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Criminal Appeals Nos. 203 of 1954, 204 of 1954 and 100 of 1956; decided on 30th April 1958.
‑Moral cannot take place of legal
‑Duty of.
The first duty of a police officer is to prevent a crime, and if committed, to detect it and bring the offender to book.
, S. 197‑Provides for sanction for prosecution of particular class of public servants A. S. I., Police and Police constables do not belong to that class.
Section 197 of the Criminal Procedure Code provides for sanction for prosecution of a particular class of public servants. An A. S. I. of Police and Police constables do not belong to that class ‑ and as such no sanction is necessary to prosecute them.
Z. G. Shaikh for Appellant in Appeal No. 203 of 1954.
Raymond for Appellants in Appeal No. 204 of 1954.
Agha Ali Hyder for Appellant in Appeal No. 100 of 1956.
---‑ These are appeals under S. 9 of the Crimrnal Law Amendment Act, 1949, against the judgment of the Specia. Judge, Karachi (Mr. Ghaznavi) convicting the appellant Yaqui: under S. 420 and sentencing him to R. I. for 5 years and to pat fine of Rs. 10,000 or in default to suffer further R. I. for 18 months, and appellants Rehmat Khan, Fakir Hussain and Akha Khan under Ss. 420/109 and 166, P. P. C. and sentencing them to R. I. for 3 years each under the former and to S for one year under the latter section.
The learned Judge tried Ismail, who was also involved in this crime, separately as he had absconded, and was arrested when the trial of the above appellants had nearly ended This judgment will dispose of all the appeals.
The facts giving rise to the appeals are these :
On 21‑9‑51, Yaqub appellant represented to complainant Abdul. Karim that appellant Ismail and his relations had some sovereigns for disposal, and that he would be prepared to sell their at reduced price. To this Abdul Karim agreed, and then he and his brother Habib went with Yaqub to a place near Taj Mahal Cinema where the latter introduced appellant Ismail to them. Ismail told them that one of their relations had sovereigns for disposal, and then he took them towards Jubilee Cinema where he introduced two persons to them. From there they went toward Burns Garden where they met an old man who showed Abdid Karim four sovereigns which were examined by him and found to be genuine. Abdul Karim agreed to purchase them at the rate of Rs. 62 per sovereign. They dispersed and agreed to meet near Jubilee Cinema at 4 p.m. Karim took 90 currency notes of 100 each with him. He had noted down the numbers of the currency notes on a piece of paper. They met Ismail near Jubilee Cinema, and from there they went to Khalid Restaurant, where they met the old man who had earlier shown sovereigns to Abdul Karim in Burns Garden. He enquired from Abdul Karim whether he had brought the money with himself to which Abdul Karim replied in the affirmative. The old man told him that a man had gone to bring the sovereigns from his house, and that he would come soon and that in the meantime he should pass on the money that he had brought, to Yakub. Abdul Karim did so. They waited for the man who was to bring the sovereigns, for some time, and as he did not turn up, the old man, saying that he would himself bring the sovereigns, left the hotel, and as he too did not turn up, Karim grew impatient. He therefore asked Yaqub to return the amount. Yaqub at first assured him that the sovereigns would soon come, and that he should wait for 15 minutes more for that. After 10 or 15 minutes, Karim insisted that the money should be paid back to him, but Yaqub this time refused to return the amount, and this led to a quarrel. Immedi ately after the quarrel started, entered two constables in their mufti. They were appellants Rehmat Khan and Fakir Hussain. They caught Yaqub and Ismail and their two companions and took them out of the restaurant. Karim and Habib told the police men that Yakub had deprived them of Rs. 9,000. Upon this the constables said that Yakub, Ismail and their companions were Badmashes and they being their associates, would also be arrested. Karim paid for the tea and then rushed out of the hotel to follow the accused. Outside, he saw appellant Akbar Khan standing near a pan shop. He was in his police uniform. Abdul Karim told him that Yakub had cheated him of Rs. 9,000 and that he should help him to get back the money. On this Akbar Khan told him that Yakub and his companions being Badmashes, he should have no association with them, otherwise he would also be arrested and taken along with them to the Police Station. Akbar Khan then asked the‑two police constables Rehmat Khan and Fakir Hussain to take Yakub, Ismail and their companions to the police station in a Gharry. He followed them on his bicycle. Karim and Habib then went and met their elder brother Usman and told him all about the incident. Usman contacted one Yakub Khan whom he knew, and then they all went to the Garden Police Station where however neither Yakub nor Ismail nor the police officers were to be seen. They met S. I. Ali Muhammad who was on duty, and asked him to take down their report, but the latter did not record it, saying that it was a civil wrong. When Abdul Karim