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Petitioner: DILAWAR ALI KHAN And Another VS Respondent: THE STATE and 4 others-
Court Name: Sindh High Court Judge(s): Abdul Hayee Qureshi Title: DILAWAR ALI KHAN And Another vs THE STATE and 4 others- Case No.: Criminal Miscellaneous Application No. 1157 of 1984 Date of Judgment:1985-09-22 Reported As: 1986 P Cr. L J 298 Result: Proceedings quashed
JUDGMENT
JUDGMENT This is an application under section 561-A, Cr.P.C. Filed by Dilawar Ali Khan and Khurshid Ali Khan, seeking quashment of an order passed by Mr. Agha Rafique Ahmad Khan, Second Additional Sessions Judge, Karachi, in Criminal Revision Application No. 175 of 1984 instituted at the instance of Tehsin Khan (respondent No. 2) to challenge an order passed by Additional City Magistrate, Court No. III, (South), Karachi, in Criminal Case No. 230 of 1983, whereby the two applicants herein were acquitted under section 249-A, Cr.P.C. I have heard Mr. Khalid M. Ishaq and Mr. Hag Nawaz Raja for the petitioners and I have also heard Mr. Gul Zaman Khan for the respondents Nos. 2,3,4 and 5. Mr. A. Sattar G. Shaikh., Additional Advocate-General and Mr. Abdul Ghafoor Mangi, Assistant Advocate-- General, have appeared before me for the State. It is necessary to state the facts in some detail in order to appreciate the full significance and scope of the arguments that have been advanced before me. The applicant, Dilawar Ali Khan claims to be the managing partner of a concern known as "Nursery Super Market and Medical Stores located at Block No. 6, P.E.C.H.S., Shahra-e-Faisal, Karachi. The co-petitioner, Khurshid Ali Khan, is stated to bye his employee. It is stated in the memo. Of petition before me that respondent No. 3, Ghulam Samdani, who was Police Inspector of Ferozabad Police Station, within the jurisdiction of which the concern of petitioner Dilawar Ali Khan is situated, had been refused free provisions and store by the petitioner. The petitioner then set up a case that, on 21-7-1979, his shop was searched by the staff of Market Committee, who had come on the shop, and a case was then made against petitioner Dilawar Ali Khan that he had been demanding two rupees as price of a bottle of Coca Cola. It is then stated that subsequently again the shop of petitioner was raided, and he was
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charged with blackmarket in eggs. The petitioner, Dilawar Ali Khan, challenged the prosecutions for black--market in Coca Cola and eggs. A Constitutional Petition, bearing No. C.P. 1218 of 1979, was filed in this Court, which was heard by a Division Bench consisting of Mr. Justice Fakhruddin G. Ibrahim and Mr. Justice Tanzil-ur-Rehman's. The said Division Bench set aside the conviction of Dilawar Ali Khan on the short ground that the Government has not fixed the price, and, therefore, prosecution was misconceived. Petition was thus allowed with costs. It seems that petitioner Dilawar Ali Khan has filed a Civil Suit against the Magistrate, who laid the trap, and S.H.O. Ghulam Samdani for malicious prosecution. It is stated in the application before me that, during the pendency of the Constitutional Petition, challenging the conviction for black marketing, Police Officers of the same Police Station, including A.S.I. Khalid Taqi, raided the shop of petitioner Dilawar Ali Khan on 18-8-1979, and took away the staff of the store to the Police Station. The petitioner, Dilawar Ali Khan, states that, after coming to know, he went in his self-driven car to the Police Station, when the Policemen tried to find out a boy to involve the petitioner in a case of sodomy, but, failing to do so, the respondent herein involved the petitioner in a false case of selling one bottle of whisky to Javed Zahri and Meer Afzal in the presence of A.S.I. Khalid Taqi, and Mashir Tehsin Khan. It is stated that the two petitioners herein were locked up and taken to a Magistrate for obtaining a remand. It is further stated that, while the petitioner was in custody, a bribe of Rs.5,000 was extracted from the petitioner by respondents. The petitioners were, however, released on bail in the case under the Prohibition Act. Another case was registered against the petitioner, Dilawar Ali Khan, under the Foreign Exchange Regulation Act in respect of the possession of some foreign currency. It is stated that in this case the petitioner was acquitted. On the basis of allegations against the petitioners, a First Information Report was registered at Ferozabad Police Station on 18-8-1979, half an hour after mid-night by A.S.I. Khalid Taqi. It is stated in the report that the said A.S.I. Was on picket duty with the Police Party at Super Market, Nursery (shop of petitioner Dilawar Ali Khan) when two persons, namely, Meer Afzal and Javed Zahri, came at ten minutes passed mid-night and a bottle of whisky was purchased from the petitioner, Dilawar Ali Khan, upon which the latter gave a paper bundle containing one-bottle of whisky to the purchasers through his