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Petitioner: SADO KHAN KAKAR VS Respondent: THE STATE
Court Name: Balochistan High Court Judge(s): Raja Fayyaz Ahmed, Akhter Zaman Malghani Title: SADO KHAN KAKAR vs THE STATE Case No.: Crl. Quashment No,22 of 2004 Date of Judgment:2004-08-11 Reported As: 2005 YLR 1363 Result: Petition dismissed
JUDGMENT
JUDGMENT ' RAJA FAYYAZ AHMAD, C.J.---In this Criminal Petition filed under section 561-A, Cr.P.C. Order, dated 22-6-2004 passed by the Incharge Additional Sessions Judge/Special Judge under CNS Act, Pishin has been sought for to be quashed whereby the appellant was ordered to be taken into custody and committed to Sub-Jail, Pishin on having been produced before the Court pursuant to the non- bailable warrant of arrest issued by the learned Court. 2. The brief facts of the case are that on 11-5-2004 Mateeullah Khan, Naib Tehsildar, Pishin lodged report with Levies Thana, Headquarter District Pishin to the effect that accused Sado Khan son of Din Muhammad, by caste Kakar, resident of Killi Dori. Sulmankhel has cultivated poppy crops in Mouza Band Malezai with the request that cultivated poppy crops be destroyed and action under the law be taken against accused Sado Khan. On such report Tehsildar Pishin namely Maqbool Anwar registered the case Crime No,61 of 2004 on the abovesaid date against nominated accused under section 4/5 of the Control of Narcotic Substances Act, 1997. After registration of the F.I.R. Tehsildar Maqbool Anwar commenced with the investigation of the case. 3. After perusal of the documents filed with the memo; of criminal petition and hearing the petitioner's learned counsel, notice of the petition was directed to be issued to the respondent, as well as; notice was also ordered to be issued to Mateeullah, Naib Tehisldar and Maqbool Anwar, Tehsildar, Pishin and they were further directed to appear in person along with the entire record of the case. Also, notice of Criminal Misc: Application No,331 of 2004 for stay of proceedings of the case before the trial Court and Criminal Misc: Application No,322 of 2004 seeking for suspension of the impugned order was directed to be issued to the respondent. After completion of investigation, on 18-5-2004 incomplete challan for trial of the offence was submitted in the Court of learned
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Judicial Magistrate, Pishin for onward transmission to the Court of competent jurisdiction against the absconder accused Sado Khan son. Of Amir Muhammad, caste Tarkaye Sulemnkhel against whom sufficient incriminating material according to the Investigating Officer had come on record during the course of investigation, whereas; the petitioner Sado Khan son of Din Muhammad, caste Sulemankhel Kakar arrested on 11-5,-2004, was released by the Investigating Officer under section 169, Cr.P.C. For want of any incriminating evidence available/procured during the course of investigation on furnishing of P.R. Bond; with the request that absconding accused Sado Khan son of Amir Muhammad be proceeded against under section 512, Cr.P.C. The incomplete challan was forwarded to the learned Sessions Judge, Pishin/Special Judge, CNS Act for trial of the offence against the absconding accused. The learned Sessions Judge, Pishin sent the incomplete challan along with the record and papers of the case after taking cognizance of the offence to the Court of Additional Sessions Judge/Special Judge under CNS Act, Pishin. ' It is pertinent to note that on submission of challan before the Judicial Magistrate, Pishin non- bailable arrest warrant of the absconding accused was issued by the Judicial Magistrate, but the same could not be executed, eventually the learned Judicial Magistrate sent the case to the Sessions Judge being exclusively triable by such Court within the meaning of section 190(3), Cr. P C ' The learned Additional Sessions Judge on receipt of the case file, registered the case and issued non-bailable arrest warrant of accused Sado Khan son of Amir Muhammad besides notice for appearance of the process server was issued, in case the arrest warrant was not executed; simultaneously being cognizant of the fact that Sado Khan son of Din Muhammad released under section 169. Cr.P.C; notice was directed to be issued to the Investigating Officer calling for his explanation, he adjourned the case to 28-5-2004. On this date Muhammad Alam, Levies Khasadar produced unexecuted arrest warrant of accused Sado Khan son of Amir Muhammad, accordingly; again non-bailable arrest warrant of the said accused was ordered to be issued. The Investigating Officer (Tehsildar, Pishin) despite notice did not appear in Court, as such; again notice was directed to be issued to him to explain as to how he had released the accused under section 169, Cr.P.C. Despite having been nominated in the F.I.R., so the case was fixed for 5-6-2004 on which date reply to notice was provided to the Court by the Investigating Officer/Tehsildar, Pishin, who sent an application to the Court to the effect