insisted, S. I. Ali Muhammad asked him to go and search for Yakub and his companions and bring them to the police station. Abdul Karim went to the house of Yakub, but there also he did not find him. From there they went to Khalid Restaurant, where they got the names of the police constables and the A. S. I. Akbar Khan who, instead of taking Yakub, Ismail and his companions to the Police Station as given out by them had enabled them to disappear with the money. On their return to the Police station, they again contacted S. I. Ali Muhammad but the latter would not record the report. They therefore waited outside the police station, where; after sometime, came appellant Akbar Khan. He left after saying something to S. I. Ali Muhammad. The com plainant pointing at Akbar Khan told S. I. Ali Muhammad that he was the police officer who had ostensibly directed the two police constables Rehmat Khan and Fakir Hussain to take the cheats to the Police Station, but Ali Muhammad was not in a mood to help them in any way. They continued to wait outside till the D. S. P. came there. They complained to him and told him all about the incident and also told him that S. I. Ali Muhammad had refused to record their report. The D. S. P. then directed Head Constable Munshi to record the report which the latter did. This report was recorded at 9‑45 p.m. In this report names of Ismail and Yakub are mentioned. There is also mention of the fact that the cheats had been taken away to the Police Station by the Police Officers who appeared on the scene at the time of the incident. The police, after completing the investigation challaned Ismail, Yakub, the two constables Rehmat Khan and Fakir Hussain and A. S. I. Akbar Khan. It appears that after some time, appellant Ismail absconded. The Court therefore proceeded with the trial of Yakub, Rehmat Khan, Fakir Hussain and Akbar Khan, and when the trial was nearly over, appellant Ismail was re‑arrested. The learned Judge after completing the trial convicted Yakub, Rehmat Khan, Fakir Hussain and Akbar Khan and sentenced them as indicated above. Ismail was separately tried. He has been con victed and sentenced to R. I. for 3 years and to pay fine of Rs. 3,000 or in default to suffer R. I. for 12 months more. He has also filed an appeal, it being Criminal Appeal No. 100/56. On the day of the hearing in this Court, Yakub who had been bailed out, failed to put in his appearance ; his counsel withdrew his power for want of instructions.
The case of the prosecution was that Yakub and Ismail cheated the complainant of Rs. 9,000 and that the police officers abetted them to commit the offence of cheating and also committed an offence under S. 166, P. P. C. in that they did not arrest Yakub and Ismail even after they were told that they had cheated the complainant of Rs. 9,000.
Appellant Yakub in his statement denied the allegation that he had cheated the complainant. His case as it appears from his statement, was that he and the complainant had worked together as brokers and that the complainant owed him Rs. 2,300 which, on demand, he refused to pay. He has further stated that the complainant threatened to put him in trouble, and it was on that account that he left Karachi and first took shelter in Mirpurkhas and then in Sukkur. This later part of the statement is apparently made to explain his abscondence.
Appellant Akbar Khan, in his statement has denied the alle gation that he with the help of appellants Rehmat Khan and Fakir Husain abetted Yakub in cheating Abdul Karim of Rs. 9,000. He has filed a written statement the substance of which is to the effect that on the day of the incident h.‑ was returning to the police station when he noticed a crowd gathered in front of Khalid Restaurant, and that on going up there, he found appellants Rehmat Khan and Fakir Hussain coming out of the hotel having arrested three persons whose names he came to know there for the first time. On enquiry, he was informed by Rehmat Khan that Ismail who was amongst those who had been arrested, was wanted in Crime No. 890/51 under S. 420 P. P. C., of Nabibux police station which was pending with him for investigation. The appellant has then stated that he searched the persons of Ismail and others but nothing particular was found and he therefore directed appellants Rehmat Khan and Fakir Hussain to take them to the police station and then he followed them, reaching the police station at 5 p.m. He further says that he left the police station at 6‑30 p.m. Along with those three persons who had been arrested, in order to hold investigation in the Case No. 890/51 in which Ismail was wanted, and that at 10 p.m., he contacted Abdul Aziz who was complainant in that case, near Lakhpati Hotel, where Abdul Aziz identified Ismail to be one of the persons who had cheated him. Thereafter he took the three arrested persons to the police station and then put them in the lock up, and that on the following day he was asked to hand over the investigation papers to the sub‑inspector incharge which he did. He has stated that the case against him is false and that he had been implicated because he had arrested Allarakhyo and Husain who are men of the complainant Haji Karim.
