Find a Lawyer

Criminal Appeal No. 248 of 1963, decided on 6th July 1964.

All witnesses need not be examined by prosecution.

Ss. 5(a) & 5(2)‑Corruption case initially registered under Martial Law Regulation‑Investigation by Sub‑Inspector of police‑Defect, held, did not affect jurisdiction of trial Judge nor conviction of accused.

The Crown v. Mehr Ali P L D 1956 S C (Pak.) 106 rel.

Muhammad Ibrahim Abbasi for Appellant.

Muhammad Halim A. A.‑G. for the State.

Date of hearing: 6th July 1964.

This is an appeal by Altaf Hussain Shah, who has been convicted and sentenced to imprisonment till the rising of the Court and a fine of Rs. 300; or in default to undergo rigorous imprisonment for six months under section 161, P. P. C. read with section 5 (2) of Act II of 1947.

2. Briefly stated the case for the prosecution was that the appellant, who was an A. S. I., Railway Police at Karachi, Cantt., Railway Station, removed the badge of Abdul Ghafoor coolie without any reason and he passed it on to Pir Ali, Jamadar of the Coolies. Abdul Ghafoor thus remained out of job for about three weeks and whenever he demanded back his badge the appellant told that it would be returned only if he was paid Rs. 100 as illegal gratification. Abdul Ghafoor pleaded his poverty and ultimately the appellant agreed to accept Rs. 40. On the 13th of August 1960 Abdul Ghafoor made a complaint Exh. 2/1 to the Deputy Superintendent of Police, Karachi, mentioning these facts on the basis of which F. I. R. No. 60 was registered. Vide mashirnama Exh. 2/2, the person of Abdul Ghafoor was searched and nothing was found except his wearing apparel. Four currency notes were handed over to him by the Anti‑Corruption, Police Officer, in presence of Ghulam Rasool and Kalander Khan mashirs for the purpose of passing them on to the appellant as illegal gratification. Mr. Muhammad Rauf‑ul‑Hassan, Sub‑Inspector, S. P. E., Karachi, prepared this mashirnama. A raiding party was formed by the Sub‑Inspector and they came to the railway station where Abdul Ghafoor paid the tainted money to the appellant, who told Abdul Ghafoor to go and get his badge from the Jamadar. The appellant then went to the Third Class Booking, Ladies Window, and asked for a change for these currency notes from the booking clerk in the office. The raiding party arrived there and Muhammad Maskeen who is employed in the Political Branch, C. I. D. shouted to the booking clerk not to change the money and while the money was still in the hand of the appellant the Sub‑Inspector caught hold of him. He tried to take the money out of the hand of the appellant but he closed the fist and did not hand over the money. There was some struggle and thereafter the appellant was taken towards the parcel office where he was made to open his fist as a result of which the four currency notes fell from the hand on the ground which were picked up by the Sub‑Inspector. A mashirnama Exh. 2/3 was prepared which was signed by Ghulam Rasool, Kalander Khan, Muhammad Rafiq, M. A. Bokhari P. Ws. and G. Hassan, who has not been examined as a witness in the case. After obtaining the necessary sanction and investigation of the case the appellant was challaned which resulted in his conviction as stated above.

3. In support of this case, the prosecution examined Abdul Ghafoor, Kalander Khan, Muhammad Rafiq, Muhammad Maskeen and M. A. Bokhari, as the witnesses in whose presence the money was paid and ultimately recovered from the hand of the appellant. Out of these witnesses M. A. Bokhari stated to have seen the currency notes while they were in the hand of the Sub‑Inspector and in his presence on verification the numbers of these notes were found tallying with some writing which was with the Sub‑Inspector. Kalander Khan and Muhammad Rafiq P. Ws. actually saw the passing of the currency notes from Abdul Ghafoor to the appellant and they heard the appellant telling Abdul Ghafoor after that to get his badge from the Jamadar. Thereafter these witnesses saw the appellant going towards the female ticket window and placing his hand there asking for a change. The prosecution also examined Mr. Muhammad Yaqub who was one of the two booking clerks present in the booking office who stated that he suddenly heard somebody calling out not to change this amount and thereafter he looked up and found A. S. I., Railway Police with his hand stretched inside through booking window, with some currency notes in his hand. He further saw that the appellant was caught by some people before he was given any change. Muhammad Maskeen P. W. was not a member of the raiding party but he happened to be at the platform and he was also attracted when the struggle between the appellant and the police was going on and in his presence the appellant was made to open his hand and then he saw currency notes on the ground, although he stated that he did not actually see them falling on the ground, He also stated that the appellant by putting his hand into the window had asked for the change and that he cried that the change may not be given to him because it was a corruption case. He further stated that the currency notes that had fallen on the ground were crumpled and were four in number. Nazir Akbar (P. W. 7), Senior Clerk, D. I. G. Office, Lahore, was examined to prove the sanction Exh. 11‑B which was given by the D. I. G. Police. Mr. Rauf‑ul‑Hassan is the investigating officer who conducted the raid and ultimately challaned the appellant.

