the accused in criminal jurisprudence The non-speaking nature of the Trial Judgment The length of the trial The Prosecution's Evidence PW-1 Haji Khan 9. As already stated, the prosecution examined seven witnesses. The first witness, PW-1 Haji Khan, who was the Reader in the court of the First Extra Joint Civil Judge, Hyderabad, deposed that, upon his transfer the Appellant was not handing over his charge to him. Consequently, he was issued a letter by Ms. Shagufta Kaka, the Presiding Officer of the said court, upon which the Appellant appeared and surrendered his charge. PW-1 produced a photocopy of the charge fard containing the handing and taking over of charge, which was objected to by the Appellant's counsel. In his cross-examination, PW-1 admitted that he had not produced the purported letter issued to the Appellant for handing over his charge. He moreover admitted "that case property of criminal cases used to remain in possession/custody of criminal clerk." (Emphasis added) 10. The production of the Charge Fard (Exh-4/A) served only one purpose, and it was to show that the case properties for whose misappropriation the Appellant was charged were in fact in his possession and were not handed over to PW-1 Haji Khan upon his transfer. This would go to show that the properties were in some way still in the possession of the Appellant and not placed by him
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in judicial record. It would astonishingly appear that PW-1's evidence served to establish this one thing; yet, the sole document he produced from the judicial record was a photo stat copy, not even a certified copy. 11. Pertinently, the prosecution had given up a witness, PW Asif Ali Qazi, during trial through a Statement dated 30-08-2019 (Exh-12), which is relevant, and it reads: "That PW Ex No. 4 namely Haji Khan has already been examined on the same point, therefore, I given up the PW Aasif Ali Qazi in the above case. Dated: 30.8.019 S/d APG Anti-Corruption (P) Court, Hyderabad. 12. Taking the said Statement on its face-value, if PW Asif Ali Qazi was to be examined on the same point as PW-1 Haji Khan, then he was a very significant witness to (i) corroborate PW-1's evidence and (ii) prove the custody of the case properties with the Appellant. His evidence became of particular significance granted that PW-1's evidence had not been of much help to the prosecution. In such a situation, the giving up of the said witness does not inspire confidence and fairly leads to a negative presumption that, had the said witness been produced, his evidence would have been against the prosecution. 13. Similar propositions were dealt with by earlier benches of this Court in Nadir Khan v State (2024 YLR 1565 (Karachi)), Muhammad Qasim Bhutto v State (2024 YLR 1474 (Karachi)) and Arbab Ali Shar v State (2023 YLR 2395). The crux of these cases is that, although the prosecution is not bound to produce each and every witness, if it fails to produce a central witness who would have given major evidence in favour of the prosecution, then a fair presumption can be raised against the non-production of such a witness as provided in Illustration (g) of Art. 129 of the Qanun-e- Shahadat Order, 1984. I believe this principle is attracted to this case. PW-2 Muhammad Akbar 14. The next witness the prosecution examined was the then peon of the court of the First Extra Joint Civil Judge, Hyderabad, PW-2 Muhammad Akbar. His evidence brings one "theli" (small plastic bag) into picture, which the Appellant purportedly took while he was present. His deposition is significant, and it reads: "One "theli" was lying in the Almirah of the court. I don't know which material lying in that "theli". One day Reader of the court Rasool Bux Mallah, present accused took that "theli" from Almirah. I do not know whether he kept the same "theli" back in the Almirah or not. On the next date when Judge sahib of the court came to know about missing of the property the same Almirah was desealed and property lying in the Almirah was checked and list of case property was got prepared. During checking case property viz. wine and cash amount was found missing." 15. PW-2's cross-examination is also interesting. He admitted that one key of the lock of the said Almirah (cupboard) was lying with him while the other one was with another peon, Ghulam Mustafa Soomro. He similarly stated that his statement under s. 161 of the CrPC recorded before the Anti-Corruption Police was not read over to him; that he did not inform the presiding officer of the court when the Appellant took over the said "theli", but he told Khuda Bux Palejo, Clerk (PW-4). I shall turn to his evidence below. 16. In my view, PW-2's evidence was the make-or-break piece of information in the matter. His allegation or claim in evidence was that the Appellant took a black "theli" from the Almirah, but he has not deposed on the size of the "theli" and has shown unawareness as to its contents. In any case, the charge against the Appellant is that he took around one lac Pakistani rupees, gold ornaments and twenty-five (25) bottles of alcohol, and it is hard to believe that all of that could fit in one "theli"(small plastic bag), as alleged. The fact that PW-2 was responsible for holding one key
