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Criminal Revision No. 546 of 1957, decided on 19th March 1958, case reported by Sheikh Muhammad Akbar, Sessions Judge, Gujranwala with his No. 330 J. Cr. 1‑A, dated the 20th August 1957 under section 438, Criminal P. C.
Police Act (V of 1861), S. 29 read with Police Rules, r. 16.21 (1) (2)‑Transfer of suspended Police Officer to a Police Station instead of to Lines‑Absence from Police Station without permission‑Offence under S. 29.
The order of the Superintendent of Police directing the Police Officers accused to proceed first to the Police Lines and then imme diately to Police Station Wanike was passed on the 13th of August 1956. The substance of the order was entered the same day in Register No. V of Police Station Wanike, with the addition that the accused would remain under the surveillance of the Sub -Inspector, the Urdu expression used being "zeri nigrani". Although the reason for the transfer of the accused to Police Station Wanike was that they had refused to record a report of offences under sections 366, 376 and 161/109 of the Penal Code, they were not suspended until the 15th of August.
Held, that there was initially nothing illegal in the direction that the accused should not absent themselves from Police Station Wanike without permission.
The object of rule 16.21 (2) of the Police Rules is to ensure that a suspended officer should be prevented from interfering with the investigation or inquiry proceeding against him. In the present case the accused were, at the time of the commission of the alleged offence of refusing to register a report under the Penal Code, posted to A' Division Police Station, Gujranwala Town, and, before their suspension, had been validly transferred to Wanike, at some distance from Gujranwala. As the investiga tion would naturally be conducted in Gujranwala, the possibility of the accused's being able to impede its course was obviously remote, and, in fact, their transfer to the Police Lines in Gujranwala would have meant an increase in that risk.
If the accused were not put at the Police Lines during their suspension, that circumstance did not make their conviction under section 29, Police Act for absence from Police Station Wanike without permission, illegal.
Under rule 16:21 (1), the accused were subject to the discipline of the force and the mere fact that no specific duties were assigned to them at the Police Station could not possibly justify the breach of discipline committed by them.
Hasan Akhtar for Petitioner.
K. B. Abdul Qayyum for the State.
Date of hearing: 12th March 1958.
The accused, on conviction by Ch. Muhammad Shafi Zafar, Additional District Magistrate exercising the powers of section 30 Magistrate in the Gujranwala District was sentenced by order dated the 16th February 1957, under section 29 of the Police Act to pay a fine of Rs. 50 or in default to undergo one month's R. I. The facts of this case are as follows:-
Gulzar Ahmad, a Head Constable, Muhammad Amin and Muhammad Fazil, two foot constables, have been convicted, in three separate cases, of an offence, under section 29 of the Police Act. Each one of them has been sentenced to pay fine amount ing to RS. 50 only. An offence, under section 29, is punishable with a certain term of imprisonment and fine. But in this case Ch. Muhammad Shafi Zafar learned Additional District Magistrate preferred to pass a non‑appealable sentence, and hence all the three convicted police officials have put in three separate repre sented Revision Petitions, through Raja Hassan Akhtar, Advocate. Facts of these cases are as under:
The proceedings are forwarded for revision on the following grounds:-
Gulzar Ahmad, Head Constable, and the approve two foot constables were posted to A‑Division Police Post, Gujranwala. It was alleged against them in connection with a criminal case No. 283 dated 12th August 1956, under sections 366, 376, P. P. C. that an offence came to their notice, but they did not take any action in the matter. By an order dated 13th August 1956 they were transferred to Police Lines; but instead of being ordered to remain present in the Police Lines they were directed to go to Police Station Vanike and remain present there under the surveillance of Sh. Muhammad Ashiq, Sub‑Inspector. The order originally passed was Exh. P. A. It is said to have been copied out in register No. 5, which is D. A.
Certain indictment against these three police officials was levelled and they were actually prosecuted in a Court of law, which acquitted them. They were suspended on 15th August 1956. Subsequently, they were prosecuted under section 29 of the Police Act, for having absented themselves from Police Station Vanike, during the period between 19th August 1956 (sic). In these cases, prosecution produced Shah Muhammad, Head Constable P. W. 1 and Sh. Muhammad Ashiq Sub‑Inspector P. W. 2. Raja Hassan Akhtar learned counsel for the petitioners has raised the following questions for determination, under section 367 of the Criminal P. C.:-
1. That the order of surveillance in Police Station Vanike as contained in D. A. is an order which is capricious, wanton, unauthorised and void and it could not possibly enforce compliance.