that on account of death of his maternal grand-mother he could not appear in Court. Accordingly; the learned trial Court adjourned the case to 14-6-2004 with the direction that notice be again issued to the Investigating Officer requiring him to appear in person on the said date. Tehsildar Pishin/Investigating Officer appeared before the trial Court on 14-6-2004. The learned trial Court after scrutiny of the documents observed that it was specifically alleged in the F.I.R. Lodged by the Naib Tehsildar that Sado Khan son of Din Muhammad has cultivated poppy crops on the land situated at Mouza Band Malezai, but during course of investigation, the Investigating Officer out of mala fides and deliberately implicated an unknown and untraceable person namely Sado Khan son of Amir Muhammad by caste Sulemankhel, as the one responsible for having cultivated the poppy crops on the said land, hence; the learned Sessions Judge, Pishin/Special Judge under CNS Act, who held the Additional charge of the Court of Additional Sessions Judge, Pishin, issued non-bailable arrest warrant of accused Sado Khan son of Din Muhammad, caste Kakar by observing that the Investigating Officer had released the nominated accused for reasons best known to him and simultaneously Investigating Officer was directed to arrest the said accused and submit challan against the nominated accused for trial within a week and the case was adjourned to 22-6-2004. 4. On the abovesaid date, the accused nominated in the F.I.R. Was produced before the Court by the Investigating Officer Maqbool Anwar pursuant to the arrest warrant issued by the Court, who was taken into custody and was committed to Sub-jail, Pishin by observing that the accused was nominated in the F.I.R. Wherein it was alleged that he has cultivated poppy crops on the lands, but
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the Investigating Officer and the complainant had introduced another person namely Sado Khan son of Amir Muhammad in the case, to screen the real accused, against whom sufficient evidence connecting him with the cultivation of the poppy crops was available. 5. The learned counsel for the petitioner and the learned A.-G. Have been heard at length. Maqbool Anwar Tehsildar Pishin/Investigating Officer and Naib Tehsildar, Pishin namely Mateeullah have also been heard. Record of the case maintained by the Investigation Officer during the course of investigation of the case was provided to the Court by the Tehsildar for perusal. 6. Syed Ayaz Zahoor contended that no incriminating material whatsoever could be collected against the accused nominated in the F.I.R. Connecting him with the commission of the alleged crime, rather; during the course of investigation and in the light of the evidence of witnesses including report submitted by the Patwari, countersigned by Naib Tehsildar Bandobast, the petitioner was found innocent, as the real culprit who had cultivated the poppy crops on the site/on a piece of unsettled land, responsible for the commission of the offence, after operation conducted for the destruction of the poppy crops made good his escape and shifted to unknown place, who was sent up for trial by means of incomplete challan submitted in the Court, whereas; accused nominated in the F.I.R. Was discharged under section 169, Cr.P.C. Therefore, in view of the material available with the Court, there was no legal justification for the learned trial Court, to have passed the impugned order which is wholly unwarranted, illegal and void nor the petitioner could have been ordered to be taken into custody to face the trial. Further the learned counsel submitted that as per report submitted by the Tehsildar, Pishin under section 173, Cr.P.C. The petitioner was found innocent, therefore, in absence of any incriminating material, the learned trial Court was not competent to have directed the Investigating Officer for submission of challan against the petitioner and to hold that sufficient evidence about the involvement of the accused is available on record, which virtually rendered the accused/petitioner incapable to move even for bail to the trial Court. He next contended that in view of the two consecutive reports submitted by the Tehsildar/Investigating Officer in response to the notice issued to him based upon the material collected during the course of investigation i.e, statement of witnesses recorded by the Investigating Officer under section 161, Cr.P.C. Inquiries made by him from the Naib Tehsildar, Pishin/first informant and the report of the Patwari; the petitioner was stated to have been found innocent with the categoric assertion based on such material that the real accused was Sado Khan son of Amir Muhammad alias Meerak Aaka and not the accused nominated in the F.I.R., therefore, in the light of the material available with trial Court, the petitioner could not have been ordered to be arrested and to face trial. According to the learned counsel in any case and without prejudice to his above urged grounds, the accused nominated in