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of the Almirah under discussion, and he did not object to the Appellant's alleged taking of the "theli" at the relevant time, is a telling element in considering the veracity of this evidence. Having one key means that PW-2 was the custodian of the Almirah as also the articles lying in it, but it is strange that he did not have knowledge of its contents and showed unawareness as to what was inside the "theli", which very conveniently turned out to be black. PW-3 Nazeer Ahmed 17. PW-3 Nazeer Ahmed, who was the Head Constable at P.S. Makki Shah, deposed that he deposited Rs. 30,000/- as case property under R.C. No. 71 dated 06 August 1997 before the First Extra Joint Civil Judge, Hyderabad. The R.C. produced by him was a photocopy, and he stated that he did not know who the Reader was in the said court at the relevant point in time. He is not a witness to the crime but only to the fact that a sum of Rs. 30,000/- was deposited before the concerned court. For the present purposes, therefore, he is not of much importance to the prosecution's case. 18. The evidence of PW-3, specifically to the effect of his lack of knowledge towards who the Reader of the concerned Court was, dents the prosecution's case. He did not depose that the Appellant personally identified himself as Reader or he already knew the Appellant, and so there is a valid possibility of someone else taking the articles purporting to be the Appellant. This is especially the case because, as per the available record to which I shall turn in more detail below, there is no reliable way to see if the RCs which purport to bear the Appellant's signatures were in fact signed by him or someone else posing to be the Appellant. 19. It is pertinent to note, also, that no other witness of the delivery or receipt of the other case properties was examined by the prosecution, except PW-3 whose evidence is limited to Rs. 30,000/- alone. PW-3's evidence, standing alone, also appears to be discrepant as already stated. PW-4 Khuda Bux 20. The next evidence was of another Clerk to the First Extra Joint Civil Judge, Hyderabad, PW-4 Khuda Bux. His deposition is very relevant. He first gave a detailed history of how the matter as to the misappropriation of case properties came on record including the proceedings in inquiry as well as his role in the same. He also produced attested copies of multiple documents, as mentioned above. What he did not depose on, however, was the "theli" which the Appellant allegedly took and which, as PW-2 said, PW-4 was informed about. Thus, PW-2's claim of the Appellant taking the "theli" in discussion remains uncorroborated. There are certain relevant portions in his cross-examination which raised my eyebrows: "It is fact that prior to this, enquiry was also pending with Vth Additional District & Sessions Judge against Reader Haji Khan Karar. It is fact that in said enquiry present accused had given statement against me. Voluntarily says that accused Rasool Bux threatened me that if I have not given statement in his favour in this case then he will give statement against me in enquiry of Haji Khan, Reader. It is fact that in the said enquiry the said Haji Khan was acquitted/exonerated. It is fact that when the accused threatened me I had not made any complaint against him to any authority. Voluntarily says that during my appearance before the Sessions Judge in respect of the enquiry of Haji Khan I disclosed this fact before the District Judge..." 21. It is seen from what has just been reproduced from PW-4's evidence that the Appellant had given a statement against PW-4 in an internal/departmental inquiry. Moreover, when PW-4 made this admission, he is seen to be making constant improvements in his statement by: firstly, deposing that he was threatened by the Appellant to give evidence in his favour; and secondly, admitting that he did not make any complaint against the Appellant upon receiving threats while simultaneously stating that he informed the District and Sessions Judge concerned when he appeared before him. 22. In criminal jurisprudence, an interested witness is someone who can be said to have a direct interest in having an accused somehow convicted. There is a difference between a related and an
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interested witness in the sense that merely being related to the prosecution is of no relevance to that witness's testimony's worth; however, where a witness has a personal reason to find satisfaction in the suffering of the accused by way of false implication, then such a witness is known to be an interested witness and their evidence must be considered with great care and caution. An interested witness's evidence requires independent corroboration for it to be considered reliable. 23. By contrast, a natural witness is someone who appears to give a fair and impartial deposition and would have no personal interest in involving the accused and having them punished. A natural witness would obviously not want crime to go unpunished, and thus it is not unexpected of them to suggest the accused's guilt through their testimony expressly or impliedly, but their conduct would not exhibit partiality or deliberate bias to forcibly implicate an accused by hook-or-crook. A related witness may still be a natural witness, but an interested witness cannot be considered natural or independent, and their evidence requires due care and diligence to be exercised. The concept of interested witness and the worth of such a witness's testimony came to be adjudged by the Supreme Court in Muhammad Ramzan v Khizar Hayat (2024 SCMR 1085), and it was held that: "10. ...The testimony of an interested witness should be scrutinized with care and caution. Independent corroborating evidence is essential to test the validity and credibility of the testimonies of interested witnesses..." A similar view is seen from Abid Ali v State (2025 PCrLJ 383) and Nazir v The State (PLD 1962 SC 269). 