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Petitioner: FAKIR MUHAMMAD VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Z. A. Channa Title: FAKIR MUHAMMAD vs THE STATE Case No.: Criminal Appeal No, 223 of 1976 and Cr. S. M. Rev. No, 98 of 1977 Date of Judgment:1977-04-17 Reported As: 1978 P Cr. L J 520 Result: Order accordingly
JUDGMENT
JUDGMENT ' Appellant Fakir Muhammad, who is a cultivator by profession, was treated by the learned 3rd Additional Sessions Judge, Sukkur, on a charge under section 301, P. P. C. For allegedly committing the murder of one Mitho. He was, however, convicted by the learned trial Court for an offence under section 325, P. P. C., and was sentenced to 5 years' R. I. And also to pay a fine of Rs, 1,000 in default of the payment whereof, he was to undergo further R. I. For 6 months. The appellant, by this appeal, has impugned his conviction and sentence. A suo motu notice was also issued to the appellant to show cause why the sentence imposed on him by the learned Additional Sessions Judge be not enhanced. This judgment will dispose of both the appeal and the suo motu show-cause notice. 2. The prosecution case, shortly stated, is that on 6-11-1974, at about 11.30 a.m, first informant Haji Bahawal, who is the real uncle of the deceased, lodged a report at Mirpur Mathelo Police Station, which is at a distance of about 18 miles from the scene of offence, to the effect that on the preceding night, his nephew, deceased Mitho, had gone to Dhol) Mehar village, from where he did not return, and on the following morning, at 'Fakir' prayer time, be was informed at his house by one Kaboolo that Mitt was lying senseless in an uncultivated field, at a distance of 3 to 4 furlongs from the village whereupon he (first informant Haji Bahawal) accompanied by his nephews. Allah Rakhio and Azeem, went to the scene of offence, where they found Mitho lying injured, who then is said to have recovered consciousness, and informed them that while he was returning to his village, at about dawn time, he was given blows by Fakir Mohammad Mehar and other Mehars. The first information report does not mention the nature of the weapons with which the deceased was attacked. The deceased, who had been brought to the police station in a bullock-cart, in an unconscious state, was sent to the Civil Hospital Sukkur, but he died on the way to the hospital.
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3. The p post-mortem of the deceased was held on 7-11-1974, which disclosed 5 external injuries on the deceased, 4 of which were contusions and 1 was an abraded contusion. On internal examination, multiple fractures were noticed on the left side of the frontal bone with a suture between the frontal and parietal bone separated. There were also fractures of the left temporal bone, the right temporal bone and second rib. A subcutaneous haematoma was also noticed under the scalp of the deceased extending from the frontal region to the occipital region and left temporal region. 4. The appellant is said to have been arrested on 13.11-1974 from his house and he is alleged to have produced a 'Lathe before the Police, which however, was not blood-stained. On the following day, namely 14-11-1974, the appellant was produced before the Sub-Dvisional Magistrate, Mirpur Mathelo, who recorded his judicial confession on the same day at 2-00 p.m. 5. The defence of the appellant is of complete denial. He claims that he has been falsely implicated and alleged that he had made the confession under pressure as the police had sent for his women-folk and threatened to disgrace them. 6. At the outset, it might be stated that no specific motive has been alleged for the appellant to have committed this crime, but it has been alleged by P. W. Allah Rakhio that there was a dispute between the appellant and the deceased over water. No other witness, however, has spoken of this or any other motive for the crime. 7. The learned trial Court has based the conviction of the appellant on two pieces of evidence, namely:- (a) the dying declaration allegedly made to P. W. Haji Bahawal, Allah Rakhio and Azeem at the scene of offence, and (b) the judicial confession recorded by the learned A. D. M., Mirpur Mathelo, on 14-11-1974. 8. As to the dying declaration, I find myself unable to accept the same. It has been admitted in the F. I. R. That Kaboolo, who had informed Haji Bahawal and others about Mitho lying injured in the fields had clearly tated to the witnesses that he had found Mitho lying unconscious. It is, also admitted by the witnesses that immediately after Mitho made the alleged dying declaration he lost consciousness and did not regain the same before he succumbed to his injuries. It is improbable, in view of the above circumstances and looking to the seriousness of the injuries sustained by him, that the deceased could have regained consciousness and that too only for the short period during which the witnesses were present with him and communicated to them the name of the appellant. There are other circum stances which throw doubt on the alleged dying declaration. According to the first information report, Mitho is said to have informed the complainant and other witnesses that he was given blows by the appellant and other Mehars. However, both Haji Bahawal and Azeem have deposed in their evidence