the F.I.R. (petitioner) at best could have been summoned to face the trial and secondly; the allegation against the accused made by the first informant at best was an information with regard to the commission of the alleged offence by which the machinery of the law was moved into action and was not by itself in the nature of an incriminating evidence, which during the process of investigation was not supported by any material, hence; the order impugned in this quashment petition is liable to be set aside. Lastly, the learned counsel submitted that in case the grounds urged by him do not find favour with this Court, the application filed on behalf of the petitioner for suspension of the impugned order may in the interest of justice be converted into application for bail and the petitioner in the given facts and circumstances of the case be admitted to bail pending disposal of the case. He placed reliance on the reported judgment i.e, 2002 SCMR 63, 1997 SCMR 304 and PLD 2001 Lah. 236. 7. The learned A.-G. Vehemently contested the grounds of arguments put forth on behalf of the petitioner by submitting that a positive and definite role was attributed/assigned to the accused (petitioner) nominated in the F.I.R., whose parentage was also mentioned in the report lodged by
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the Naib Tehsildar, who is supposed to be a responsible officer in the Tehsil, hence; the same cannot at this stage of proceedings, be lightly brushed aside. The plea taken by Tehsildar in his report and explanation submitted in the trial Court that he during the course of investigation made inquiries from the Naib Tehsildar, Pishin/first informant, wherein Naib Tehsildar disclosed to him that secret information with regard to the cultivation of poppy crops by accused Sado Khan was received, appears to be misconceived and without any substance for the simple reason that in the F.I.R. Even parentage of the accused was mentioned and secondly; no Zimni in respect of the stated inquiries from the first informant was maintained by the Investigating Officer nor any supplementary statement of the Naib Tehsildar, Pishin (Mateeullah) was recorded by the Investigating Officer, inasmuch as; he even did not record statement of the Halqa Patwari, Girdawar Halqa and the Naib Tehsildar Bandobast touching to the report submitted by the Patwari, Bandobast and countersigned by the Girdawar and Naib Tehsildar Bandobast. The learned pointed out that the Investigating Officer finding the accused nominated in the F.I.R. As innocent could not have based his opinion on the fact incorporated in the report of the Patwari that poppy crops were cultivated by accused Sado Khan son of Amir Muhammad without having examined the Patwari, Halqa Girdawar and Naib Tehsildar Bandobast under section 161. Cr.P.C. The learned A.-G. However; expressed serious reservations with regard to the conduct of investigation smacking deliberate and partial conduct of investigation by the Investigation Officer. He next submitted that as cognizance of the offence was taken, therefore, the learned trial Court appropriately and within its legitimate exercise of jurisdiction procured attendance of nominated accused under coercive process and by committing him to judicial custody to face trial of the offence. The learned A-.G. Maintained that the order impugned in this quashment petition is unexceptionable and for bail the petitioner can competently move to the trial Court. 8. The case investigation file maintained by the Tehsildar. Pishin/ Investigating Officer shows that on 11-5-2004 after registration of the case he along with Levies staff and A.D.A.O. Proceeded to the site on which the poppy crops were grown and prepared the site map. It was noted in the Zimni of even date that the accused Sado Khan had brought an area (not mentioned) under cultivation of poppy crops which was destroyed by him except a few plants taken into possession by the Investigating Officer vide inventory prepared by him in presence of Naib Rasaldar and Dafedar Levies namely Jahangir Shah and Khan Muhammad, whereas; in the sketch map prepared by the Patwari, the area on which the poppy crops was grown has been marked and shown as the unsettled piece of land. This document also bears the signature of the Girdawar Mouza Band- Malezai and that of the Naib Tehisldar, Bandobast. On the right side margin of the document, the same has been marked to the Reader by the Tehsildar/ Investigating Officer under his initials, dated 14-5-2004 by making endorsement; `to be kept on the file'. The dates inserted on this document below the signatures respectively inscribed by Patwari 'Bandobast' Girdawar and Naib Tehsildar `Bandobast' was, '17-5-2004', but subsequently; the dates so mentioned apparently by manipulation converted into the figure '13'. ' Below the above said sketch the Patwari Bandobast has made a report to the effect that in compliance with your order (Tehsildar) he along with Naib Tehsildar, Pishin inspected the site on which the poppy crops were cultivated as per pointation, was found to be unsettled land on which Sado Khan son of Amir Muhammad alias Meerak Aaka, caste Sulemankhel Tarkaye had cultivated poppy crops and; no entries in the Revenue Record in respect of such piece of land existed, as well as; on the said site no boring was found in existence. ' Apparently after manipulation of the date initially inscribed below the signatures of Patwari, Girdawar and Naib Tehsildar Settlement, the said document was marked to the Reader, by the Tehisildar on 14-5-2004. We; confronted the Tehsildar to the Zimni written by him on 11-5-2004
