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Petitioner: ZAFAR ULLAH KHAN VS Respondent: FAH IMUDDIN KHOKAR AND ANOTHER
Court Name: Sindh High Court Judge(s): Tufail Ali A. Rehman Title: ZAFAR ULLAH KHAN vs FAH IMUDDIN KHOKAR AND ANOTHER Case No.: Criminal Revision No, 222 of 1970 Date of Judgment:1973-12-07 Reported As: 1975 P Cr. L J 494 Result: Revision dismissed
JUDGMENT
JUDGMENT ' This is an application in revision by one Zafarullah Khan son of Doctor Abdul Latif Khan against the first respondent Fahimuddin Khokar calling into question the acquittal of the latter by a judgment of the Additional City Magistrate XXIV, Karachi. The case has had a somewhat chequred career both in the trial Court as well as in this Court and it is necessary to state certain datcs as these have a bearing upon a preliminary point in the case as well as upon the merits. On the 18th of May, 1964 the applicant filed a first information report which ultimately resulted in the sending up of the first respondent, by means of a police report, to the Court of a Magistrate for an offence under section 406, Pakistan Penal Code. On the 19th February, 1966 the learned Magistrate who was trying the respondent discharged him and against this order of discharge the applicant went in revision to the Court of Sessions in which Court a learned Additional Sessions Judge, accepting the revision application, set-aside the order of discharge and directed a further enquiry. A further enquiry accordingly took place and, finally upon the 3rd April 1970, the respondent was acquitted by means of the judgment which is now challenged before me. The case came up for Katcha Peshi upon a number of occasions but on the 18th of December, 1970, counsel for the applicant not being present, was dismissed for default by a learned Single Judge of this Court namely Mr. Justice Dorab Patel. An application for restoration was filed and Mr. Justice Ghulam Rasool Shaikh by an order dated 16th February, 1971 restored it, the order being in these terms:- "Satisfactory cause has been shown for absence. R. A. Is restored." ' Thereafter again it came up for hearing upon two occasions but had to be adjourned on account of the illness of counsel for the applicant but was ultimately admitted to regular hearing by an order dated the 16th March 1971. The matter, being now thus ripe for hearing, again has come upon
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several occasions but, for some reason or the other, had to be adjourned until it came up on the 2nd July 1573 before my learned brother Dorab Patel when Mr. Hayat Junejo filed in writing preliminary objections which in effect challenged the legality of the order of restoration, it being argued that there was no power to restore such a case and that therefore the order purporting to restore it was a nullity and the matter stood dismissed. Again upon that date the case could not proceed and Mr. Justice Patel, recording these objections, ordered that they be considered when the case comes up for hearing. 2. The case was listed on three more occasions when again it could not be heard an d being bud before me on the 30th of November, 1973, Mr. Hayat Junejo took up this preliminary objection first. Now I myself have held in a case that restoration can be ordered in suitable cases but Mr. Hayat Junejo, while accepting the correctness of my decision in that case, argued that the present case was distinguishable and that even upon the principles that I had laid down in that case this kind of case could not be restored. Whatever may be the merits of the argument of Mr. Hayat Junejo which was not eventually canvassed before me, I felt the difficulty of holding that any order of this Court was a nullity more particularly since I myself was sitting as a Single Judge and I did not think that it was open to me to question the correctness of the decision of a brother Judge of equal jurisdiction; certainly there would be no question of my sitting in appeal over his order. I therefore suggested to Mr. Hayat Junejo that I should adjourn this matter and direct that it be placed before Mr. Justice Ghulam Rasool Shaikh, but in view of the fact that the matter was already an old one, Mr. Hayat Junejo withdrew his objection and argued the matter on merits. It is in these circumstances that I have heard the matter on merits without reference to this preliminary objection, regarding the restoration as being valid. 