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Petitioner: MUHAMMAD ISMAIL AND 2 Other VS Respondent: THE STATE AND ANOTHER
Court Name: Sindh High Court Judge(s): Muhammad Hayat Junejo Title: MUHAMMAD ISMAIL AND 2 Other vs THE STATE AND ANOTHER Case No.:Criminal Appeals Nos. 79 and 80 of 1969 Criminal Appeal No. 79 of 1969
JUDGMENT
Reported As: PLD 1970 Karachi 261 Result: Appeals dismissed Judgment JUDGMENT M. HAYAT JUNEJO, J.-----These two Appeals Nos. 79 of 1969 and 80 of 1969 arise out of the judgment dated 13th February 1969, of the learned Sessions Judge, Nawabshah, in Sessions Case No. 70 of 1968. 2. The three appellants in Criminal Appeal No. 79 of 1969 were all police officers at the time of the incident. Appellant No. 1, namely Muhammad Ismail, was posted as A. S. I. P. At Moro while the other two, namely, Muhammad Idris and Sultan A.I were working as constables at the same police station. All these three appellants have been convicted for offences under sections 395 and 342, P. P. C. And sentenced to suffer R. I. For three years and two years respectively; both these sentences to run concurrently. The sentence of two years' R. I, under section 342, P. P. C. Appears to have been awarded through over--sight as the maximum provided under the said section is R. I. For one year only. On an application under section 439, Cr. P. C. Filed by the State a rule was issued calling upon these three appellants to show cause as to why the sentences awarded to them should not be enhanced and this question also would be dealt with in this judgment. 3. The four appellants in Criminal Appeal No. 80 of 1969, namely, Haji Amir Bux, Qamar Din. Ghulam Qadir and Ismail Shah who were tried with the appellants in the connected appeal have all been convicted under section 395, P. P. C. And sentenced to suffer R. I. For three years. One Abdul Haq, police constable who was also tried in the same case died while the case was pending in the Sessions Court. 4. The prosecution allegations against the appellants briefly are as follows:
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Complainant Muhammad Parial, P. W. 1 is a Zamindar and owns 100 acres of agricultural land in Taluka Moro. He stays in village Muhammad Soho but also owns a house in the town of Moro. All the appellants in both the appeals were known to him previously. A few days before this occurrence the com--plainant was staying at his house at Moro, when appellant Sultan A.I police constable came there and informed -him that appellant Muhammad Ismail, A.S.I.P. Moro had called him. The complainant accompanied Sultan A.I to the police station where he met A. S. I. P. Muhammad Ismail. In the course of their conversation, Muhammad Ismail informed the complainant that one Amir Bux Shahani of Dadu District (appellant No. 1 in Criminal Appeal No. 80 of 1969) had made an application against him alleging theft of buffaloes and that the matter had been referred to A. S. I. P., Muhammad Ismail for investigation. The latter read out the application to the complainant and stated that if he paid him a bribe of Rs. 1,500.00, the matter would be disposed of in favour of the complainant. Muhammad Pariai, however, turned down this offer. After a few days he learnt that a First Information Report for theft was registered against him at Moro police station. He obtained a certified copy of the First Information Report from the Court of Resident Magistrate, Moro and along with his two brothers who were also shown as co-accused in the said F. I. R. He filed an application in the Court of Sessions at Nawabshah for anticipatory bail, which was granted to him by the order dated 16-2-1967 (Exh. 5). The complainant got a certified copy of this order from the Court and naturally felt secure thereafter. But appellant Muhammad Ismail, A. S. I. P., apparently had other ideas. 5. On 23-2-1967, the complainant was sleeping in his house in his village when the appellants along with one Abdul Haq, police constable, who dial during the pendency of this case, came to his house at 1 a.m. And woke him up from sleep by calling him outside. The complainant went out and found that the appellant Muhammad Ismail, A. S. I. P. Was armed with a revolver while the three police constables accompanying him were all armed with '303 rifles. The remaining four appellants carried lathis. As soon as the complainant came out, appellant Muhammad Ismail slapped him on his face as a result of which the complainant's turban fell down on the ground. Immediately thereafter, appellant, Muhammad Ismail, ordered deceased Abdul Haq, police constable to tie up the complainant which was done by Abdul Haq. On commotion the two brothers of the complainant and his son P. W. Ahmed Nawaz came running. Appellant Muhammad Ismail