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Petitioner: AKHTAR ALI VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Muhammad Afzal Cheema Title: AKHTAR ALI vs The STATE Case No.: Criminal Appeal No. 321 of 1965 Date of Judgment:1972-04-10 Reported As: 1972 P Cr. L J 1034 Result: Appeal accepted
JUDGMENT
JUDGMENT Criminal Appeals Nos. 321 and 366 to 369 of 1965, filed by Akhtar Ali appellant and Criminal Appeal No. 323 of 1965, filed by Muhammad Akbar appellant, are connected matters having been directed against separate judgments of the Special Judge (Central), Lahore, all dated the 30th of April 1965 in several different cases arising out of the same initial report lodged by Muhammad Farooq, Inspector of Enforcement Staff, at Police Station City Gujranwala, against the two appellants for offences under sections 465, 466, 468, 471 and 470, Pakistan Penal Code. The convictions and sentences recorded in these cases are detailed as under:-- Akhtar Ali appellant: Cr. A. No. 321/65 Under sections 420 and 468/34, P. P. C. (Spl. Case No. 253/64) and section 5 (2) of the Prevention of Corruption Act. One year's R. I. under each of the three counts in addition to a fine of Rs. 2,000 under section 420, P. P. C. or in default further R. I. for eighteen months. Pakistan Criminal Law Journal, [Vol. V i The substantive sentences to run concurrently . Under section 466, P. P. C. One year's R. I. and a Site of Rs. 2,000 or in default further one year's R. I. Under sections 420 and 468, P. P. C. and section 5 (2) of the Prevention of Corruption Act. One year's R. I. under each of the three in addition to a fine of Rs. 2,000 under section 420, P. P. C. or in default of payment of fine further one year's R. I. The substantive sentences to run concurrently. Under sections 420 and 468, P. P. C. and section 5 (2) of the Prevention of Corruption Act. One year's R. I. under each of the three counts, in addition to a fine of Rs. 2,000 under section 420, P.
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P. C. or in default of payment of fine further one year's R. I. The substantive sentences to run concurrently. Under sections 420 and 468, P. P. C. and section 5 (2) of the Prevention of Corruption Act. One year's R.I. under each of the three counts, in addition to a fine of Rs. 2,000 under section 420, P. P. C. or in default of payment of fine further one year's R. I. The substantive sentences to run concurrently. Muhammad Akbar appellant : Cr. A. 323/65. Under sections 420 and 468, P. P. C. (Spl. Case 253/64). and section 5 (2) of the Prevention of Corruption Act. One year's R. 1. under each of the three counts in addition to a fine of Rs. 2,000 under section 420, P. P. C. or in default of payment of fine further R. I. for eighteen months. The substantive sentences to run concurrently. It appears that the appellants had adopted a universal pattern or modus operandi in extracting money from different members of the public by supplying them fc rged and spare copies of certain orders purporting to have been passed by the claims officers accepting claims of different claimants who appeared as prosecution witnesses in these cases. On the basis of these forged orders, the claimants succeeded in procuring compensation books. Subsequently however, it was in the course of investigation of F, I. R. No. 247 of 1961 pertaining to Old Anarkali Police Station, Lahore, that all the frauds and forgeries committed by the appellants were brought to light, whereupon the case was formally registered against them resulting in different challans leading to separate trials which culminated in the conviction of the appellants. < 2. Briefly stated, the modus operandi resorted to by the appellants in almost all these cases was that Muhammad Akbar, Upper Division Clerk, appellant in Criminal Appeal No. 323 of 1965, some time in the year 1960, somehow managed to get into touch with the claimant taking him to Akhtar Ali appellant, a lower Division Clerk in the Claims section of the Central Record Office, would offer to get the claim sanctioned on promise of a certain amount of money on receipt of which signatures or thumb-impressions of the claimant would be obtained on certain papers with the declared object of filing an appeal. It appears that in almost all cases orders of rejection of the claims by the Claims Officers were converted into orders of acceptance or partial acceptance of the claims. The dates mentioned in the official record, however, remained unaltered. 3. Learned counsel for the appellants have contended before me: (a) That the entire proceedings stood vitiated for the reason that the investigation was not held by a competent police officer ; (b) that no sanction for the prosecution of the appellants had been obtained from the appointing authority; and (c) that the status of the complainants in different cases who had figured as principal witnesses therein, was, in no way, better than that of an accomplice, and as such no reliance could be placed on their testimony without independent corroboration. It was argued that even in cases where some sort of corroboration was available to the prosecution, it was wholly inadequate, to satisfy the legal requirements in terms of section 114 of the Evidence Act, which insisted on corroboration of the statement of an accomplice on all material particulars. 