that Mitho gave out that only the appellant had given him blows. So far as the P. W. Allah Rakhio is concerned, he has denied that the deceased made any dying declaration in his presence. According to him, first informant Haji Bahawal had gone to the scene of offence before his arrival there and it was he who had told him and P. W. Azeem that the deceased had regained consoiousness and had informed him that the appellant had given him the blows. The first information report, as already stated, does not mention with what weapon the deceased was attacked and given blows. If the deceased had really regained consciousness, as alleged by Haji Bahawal and Azeem, in all probability he also would have mentioned the weapon with which he was given blows. It might further be mentioned that even Kaboolo has only partially supported the prosecution case. Although he has deposed that he had seen the deceased lying injured and in an unconscious state in the field and gone to the village of the complainant to inform the complainant or Azeem but had given the information to one Kaloo Mehar who was sleeping outside the house of Haji Bahawal. This witness was declared hostile and hence his evidence is of no material assistance to the prosecution.
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9. So far as the judicial confession of the appellant is concerned, it was retracted by the appellant at the earliest opportunity. His contention that he made it under pressure as the police had sent for his women-folk, evidently in order to disgrace them, is supported by P. W. Allah Rakhio and Kaboolo. No doubt, Kaboolo has been declared hostile on the allegation that he has been won over by the appellant and has therefore given obliging evidence, but P. W. Allah Rakhio was not declared hostile, and therefore, his evidence on this point has practically gone unchallenged. There is another circumstance which throws doubt on the confession. Although S. H. O. Ohulam Hussain In his examination-in-chief has stated that he arrested the appellant on 13-11-1974 and produced him on the following day, he has admitted in his cross-examination that he d arrested the appellant on the third day of the incident. This would can that the appellant was arrested on the 8th and he was thus produced or confession some 6 days later. No explanation is forthcoming why he appellant took such a long time to make a confession, if he was ready d willing on the very first day to make a confession, as would appear from he Mashlrnama of the production of 'Lathi' by him. The probabilities appear o be that the appellant was arrested soon after the incident, or at least n the third day of the incident, as admitted by the S. H. O. For there is no llegation that the appellant was absconding or was not available at his ouse. Another defect which has been noticed in the judicial confession is hat though the learned Magistrate has admitted in his evidence that he I not question the appellant as to why he was making the confession, In he certificate which the learned Magistrate has recorded, he had stated hat the appellant had informed him that he was making the confession ue to repentence. Finally, the confession does not appear to quite fit in ith the other evidence on record. According to the confession, the appelant and the deceased had grappled with each other and when the appellant ave 'Lathi' blows to the deceased, the latter raised cries. However, neither ny marks of injury or violence were noticed on the appellant, nor any Mien of the locality was attracted on the alleged cries of the deceased despite e fact that the scene of offence, as stated by the Tapedar, is visible both om the house of Isso Korai, which is only 960 feet away from it, and the Ilage of the complainant, which is 1750 feet away. In the circumstances, am not satisfied that the confession was either voluntary or true. It thus annot be made the basis of the conviction of the appellant. 10. In view of the matter that I have taken, I would give the benefit of oubt to the appellant, accept his appeal and set aside his conviction and entente. He is directed to be forthwith released if not required in any other . The suo motu notice for enhancement of sentence stands discharged. 11. S. H. O. Ghulam Hussain has made contradictory statements as the date when he arrested the appellant. Let notice issue to him to show use why he should not be prosecuted for giving false evidence. Appeal accepted. 1078 Cr. P L 523 [Karachi] Before Z. A. Channa and G. M. Shah, JJ THE STATE-Appellant versus SA DIQ HUSSAIN -Respondent Criminal Acquittal Appeals Nos. 50 and 51 of 1975, decided on 6th ecember 1977. sal Code (XLV of 1860)- - S. 409 read with Basic Democracies Order (18 of 1959), cl. 2(e)-Accused, a Secretary of Union Council charged with offence of misappropriating funds received on voluntary basis for development schemes of Council-Contention that collection of contributions on voluntary basis by Union Council not being authorised moneys could not be said to have been collected by accused in performance of his official duties and hence outside scope of such duties-Contention repelled-Mere want of sanction, held, could not mean that such contributions were not collected in course of performance of duties by accused-Accused, held, clearly guilty of offence under S. 409, P.