3. It is the case of the prosecution that Dr. Abdul Latif Khan, who is the father of the first informant Zafarullah Khan, was living in Kuwait when Martial Law was proclaimed in Pakistan in the year 1958. The accused respondent Fahimuddin Khokar was married to the daughter of this doctor Khan Abdul Latif, a lady named Zaibun Nisa, a little earlier that is to say in July 1958. It is an admitted position between the parties that until the year 1962 the marriage continued to be a happy one but that a little before 1964 differences arose between the couple and the wife went to her father in Kuwait and that in May, 1964 she was divorced. This fact is material because while the prosecution alleges that monies which were entrusted to the respondent remained with him while there was mutual confidence he refused, on account of the divorce to return monies belonging to Dr. Abdul Latif, while it is the case of the respondent on the contrary that it is on account of the divorce that the false charge of breach of trust is being made against him. The fact however that in between the relations were happy and cordial and that there was a mutual trust, is common to the story of both sides. Consequent upon the promulgation of Martial Law certain Martial Law Regulations particularly relating to the accumulation of money in Pakistan by Pakistanis residents abroad and in regard to Income-tax were made, it being the general policy of the Government to grant an amnesty for past criminal conduct in regard to such transactions, substantially upon the basis that true declarations were now made and that Income-tax would be charged only upon so much of the money as really was earned in Pakistan. Pursuant to one such regulation a press note was issued by the Government of Pakistan which reads thus:- "It has been brought to the notice of State Bank of Pakistan and the Central Board of Revenue that certain persons who are non-resident in Pakistan under the Foreign Exchange and Tax Laws have Liquid assets in Pakistan which they hold in one or more of the following ways: (a) In safe deposit lockers, (b) With friends and relatives, (c) Deposited in banks under names other than their own.
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(2) It has been represented that considerable portion of such amounts is, in fact, capital brought from abroad and does not represent income earned and taxable in Pakistan. In order to extend the benefit of Martial Law Regulation No, 43, as amended, to such persons it has been decided as follows:- (a) That such persons should declare their total liquid assets in Pakistan, to the following officers of the State Bank of Pakistan. (i) Deputy Controller, Exchange Control Department, Karachi. (ii) Manager, State Bank of Pakistan, Dacca. (iii) Manager, State Bank of Pakistan, Lahore. The declaration should be made by the 31st December 1958. (b) They should then deposit the liquid assets in any bank in Pakistan under any name with a Pakistan address and communicate that name, address and the fact of having deposited, the assets in bank account to the authorities mentioned in (a) above. This information shall be kept completely confidential by the bank in question as well as by the State Bank of Pakistan from every authority except the Income-tax Department. The deposit should be made in the banks and this fact reported to the State Bank by the 31st January, 1959. (3) The amounts in question all shall normally be regarded as capital unless it is proved that a part thereof was earned in Pakistan or the declarant himself states that a certain part thereof was income earned in Pakistan. In that case, only that part which represents income earned in Pakistan would be taxed at concessional rates under Martial Law Regulation No, 43 as amended, while the other part representing capital shall not be brought to tax at all. (4) There shall be no question of the repatriation of these assets at any stage in future. However, after the tax, if any, levied under the foregoing paragraph has been paid, the accounts of these persons, would be considered to be resident accounts for all purposes and they would be allowed to operate them freely. (5) Such non-residents may also at their option file wealth statements showing their total world assets and liabilities in order to safeguard themselves against future income-tax enquiries. These declarations may be filed in a sealed cover." 4. Wishing to take advantage of this, Dr. Abdul Latif Khan wrote to his son-in-law, that is the accused respondent, desiring him to collect on his behalf a sum of Rs, 17,000 which was lying with various relations of the doctor in Pakistan and then to take all such steps as might be necessary in the light of this press note. This sum amounted to Rs, 17,000, Rs, 10,000 being with Abdul Subhan, brother of Dr. Abdul Latif and 6,000 rupees with Rahimuddin, the father of the accused Fahimuddin. This totals upto Rs, 16,000 and that there is therefore a discrepancy in the evidence of Dr. Abdul Latif Khan which does not account for the remaining 1,000 but, from the rest of the evidence, it can be gathered that the remaining 1,000 rupees came from the father of Dr. Abdul Latif Khan, namely Mohammad Omar Khan. One should have thought that Dr. Abdul Latif might have preferred to give these instructions to his son but it is a case of the