4. In support of the first contention, learned counsel for the appellants relied on Mst. Mumtaz Begum and 4 others v. The State (1). As regards the second point, learned counsel contended that the prosecution had apparently proceeded on the assumption that as the appellants had already been dismissed from service before the commencement of the prosecution, no such sanction was necessary. It was argued that this presumption had no basis on the record and in order to dispense with the sanction for prosecution, the prosecution must have established by positive
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evidence the fact of the dismissal of the appellants or their removal from service as the case may be. In the absence of any such evidence, the sanction could not have been dispensed with. Reliance is placed in this regard on [23] Muhammad Baharuddin Sarkar v. The State (1); Shaikh Anwar Ali v. The Crown (2) and Manzoor Elahi v. The State (3). In support of the last contention, leamed counsel have argued firstly that, in all probability, the claimants in each case had filed bogus claims which were not pursued in view of Martial Law Regulation No. 49, which came into force on the 28th of December 1958, wherein it became clear that the Government was going to deal with cases of bogus claims with a heavy hand. Otherwise it does not stand to reason that a claimant having preferred a claim for an amount of Rs. 50,000 or a little less or more should have conveniently chosen not to press it on the pretext of his illness or other pre-occupations. It is argued that if the claimants had come with clean hands they would have straightaway filed appeals before the Deputy Claims Commissioner through counsel but instead of doing that they established contact with the appellants and tried to use underhand methods for seeking verification of bogus claims. It is argued that from the very fact that the claimants in each case instead of engaging a counsel readily yielded to the temptation of paying considerable amounts to the appellants on promise of getting their claims verified would lead to the irresistible conclusion that they were fully conscious of the offers having been made and accepted in the nature of illegal gratifications. In the circumstances, therefore, it cannot be stated with any amount of reasonable certainty that the claimants had been hoodwinked into a false belief but on the contrary had actively connived at the forgeries etc. and as such were no better than accomplices of the offences. In Criminal Appeal No. 366 of 1965 Fazal Muhammad P. W. 9 had made a clean breast in the examination- in-chief that he had offered the money as illegal gratification and as such there could be hardly any doubt that there was an accomplice and a bribe-giver whose statement could be presumed to be tainted and could not be accepted in the absence of corroboration in all material particulars. Regarding tainted nature of the evidence of an accomplice and the initial presumption of its being unworthy of credit except in the event of corroboration of testimony of all material particulars as' envisaged by Illustration (e) to section 114 of the Evidence Act learned counsel rely on Noor Muhammad v. The State (4) and Sultan Ali v. The State (5) wherein their Lordships have clearly held that the evidence of a bribe-giver has to be scanned with care and caution. The learned counsel also relied on Abdul Hadi v. The Crown (6) and Saeed-ud-Din and 2 others v. The State (7). 5. Learned counsel for Muhammad Akbar appellant in Criminal Appeal No. 323 of 1965 connected with Criminal Appeal No. 321 of 1965, contended that from the statement of (2) PLD 1950 Dacca 7 (4) PLD 1963 SC 38 (6) 1969 SCMR 843 Munir Ahmad, Upper Division-Clerk P. W. 2, it was abundantly clear that certified copies or orders were issued under his own signatures and that the copies of orders in question had also been so issued, lt is argued that the explanation offered by him without having seen the initials of Muhammad Akbar on each one of these documents he did not care to personally verify on account of rush of work, did not hold water and as such he could not escape the responsibility of these forgeries and was, in all probability, a privy to all the shady deals if at all they were committed. It is argued that in the circumstances, therefore, when the principal accused has been let off presumably having accepted the offer of the prosecution to become a witness, Muhammad Akbar appellant could not be held responsible for the alleged forgeries. Reliance is placed on Ghulam Abbas v. The State (1). It is next contended that admittedly nothing was paid to Muhammad Akbar by any of the claimants, the money having been invariably allegedly paid to and received by his co-accused Akhtar Ali. As such his conviction under section 420/468, P. P. C.