The statements of the two constables Fakir Hussain and Rehmat khan are practically to the same effect. They also say that they had been implicated because they had arrested Allarakhyo and Hussain.
I have heard the learned counsel on either side and I have also gone through the entire record. In my opinion the conviction and sentence imposed upon appellants Ismail and Yakub call for no interference. As for the appellants Akbar Khan, Rehmat and Fakir Hussain, their conviction of the offence punishable under S. 420/109, in my opinion, has not been established beyond a reasonable doubt, but their conviction for offence punishable under S. 166, P. P. C. has been rightly recorded and neither the conviction nor the sentence imposed upon them under S. 166 call for any interference. The prosecution have examined the complainant and witness Habib to establish that Yakub and Ismail appellants had on false representation deprived the former of Rs. 9,000. The learned Judge who examined them and marked their demeanour has accepted their evidence and acted upon it. I see no reason whatsoever to differ from him in his appreciation of that evidence. Their story appears quite natural. They do not appear to have any reason to cook up such an elaborate story in order to involve the appellant in this case.
Nothing personal is alleged against P. W. Habib. About the complainant, Yakub has alleged in his statement that he and the complainant had jointly worked as brokers and that certain amount remained due from the complainant and that when he demanded the amount from him he threatened to harm him and that on that account he had run away to Mirpurkhas and Sukkur. This story besides being absurd, stands unsubstantiated.
The Manager of Khalid Restaurant although hostile to the prosecution has admitted this much that a quarrel had taken place between the complainant on one side and some persons on the other side in his restaurant. He has also admitted that some persons were arrested by the police constables and that the appellant Akbar was seen by him outside the restaurant about that time. It appears that this witness had picked out appellant Yakub in the identification test held by the police, but when examined in Court, he backed out. The names of Yakub and Ismail find place in the First information report which, in view of the circumstances mentioned above could not be said to have been lodged late. I am therefore satisfied that Yakub and Ismail have been rightly convicted and sentenced. Their appeal stands dismissed and their conviction and sentence maintained. Ismail who is on bail is remanded to custody to serve out the remaining portion of his sentence. I direct that a non‑bailable warrant be issued for the re‑arrest of appellant Yakub.
Police Constable Rehmat Khan, Fakir Hussain and S. I. Akbar Khan have been convicted of the offence of abetting Yakub and Ismail in committing the offence of cheating: There is no direct evidence on this point. Neither the complainant nor Habib says that he had at any time seen taking part in the negotiations for the sovereigns, or when the money was paid to Yakub. These three police officers have appeared at the scene after the offence of cheating had been committed. The learned Judge has inferred their complicity in the crime from their sudden appearance at the scene at the psychological moment. He appears to have been influenced by the subsequent conduct of the three appellants in that they neither searched the persons of Yakub particularly when they were told by the complainant that he had his 9,000 rupees on his person, nor did they take the cheats to the Police station although they gave out at the‑scene that they would do it. These circum stances are no doubt tale telling and may lead to a moral convic tion that the cheating was done in conspiracy with these police officers. But, moral conviction can by no means take the place of legal conviction. In my opinion it will not be safe to hold that the prosecution have been able to establish the guilt of the 3 appellants of the offence under S. 420/109 beyond a reasonable doubt. But this cannot be said regarding their conviction under S. 166, P. P. C. The first duty of a Police officer is to prevent a' crime, and if committed to detect it'‑and bring the offender to / book. Here there is definite evidence on record the veracity of which cannot be in doubt, that they were told when Yakub was arrested that he had cheated the complainant of Rs. 9,000 and that the amount was in the pocket of his waist coat and that the same should be taken back from him. But instead of searching the person of Yakub, they threatened the complainant, and on the pretext of taking them to Police station, they took them away from the police station, and thus enabled them to misappropriate the amount. All this they could not have done for nothing. When the complainant goes to the police station, to his amazement he sees neither the cheats nor the police officers there. 1t can not possibly be urged that the prosecution had any reason for involv ing the police officers. Indeed their evidence shows that none of the three appellants was even known to them before. The com plainant had to go to the restaurant to ascertain their names.