prosecution that the son namely Zafarullah, was at that time in the United Kingdom. Accordingly this sum was collected by Fahimuddin and deposited in an account in his own name of which he gave intimation to Dr. Abdul Latif. The amount remained in this account, though the accused withdrew moneys from it from time to time and to one of these I shall again refer. In 1961 when Zafarullah having had come back from England and needing the money, Dr. Abdul Latif desired the accused to pay the money to Zafarullah. The accused did not pay the money and on the 15th March, 1964 Zafarullah Khan, by means of a written letter addressed to Mr. Mohammad Abbas Mien, Superintendent of Police, Special Branch, Karachi, lodged what has been treated as a first information report in this case. In the judgment of the learned Magistrate Dr. Abdul Latif is sometime referred to as the complainant or the first informant but it is clear that it was Zafarullah who was the formal informant but, since it is clearly a part even
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of the prosecution case that in lodging the first information report he did so on the express or implied instructions of Dr. Abdul Latif, this slight inaccuracy of description is entirely immaterial. 5. Before stating the case of the accused it is necessary to add that the sum of rupees ten thousand said to be lying with Subhan and collected from him was in fact, even according to the prosecution, collected from Subhan's wife in two instalments one of rupees six thousand and the other of four thousand, the former being in cash and the second by a cheque. In the statement which the accused made under section 342, Criminal Procedure Code, he admitted, of course, as could hardly be disputed, that Dr. Abdul Latif Khan was residing in Kuwait, that he was married to his daughter whom he later divorced and that the Martial Law Regulation to which I have referred and the consequent press notes were in fact issued. Except as to the sum of rupees four thousand received by cheque he entirely denied however that these monies belonged to Abdul Latif but expressly stated that the entire money had been given to him by his own father and that he had been depositing it in his own account and that therefore Dr. Abdul Latif or Zafarullah had no concern with the money at all. The money not having been entrusted to him no question of breach of trust arose at all. The payment of rupees four thousand he did indeed admit but stated that the money was required for payment to Messrs Zeman Nasir & Company, Income-tax practitioners, as their professional fees for dealing with the Income-tax case of Dr. Abdul Latif and that Mrs. Subhan had therefore given him a cheque for rupees four thousand and in turn he had paid the money to the said firm. The various letters that had been exchanged between him and his father-in-law also he admitted but denied that they constituted any kind of admission that he had received the money from or on behalf of his father-in-law. It is nowhere stated in his statement but it clearly was a part of his case as is reflected in the cross-examination of witnesses that the charge is being brought against him only because of the breakup of his marriage with Dr. Abdul Latif's daughter and this was orally stressed before me also, it being particularly emphasized that although the entrustment is alleged to have taken place in the year 1958 and even the demand for return made for the first time in 1961. It is not until 1964 that the matter was reported to the police. A matter which would certainly have been embarrassing for the accused to have stated in his statement, even if true, was however orally argued before me as explaining much that might otherwise remain obscure, namely that the purpose of depositing these monies was to take as great an advantage as was possible of the press note and the Martial Law regulation in question and to minimise the amount of money upon which income-tax could be paid, and that therefore all the money that belonged to the accused or his own relations was pooled together so as to enable Dr. Abdul Latif to state that this was money which he had from time to time sent from Kuwait, whether by legal means or illegal means it does not matter. Emphasis was laid upon the fact that in fact Abdul Latif raised no objection whatever to the money being deposited in the name of accused himself and the fact also that from time to time he had utilized monies from this account and finally closed it upon the 30th December, 1963. Indeed this was an answer to a question whLh was put to him under section 342, to Criminal Procedure Code. Of course as a background of the entire matter the disruption of his marriage was also prominently placed though each side puts his own interpretation upon that event and its impact upon the case. 6. Before I start examining the merits of the case, I think it is right to attempt to enunciate the principles upon which interference in the exercise of the Revisional Jurisdiction by this Court wits( acquittals can be justified. A number of cases were cited before me by Mr. Hayat Junejo, appearing for the accused respondent, for the proposition that this Court will not interfere unless the judgment of acquittal is perverse or manifestly wrong and, in any event, not interfere in such manner as virtually to direct the lower Court to record a conviction. The first of these is a Full Bench decision of the Lahore High Court, In re : Shaikh Abdul Karim, Advocate, (1). This was a case in which the real question before the Court was whether a certain Advocate in filing a revision application