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which showed that he prepared the sketch on 11-5-2004 but the same was not available on the record made available to the Court to which no satisfactory answer was given by the Tehsildar, who simply stated that he had prepared the same in presence of the Naib Tehsildar and the Levies staff including A.D.A.O. Pishin, but such document is not available on the record maintained by him during course of investigation of the case. Presumably the sketch of the site may have reflected altogether a different picture of the site on which the poppy crops were found existing, therefore, such document was removed from the case investigation file and instead another sketch was got prepared pursuant the orders of the Tehsildar/Investigating Officer, in which a different site comprising part of unsettled land may have been shown as against the one on which the poppy crops was grown in order to extent maximum benefit to the nominated accused to escape from the legal punishment. ' The second Zimni, dated 11-5-2004 shows that after preparation of the sketch of the site, the Tehsildar destroyed the standing poppy crops except a few plants taken into possession with the direction to Halqa Patwari to verify in the light of the Revenue Record as to the recorded ownership of the piece of land on which the poppy crops were grown. The Zimni, dated 12-5-2004 written by the Investigating Officer shows that custodial remand of accused Sado was granted by the Judicial Magistrate, whereas; the Zimni, dated 14-5-2004 shows that report from Halqa Patwari was received and the same was kept on the file. It was specifically mentioned in the Zimni of even date that in the report submitted by the Patwari, it was pointed out that on the unsettled piece of land accused Sado Khan son of Amir Muhammad alias Meerak Aaka has cultivated poppy crops, hence; from this Zimni, it appears that the sketch containing report of the Patwari was prepared on 14-5-2004 or prior to it or that, as above discussed the same was prepared on 17-5-2004 as it reflects from the document, but subsequently; the date was converted into figure '13' instead of figure '17' quite apparent from the date initially inserted below the signatures by the Patwari, Girdawar Halqa and the Niab Tehsildar `Bandobast', and after that on 17-5-2004 or any other date, Zimni for the back date i.e, 14-5-2004 was written by the Tehisildar. It is astonishing to note that the petitioner was arrested. Initially on 11-5:2004 after registration of the case and as per report of the Patwari he inspected the site in presence of the Naib Tehsildar (Settlement), but the Investigating Officer did not record statement of either of them nor the statement of the A.D.A.O. Pishin was recorded under section 161, Cr.P.C., who as per Zimni, dated 11-5-2004 accompanied the Tehsildar Pishin to the site along with the Levies staff, where the Investigating Officer prepared the sketch of the site (not available on the record of the case, maintained by the Investigating Officer) as well as; the Tehisldar, Pishin on query by the Court admitted that he did not record the statement of the A.D.A.O., Pishin and the Naib Tehsildar, Pishin (first informant), who as per version of Investigation Officer as contained in his report filed in Court during course of investigation, on inquiry by Investigating Officer disclosed that secret information was received by him (Naib Tehsildar, Pishin) about the poppy cultivation having been made by accused Sado Khan. ' It has been pointed out in the report submitted by the Patwari to the Investigating Officer that on the site forming part of unsettled land, Sado Khan son of Amir Muhammad had cultivated poppy crops and this report was countersigned by Gridawar and Naib Tehsildar (Settlement). On such urged fact reliance has been made by the Investigating Officer who even did not record statement of either of the officials and the Naib Tehsildar (Settlement). The report to such effect was either based on the personal knowledge of the Patwari or some information received or gathered by the Patwari, therefore, before putting any reliance on such stated fact it was obligatory for the Investigating Officer to have recorded the statement of the Patwari under section 161, Cr.P.C. And to have further interrogated the Naib Tehsildar (first informant), who categorically alleged in his report registered by the Tehsildar that the poppy crops were grown by Sado Khan son of Din Muhammad, caste Sulemankhel (nominated accused), whereas; Zimni, dated 15-5-2004 shows