sales-man, co-petitioner, Khursheed Ali Khan, to be delivered to the purchasers Meer Afzal and Javed Zahri. It was stated in the First Information Report that in the presence of Tahsin Khan and Ahmad Shah, the sales-man was apprehended and the bottle of whisky was seized. Thereafter, personal search of both the petitioners was taken and from the possession of Dilawar Ali Khan, besides several other items of property, a foreign cheque of a. 292 and some Saudi Riyals were seized. Before citing other facts, it would be profitable to examine two other documents marked A-1 and A alongwith counter-affidavit that has been filed by respondent Ghulam Samdani Khan. These are copies of extracts from the station diary of Ferozabad Police Station. The first document is copy of entry No. 40 made in the station diary at 5.30 p.m. On 17-8-1979 viz. About seven hours before the seizure of the bottle of whisky, and such entry shows that a Police Party had been detailed for patrol duty. The second entry from the station diary bears No. 31, and was recorded at 3.20 p.m. Wherein it was stated that the Assistant Inspector-General of Police had informed that one Suleman Bulaidi had reached Karachi, and, therefore, the Police should be alert. It seems it is case of the respondent that the Police Party, which apprehended the petitioners for sale of bottle of whisky, had been detailed for duty at the Super Market belonging to petitioner Dilawar Ali Khan right from 5.30 p.m. It seems that petitioners also made some applications to the concerned authorities making allegations that the case against them was false. Several documents have been placed on record by the petitioner, and I would briefly state the significance and identity of these documents. The first of these documents is, dated 16-3-1980, which is a letter from the Headquarters, Deputy Martial
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Law Administrator, Section I, Karachi, to the Deputy Inspector General of Police, Karachi, stating as follows:----- "As a result of through investigation the case F.I.R. No. 275/79 under section 3/4 Prohibition (Enforcement Hudood Ordinance 1979) State v. Dilawar Ali Khan may be dropped as the case instituted against Dilawar Ali Khan by the S.H.O. Samdani is based on personal enmity and not concrete evidence." On 18-3-1980, the same Headquarters of D.M.L.A. Sent a letter to the Martial Law Administrator, Zone "C", of which a copy was sent to the Advocate-General of the Province, wherein it was stated that the case against the petitioners was investigated, and it was revealed that there was no evidence against the petitioners, and a false case has been instituted against them by Inspector Ghulam Samdani (the respondent No. 3). It was further stated that the petitioner had made allegations, and such allegations against Inspector Ghulam Samdani had been proved without doubt, so that action was recommended against this Inspector. By this letter, the Deputy Inspector-General of Police was asked to take action against Inspector Ghulam Samdani for gross misuse of authority and victimising the petitioners. A letter was written to petitioner Dilawar Ali Khan from the Headquarters of Martial Law Administrator, Zone "C", wherein the petitioner was told that investigation through Martial Law channel had proved that the case against the petitioner was false, and, therefore, action was initiated against S.H.O. Ghulam Samdani. By another letter, dated 26-9-1980, the Deputy Martial Law Administrator directed the Deputy Inspector-- General of Police that the case against the petitioners had been dropped. By another letter of 27-7-1980 from the Deputy Martial Law Administrator to the Deputy Inspector-General of Police, the file was sent back with the directions that the case should be dropped. There is another letter on record, dated 15-9- 1980, from Col. Usman All of Martial Law Administrator Headquarters, wherein it was stated as follows:- "The above case was thoroughly investigated by your Headquarters and it was established that Mr. Dilawar Ali Khan was falsely implicated in a criminal case by Inspector Ghulam Samdani, while he was S.H.O. Ferozabad Police Station. Severe disciplinary action was recommended against the said police officer but he went scot free." It the same letter, it was stated that Ghulam Samadni had been directed to be transferred from Karachi, but he had again been brought back and had started harassing the petitioner. The aforesaid letters had the effect of cancelling the case that had been registered against the petitioner, so that S.H.O. Ferozabad Police Station, by a letter, dated 31-7-1980, wrote to the petitioner, Dilawar Ali Khan, to inform him that the case under the Prohibition Order, 1979 had been cancelled by the final report, dated 31-7-1980. A charge-sheet had already been submitted in the Court of Sub-Divisional Magistrate (Central), Karachi, by the Ferozabad Police Station, but, since by the subsequent communication it was ordered that the case should be dropped, the final