then ordered appellant Sultan A.I police constable to tie up the two brothers of the complainant. This order was also obeyed. The complainant asked A.S.I.P. Muhammad Ismail, about the reason for this harassm ent, whereupon he was told that a report had been lodged against him and his brothers at the police station for theft of cattle belonging to appellant Haji Amir Bux. The complainant informed the A.S.I.P. That he had obtained order of anticipatory bail for himself as well as for his brothers, from the Court of Sessions at Nawabshah. To convince the A.S.I.P., the complainant asked his son Ahmed Nawaz to light a lamp and bring the order of bail from inside the house. Ahmed Nawaz, accordingly went inside and brought out the order which was shown to Muhammad Ismail. The latter, however, after reading it threw it on the ground saying that the order did not bind him. By this time P. Ws. Muhammad Shall, Hussain Shah and Loung who are neighbours of the complainant also came to the house and saw the bail order being thrown on the ground by A.S.I.P. Muhammad Ismail. Thereafter, appellant Muhammad Ismail ordered the complainant and his brothers to show him their cattle-shed. He took all the appellants to this cattle-shed where 16 heads of cattle were found tethered. At the instance of A.S.I.P. Muhammad Ismail Haji Amir Bux took out 8 heads of buffaloes including a young one and brought them outside the house of complainant. Muhammad Ismail then told Haji Amir Bux to take away four of these buffaloes on which appellants Amir Bux, Qamardin, Ghulam Qadir and Ismail Shah took away four of the buffaloes belonging to the complainant with them. The remaining three buffaloes and a young one were taken away by A.S.I.P. Muhammad Ismail and the three police constables with them. They also took the complainant and
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his brothers, A.I Nawaz and Shah Nawaz to Moro police station where they were all confined in the police lock-up. In the morning Ahmed Nawaz son of the complainant came to the lock-up and talked to Muhammad Ismail, who repeated his demand for a bribe of Rs. 1,500.00. After some bargaining this was reduced to the amount of Rs. 1,000.00. P. W. Ahmed Nawaz consulted his father complainant Muhammad Parial, who asked him to go home and bring the money which was paid sometime afterwards. After this payment the complainant and his two brothers were released from the lock-up at about 3 p.m. Leaving others behind complainant got into a taxi and came to Nawabshah in the evening. The next day he got a complaint drafted against all the appellants and presented the same before the Sessions Judge, Nawabshah. The complainant alleges that he lodged a direct complaint against the appellants in the Court of Additional District Magistrate, Nawabshah on 27-2-1967. This complaint is Exh. 6 on the record of this case but it does not show as to when it was presented before the learned Magistrate; nor does it show the date on which it was drafted. 6. After holding a preliminary enquiry the learned Magistrate issued process against all the eight accused named therein. They were subsequently challaned and committed to the Court of Sessions to stand their trial for the offences alleged against them. Before, however the case could proceed one of them, namely, police constable Abdul Haq died. The remaining seven appellants were tried by the learned Sessions Judge, Nawabshah, who convicted and sentenced them as stated above. 7. The defence of the appellants was one of denial. Appellant, Muhammad Ismail, admitted that he was A, S. I. P. At Moro at the time of this incident. In reply to a question whether he had gone with the other six appellants to the house of complainant at 1 a.m. On 23-2-1967 to commit dacoity of cattle, the appellant replied as under:- ---I had gone to the house of the complainant but I bad not committed dacoity of the cattle. I had taken into possession 3 buffaloes and one young one of the buffalo as suspected stolen property.- -- The appellant denied that he arrested the complainant and his brothers or that he wrongfully confined them. He stated that he had been falsely involved in this case, because complainant and his brothers were accused in a case which was registered at Moro police station on the complaint of appellant Haji Amir Bux. 1n reply to the question "have you to say anything else," appellant Muhammad Ismail filed a written statement which the learned Sessions Judge incorporated verbatim in his statement recorded under section 342, Cr. P. C. The relevant part thereof reads as follows: On 7-1-1967, I was Additional S.H.O. Moro and co---accused Haji Amir Bux lodged the F. I. R. Regarding the theft of his 4 buffaloes. I have produced true copy of the F.I.R. In the