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against an acquittal could be held guilty of professional misconduct and it therefore became necessary to examine the limits within which this jurisdiction is exercised so as to assess the conduct of the Advocate in question. Mr. Justice Mohammad Munir, then Chief Justice of the High Court of Lahore. Delivering the judgment of the Full Bench, observed at page 443 after referring to the High Court Rules which expressly directed the Deputy Registrar not to accept any such revision application unless it was accompanied by a copy of an order of a Magistrate of the District refusing to move the Provincial Government to file an appeal under section 417:- " The reason of the rule is that, if the Provincial Government appeals from the order of acquittal, there remains no occasion for a petition for revision. If, however, the District Magistrate does not agree to move the Provincial Government to appeal, a revision petition may be put in, and the Court will then consider whether the acquittal presents such a glaring instance of miscarriage of justice that a retrial, which in such cases is always a delayed and costly affair, is necessary in the interests of justice. Needless to say that where the Government is not interested and for that reason it has not appealed, this Court will order a retrial only if the case is of such a singularly exceptional character that, unless a retrial is ordered a grave and irremediable injustice must be the result, and such result can be apprehended only where the trial has been contrary to some fundamental rule of procedure or where the acquittal is based on a view of evidence which no reasonable judicial officer anxious to do justice, could possibly take." ' J. It will be seen that the limits within which the High Court thought this jurisdiction ought to be exercised were laid down in very narrow terms and with rigidity. 8. The question arose again in the case of Sher Mohammad v. Mohammad Hussain (2), a case decided by the then Chief Justice, Mr. Justice Manzoor Qadir and the learned Chief Justice observed:- "(4) Without going into the question whether the contentions of the learned counsel as to which party, if any, had the right of private defence, are prima fade sound or not, I think this petition ought to be {{FOOT NOTE}} (1) PLD 1950 Lah. 439 (2) PLD 1963 Lah. 514. {{FOOT NOTE}} dismissed. Even if the acquittal in this case is not right, an acquittal has sanctity which in the system of jurisprudence we are following, is not lightly to be disturbed. The original rule from which our law is derived is that it is not to be disturbed at all. Our law creates an exception to that rule and gives to the State not to private party the right to appeal against an acquittal. While granting that right of appeal, our law has placed certain checks on it. That right, namely, the right of appeal against acquittal is to be exercised at the highest level of responsibility. It is not to be exercised unless the Chief Executive of the Province sanction it, and it is not to be adjudicated upon except by the highest Court in the Province. This is the extent to which an inroad into the principle of sanctity of an acquittal is permitted. In all other cases, a specific limitation has been put in, debarring the Court from converting an acquittal into a conviction. (5) In spite of this, it is contended that the meaning of the provision is that what the law forbids to be done except by way of an appeal against acquittal, may nevertheless be done otherwise than by that way, by first setting aside an acquittal in revision and then directing or permitting a re-trial. It is correct that there is no express bar against the setting aside of an order of acquittal, the only bar being against converting a finding of acquittal into one of conviction. But nothing is achieved by setting aside the acquittal unless it is contemplated that a fresh trial be held and a fresh finding be recorded. Now the only justification for a fresh trial could be that on the previous occasion the trial was either illegal, or in its mode there was a defect which occasioned a miscarriage of justice.