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P. C. In circumstances. [p. 528]A & B Usman Ghanl, Asstt. A.-G. With Ghulam All Agha for the State. Manzoor Hussain for Respondent (in Crl. Acg. Appeal No, 50 of 1975). Aftab Ahmed Alri for Respondent (in Crl. Acq. Appeal No, 51 of 1975). Dates of hearing : 21st and 28th November 1977. JUDGMENT ' A. CHANNA , J.-These are two connected appeals by the Provincial Government under section 10 of the West Pakistan Criminal Law Amendment Act, 1958, read with section 417 of the Cr. P. C., which have been heard together. Criminal Acquittal Appeal No, 50/75 is directed against a judgment delivered on 30-9-1974, by the Special Judge-cum-Enquiry Officer, Anti-Corruption, Hyderabad, acquitting respondent Mohammad Warial, who was a peon in the Union Council, Lundo, of an offence under section 409, P. P. C., for committing criminal breach of trust in respect of an amount of Rs, 375 while Criminal Acquittal Appeal No, 51/75 is directed against the judgment delivered by the same learned Judge on 24.3-1975, acquitting respondent Sadiq Hussain, who was the Secretary of the aforesaid Union Council, of offences under section 409, P. P. C. And section 5(2) of the Prevention of Corruption Act, 1947, for committing criminal breach of trust in respect of an amount of Rs, 1,135. 2. The facts, which form the background of the two appeals, are that the Chairman of the Union Council, Lundo, took the two respondents with himself to the villages and areas within the limits of the Union Council for the purpose of collecting donations for construction of roads and installation of hand-pumps on self-help basis. Some of the persons who were approached gave donations in cash for which receipts were issued by respondent Sadiq Hussain, who retained the amounts for crediting into the fund of the Local Council, respondent Warial was deputed to collect contributions from other persons who had promised to give donations but had no ready cash for the purpose. Respondent Warial approached five such persons, namely. Riaz Ahmad, Haji Mohammad Sadiq, Raja Wasim Unar, Muhammad Siddiq son of Mohammad Din and Haji Jan Mohammad, and received from them various amounts totalling Rs, 375, for which he gave proper receipts to them. It is alleged that he misappropriated the said amount instead of crediting it in the fund of the Lundo Union Council. Likewise, it is alleged that respondent Mohammad Sadiq did not credit the contributions which he had received and for which receipts had been passed and misappropriated the amounts so received. 3. So far as the case of respondent Mohmmad Warial is concerned, his defence is that no doubt he had received a total amount of Rs, 375 from the aforesaid 5 persons, but he had handed over the said amount to the Secretary, respondent Mohammad Sadiq. In his defence, he examined Mohammad Sadiq, who supported the version of Mohammad Warial and admitted that the latter had handed over to him the amount of Rs, 375 which had been received by him as contributions and donations from the members of the public. In view of the evidence of D. W. Mohammad Sadiq, which has not been challenged, Mr. Usman Ghani Rashid, the learned Assistant Advocate General, conceded that no case was made out against respondent Mohammad Warial. The duty of this respondent was to hand over the amount collected by him to the Secretary Mohammad Sadiq. Furthermore, this respondent had issued proper receipts for the amount collected by him. In the circumstances, he appears to have acted quite properly and no offence of criminal breach of trust is made out against him. We accordingly are of the view that his acquittal was in the circumstances, quite proper and we uphold the same. The appeal of the Provincial Government against his acquittal is accordingly dismissed. 4. So far as respondent Mohammad Sadiq is concerned, the evidence is that he either in the company of the Chairman of the Union Council or by himself received from different persons various amounts totalling Rs, 1,135 which sum he was required to deposit in the fund of the Local Council, but he failed to do so and it is alleged that he misappropriated the same. The persons from whom he had received these constributions are Nabi Bux, Muhammad Achar, Khan