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and section 5 (2) of the Prevention of Corruption Act was wholly unwarranted. Reliance is placed in this regard on Muhammad Bachai v. The State (2) and Sultan Ali v. The State. 6. On the other hand, in reply to the arguments advanced in support of the first contention that the investigation was conducted by the Inspector without an order of the Magistrate, it is contended on behalf of the State that this was not a point which could be construed as fatal to the prosecution particularly when no prejudice was found to have been caused to the accused personally. Reliance in this regard is placed on the Crown v. Mehr Ali (3) and Jainullah v. The State (4). As regards the contention that no sanction for prosecution had been obtained before the accused were brought to trial in these cases, learned counsel contends that the appellants had themselves admitted in the grounds of appeal that they had been dismissed from service before the commencement of the trial and as such no sanction was called for in the circumstances. Reliance is placed in this regard on S. A. Venkataraman v. The State (5). On the question as to whether the>, claimants had voluntarily parted with considerable amounts when promise of the verification of their claims were held out by the appellants, it is contended that no material is available on the record to justify the inference that the claimants were party to these shady deals or offering amounts by way of illegal gratification. It is argued that the other P. Ws. have not been adequately cross-examined on the point. Having carefully considered the contentions raised by the learned counsel for the parties, I am clearly of the view that the convictions cannot be allowed to stand for two reasons, [24] firstly having regard to the background of the cases, I cannot, avoid an impression that the claimants being scared away of Martial Law Regulation No. 49 had chosen not to press their claims which would have been mostly inflated if not altogether bogus but, assuming that at least some of them were inevitably prevented by circumstances beyond their control to pursue their cases diligently, eyen the most ignorant rustic knows any extraneous suggestion that to file an appeal he should engage a counsel unless he wants to do it independently yet instead of having recourse to that normal and legitimate procedure they contacted the appellants or fell victims to their allurement but even if one were to proceed on the assumption that they were innocently lured away by the appellants it is difficult to believe that they are quite ignorant of the fact that they were advancing the amounts by way of illegal gratification, in fact, as stated earlier, Fazal Muhammad P. W. 9 in Criminal Appeal No. 366/1965 had frankly conceded that position. However, despite the protestation of the other claimant prosecution witnesses to the contrary I am plearly of the view that they had deliberately paid the amount'as illegal gratification with their eyes open considering this modus operandi as a short cut to and a sure passport to success and as such they ranked no better than accomplices whose testimony could not be accepted without corroboration in material particulars as envisaged by illustration (b) to section 114 of the Evidence Act. This position is fully borne out by the authorities relited upon by the learned counsel for the appellant. Learned counsel for the State could not point out any circumstance or other piece of incriminating evidence which could serve the purpose of corroboration. The second ground which too appears important and equally weighty, is the fact that the certified copies of the forged orders found to be bogus were invariably issued under the signatures of Munir Ahmad, Upper Division Clerk who appeared as a prosecution witness in all the cases and admitted his signatures on them. The explanation offered by him was that owing to rush of work he did not personally care to verify the position and in good faith placing reliance on the initials of Muhammad Akbar appellant signed all the copies of the order*. Without causing any aspertion on the integrity of this official one cannot brush aside the contention raised on behalf of the appellant that he too could possibly be a party to such racket and the plea of rush of work and innocent carelessness on his part may not necessarily be true. Once that position was conceded then he being a senior official in the hierarchy was one of the principal accused to be hauled up along with