lower Court statement. On 23-2-1967, I, along with constables Abdul Haque (deceased) Idris, and Sultan including co-accused Haji Amir Bux, went to the village of the com--plainant as I received information of presence of suspected cattle, in his cattle-shed. We found 4 buffaloes including one young one in the cattle shed of the complainant. But Haji Amir Bux, did not own them, and on interrogation complai--nant's brother A.I Nawaz could not give satisfactory explanation of the presence of cattle and his replies were also suspicious with regard to the ownership and character of those cattle. I, therefore, secured the cattle under section 550, Cr. P. C. In presence of mashirs, I produce the true copy of mashirnama m the lower Court statement. On the same day I impounded the secured cattle in the cattle pound. I have produced the original receipt in my statement in the lower Court. On 24-2-1967 one Abdul Hakeem Jesar lodged an F.I.R. Under sections 380, 411 and 215, P. P. C., before S. H. O. Mr. Itrat Hussain Shah. I have filed copy of the F. I. R. In my lower Court statement. After some investi--gation and identification of the cattle in the case filed by Abdul Hakeem S. H. O. Itrat Hussain Shah handed over cattle to Abdul Hakeem. Complainant Muhammad
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Parial is a history sheeter of police station Moro. The complainant and the prosecution witnesses are Rajmen and staunch political followers of Ghulam Mustafa Khan latoi, Member of National Assembly, who holds influence and power in Moro Taluka. The complainant and Ghulam Mustafa Jatoi had impression that I and co-accused police officers were instruments and getting the cattle to Abdul Hakeem. This Abdul Hakeem had filed a dacoity case against Ghulam Mustafa Jatoi, brother of Ghulam Mustafa Jatoi M. N. A. Due to this grudge as well as political enmity between Haji Rehmatullah and Ghulam Mustafa Jatoi, we the police officers had also been implicated along with private co-accused Haji Amir Bux and three others. Complainant's party has grudge against me and my staff as I secured 4 buffaloes under section 550, Cr. P. C. Most of the witnesses are related inter se and the rest are also interested as Ghulam Mustafa Khan Jatoi had made them to give false evidence against us. Ghulam Mustafa Khan Jatoi has also grudge against me as I never submitted myself to his influence in my normal duties as Sub-Inspector of Police of Moro police station. I am innocent and the case is false." Along with this written statement, Muhammad Ismail produced a certificate which was alleged to have been signed by S. H. O. Moro and was to the effect that the complainant was a history--- sheeter. The appellant also filed a copy of the First Information Report alleged to have been filed by Haji Amir Bux on 7-1-1967, mashirnama dated 23-2-1967, regarding the securing of three buffaloes and a young one, receipt of the Pound Munshi that these animals were sent to the Pound on 23-2- 1967 at 6-30 p.m., F. I. R. Lodged by one Abdul Hakeem on 24-2-1967, a letter addressed by S, H. O. Itrat Hussain Shah of Moro to Pound Munshi asking him to handover these animals to the said Abdul Hakeem and an entry from the roznamcha of Moro police station purporting to show that on 23-2-1967 one Fateh A.I Shah a deserter from army was also in the lock-up of Moro police station. Appellants Muhammad Idris and Sultan A.I admitted that they were police constables at Moro police station at the time of the incident and that they had accompanied A. S. I. P. Muhammad Ismail. They adopted the statement of this appellant. Appellant Haji Amir Bux stated that he had been falsely implicated on account of enmity as he had filed his F. I. R. For theft of cattle, wherein he had shown the complainant and his brothers as accused persons. He admitted in both the Courts that he had gone with A. S. I. P. Muhammad Ismail to the house of complainant; but gave contradictory explanations in respect thereof. The version of appellant Amir Bux in his statement recorded by the committing Magistrate was as follows: "On 23-2-1967, I had accompanied the S. H, O. Muhammad Ismail to the house of the complainant and his brothers. The police secured my stolen buffaloes from the house of com--plainant." At the trial, however, he completely changed his version and stated as follows:- "I had accompanied accused Muhammad Ismail in the morning with whom deceased Abdul Haq, accused Muhammad ldris and Sultan were with him but other accused were not with us and went to village of P. W. A.I Nawaz and complainant Muhammad Parial. Accused Muhammad Ismail called out complainant but he was not there. His brother A.I Nawaz came outside his house. Accused Muhammad Ismail told A.I Nawaz to show his cattle shed. We all went