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Petitioner: TAJ DIN AND 2 Others VS Respondent: Sardar VAKIL KHAN AND 2 OTHERS-
Court Name: Lahore High Court Judge(s): Dr. Javed Iqbal Title: TAJ DIN AND 2 Others vs Sardar VAKIL KHAN AND 2 OTHERS- Case No.: Writ Petition No. 1530 of 1971 Date of Judgment:1972-06-27 Reported As: 1973 P Cr. L J 629 Result: Order accordingly
JUDGMENT
JUDGMENT The petitioners have filed Writ Petition No. 1530 of 1971 under Article 98 of the 1962-Constitution for the quashment of a portion of police investigation conducted against them Criminal Miscellaneous No. 78/Q of 1972 under section 561-A, Cr. P. C. For the quashment of criminal proceedings in the form of a complaint case filed by Shahab Din respondent under section 302/34, P. P. C. Against the petitioners pending at present in the Court of Mr. Jawad Ahmad, Magistrate 1st Class, Lahore and Criminal Miscellaneous No. 598/13 of 1972 under section 498, Cr. P. C. For the confirmation of pre- arrest bail already granted to them vide order dated the 24th of March 1972, of this Court. Since the aforementioned three petitions arise from the same facts, these are being taken up and disposed of together. 2. The facts are that Muhammad Nazir who was employed as a Mistri in the S. & T. Workshop, Ichhra, Lahore, belonging to the petitioners, started vomiting and fell unconscious within the premises of the aforesaid workshop at 12-00 noon on the 19th of February 1971. He was immediately taken to Ganga Ram Hospital in a taxi by Taj Din petitioner (one of the proprietors of the workshop) and one Pira, an employee. According to the report of Dr. Nasima Nisar, his condition was as follows "Patient came with definite history of taking chromic acid abort 20 minutes before he was brought to the Hospital. He was semiconscious at that time vomiting out bright red coloured blood. Respiration was very feeble cyonsis was present. B. P. 80/50 minute of pupils were widely dilated not responding to light. Tongue and the oral muscosa were white blanched. Tongue was swollen. Marked conjunctival congestion." He died in Ganga Ram Hospital at 1-30 p. m. On the same day due to Cardaic arrest and Respiratory Failure caused by Corrosive Acid Poisoning. Shahab Din respondent, father and
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Muhammad Bashir brother of Muhammad Nazir deceased reached the hospital in the meantime and took charge of the dead body of Muhammad Nazir. First Investigation 3. On the same date i.e. The 19th of February 1971, at 1-48 p.m, on the basis of the recorded statement Of Shahah Din respondent, Nazar Hussain, Muharrir A. S. I. At Police Station Ichhra, Lahore, made entry No. 25 in the daily diary to the effect that according to the statement of Shahab Din respondent, his son Muhammad Nazir worked as a moulding-mistri in the workshop of Taj Din and Muhammad Shafi petitioners. Shahab Din respondent received an information that while Muhammad Nazir was working, Sher Muhammad, Foreman, petitioner along with the proprietors of the factory asked him to remove a heavy chest and to take it inside. On his refusal to carry the said chest Muhammad Nazir was abused and beaten up by Sher Muhammad, Taj Din and Muhammad Shafi petitioners. Thereafter, at about 12-00 noon, while Muhammad Nazir was having his meals, he stood up and went to drink water but shortly after, he started vomiting. Shahab Din respondent subsequently learnt that Muhammad Nazir had drunk a glass of Chromium water in protest against the behaviour of these tyrants. He was taken to Ganga Ram Hospital in an unconscious state, but he expired on reaching there. On this report Ghulam Sarwar A. S. I. Police Station Ichhra, Lahore, investigated the matter under section 174, Cr. P. C. On the 19th of February 1971 and 20th of February 1972. He despatched the dead body of Muhammad Nazir for post-mortem examination on the 20th of February 1971. The post- mortem examination was conducted at 3-00 p. m. On the same day and the report is as follows: -- "The following injuries are present on the dead body :- (1) Abrasion -- ' x 1/8' left forearm out aspect upper'. (2) Abrasion --' x 1/8' near left wrist medial aspect. (3) Abrasion -- ' x --' right elbow inner aspect. All the injuries are simple, blunt, anti-mortem and inflicted few hours prior to death. Cause of death Chromium poison--ing." Four articles, namely, (1) one sealed bottle containing stomach and its contents (2) one sealed bottle containing small intestine and its contents ; (3) one sealed bottle containing pieces of liver, spleen and (4) on sealed bottle containing saline, were sent to the Chemical examiner for detection of poison. According to the Chemical Examiner's report (dated the 27th of February 1971) Achromium salt (highly poisoning) was detected in articles Nos. (1), (2) and (3) mentioned above. Ghulam Sarwar A. S. I. Also inspected the site and took into