Their allegation that they have been involved because of the fact that of the three men arrested by them in the restaurant, two were related to the complainant, besides being absured stands, unsubstantiated. Not a question was put to the complain ant on this point in cross‑examination.
It has been said that the report was lodged late. For that, prosecution is not to blame. All their entreaties to record the report having failed, they waited outside the police station till the higher officer namely D. S. P. arrived. They com plained to him against the S. 1. incharge that he was not recording their report. It was thereafter that the D. S. P. directed his clerk to do that job.
The explanation offered by the appellant Akbar Khan is much too absurd to deserve any consideration. To explain why he himself did not record F. I. R. he says that so far as Yakub is concerned he had not even been arrested that night, and as for Ismail, he says he took him and the other two men who had been arrested with him to the house of the complainant Aziz for the purpose, of identification in respect of another offence of cheating. Why did he adopt this unusual procedure of taking the accused person to the house of the complainant for identification, instead of calling the complainant to the police station for the purpose, is not explained. The reason for this unusual procedure, according to me, could be no other than to explain the failure or delay in lodging the report. The appellant himself admits that the complainant in the earlier case had mentioned Ismail by name along with Yakub in his report. That being so it was not so urgent for him to adopt that course. At any rate that should not have caused delay in recording the F. I. R. in respect of this first offence of cheating. The evidence shows that not only was he himself not in a mood to record the report, but that the S. I, in charge was also not in that mood. It is also in evidence that the appellant had contacted S. I. Ali Muhammad that evening. Even the above statement, the appellant has made no attempt to substantiate. Every step that an investigating officer takes is recorded in the diary. There was nothing to prevent him from producing the diary if there was any truth in what he has stated. I am therefore satisfied that appellant Akbar Klan has been rightly convicted and sentenced under S. 166, P. P. C.
The case of the remaining two appellants via. Rehmat Khan and Fakir Hussain is on par with that of Akbar Khan. They are police officers within the meaning of S. 3 (b) (c) of Bombay District Police Act. Section 3 (b) reads as under :‑
" Police‑officer " means any member of a police‑force appointed under this Act and shall include, subject to the provisions of subsection (2) of section 22‑A, an additional police officer "
Section 3 (c) reads as under :‑
" Constable " means a police‑officer of the lowest grade ;
Section 51 (b) of the Act provides that every police officer shall " to the best of his ability, obtain intelligence concerning the commission of cognizable offences or designs to commit such offences, and lay such information and take such other steps, consistent with law and with the orders of his superiors, as shall be best calculated to bring offenders to justice or to prevent the commission of offences " ;
Section 51 (d) provides that every Police officer shall . " apprehend all persons whom he is legally authorised to apprehend, and for whose apprehension there is sufficient reason " ;54, Cr. P. C. any police officer can arrest with‑" first, any person who has been concerned in any cog nizable offence or against whom a reasonable complaint has been. made or credible information has been received, or reasonable suspicion exists of his having been so concerned " ;
Thus I find that it was their duty as much that of Akbar to arrest the cheats and lodge a report. This they have failed to do. This failure at once bring their case within the four corners of S. 166, P. P. C. They are therefore rightly convicted and sentenced.
In the result the appeals of these three appellants namely Akbar Khan; Rehmat Khan and Fakir Hussain against their conviction and sentence under section 166, P. P. C. also stand dismissed and their conviction and sentence maintained. They are on bail. Their bail‑bonds stand cancelled and they are directed to be remanded to Jail to serve out the remaining sentence.