4. The accused denied the allegations of the prosecution. As regards the actual occurrence he stated as follows:‑--

"The fact is that A. Ghaffoor contacted me himself saying that the booking clerk had abused him and was not giving him a ticket for Multan and I told him to show me that booking clerk. I found three booking clerks in the booking office through the window and I asked the complainant which clerk was abusing him. He pointed out to one and I enquired from him as to why he was abusing him, as there were several complaints against him. Abdul Ghafoor then handed over Rs. 40 to the booking clerk through the window and at that time I was encircled by 5 or 6 persons who caught hold of me. I enquired about the reason and I was told that I had demanded Rs. 40 as illegal gratification from the cooly. I told them that he had complained against the booking clerk and that he had actually paid the money to the booking clerk. Two of them then went inside the booking office and took those notes from the booking clerk and tried to put in my pocket. Then a struggle followed. I was trying to get rid of them but they were sparing me."

When he was questioned as to why was he implicated he stated that he had reprimanded Abdul Ghafoor, Coolie for having misbehaved with some girls. That he had made such a report in his daily diary and that Kalander P. W. was also a coolie and had also similarly been reprimanded by him for misbehaviour. Muhammad Rafiq was a cycle rickshawala and he had also been taken to task by him. Muhammad Yaqub had also some grievance against him because he had not obliged him as he had reported that he had lost Rs. 70 and the appellant had told him to file a report and that he had made a note of it in his diary. The alleged notes in the diary have not been placed on the file. Similarly the appellant stated that the investigating officer was inimical towards him because he had requested him to spare Aman Khan driver who had been involved in a gambling case. The appellant examined three witnesses in his defence. Pir Ali (D. W. 1), Jamadar Coolies, stated that the badge had been snatched by him from Abdul Ghafoor because he used to cast evil eyes upon girls residing in the locality. He admitted to have produced the badge before the police vide mashirnama Exh. 16/A. D. S. Solemn (D. W. 2), Station Master, stated that Abdul Ghafoor had not complained to him that his badge had been taken away by the appellant. Abdul Waheed (D. W. 3) stated that Kalander Khan and Ghulam Rasool had come to him and told him that they had some quarrel with the police and they wanted to implicate the appellant. He told them that he could not interfere.

5. I have gone through the entire evidence in this case. The evidence of the defence witnesses does not in any way help the appellant. No question was put to Abdul Ghafoor, Kalander Khan or Ghulam Rasool P. Ws. that they had ever approached Abdul Waheed D. W. for help to falsely implicate the appellant. Thus Abdul Waheed D. W. is only a got up witness and his evidence cannot be relied upon. So far as the evidence of D. S. Solemn D. W. is concerned, Abdul Ghafoor in his statement never stated that he had ever complained of this fact to him. In fact, when Abdul Ghafoor was questioned he replied that the appellant had threatened him that he would arrest him in case he reported the matter to the Station Master and that consequently he had never reported the matter to the Station Master. As regards Pir Ali D. W. his evidence also cannot be accepted. In fact he seems to be privy to the appellant. Pir Ali had no authority to remove the badge, of Abdul Ghafoor, Coolie, he could only have complained against him to the Station Master, and according to Pir Ali Jamadar of Coolies the misbehaviour of Abdul Ghafoor was that he used to cast evil eyes upon the girls residing in the locality, so he removed the badge. This act of his was not at all connected with his duty as a coolie in the premises of the railway station. Abdul Ghafoor has stated that the appellant used to remove the badges of different coolies similarly and extract money out of them. It seems that Pir Ali was a party‑ to the illegal gains and that is why he had come to support the appellant. If Pir Ali had, without any authority, removed the badge, Abdul Ghafoor would have got him implicated rather than the appellant. I am therefore, of the view that the evidence of Pir Ali cannot be accepted as true. The appellant has failed to establish any enmity with the prosecution witnesses. The mere assertion that he had reprimanded the witnesses without any documentary proof of these assertions cannot be accepted.