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that the Investigating Officer scrutinized the case file and Mateeullah, Naib Tehsildar (the first informant) appeared before him, who during summary interrogation quoted to have stated to the Investigating Officer that through the secret information name of the accused was disclosed to be Sado Khan Sulemankhel, resident of Dori Sulemankhel, as such, it was observed by the Investigating Officer in the said Zimni that because all the inhabitants of Dori Sulemankhel belong to Kakar tribe/caste, therefore, at the initial stage of the case, Sado Khan Kakar was nominated as the accused, whereas; in actuality father's name of accused Sado Khan is Amir Muhammad alias Meerak by caste Tarkaye, as he has come to know about it. Further it has been noted in the Zimni of the abovesaid date that in the meanwhile witness Allah Noor and Mehboob Khan have corroborated to the statement of the nominated accused, therefore, accused Sado Khan Kakar for want of evidence was discharged under section 169, Cr.P.0 on furnishing of P.R. Bond in the sum of Rs,50,000 and the request for issuance of arrest warrant of real accused Sado Khan is being made to the competent Court of law. This Zimni does not show that statements of witnesses Allah Noor and Mehboob Khan were recorded under section 161, Cr.P.C. On the said date, however; their statements are available on the file which too does not bear the date on which their statements were recorded. ' Mehboob Khan and Allah Noor in their statements have alleged that on a piece of waste land Sado Khan son of Amir Muhammad alias Meerak Aaka; caste Sulemankhel, Tarkaye, who resided in a tent near Killi Dori Sulemankhel had cultivated poppy crops, which was destroyed on 11-5-2004 by the Levies staff, but the Levies personnel arrested Sado Khan Kakar, who did not cultivate the same nor he was concerned in any manner with the crops or the land on which poppy crops were grown/cultivated. ' Also, photostat copies of sworn-inaffidavits of witnesses Mehboob Khan and Allah Noor besides one Muhammad Rasool and Dad Muhammad, dated 21-6-2004 are available on the record of the case made available to the Court by the Tehsildar wherein they have deposed that the piece of land on which the poppy crops were grown belongs to the State and that accused Sado Khan son of Din Muhammad employed as a worker in a hotel at Karachi. According to them the poppy crops were cultivated by one Sado Khan son of Meerak Aaka, caste Sulemankhel, who has now shifted to some other unknown place after the raid. None of the Zimnis maintained in the case i.e,, dated 11-5- 2004 (two Zimnis). 12-5-2004, 14-5-2004 and the last one, dated 22-6-2004 bear the fact regarding production of affidavits or as to how these documents have come on record nor the statements of deponents Muhammad Rasool and Dad Muhammad were recorded by the Tehsildar/Investigating Officer. The Naib Tehsildar, Pishin (first informant) when confronted by the Court in respect of the inquiry/interrogation subsequently made from him by the Investigating Officer, referred to above and the contents of report made by him; stated that report was lodged by him with the Tehsildar, Pishin, wherein he nominated accused with his parentage, on his personal knowledge and was not based upon any secret information. ' The Last Zimni, dated 22-6-2004 shows that pursuant to the memo; dated 19-6-2004 containing order of the Sessions Judge, Pishin he arrested nominated accused Sado Khan son of Din Muhammad and produced him before the Court in respect of whom supplementary challan, noted to be submitted in the Court within two days, and; thereafter supplementary challan against the nominated accused was submitted in the Court of learned Sessions Judge, Pishin. 9. Initially incomplete challan No,78 of 2004 was submitted against the absconder accused namely Sado Khan son of Amir Muhammad alias Meerak Aaka on 18-5-2004. After receipt of positive report in respect of the poppy plants from the Chemical Expert, FSL, Quetta supplementary challan was submitted before the Court by the Tehsildar, Pishin and lastly the second supplementary challan against accused nominated in the F.I.R. In compliance with the order of the learned trial Court was submitted by the Tehsildar, Pishin who in response to the notice, dated 31-5-2004 and the
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subsequent notice, dated 19-6-2004 submitted his explanation and report in the Court of learned Additional Sessions Judge, Pishin. In the former report it has been pointed out by the Investigating Officer that during course of investigation of the case report was called for from the Halqa Patwari and Naib Tehsildar Halqa Bandobast and in compliance with his direction the Patwari in his report, dated 13-5-2004 pointed out that as per pointation of the site, in the…
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