possession titan carrier of Muhammad Nazir deceased. He recorded the statements of Shahab Din respondent, father, Muhammad Bashir and Ibrahim brothers, Ghulam Muhammad brother-in-law of the deceased, the petitioners and about 17 employees of the aforementioned workshop. Second Investigation 4. However, on the 20th of February 1971, Shahab Din respondent and Muhammad Bashir filed an application before Deputy Martial Law Administrator, Lahore to the effect that the petitioner had forcibly put some sort of acid in the mouth of Muhammad Nazir deceased but the police investigating the case as well as the doctor who conducted the post-mortem examination had been bribed by the petitioners and that, therefore, proper action should be taken in the matter. It was further stated in this application that on the 14th of April 1970, another son of Shahab Din respondent, namely, Muhammad Munir who worked in the same factory was murdered by the petitioners, but they were made to believe that he had died of heart failure. This application was forwarded to the S. S. P., Lahore, who marked it to Muhammad Saleem Khan, S. H. O. Police Station Ichhra, Lahore. Consequently, on the 20th of February 1971, at 4-30 p. m. a case was registered under section 302, P. P. C. Against the petitioners on the basis of the statement of Shahab Din respon--dent recorded on the 19th of February 1971, at the same police station by Nazar Hussain
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Muharrir A. S. I. The formal F. I. R. According to Muhammad Saleem Khan, S. H. O. Under section 302, P. P. C. Against the petitioners, was recorded under the orders of the higher authorities. Muhammad Saleem Khan, S. H. O. Investigated the matter between the 20th of February 1971 and the 21st of February 1971. He also inspected the site (but did not get the site plan prepared), recorded the statements of the petitioners again, but included copies in his investigation file of the statements of the witnesses already recorded by Ghulam Sarwar A. S. I. Third Investigation 5. Before the investigation was completed by Muhammad Saleem Khan, S. H. O. Another application was moved on the 21st of February 1971, by Shahab Din respondent and Muhammad Bashir before the Martial Law authority and as a result under the orders of the S. S. P., Lahore, tie investigation of the case was transferred from Muhammad Saleem Khan, S. H. O. To Sher Ali, Inspector, Gowalmandi Police Station. Sher Ali Inspector was handed over the investigation at 3-55 p. m. On the 22nd of February 1971, and he conducted it uptill the 24th of April 1971. He inspected the site, recorded the statements of the petitioners as well as 34/35 employees of the workshop out of which the statements of Muhammad Boots. Muhammad Saleem and Muhammad Tufail, employees who had supported the suicide version were recorded separately under section 161, Cr. P. C. He also recorded the statements under section 161, Cr. P. C. Of Shahab Din respondent, Muhammad Bashir and Allah Ditta brothers of Muhammad Nazir deceased Mushtaq son of Jamal Din, Muhammad Sharif son of Balanda and Lal son of Khushi from the complainant side. But during this period on the 27th of February 1971, another application was filed by Muhammad Bashir brother of the deceased before the Martial Law authority for withdrawing the investigation from Sher Ali Inspector as he was not conducting it properly. As a result Ala-ud-Din, S. I. Crimes Branch was depute on the 3 of March 1971, to enquire as to whether or not Sher Ali Inspector was conducting the investigation properly. Ala-ud-Din S. I. Submitted his report on the 10th of March 1971, to the effect that Sher Ali Inspector was conducting the investiga--tion honestly and that there was no need of taking it over from him. In the meantime, on the 31st of March 1971, Shahab Din respondent filed complaint case under section 302/34, P. P. Ct against the petitioners. Thereupon the petitioners moved Criminal Miscellaneous No. 1055/B of 1971 on the 29th of April 1971, before this Court and were allowed interim bail before arrest by Muhammad Afzal Khan, Judge as the Sessions Judge had issued notice to the State on the pre-arrest bail application of the petitioners before him but had declined to grant interim bail. Subsequently, when the Sessions Judge rejected the bail applica--tion of the petitioners, the petitioners again moved this Court by way of Criminal Miscellaneous No. 1225/B of 1971. They were granted interim bail on the 17th of May 1971, by my learned brother Muhammad Afzal Cheema, J. Which was subsequently confirmed on the 7th of June 1971, by my learned brother Muhammad Munir Faruqui; J. On the 6th of May 1971, the petitioners also filed Criminal Miscellaneous No. 234/Q of 1971 under section 561-A, Cr. P. C. For the quashment of the complaint case under section 302/34, P. P. C. Against them but it was with--drawn on the 11th of January 1972, as