report was cancelled, and the charge-sheet was also cancelled. Suffice to say that this case, which had earlier been challaned, was cancelled, which operated as withdrawal. The matter, however, did not rest there, because A.S.I. Syed Khadim Hussain made an application to the Deputy Inspector- General of Police in connection with the cancellation of this case. It seems the Deputy Inspector- General of Police made a reference once again to the Martial Law Administrator, but the Martial Law Administrator, by his letter, dated 9-11-1971, declined to take action, because the case had been terminated due to lack of evidence. A copy of any order of Sub-Martial Law Administrator has already been placed on record, which shows that some investigation was done into this case by Martial Law Authorities, and, on the basis of such investigation, a conclusion had been drawn that the case of sale of were was cancelled, as there was no evidence, and S.H.O. Ghulam Samdani should be immediately suspended and tried for gross misuse of his authority-to victimise and harass the petitioner, Dilawar Ali Khan. Ghulam Samdani, the Investigating Officer Khalid Taqi, the
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complainant and Tehsin Khan, the Mashir witness challenged the order, whereby this case against the petitioners had been cancelled, by way of Constitutional Petition, bearing No. 2 of 1982, in this Court. This petition came up before a Division Bench, of which I was a member on 4-2-1982, and Mr. Gul Zaman Khan, Advocate appeared for the petitioners. This petition was, however, dismissed as withdrawn on 4-2-1982. The matter, however, did not rest at that, for Khalid Taqi, the present respondent herein and complainant in the Prohibition case against the petitioners filed a complaint directly in the Court of Additional City Magistrate, Court No. VI (East), Karachi, against the two petitioners on same facts. It seems this complaint was dismissed under section 203, Cr.P.C. So that a Revision Application, bearing No. 275 of 1981, was filed, which came for hearing before the II Additional Sessions Judge, Karachi. A grievance was made against the order of dismissal of complaint by A.S.I. Khalid Taqi on the ground that there was sufficient ground for holding further enquiry but the complaint had been dismissed on technical ground of delay. It was stated that the two petitioners were released in the case under Prohibition Ordinance by the Martial Law Authorities. In fact, it was stated that the Martial Law Authorities had done investigation into this case. The learned Additional Sessions Judge, Karachi, dismissed the Revision Application on, among others, the reasons of bar created by Article 15 of the Provisional Constitution Order. It would be profitable to re-produce the relevant passage from the judgment, so that the process of reasoning could be properly appreciated. It reads as follows:- "In this regard, admitted position is that investigation of police case was also conducted by the Martial Law Authority wherein it was found that the police case mentioned above was closed due to lack of evidence. Accordingly, to hold fresh enquiry even by Court would amount to questioning order of that authority which is barred under Article 15 of the Provisional Constitution Order, 1981. It may be pointed out that witnesses examined in police case, and those during preliminary enquiry by the trial Magistrate --are same, as such, in view of order/finding of Martial Law Authority in police case. I am of the opinion that this case cannot be sent by for further enquiry as it would be contrary to the provisions of article 15 of the Provisional Constitution Order, 1981, and therefore, this petition is hereby dismissed." A Constitutional Petition was also filed to challenge the order of the Additional Sessions Judge, and this petition was registered as Constitutional Petition No. 263 of 1982 in this Court. By a judgment, dated 3-5-1982, this petition was dismissed. Among others, a Division Bench, while dismissing this petition, also took notice of Rule 14.7 of the Police Rules 1934, and observed that the police Officers could not act in double capacity viz initially as police officer by filing a charge--sheet, and later as private individual by filing a private complaint. The learned Judges of the Divisions Bench also observed that the police officer could not have been given a free hand of utilising forum by private complaint after failure of the case on a police charge-sheet. The matter, however, did not rest there, because the same A.S.I. Khalid Taqi submitted another charge-sheet against the petitioner in the Court of Illaqa Magistrate, Ferozabad, on the same allegations. This charge-sheet was numbered 245 of 1982 of Police Station Ferozabad. The facts stated in the charge-sheet are exactly the same as the facts stated earlier and the names of the witnesses to be examined in respect of the charge are also the same. The present petitioners then filed an application in the Court of Additional City Magistrate, Court No. V, under section 249-A, Cr.P.C. And sought an acquittal. This is a very detailed application, in which the entire history of the litigation is given and order was passed by the Magistrate, who had subsequently come to be seized of the case, and acquitted both the petitioners by aid of section 249-A, Cr.P.C. I examined the order of acquittal and found that the Magistrate was of the view that the charge was groundless and there was no probability of the accused being convicted of any offence. The learned Magistrate also took notice of the fact that the earlier case that had been instituted against Dilawar Ali Khan under Foreign Exchange Regulation Act had failed. The learned Magistrate