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the appellants who alone were made the scapegoats, but even if this additional point were excluded from consideration the fact that there had been no corroboration of the testimony of the claimant witnesses in these cases who had been characterised as accomplices the conviction would be defective and could not stand. The other contention raised on behalf of the appellants on the point of investigation by' an incompetent officer for want of sanction has apparently no force. The appellants had admittedly been discharged from service before the commencement of the trial and as such had ceased to be public servants by obviating the necessity of sanction for prosecution nor, for that matter, did the prosecution by an incompetent officer affect the jurisdiction of the trial Court for the alleged incompetence in itself is open to serious doubt. However, in view of the conclusions arrived at by me in the earlier part of the discussion, these points lose much of their relevancy ..and force. For all these reasons, I allow the appeals, set aside the convictions and the sentences of the appellants who have already suffered owing to pendency of the appeals for eight long years in- addition to the. agony and expenses of the trial and their dismissal froth service into the bargain. Appeals allowed. 1972 P Cr, L J 1041 [Lahore] Before Muhammad Afzal.Zullah and Javid Iqbal, JJ ABDULLAH--Appellant versus The STATE--Respondent Criminal Appeal No. 857 of 1967, decided on 13th December 1971. Penal Code (XL V of 18615), Ss. JS02 & 84 read with Evidence A el (7 of1872), S. l05,Ulus, {a)--Insanity --Barden ofproof--Murder committed by? person alleged to be of unsound" mind--Question whether accused succeeded in establishing defence of insanity and discharged burden of proof as required by S. 105,Evidence Act, 1872-- Law discussed'*-* Criminal Procedure Code (V of 1898), S. 466. A person rose early one morning with a severe pain in his stomach and asked his wife to give him a pill to relieve the pain. The wife replied that she did not have the pill but she would get it for him after sunrise. This reply incensed him and he inflicted injuries oil ;I t face and head of his.. 'wife with a toka. The wife died instantaneously. : He' was tried under section 302, P. P. C. for committing the murder of his wife. At the trial an application under section 466, Cr. P, C. was. moved to the effect that the accused was .a man of unsound mind and was incapable of conducting his defence. He was', consequently examined by' Mental;Specialists and the diagnosis revealed that he was a victim of schizophrenia. The. accused, however, was ultimately convicted under section 30244'. P. 45. in appeal before the High Court it ; was admitted that the accused did cause injuries to the deceased but it was pleaded that the act of .the accused was not premeditated and was committed without any motive, without any accomplice and without any concealment. Since he was a victim of schizophrenia, it was pleaded that his case was covered by the exceptions mentioned in section 84, P. P. C. On behalf of the State it was urged that the medical and legal standards of insanity are not identical and from the legal standpoint a person must be regarded as sane and responsible for his acts so long as he understood that his act was wrong or contrary to law. Under the legal concept of insanity, it was argued, it must be positively proved that at the time of committing the act the accused was suffering from such disease of the mind as not to know the nature of his act. Under the legal concept of insanity, it was urged, the morbidity of temper or eccentricities of behaviour resulting in abnormality would not constitute insanity as contemplated under section 84, P. P. C. On the question of distinction between legal insanity and medical insanity and as regards the burden of proof (as required under section 105, Evidence Act) of accused's entitlement to the benefit of exception under section 84, P. P. C. the
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Division Bench held as follows :-- Per Jarid Iqbal, J. (writing leading judgment)-- Unless the contrary is proved, the law picaumes everyone to be of 'sound mind' and responsible for his acts, .veil if a person afflicted by fits of insanity, has lucid intervals, the Jaw presumes that he committed the offence in a lucid interval. Consequently, when the plea of insanity is set up the burden is on the accused to prove that he was not criminally responsible for the act because of his 'unsoundnesS of mind'. Hence, in order to make it easier to appreciate the evidence bearing on the point of 'unsoundnesS of mind' of the accused, not only the consideration of the testimony of the medical expert as to his mental state is necessary but also the specification of the type of mental disorder, for mental disorders have now been well classified and their characteristics or features described in numerous medical textbooks. Ip. 1059)^4 Schizophrenia, literally translated, means 'splitting of the mind'. It is not possible to look inside the mind, hence all conclusions concerning its operation are based on observation of what the person says and does, these being 1he resultants of his mental activity. In this category must be included the activities of the involuntary muscles and glands which cooperate in every activity of the body and play an especially prominent role in such as are accompanied