no evidence had been recorded at the time of the filing of the aforesaid petition. However, the investigation was still being conducted by Sher Ali Inspector. He dug up the record of investigation relating to the death of Muhammad Munir another brother of the deceased who was said to have died of heart failure. Sher Ali Inspector also collected the investigation record pertaining to the death of one Mumtaz son of Ghazi Khan, a Pathan Chowkidar of the aforesaid factory, who was alleged to have died of Chromium poisoning on the 26th of December 1968. But Sher Ali Inspector could not complete the investigation, as according to him, the complainant party kept on taking time for producing an eye--witness who had actually seen the petitioners forcibly administering Chromium acid to Muhammad Nazir deceased.rd
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Fourth Investigation 6. It has already been pointed out that investigation of the case remained with Sher Ali inspector uptill the 24th of April 1971. But again at the instance of Shahab Din respondent, the investiga--tion was taken over from him and handed over to Ala-ud-Din, S. I. Crimes Branch. Ala-ud-Din, S. I. Retained the investigation record of this case from the 27th of April 1971 to the 12th of May 1971, but it appears that during this period he did not add anything more to it. Fifth Investigation 7. On the 15th of May 1971, Shahab Din respondent filed an application before the Governor for the transfer of investiga--tion, this application was marked to the Inspector-General of Police and 4s a result the investigation was again transferred from Ala-ud-Din, S. I. To Aftab Ali Khan, Inspector Crimes Branch.Aftab Ali Khan, Inspector investigated the matter from the 15th of May 971 to the 22nd of July 1971. He inspected the site and examined Shahab Din respondent, Allah Ditta and Muhammad Bashk sans of Shahab Din and brothers of Muhammad Nazir deceased, Muhammad Ashiq, Muhammad Sharif and Kala on the side of the complainant party. He also examined the petitioners. According to the record of the factory, as stated in the report dated the 5th of July 1971, of Aftab Ali Khan, Inspector, 31 employees were present on duty on the day of occurrence and 30 out of them joined investigation while the remaining one could not as he had left the job. Jut of these 30 employees, according to Aftab Ali Khan, Inspector, five had witnessed Muhammad Nazir deceased drinking Chromium water and not a single employee of the workshop examined by him supported the version of the complainant party. According to him, the allegation against the petitioners to the effect that a few days prior to his death Muhammad Nazir was compelled to mould stolen copper wire could not be proved. After completing investigation Aftab Ali Khan, Inspector concluded that the charge against the petitioners was false, Muhammad Nazir had committed suicide and the complainant party wanted to blackmail the petitioners in order to extort money from them. In his report dated the 5th of July 1971, he gave the following reasons for the cancellation of the case under section 302, P. P. C. Against the petitioners :--- "(1) Five eye-witnesses had seen' the deceased drinking Chromium Salt. (2) There were no marks of violence on the face and hands of the deceased. (3) If the deceased was forced to drink Chromium Salt, his clothes must have been torn out. (4) The statement of the complainant that after hearing the cries of his son (deceased) he went to his other sons to inform them. It is an unnatural thing that a father seeing his son being killed did not raise alarm to save his son but he went to far off places to convey this information. (5) P. W. Allah Ditta stated that when he reached Sir Ganga Ram Hospital, the deceased was saying that Taj, Shafi and Sher had forcibly given him Chromium Salt. His statement is not believable because according to the report of the Medical Officer of Ganga Ram Hospital, the deceased was unconscious and not answering questions. (6) P. W. Muhammad Sharif is the-real brother of one Ghulam Muhammad, son-in-law of the complainant. P. W. Kala's father is the real brother of one Hakim Ali, brother-in-law of the complainant. P. W. Ashiq is reported to be a fast friend of P. W. Allah Ditta son of friend of the com--plainant. They are interested persons and their evidence is not trustworthy. (7) There are material discrepancies in the, statements of the P. Ws. (8) The accused could easily select a suitable time to commit such an heinous offence, had they intended to do so. (9) No marks of violence were found on the body of the deceased. (10) Previously on the report of the proprietors of the work--shop, Mr., Muhammad Aslam Khan, Labour Officer, was arrested ad since, then the relations of the proprietors and Labour Officer were strained. The Labour Officer is instigating the complainant party to depose against the proprietors.