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took into consideration the fact that Dilawar Ali Khan had prosecuted Ghulam Samdani Khan in a case of corruption. The fact of investigation by Martial Law Authorities was also noticed. The Magistrate ultimately came to hold as follows: "The learned Defence Counsel contended that a fresh charge-sheet was submitted after a lapse of about four years which is also based on the same set of evidence. No further evidence has been adduced by the prosecution. The Defence Counsel has produced a deposition of Ahmad Shah who is one of the Mashirs, and affidavits of P.Ws. Mir Javed Zahri and Muhammad Afzal. They do not support the prosecution case. The remaining witnesses given in the charge-sheet are all police officials except one Tehsin Khan who is alleged to be a stock witness of the police and not residing in the locality. Apart from this it can hardly be imagined that a shopkeeper would be so fool that he would dare to sell contraband liquor in the presence of police party. It leads to the conclusion that the prosecution would not be able to prove its case against the accused persons beyond doubt." On such process of reasoning the Magistrate held that the charge against the petitioners was groundless, and there was no probability of the petitioners being convicted for any offence. It seems an attempt was made' by the police officers for having an acquittal appeal filed, but failed,, so that, instead of the complainant, or, S.H.O. Ferozabad Police Station, or, any other police officer, Tehsin Khan, who was a Mashir of seizure of bottle of whisky filed a Revision Application before the Additional Sessions Judge, Karachi, to challenge the order passed by the Magistrate, acquitting the two petitioners by aid of section 249-A, Cr.P.C. This Revision Application was registered as Criminal Revision Application No. 170 of 1984. By an order of the Additional Sessions Judge, the two petitioners have been ordered to be retried. This is the order, which is impugned before me. Lastly, I would, while stating the facts, refer to the impugned order passed by the Second Additional Sessions Judge, Karachi. The opening part of the order reproduces the facts of the case, which need not be repeated now. The first point, however, that has been considered by the Additional Sessions Judge, was in regard to the maintainability of the Revision Application at the instance of Tehsin Khan, who was merely a Mashir. On that point, the Additional Sessions Judge stated that jurisdiction under section 439, Cr.P.C. Can be exercised at the instance of any person, or, even suo motu. The next point urged before him was that the matter had been pending for nearly five, or, six years, and it was not proper to order re-trial, and, in that context, the Additional Sessions Judge stated that there was no inordinate delay, because there had been a spate of litigation between the parties. The learned Additional Sessions Judge also considered the point that no evidence had been recorded in that case, and, therefore there was no material on the basis of which a finding could be based that the charge was groundless. In the application under section 249-A, Cr.P.C., a point had been raised that the Martial Law Authority having ordered cancellation of the case, it was not open to any challenge. Such point, as stated by the learned Advocates at the Bar, had been raised again before the learned Additional Sessions Judge, but the order does not indicate that it has been considered. Likewise, the merits of the case have also not been considered by the Additional Sessions Judge. Mr. Khalid M. Ishaq, appearing for the petitioners, has raised the following contentions before me:- (i)That there was an order of Martial Law Authority, cancelling the case, and it was, therefore, not open to any Court to proceed with the same case. (ii)That there were two earlier orders of acquittal as well as discharge, and such orders had attained finality, and, therefore, fresh prosecution was barred. (i.e)That Tehsin Khan had no locus standi, or, interest in the prosecution, and, therefore, the filing of a Revision Application by him should be looked upon with disfavour, if not suspicion. (iv)That even on merits, no case had been made out, so that a re-trial was not proper.