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If the trial on the previous occasion was neither illegal nor conducted with material irregularity there would be no occasion and there would be no justification for holding a fresh trial on the same charges. (Of course, if the re-trial is to be for offences that were never put into the charge, the case would be different). If, therefore, the High Court, on examining the record of a case under section 439, is of the opinion that the trial was not defective in any manner, but that upon the trial as held, a finding of acquittal was wrongly given, and that if it had the power, it would convert that finding, on the basis of that very record, into one of conviction, but not having the power to convert a finding of acquittal into one of conviction, it would set aside the acquittal and either direct a re- trial, or leave it to the prosecuting agency to prosecute again, a question arises which needs to be examined carefully. Is it right to order or to permit a re-trial when there was nothing wrong with the previous trial? Is not the object of the re-trial in such a case only to enable the Court to correct what it regard as an error of judgment in respect of a matter in which the law forbids the Court from correcting errors of judgment? Does it then not amount to an attempt to achieve indirectly, as a requirement of justice, what, for reason of public policy, is forbidden as a requirement of law. (6) It seems to me that it is not the intention of the law that a trial he set aside unless there is a defect in the mode of the trial which makes it necessary to set it aside. It does not appear to me to be justifiable that a perfectly good trial should be set aside, if Sessions Judge in appeal or the trial Court itself came to what the High Court regards a wrong conclusion. And unless the earlier trial is regarded as having been set aside, there is no room for a fresh trial. Technically it may be permissible to regard the whole process of trial as nonexistent once its final conclusion is set aside, but, in substance, there hardly seems any reason for doing so. I am of the opinion that a re-trial is to be held only where there is a defect in the previous trial. It is to be held merely to enable the Court to correct what is regarded as a wrong finding." 9. Although here again the limits are laid down rigorously, the reasoning of the learned Chief Justice, if I may so with respect, is primarily based not only upon the sanctity of an acquittal but in the absence of power, except under section 417, Criminal Procedure Code, to convert the acquittal into a conviction and the consequent conclusion that interference in the exercise of Revisional Jurisdiction would be to do something indirectly which is forbidden by the law to be done directly. 10. Again in the case of Ann Coleman v. Aril' A. Lukmani (1) the late Mr. Justice Khamisani stated his view shortly but forcibly thus, although he then went on to cite cases in support of the proposition:- " The view of the Courts consistently has been that the order of re-trial on the revision against acquittal should invariably not be made unless it is made on technical ground as otherwise such an order would tantamount to a direction to the lower Court to convict the accused." 11, There is however a later decision of the Supreme Court, which of coarse is of binding authority, and this is the case of Feroz Khan v. Ghulam Arabi Khan (2). The appellant in this case had been convicted by a Magistrate under section 307 of the Pakistan Penal Code but the conviction had been set aside but the Court of Sessions and against this acquittal, although the Government did not file an appeal, a revision application filed in the High Court succeeded and a re-hearing was ordered. It was against the order of the High Court that the appellant came by way of Special Leave to Appeal, which was granted, to the Supreme Court. The relevant observations of their Lordships appear at page 431: "Dr. Javid Iqbal, who appeared on behalf of the respondent complainant, invited our attention to the judgment of the Federal Court, reported as Anwar and others v. The Crown PLD 1955 FC 185 and to certain observations of this Court in Muhammad Sammiuliah Khan and another v. The State PLD 1963 SC 337 in support of the proposition that the revisional jurisdiction of the High Court, under section 439 of the Code of Criminal Procedure, is very wide and indeed unlimited in law and is not confined to mere correction of errors of law. In appropriate cases, even finding of fact could be disturbed in revision. This would be possible, for instance, where the subordinate Court had
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wrongly allocated the onus of proof, in not applying the correct principles relating to the appraisal of evidence, or some important piece of evidence had been ignored. No exception need be taken to this statement of the law. Interference in revision need not be confined to cases where the order of the Court below is "manifestly wrong or perverse or is based on the view of evidence, which no judicial officer would take", as was pointed out by the Federal Court in Anwar and others v. The Crown but the discretion vesting in the High Court under section 439 of the Code of Criminal Procedure has to be exercised in accordance with the dictates of justice arbitrarily, or in a fanciful manner. In particular in cases of revision petitions from an acquittal, where the State has not thought it fit to challenge the acquittal by an {{FOOT NOTE}} (1) PLD 1964 Kar. 81. (2) PLD 1966 SC 424…
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