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(11) The allegation of the complainant that his other son Munir had also been killed by the proprietors, is absolutely false and baseless. As at the time of his death, he and his sons were fully satisfied about the cause of his death which was due to heart failure. (12) The defence version is fully supported by -so many independent and impartial witnesses." Sixth Investigation The above was the first complete investigation report made by an Investigating Officer in this matter. But since Chaudhury Muhammad Aslam Bajwa, D. S. P., Crimes Branch, disagreed with the conclusions arrived at by Aftab Ali Khan, Inspector and also the complainant party was not satisfied with it, be transferred the investigation to Muhammad Shafi Abbasi, S. I. Crimes Branch. Muhammad Shafi Abbasi, S. I. Then investigated the matter from the 16th of August 1971 to the 20th of January 1972. He inspected the site and got the site plan prepared. In addition to the witnesses of the complainant party already examined, he re --examined Shahab Din respondent, Allah Ditta and Muhammad Bashir his sons and brothers of Muhammad Nazir deceased, Mst. Zainab his wife and mother of Muhammad Nazir deceased, Muhammad Sharif, Muhammad Ashiq and Kala. He also examined the petitioners and further tried to collect evidence in respect of the death of Muhammad Munir another son of Shahab Din respondent but no evidence came forth by open or secret investigation. After conducting re-investigation he came to the following conclusions vide his report dated the 20th of January 1972:--- "(1) All the three accused, namely, Muhammad Shafi, Taj Din and Sher Muhammad may be sent up under section 302, P. P. C. As there are four independent eye-witnesses. They have not been rebutted by the defence evidence. Allah Ditta and Muhammad Bashir supported the version of their father in toto. (2) Mst. Zainab mother of the deceased deposed that her son prior to his death used to complain against the attitude and the behaviour of the owners of the factory. He also told her that the owners compelled him to mould the stolen copper wire. Munir also used to complain the same before her. Her both sons were murdered by the accused-party to conceal their nefarious activities. (3) Muhammad Ashiq, Muhammad Sharif and Kala eye--witnesses supported their previous statements made before our I. O. They laid accusation against Shafi, Taj and Sher accused. (4) According to the record of the factory thirty-one employees were present in the factory, on the day of occurrence. The I.O. Has examined 21 employees, namely, (1) Muhammad Ramzan, (2) Muhammad Tufail, (3) Muhammad Siddique, (4) . . . . . , (5) Muhammad Afzal, (6) Muhammad Amin, (7) Muhammad Sharif, (8) Muhammad Nazir son of Fateh Muhammad, (9) Muhammad Ishaque, (10) Muhammad Aslam, (11) Muhammad Latif, (12) Gul Zaman, (13) Muhammad Javed, (14) Fayyaz Ali, (15) Muhammad Zubair, (16) Faqir Muhammad, (17) Muhammad Anis, (18) Muhammad Zubair son of Muhammad Tufail, (19) Muhammad Zamir, (20) Ashfaq and (21) Allah Ditta. Muhammad Ashfaq, Muhammad Zubair, Muhammad Aslam, Muhammad Tufail and Zamir deposed that Nazir deceased took Chromium water in their presence. Ashfaq tried to snatch the container but was pushed back by the deceased. Rest of the employees deposed that they did not see the occurrence as it was lunch time and they were outside the factory. On return they went in the factory and heard that Nazir took Chromium water and was taken to the hospital. The, D. Ws. Are the employees of the accused-party and had been won over by them. (5). The Chromium Salt has been detected by the Chemical Examiner, in one of the parts of the Tiffen Carrier. (6) P. I. Has Also examined the file and opined that from the evidence-on-record and the final report of our I. O. Prima facie an offence under section 302, P. P. C. Is made out against the accused.