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Mohammad, Mir Kban, Rais Mehar Kban, Choudhry Mohammad Bitawal, Ghulam Hussain Dal, Haji Dbeni Bux, Datar Dinno, Rais Mohammad Khan, Mohammad Ibrahim Talpur and Mattu. Out of them, Nabi Bux, Ghulam Hussain Dal, Datar, Dinno and Mattu have been examined while the receipts issued to the remaining persons have been produced by the prosecution. Additionally, it is alleged against this respondent that he had misappropriated the amount of Rs, 375 which had been collected by respondent Mohammad Warial, who had admittedly handed over this amount to him. 5. The learned Assistant Advocate-General submitted that respondent Sadiq Hussain, in his statement in Court, has admitted receipt of these amounts and passing receipts therefor and consequently the burden of accounting for these sums lies heavily on him, specially, as in his capacity as a Secretary, this respondent was required to maintain the account books and deposit in Bank the monies received on behalf of the Union Council in the account of the Union Council. 6. Mr. Aftab Alvi, the learned counsel for the respondent Sadiq Hussain, has supported the judgment of acquittal of the learned Special Judge and opposed the appeal on 3 grounds, namely :- (1) that the sanction for the prosecution of this respondent is defective inasmuch as it is in respect of amounts allegedly received and collected by the respondent during tho months of July and August 1969, whereas, in fact, most of the amounts received by this respondent were in the month of September ; (ii) according to rules, the over all financial control and supervision of the accounts of the Union Council was with the Chairman and the contentions of the respondent taken together with other circumstances in the case do not exclude the reasonable possibility of the respondent having handed over the amount in question to the Chairman, as stated by him ; and (iii) that In any case, the offence alleged against the respondent does not fall under section 409, P. P. C., because the moneys in question were not collected by the respondent in the performance of his official duties and were in fact outside the scope of such duties. 7. So far as the first contention of the learned counsel is concerned, it appears to be without any substance. The learned counsel has based his contention on the inspection vote recorded on the working of the Union Council, Lundo, by P. W. Gui Mohammad Bhatti, who was Development Officer, Basic Democracies, at the relevant time, and the report made by him to the Anti-Corruption Officer. In both the inspection note and the report, the witness has given, except in respect of 2 items of Rs, 100 and Rs, 80 respectively, different dates in the month of September 1969, on which respondent Sadiq Hussain had received the amounts for the misappropriation of which he was tried. However, reference to the original receipts and their counterfoils clearly show that all these monies were received by respondent Sadiq Hussain in the month of July. These dates were specifically put to respondent Sadiq Hussain while he was being examined by the Court under the provisions of section 342, Cr. P. C. And he admitted to have received the amounts on those dates. It is, therefore, clear that all the amounts in respect of which respondent Sadiq Hussain was prosecuted, including the amount of Rs, 375 which was admittedly handed over to him by respondent Mohammad Warial, were in the months of July and August and consequently, the sanction accorded in the instant case suffers from no infirmity or error as to the period when the amounts were actually received by respondent Sadiq Hussain. 8. In regard to his next contention, Mr. Aftab Alvi has relied upon tly, the statement of respondent Sadlq Hussain, secondly, the West Pakistan Union Councils Accounts Rules, 1960, and lastly, the evidence of Chairman Ghous Bux as also the evidence of P. Ws. Mohammad Ibrahim and Khan Mohammad. 9. No doubt, respondent Sadiq Hussain, in his statement under section 342, Cr. P. C. Has stated that he had given the amount received by him to the Chairman, but not only no evidence has been led by him in support of his contention but further, the receipt of the money by Chairman Ghous Bux
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has been specifically denied by him. In fact, Haji Ghous Bux has stated that respondent Sadiq Hussain after taking oral permission from him had absconded and it was only after his abscondence the amounts were checked and the defalcation came to light. In this connection we would also refer to the evidence of P. W. Zamir Hussain who was Secretary of the Union Council after respondent Sadiq Hussain. He has stated that respondent Sadiq Hussain had left without Charge Report, as no such Charge Report was on the file of the Union Council. Haji Ghous Bus is an old man of 65 years and a Zamindar by profession. We have seen his signature on some of the documents and we find from the way in which he has signed that he is hardly literate and is perhaps able to only to write his signatures. If the money had been given by respondent Sadlq Hussain to Haji Ghous Bux, he would have obtained a receipt from him for the amount, which admittedly he did not do. His contention that after he paid the amount to Haji Ghous Bux, the latter asked him to get out, is not supported by any circumstance on record. Furthermore, on receipt of the moneys he should immediately have shown the same in the cash book, which admittedly he did not do. Wo are not impressed with his contention that he was prevented by the Chairman from making the entries since the cash and other account books were in his charge. 