24. In the present case, I believe the fact that the Appellant deposed against PW-4 in a departmental inquiry and then PW-4 got the opportunity to depose against the Appellant in a criminal trial means that the possibility of personal enmity and vendetta of the said witness with the Appellant cannot be ruled out. This is further strengthened by the constant gymnastics of PW-4 in his evidence to somehow cover-up this aspect of the matter. Not only this, but PW-4 was admittedly holding the charge of Criminal Clerk at the time; he was by the very nature of his duties the custodian of the case properties in criminal cases and so the chance of him trying to implicate someone else, such as the Appellant, to escape his own possible implication can also not be ignored. Because of these factors, I will term PW-4 as an interested witness, and I will hold that the evidence of PW-4required independent corroboration, which, as will be seen by the end of this judgment, is found absent. PW-5 Muhammad Ismail (IO) 25. The case against the Appellant was investigated by Muhammad Ismail, then Circle Officer, Anti-Corruption Establishment, Hyderabad City, who appeared as PW-5. He first deposed as to the procedure adopted by him from receipt of the complaint until the lodging of FIR and arrest of the Appellant. He produced multiple documents, but most of them were photocopies. The cross- examination of PW-5 is essential and, since it is self-explanatory, its relevant portions are reproduced below: "It is incorrect to suggest that accused being Reader is not custodian of case properties. Voluntarily says that accused received the case properties but did not deposit before Criminal Clerk. It is correct to suggest that case properties were received by the predecessor of the accused. Voluntarily says that accused received the case properties from his predecessor according to enquiry report conducted by Mr. Khalid Tipo Rana and Miss Shagufta Kaka...I do not know whether keys of the court lies with Naib Qasid...I do not know whether the cases wherein case properties were missed, were disposed of. It is correct to suggest that after disposal of the case, case properties be deposited in Malkhana. Voluntarily says accused did not deposit the same. I have not sent the signature of accused before hand writing expert. It is correct to suggest that entries of case properties pertains to the year 1994 to 1996 when accused are not
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posted. It is correct to suggest that case properties be sealed or de-sealed in presence of the Magistrate. I do not know whether it is not work of reader to deposit the case properties in Malkhana..." (Emphasis/special emphasis added) 26. The evidence of PW-5 introduces further conflict in the prosecution's case, in that he stated that the case properties under dispute were received by the predecessor of the Appellant, however, this is not stated in any other witness's evidence. This has given rise to confusion as to whether the case properties were in fact received by the Appellant or by his predecessor in office, and there is effectively no evidence to suggest clearly a proper answer to this confusion.PW-5 similarly admitted that he had not sent the signatures of the Appellant to a handwriting expert for comparison; this calls for a discussion of its own which I shall do separately below. PW-7 Shagufta Kaka 27. The charge of the court of the First Extra Joint Civil Judge, Hyderabad--the court where the crime at issue took place--was at the relevant time held by Ms. Shagufta Kaka. She was the Presiding Officer of the said Court, and the offence was reported to her. She was the complainant in the matter, and she appeared in evidence as PW-7. She deposed that in January 1999, she was proceeding with certain criminal cases; however, they kept getting adjourned due to non- availability of case properties. As such, she called Clerk Khuda Bux Palijo (PW-4) to produce the said case properties, but he reported that the same were missing and were not handed over to him during handing/taking over of charge by/from the Appellant. Consequently, PW-7 reported the matter to the District and Sessions Judge concerned who ordered for sealing/de-sealing of the cupboard containing case properties, which was done in the presence of Khalid Tipu Rana (PW-8), also a Civil Judge at the time, and an inventory was prepared. Thereafter, PW-7 called reports from the SHOs of PS Bhitai Nagar, Hyderabad, under direction from the District and Sessions Judge concerned, and they reported the details of the various case properties submitted by them. Subsequently, the District Judge concerned directed PW-7 to lodge complaint against the Appellant. In her examination-in-chief, PW-7 has disclosed the following case properties which were missing: i. Case No. 89/1994 (PS illegible), Rs. 30,000/- cash; ii. Case No. 30/1996 (PS Bhitai Nagar), cash amount (illegible), one gold chain and one gold ring; iii. Crime No. 14/1998 (PS Bhitai Nagar), 11 bottles of high standard scotch, 5 bottles of black dog scotch, 2 bottles of black and white scotch, 2 bottles of wine, 5 quta scotch, 4 black label scotch (total 29 bottles), one gold ring and cash Rs. 200/-; iv. Case No. 29/1998 and Crime No. 35/1998 (PS Bhitai Nagar), cash of Rs. 29,500/-, 7 pints of Vat One Whiskey, 5 pints of Dry Gin, 5 pints of Lion Whiskey, 8 nips of Dry Gin (total 25 bottles); v. Case No. 13/1999 (PS Bhitai Nagar), cash of Rs. 545/-; vi. Crime No. 62/1998 (PS Bhitai Nagar), neither case file nor case property was submitted and only challan of gambling was found. 28. PW-7 was cross-examined at some length. Following comes out of her cross-examination: "It is fact that Khuda Bux was holding the table of Criminal Clerk." "I do not remember whether Akbar and Ghulam were serving in my court as it is a matter of 1999." "I do not know whether at that time Peons were custodian of the keys of the office." "It is fact that on transfer of the accused…
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