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(7) The complaint is pending in the Court against the accused and a few witnesses have been examined by the learned Magistrate, as verbally told by our I. O. The accused were granted bail before arrest by the Hon'ble High Court on 30 April 1971. Under such circumstances, a warrant for their arrest be applied for by the I. O. From the Court of Mr. Javed Mufti, M. I. C., Lahore. (8) If approved action may be taken as suggested by the I.O. And P. I. Although it is a very weak case yet permission may please be given to put up a challan against all the three accused under section 301, P. P. C." The report of Muhammad Shafi Abbasi, S. I. Was approved by the Inspector-General of Police on the 18th of March 1972, and it was finally decided to put up the challan against the, petitioners under section 302, P. P. C. (9) While the investigation was still with Muhammad Shah Abbasi, S. I. The petitioners filed Writ Petition No. 1530/71 on the 21st of December 1971 under Article 98 of the 1952-Constitution for the quashment of the investigation being conducted by Muhammad Shafi Abbasi, S. I. It was admitted for hearing by this Court on the 11 of January 1972 and by my order dated the 27th of March 1972 the respondents were restrained from putting up the challan against the petitioners in the Court of Mr. Jawad Ahmad, Magistrate 1st Class, Lahore, who had already taken cognizance of the complaint case under section 302/34, P. P. C. Against the petitioners. 10. In the meantime, since the statements of Shahab Din respondent, Muhammad Ashiq, Muhammad Sharif and Kala P. Ws. Had already been recorded in the complaint case against the petitioners, by Mr. Jawad Ahmad, Magistrate 1st Class, Lahore, the petitioners filed Criminal Miscellaneous No. 78/Q of 1972 on the 17th of February 1972, under section 561-A, Cr. P. C. For the quashment of1he proceedings before him on the ground that the recorded statements of the aforementioned P. Ws. Were incon--sistent with their statements made from time to time before the Police Investigating Officer. The aforesaid petition was admitted for hearing by this Court on the 21st of February 1972, and by my order dated the 28th of March 1972, the record of the case pending in the Court of Mr. Jawad Ahmad. Magistrate 1 Class, Lahore, was summoned. 11. It has already been noted that the petitioners were granted pre-arrest bail in the complaint case against them by order of this Court dated the 7th of June 1971, in Criminal Miscellaneous No. 1225/B of 1971. But at this stage, since investigation had been completed against them and the challan was about to be put up, the petitioners apprehending arrest in the challan case filed Criminal Miscellaneous No. 598/B-72 under section 498, Cr. P. C. For the grant of bail before arrest. They were allowed interim bail by order of this Court dated the 24th of March 1972. With this background the aforementioned three petitions may now be considered. Writ Petition No. 1330/1971 12. The contention is this peon in substance is that Aftab Ali Khan. Inspector in his report had arrived at the con--clusion that Muhammad Nazir deceased had committed suicide and that the case against the petitioners under section 302, P. P.C, should be cancelled. Nevertheless, the S. S. P., Lahore, in a mala fide manner deputed Muhammad Shafi Abbasi S. I. (An officer of lower rank than Aftab Ali Khan, Inspector) to conduct re-investigation against the petitioners. It is submitted on their behalf by learned counsel that the allegations against the petitioners had been investigated and re-investigated five times by five different investigating Officers over a period of almost one year and the final conclusion arrived at by Aftab Ali Khan Inspector was to the effect that the petitioners were innocent. But since S. S. P., Lahore, wanted the petitioners to make a statement against Sher Ali; Inspector of Gowalmandi Police Station, to which they did not accede, the S. S. P., Lahore instead of approving the report of Aftab Ali Khan. Inspector; deputed Muhammad Shafi Abbasi, S. I. To re-investigate the matter against them. It is, therefore, urged that the investigation conducted against the petitioners for the sixth time and the conclusion arrived at by Muhammad Shaft Abbasi S. I. Should be quashed on the ground not only that this investigation had beenth th st
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conducted in a hula fide manner but also that the respondents with male fide intention proposed to put up the challan against the petitioners only on the basis of the sixth investigation concluded by Muhammad Shafi Abbasi S. I. It is further urged that a mala fide act is by its nature an act without jurisdiction. It is also sub--mitted that in all the previous five investigations conducted against the petitioners, at no stage did the respondents submit a report to the Magistrate as required under section 173, Cr. P. C. And that, therefore, putting up of the challan against the petitioners now on the basis of the sixth investigation concludes by Muhammad Shaft Abbasi S. I. Was beyond the jurisdiction of Investigating Agency. 13. There are three questions which require determination in this petition and these are :- (i) Whether this Court under Article 98 of the 1962-Constitution has power to quash police investigation or part thereof into a criminal offence ; (ii) Whether the sixth investigation concluded, by Muhammad Shafi Abbasi S. I. Against the petitioners had been conducted in a male fide manner and further the proposal on the part of the respondents of putting up challan against the petitioners only on the basis of the sixth investigation was motivated by a mala fide intention; and (iii) Whether non-observance of the requirements of section 173, Cr. P. C. For almost one year by the Investigating Officers in the instant case would have the effect of making entire investigation conducted so far, as beyond the jurisdiction of Investigating Agency. 14. As regards the first question, it is an established rule that this Court has no power under section 561-A, Cr. P. C. To interfere with police investigation into a criminal offence. The reason for it has been clearly stated in Emperor v. Khawaja Nazir Ahmad (AIR 1945 PQ 18) as follows: --- "Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not…
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