to the cattle shed. Accused Muhammad Ismail asked me if any stolen buffalo were there and I replied in the negative. Accused Muhammad Ismail then took A.I Nawaz aside and talked to him. There--after, he seized three buffaloes and one young of it as suspected stolen property. Accused Muhammad Ismail and his constables took away that cattle and I returned home. I had already filed a theft report at Moro Thana for 4 buffaloes." The remaining three appellants, namely, Qamardin, Ghulam Qadir and Muhammad Ismail Shah denied having accompanied Amir Bux or Muhammad Ismail; and stated that they were falsely involved as they were witnesses against the complainant and his brothers in the theft case filed by Amir Bux; and that the witnesses had been set up against them by one Ghulam Mustafa Jatoi, who
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was a Member of the National Assembly of Pakistan. No witness was examined in defence by any of the appellants. 8. Mr. Sami Ahmed, the learned counsel for the appellants, however, submitted an application under section 428, Cr. P. C. For examining S. H. O. Itrat Hussain Shah of Moro police station in defence of Muhammad Ismail. I had kept this application for consideration at the time of hearing of the appeal and have, accordingly heard the learned counsel on this point as well. Section 428(1) of the Criminal Procedure Code reads as follows:- ---428(1).-In dealing with any appeal under this chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons, and may either take such evidence itself, or direct it to be taken by a Magistrate, or, when the Appellate Court is a High Court, by a Court of Sessions or a Magistrate.--- 9. The necessity for taking additional evidence under this section must be examined on the particular facts of each case and A no hard and fast rule can be laid down. However, the principles governing such cases have been reiterated by the Federal Court of Pakistan in the case of A.I and another v. The Crown (PLD 1952 FC 71), wherein Cornelius, J., as his Lordship then was, observed as follows:- ---A brief survey of reported cases discloses that, despite the wide terms in which the power is expressed, it has only been exercised where the additional evidence was either, not avail--able at the trial, or the party concerned was prevented from producing it either by circumstances beyond its control, or by reason of misunderstanding or mistake.--- These weighty observations have been consistently followed by this Court. I may in this connection refer to the case of Ghulam Muhammad and others v. The State (PLD 1957 Lah.263), and in particular to the following observations of Ortcheson, J.:- "In A.I v. Crown PLD 1952 FC 71, the principles governing such cases as the present have been discussed, and the following observation of Cornelius, J., goes to the root of the matter:- ---A brief survey of reported cases discloses that, despite the wide terms in which the power is expressed, it has only been exercised where the additional evidence was either not available at the trial, or the party concerned was prevented from producing it either by circumstances beyond its control, or by reason of misunderstanding or mistake.--- Taking the above circumstances into consideration we do not consider this a fit case for allowing the production of the additional evidence sought to be relied upon by the prosecution. Dr. Tasadduque Hussain for the defence also lodged an application for the examination of Mr. Ghulam Abbas, Additional District Magistrate, Sheikhupura, Mr. Zulqarnain, Magistrate and Mr. Ismatullah S. D. O. Mohlan, who are stated to have been present when the gunfire was heard and when the Superintendent of Police sent Shaukat A.I, Head Constable, either to the Police Station or at the village. Again, however, it cannot be said that the evidence now sought to be produced by the defence was not available at the trial. No attempt was apparently made at summon the witnesses in question, nor was any request made to the Court for an adjournment to produce them. Both the applications are accordingly rejected." 10. The learned counsel for the appellants has not been able to advance any reason as to why the evidence which is sought to be adduced by examining S. H. O. Itrat Hussain at this stage was not led at the trial if it was available at that time. S. H. O. Itrat Hussain was then posted in the same district and could have been easily summoned. It appears that the evidence which is sought to be led now is an after-thought, and if this application is granted at this stage it would virtually amount to an invitation for perjured evidence. It was for these reasons that I informed the learned counsel at the time of hearing of the appeal that this application would be rejected.