10. The learned counsel next invited our attention to the West Pakistan Union Council Accounts Rules, 1960, specifically rule 9 thereof, which reads as follows :- "9. Responsibilitlee of the Chairman.-(1) The Chairman shall be responsible for the assessment and collection of all revenues of the Union Council. He shall take such steps as may be necessary to ensure that there are no arreas. (2) The Chairman shall be the disbursing authority, and no pay-ment shall be made out of the Union Fund except under his order. (3) All accounts relating to the Union Fund shall be compiled under the supervision of the Chairman. (4) The Chairman shall be responsible for the financial regularity of all transactions relating to the Union Fund, and for the maintenance of their amounts correctly and in accordance with these rules." 11. The submission of the learned ccansel was that the over all responsibiity for the assessment and collection of moneys of the Union Council was of the Chairman and consequently it should be presumed that he had received the moneys from respondent Sadiq Hussain, specially as no report against the said respondent appears to have been filed or made by the Chairman. No doubt, according to the aforesaid rule, the over all responsiWiry for the assessment and collection of the revenues of the Union Council Is to be of the Chairman and all accounts relating of the Union Council are to be compiled under his supervisior, but this does not mean that ho has to write down the accounts or that the account books are in his charge. According to the rule 10 of the aforesaid Rules a cash book in the prescribed form is to In. Maintained by every Union Council in which the receipts of all cheque books and took-transfers receipts for credit to the Union Fund are to be entered as soon as the receipt is issued. The said rule further provides that at the end of each day the total amounts received and paid during each day are to be worked out and the balance struck. According to this rule the entries in the cash book are to be checked by the Chairman item by item with receipts and vouchers attested in token of the checks. This rule, therefore, clearly envisages that the cash book is not to be retained by the Chairman but presumably by the Secretary who was incharge of the account books. The fact that the account books are to he with the Secretary is also stated by P. W. Gul Mohammad, the Development Officer of the Basic Democracies. As already stated, upon receipt of any amount for the purposes of the Union Council Fund, the receipt of the amount is to be shown in the cash book of the Union Council, as provided in rule 10(6) of the West Pakistan Union Council Rules, 1863. The fact that respondent Sadiq Hussain did not enter these
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amounts in the cash book further goes to show that his version that he had given the amounts received by him to the Chairman appears to be without foundation. 12. 13. #TBS 14. Appeal accepted. 15. #TBE 16. Reliance by the learned defence counsel on the testimony of P. Ws. Mohammad Ibrahim and Nabi Bux is also misconceived. So far as P. W. Ibrahim is concerned, he stated that he had paid an amount of Rs, 100 to respondent Sadiq Hussain in the latter's office and obtained receipt for the amount from him. He has further stated that at that time Chairman Ghous Bux was not even present in his o ce. As regards P. W. Nabi Bux, who was appointed Nikahkhwan by the Union Council, be has stated that ho bad received a sum of Rs, 5 from Achar towards Nikah Fee and had paid this amount to respondent Sadiq Hussain and obtained from the latter an acknowledgement on the back of the counterfoil of the receipt which he had given to Aohar. The witness has stated that he does not remember whether at the time he gave this amount to the Secretary Sadiq Hussain, Chairman Ghous Bux was in the office or not. We thus do not see how the evidence of these two witnesses in any way assists the case of Sadiq Hussain that he had handed over the amounts received by him to Chairman Ghous Buz. 13. The last contention of the learned counsel, namely. That the offence alleged against respondent Sadiq Hussain does not fall under section 409, P. P. C., is equally devoid of any substance. This contention is based on the ground that the collection of contributions on voluntary basis by the Union Council was not authorised and hence it was not a part of the duty of respondent Sadiq Hussain to collect the same. A complete answer to this contention is…
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