6. The learned counsel for the appellant raised the following contentions:‑-

(1) That Pir Ali has not supported the prosecution case. As already discussed, the evidence of Pir Ali does not demolish the prosecution case.

(2) That Nazir Akbar, the other booking clerk, had not been examined.

It is not necessary that the prosecution should examine all the witnesses in a case. If the appellant thought that the occurrence had not taken place, as had been deposed by Muhammad Yaqub, Booking Clerk, he could not have examined Nazir Akbar as his witness. This fact also does not in any manner go against the prosecution ( ).

(3) That Muhammad Maskeen P. W. was not a member of the raiding party and it is not probable that he shouted that no change be given to the appellant. He was a Police Officer, C. I. D. posted at railway station and he might have come to know of the trap and consequently when the appellant wanted to change the tainted money he shouted to the booking clerk not to give him the change. There is nothing extraordinary in his behaviour or any other reason to disbelieve his evidence.

(4) That Muhammad Rafiq P. W. was a chance witness. The trap was carried out at the railway station and the persons present there would be chance witnesses. In this case a booking clerk and a C. I. D. officer who were posted at the railway station have also supported the prosecution evidence in addition to the mashirs and the investigating officer. There is no enmity proved against Rafiq and there is, therefore, no reason to doubt the veracity of his statement.

(5) That the plea of the appellant was that he had never handed over the amount and that the money was offered by Abdul Ghafoor to the booking clerk for purchasing a ticket for Multan. That the lower Court was wrong in assuming that the accused had admitted the receipt of the money from Abdul Ghafoor on the basis of a question asked by the defence counsel.

The answer by Abdul Ghafoor P. W. to a question by the defence is as follows‑‑

"It is false that I had given the amount to the accused to purchase the ticket for Multan for me." This suggestion clearly shows that this was the defence case at that stage. No doubt the appellant does not admit in his statement that the money was in his hand but there is convincing and reliable evidence to prove this fact. Consequently the mere denial of the appellant that he did not handle the money does not help him. There is no doubt that the learned counsel asked Abdul Ghafoor the question in the form which amounted to saying that Abdul Ghafoor had given the money to the appellant so that he might get a ticket for him for Multan. It seems that later on the defence reconsidered the matter and thought that this plea might not be accepted so the appellant at the stage of his examination under section 342, Cr. P. C., disowned this position and took up the position that he had never handled the money. However, the evidence of Muhammad Yaqub and other prosecution witnesses clearly showed that the money was paid to the appellant who moved up to the window with the tainted money and asked for its change but before he could get the change he was arrested and the tainted money recovered from his fist.

7. It has been further urged by the learned counsel that M. A. Bokhari has not supported the factum of the recovery of the money from the possession of the appellant. No doubt Mr. Bokhari did not state that the money was recovered from the hand of the appellant in his presence but his evidence supports the prosecution case generally.

8. Lastly the learned counsel contended that the investiga tion was conducted by the Sub‑Inspector of Police in violation of the requirement of section 5 (a) of Act II, 1947. This contention of the learned counsel although factually correct does not affect the conviction of the appellant. Since the case was initially registered under Martial Law Regulation, consequently the investigation was carried on by the Sub‑Inspector. The Crown v. Mehr Ali (P L D 1956 S C (Pak.) 106) is a clear authority that a defect in the investigation does not affect the jurisdiction of the trial Judge or the conviction of an accused.

9. After going through the entire record I am satisfied that the appellant has been properly convicted and sentenced. The appeal is dismissed.

K.B.A. Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.