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11. Before I discuss the evidence led by the prosecution in this case it is necessary to dispose of a preliminary objection raised by Mr. Sami Ahmad regarding the validity of the trial without the requirement of sanction under section 197, Cr. P. C. The learned counsel appearing for appellants 1 and 3 in Criminal Cr. Appeal No. 79 of 1969 contended that the appellants were police officers engaged in the performance of their official duties and, accordingly, their prosecution required sanction by the competent authority. This contention was also raised by Mr. Haji Muhammad Memon appearing for appellant No. 2. 12. Section 197(1) provides as follows :- "197(1).-When any person who is a Judge within the meaning of section 19 of the Pakistan Penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of the Central Government or a Provincial Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction- (a) in the case of a person employed in connection with the affairs of the Federation of the President, and (b) in the case of a person employed in connection with the affairs of a Province of the Governor of that Province." It would be seen that section 197 applies to those public servants who are not removable from their office without the sanction of the Central or the Provincial Governments. The learned counsel for the appellants, however, invited my attention to a case of this Court, namely Zaheer A.I v. The State (PLD 1965 Kar. 180), wherein Faruqui, J., while considering the case of a peon employed in the office of Chief Election Commissioner observed as follows:- "The petitioner holds a post in the office of the Election Commissioner which is a civil post in connection with the affairs of the Center. The mere fact that he can be removed from his office by the head of the department does not disentitle him from the protection of section 197, Cr. P. C. The head of the department is merely a delegate of the Central Government. The act of the delegatee is to be considered an act of the delegator. It follows that when an order of removal of a Class IV servant is made by the head of the department that act of the department is in consequence of the delegation made to him by the Central Government. The act, therefore, becomes that of the Central Government. If any authority is needed reference may be made to the case of Newbould v. Emperor AIR 1936 Lah. 781. Mr. Murtuza Hussain, the learned counsel for the State conceded that this was the correct position in law." It was not pointed out to Faruqui, J., that the Single Judge case of the Lahore High Court which he referred to as an "authority" was in fact overruled by the Federal Court of India in the case of Afzalur Rahman and others v. Emperor (A I R1943 FC 18), wherein while considering the case of a Sub- Inspector of Police, an Assistant Sub-Inspector of Police and an Excise Sub-Inspector, their Lord-- ships observed as follows:- ---We deal first with the objection under section 197, Cr. P. C. Taking it that the appellants have been accused of an offence alleged to have been committed by them while acting or purporting to act in the discharge of their official duty, the question for determination is whether they are persons not removable from office save by or with the sanction of the Provincial Government. It is not disputed that according to the statutory rules and notifications set out in the judgment of the High Court, the police officers before us can be dismissed by the Deputy Inspector-General of Police and the Excise Sub-Inspector by the Excise Commissioner. But the appellants contended that such dismissal by a subordinate officer like the Deputy Inspector-General or the Excise Commissioner must be treated as an act of the Provincial Government itself, because the Deputy Inspector-General in the one case and the Excise Commissioner in the other case only act on
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behalf of the Provincial Government under powers delegated to them. In this view, they invoke the principle embodied in the maxim qui facit per alium facit per se and contend that as the subordinate authorities can dismiss them only as agents of the Provincial Government, they must be deemed to be removable only by or with the sanction of the Provincial Government, within the meaning of section 197, Cr. P. C. They lay stress upon the use of the very term `delegate' in para. (e) of subsection (2) of section 7, Bihar and Orissa Excise Act, when it provides for the Local Government delegating to the Excise Commissioner all or any of the powers conferred upon the Local Government by or under that Act. It was recognized that the language of section 7, Police Act (V of 1861) would not fit in with this argument, as under section 7 of that Act, the power of dismissal is conferred by the Act itself upon the Inspector-General, Deputy Inspector-General, etc. But it was argued that whatever the position might have been before 1937, the matter now rests upon section 241(i)(b), Constitution Act, which vests the power of appointment in the Governor `or such person as he may direct'. Reading this paragraph of section 241 with subsection (2) of section 240, it was sought to maintain that the power of dismissal (like the power of appointment) must also be deemed to vest in the Governor and that whenever it was exercised by a subordinate authority, it must be held to have been exercised by such authority under the direction and therefore only as the agent of the Governor. Authority was found in support of the above line of argument in a judgment of Courts-Trotter, J. (as he then was) in AIR 1917 Mad. 344, which was followed by a Single Judge of the Rangoon High Court in 12 Hang. 530 = AIR 1934 Rang. 238. With great respect to the learned Judges with whom…
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