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(v)That it was wrong exercise of jurisdiction to send a case for re-trial after more than sixe years, particularly when the charge was very minor. Mr. Gul Zaman Khan has contested each one of these points. He contends that the Martial Law Authority had no right, or, power to make an investigation in this case. In regard to the previous acquittal or discharge, it is contended that the same were not on merits, and, in any case, without recording any evidence. In regard to the merits of the case, he has contended that such merits cannot be adverted to without evidence having been recorded. In regard to the Revision Application at the instance of Tehsin Khan, he relies on the provisions of section 435 and section 439, Cr.P.C. To contend that the revisional Court can act on any material, or, information that is brought to its notice. In regard to delay, his contention is that, by itself, it is never a good reason for quashing a criminal case. I propose to deal with the point in regard to the merits of the case in the first instance. The case was registered at the instance of A.S.I. Khalid Taqi at half an hour passed mid-night intervening 17th and 18th March, 1979. The F.I.R. States that the complainant, Khalid Taqi, was present at the Super Market of the petitioners on account of picket duty, and two documents have been placed on the record alongwith the counter-affidavit of Inspector Ghulam Samdani to show that one Suleman Bulaidi was reported to have come to Karachi, and, therefore, complainant Khalid Taqi was detailed for picket duty at Super Market from 5-30 p.m. It seems this Police Officer continued at the Super Market for six and a half hours, when Mir Javed Zahri and Muhammad Afzal came there to purchase alcoholic drink from petitioner D1lawar Ali Khan, and then a bottle, wrapped in a paper bag, was given by petitioner Dilawar Ali Khan to petitioner Khurshid Ali for being given to the two purchasers, and, at that time, in the presence of witnesses Tehsin Khan and Ahmad Shah, the bottle of alcoholic drink was seized, and the case was subsequently registered. This would show that there was no evidence in regard to the purchasers having paid any money, and what .Is more that the two purchasers were not even apprehended. In that respect, Mir Javed Zahri and Ahmad Shah have filed affidavits, which produced before the lower Courts, and such affidavits show that the case was false. Again, Ahmad Shah, who is said to be twin Mashir with. Tehsin Khan, has been examined in the Court of the Special Jude (Anti-Corruption), in connection with the case against S.H.O. Ghulam Samdani, and he had also stated that no such incident of delivery of a bottle of whisky took place in his presence. He stated that he used to supply tea to the staff of Ferozabad Police Station, and, when he went to that Police Station, he found one bottle lying on A the table of S.H.O. Ghulam Samdani, who had got his signature on a piece of paper. These circumstances clearly show that the two persons, who had gone to purchase whisky, and to whom whisky was being delivered were not arrested, that the purchasers paid no money to any of the two petitioners, that one of the two Mashirs denies any knowledge about the case. In fact, the two purchasers also deny the entire prosecution story. On the other hand, witness Tehsin Khan, who is exhibiting unusual interest in this case, has a barber's shop at a distance of one mile from the Super Market of the petitioners, and there is no indication whatsoever in the First Information Report as to why he was there at that time. The said Tehsin Khan was present in Court, and, on being asked about the reason for his presence, he replied to me that he had gone to see a niece of his who resided in Drigh Colony, and, when he was returning to his shop, he passed by the Super Market. This Super Market is stated to be located in the Service Lane, running parallel to the main Drigh Road, and, on being asked as to why did he go into that Service Lane, instead of going along the main Drigh Road, Tehsin Khan gave no reply. The Police Officer for bearing, to arrest the two persons, who had gone to purchase whisky, is also a circumstance of enormous significance. One cannot even overlook the fact that earlier the petitioner, Dilawar Ali Khan, was arrested in two cases of black market-one regarding sale of Coca Cola, and the other regarding sale of eggs, but both these cases yielded no fruit, as the same were misconceived for the reason that price of such articles had not been fixed
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by the Government. It is stated before me that the petitioner had filed a suit for damages against S.H.O. Ghulam Samdani and some others in regard to such malicious arrest. The petitioner was also arrested in connection with recovery of some foreign exchange from him. In that case too, he has been acquitted. What is mere that the petitioner has made a complaint that S.H.O. Ghulam Samdani had taken a bribe of Rs:5,000 from him in the same case, and such report was made to the concerned…
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