by motion.............. The features in the behaviour that have led to this concept are the apparent lack of harmony between the component parts of the reaction and between this as a whole and the situation that seemingly called it forth. The words uttered, for instance, do not correspond with the emotion expressed by the face and the attitude of the body ; or the acts performed with arms and legs are out of keeping with the thought as expressed in words. The observer is thus struck by the incongruity between what is said or done and the actual situation under which these are performed..................... We observe him smile, fly into a rage or make some cryptic remark when there is apparently nothing to justify these reactions. Schizophrenic reactions are of exactly similar kind, with, in addition, the fact that the man himself is apparently unaware of the motive for the inappropriate features and is at a loss to explain them. It then appears as if the motivating force is in some way anthus, as it were 'split off' from the conscious mind........... From wbat has been said, it is clear that schizophrenic reaction tendencies are, at least in part, inherited and therefore liable to be manifested at an early age............. It is also quite possible that disease and exhausting conditions of various kinds may cause diminution in the vital vigour or energy of a man originally well endowed and thus lead to acquired inefficiencies in reaction similar to those that are inherent. It is therefore obvious that wide variation in the age at which the characteristic features of schizophrenia become noticeable is possible..................... First, it should be said that the intellectual mechanism remains undamaged, though this is not always easy of demonstration because the patient is more or less inaccessible to study and examination. The difficulty is iucreased by the fact that absorption in the dream world, which we found characteristic of the schizophrenic personality, is here exaggerated to such a degree that the real world may be entirely ignored and the man may fail to use his powers of perception and grasp. In consequence, he establishes only scanty and haphazard memories of what transpires around him and may thus seem to have lost his memory. Under tire conditions of stress, whatever their nature, that lead to the psychosis, there is a demand for the expression of feelings and instinctive cravings exactly similar to those of persons of a more frank and open personality. Frank expression being contrary to the habits of reaction, "there results an increase of mental splitting and symbolization.................... Often at first this takes
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the form of a belief in something vaguely wrong with him and. iq consequence, there arises a state of hypochondriac depression appearances may arise. The thoughts and feelings that come in spite of himself are regarded by the sufferer as unwelcome intruders, not his own, but introduced from without. He concludes that he is being influenced by others who can in some way control his mind and acts, and perhaps also read his thoughts. ............... From this starting point, the patient begins to watch persons around for evidence of interference and is liable to refer to himself (ideas of reference) any little gestures or chance remarks in his surroundings which could, by any stretch of imagination, be interpreted as comments on himself. From this, it is but a small step to the development of hallucinations. The strange thoughts become so vivid that they are heard as voices qnd the expectation of comments from bystanders becomes an actual hearing of them, though as a fact they have not been uttered. The content of the hallucinations is usually unpleasant ; comments, invectives, sneers and suggestions referring more or less openly to the repressed desires, or perhaps expressed only in the form of symbols that the man has adopted in his own mind for dealing with the complexes that have been dissociated. Tn addition to the hallucinations of hearing, others connected with sensations from the body organs are also frequent. His stomach or intestines are heing manipulated and ill-treated, his sexual organs mutilated, etc. [p. 1060)3 The second principle, namely, the burden of proving (as required under section "05 of the Evidence Act) that the accused is entitled to the benefit of the Exception under section 84, P. P. C. is on him, it is based on the consideration of two questions: (a) what is the measure of the burden of proof, and (b) has the accused discharged the burden in the light of the facts of his case? When the plea of insanity as contemplated in section 84, P. P. C. is raised, the following principles of law can be deduced : (/) That legal insanity as contemplated in section 84, P. P. C. is not identical with medical insanity. However, when the latter is proved it reacts on the former. Therefore in order…
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