The learned Judge in his judgment at page 7, while discussing the evidence of Habib, has, in effect used S. 162, Cr. P. C. statement of this witness. This is what the learned Judge says " His statement under S. 162 was recorded by the D. S. P. the same night. He was not cross examined in regard to that statement and this shows that there was no contradiction in his evidence ". This is nothing but indirect way of using 162, Cr. P. C. statement against an accused person. What the learned Judge could not do directly, he has done it indirectly. This method of doing things must be avoided.
It was contended on behalf of the appellants that the trial was bad as no sanction of the appropriate Government was obtained. This contention is untenable. Section 5 (5) of the Criminal Law Amendment Act XIX of 1948 no doubt provided that notwithstanding anything contained in the Code of the Criminal Procedure or any other law, the previous sanction of the appropriate Government shall be required for any prosecution under this Act. But, proviso to this section also provides that no such sanction shall be required in respect of a case transferred under the provision to subsection (2) of section 4 or by virtue of subsection (4) of that section. The present case belongs to the category of those cases which stood transferred to the Special Judge by virtue of subsection (4) of section (4) of the Act. Thus no sanction under the Act was required when the case of the appellants was transferred to the Court of the Special Judge.
It may be argued on behalf of the appellants that the proviso to S. 5 (5) was meant to apply only to those cases in respect of which a sanction had been obtained before the case was challaned in the Court of the Magistrate from which it was sub sequently transferred to the Special Judge.
This will depend on the answer to the question whether sanction to prosecute for the offence under S. 166, P. P. C., was necessary under the law. The answer to this question will be in the negative. Before the Criminal Law Amendment Act (XXXVII pf 1953) came into force, the Special Judge could try only those cases which were challaned in his Court by the Special Police. This is provided by section 4 (1) of the Criminal Law Amendment Act XIX of 1948 as it stood before the Criminal Law Amendment Act, 1953. This is what the section says :
"A Special Judge shall have jurisdiction within such territorial limits as may be fixed by the Central Government by notification in the official Gazette in respect of cases sent up to him for trial by the Special Police Establishment, constituted under the Pakistan Special Police Establishment Ordinance, 1948.
Provided that for the purpose of trial before the Special Judge, the provisions of Chapter XVIII of the Code of Criminal Procedure, 1898 shall be dispensed with, but a Special Judge may, in any ease where he deems it necessary, order any investigation by the Special Police Establishment."
Thus, apart from the cases challaned by the Special Police in the Court of the Special Judge, there could be cases challaned by the Special Police in the ordinary Courts. There also could be cases investigated and challaned by ordinary Police including C. I. D. in ordinary Courts, in the normal course, under the pro visions of the Criminal Procedure Code.
In such cases the provisions of section 5 (5) of Criminal Law Amendment Act of 1948 will therefore not apply.
The case of the accused persons in that case will be governed by the Criminal Procedure Code. Section 197 of that Code is the only section dealing with the question of sanction.
That section reads as under :
"(1) When any person who is a Judge within the meaning of S. 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 a local Government or some higher authority, is accused of any offence alleged to have been com mitted 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 of the Local Govern ment.
(2) Such Government may determine the person by whom, the manner in which, the offence or offences for which, the pro secution of such Judge, (Magistrate) or public servant is to be conducted, and may specify the Court before which the trial is to be held."
In the commentary on S. 166 it is stated that sanction for the prosecution in S. 166, P. P. C., is necessary. In the footnote under this head section 197, Cr. P. C., is mentioned indicating that sanction would be obtained in accordance with the provisions of section 197. This section provides for sanction for prosecution of a particular class of public servants. The appellants obviously do not belong to that class. Therefore no sanction in their case was required by law.
Thus I find that no sanction was required when the case was challaned in the Court of the Magistrate nor was it required when the case stood transferred to the Court of the Special Judge. The contention of the learned Counsels rust therefore fail. Conviction of and the sentenced imposed upon the appellant Akbar Khan, Rehmat Khan and Fakir Hussain for the offence punishable under section 420/109 is set aside, with this modification in the judgment, the appeals of all the five appellants stand dismissed.
Yakoob who is on bail, has been absconding. I direct that he be re‑arrested and remanded to Jail to serve out the remaining portion of his sentence. The remaining appellants are also on bail. Their bail bonds are cancelled and they are directed to be re‑arrested and remanded to custody to serve out the remaining portion of their sentence.
K. B. A. Appeals dismissed.
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