2. That according to police Rule 16.11, Chapter 16, Vol. 11, when a disciplinary offence on the part of police officer can be adequately punished departmentally, such officer shall not be prosecuted under section 29 of the Police Act, that in this case these three officials could be dealt with effectively in a departmental enquiry and their prosecution under section 29 of the Police Act is not only malicious and mala fides but it is also highly arbitrary.
3. Under rule 16.21 (2) of the aforesaid Police Rules, a Police Officer under suspension shall be transferred to the Police Lines, that detention of these three police officials in Police Station Vanike, under the surveillance of Sh. Muhammad Ashiq, S. I. was entirely unauthorised and the Superintendent of Police had no authority or jurisdiction to pass any such order and that nobody is bound to comply with an illegal order of any officer how‑high‑so‑ever.
Mian Arif Mahmood, learned Public Prosecutor argues, that these three officials were as a matter of fact transferred from the Police Lines to P. S. Vanike. I have requested him to refer me to any order of the Superintendent of Police or any other compe tent Police Officer on that point. He has not been able to lay his fingers on any such order. Consequently, on merits this contention of the learned Public Prosecutor is without any sub stance. He, however, refers me to P. A. and D. A. and he argues that the learned Additional District Magistrate drew an inference that the Superintendent of Police might have, subsequently, passed order of transfer of these officials from Police Lines to Police Station Vanike. I have told the Public Prosecutor, that there would be a world of difference between the point of view of a Magistrate and that of a Sessions Judge. The learned Additional District Magistrate could travel into the realm of conjectures and surmises and to draw some inference in favour of the prosecution. The learned Additional District Magistrate observed, that it is quite possible that the Superintendent of Police might have later on transferred the Head Constable to the Police Lines. No judicial finding can be, reasonably, based on such surmises or conjectures. Moreover, we cannot go out of the judicial record. There is no transfer order passed by the Superintendent of Police with respect to these three officials formally transferring them either from Police Lines to Police Station Vanike or from A‑Division Police Post to Police Station Vanike. In the absence of any such specific order, it is impossible for this Court to hold that any such transfer orders were passed. My first finding of fact, therefore, is that the Superintendent of Police, Gujranwala is not proved to have passed any orders, transferring these three officials to Police Station Vanike.
The only orders regarding these three officials, that exist on the judicial record, are P. A. and D. A. The words used in register No. 5, Exh. D. A. are rather very pinching and the learned Public Prosecutor shall have to strive hard to convince this Court that these orders did not contain any sting. We are being governed by the Constitution and the law of the land. Nobody, how‑high‑so‑ever, has been given any arbitrary powers. It is proverbial that it is a very good thing to have the power of a giant, but it would be tyrannous to use it like a giant. In this case the Superintendent of Police had, absolutely, no powers to keep these officials under the surveillance of Muhammad Ashiq Sub‑Inspector in Police Station Vanike. These orders are entirely illegal and non‑compliance with such illegal orders has never been considered by any judicial authority, to constitute an offence. Mian Arif Mahmood, learned Public Prosecutor seeks protection under a plea, that the order D. A. consists of two portions as under:-
(1) That these three officials will remain under the surveil lance of Muhammad Ashiq in Police Station Vanike,
(2) That they shall not absent themselves from Police Station Vanike.
The plea of the learned Public Prosecutor is, that there is nothing illegal in the second part of the order and these officials could not possibly leave Vanike when they had signed the order D. A. Reply of Raja Hassan Akhtar, learned counsel for the petitioners is that the orders contained in D. A. were initially without jurisdiction and unauthorized. The Superintendent Police had no locus standi to pass these orders. Under rule 16.21 (2) of the Police Rules these people could be kept in Police Lines only and they could not be kept under surveillance in Police Station Vanike. Moreover, it is common ground between the parties that these three Police officials were actually suspended from service on 15th August 1956, and after their suspension order was actually passed, they could not be kept anywhere else except Police Lines Gujranwala and any attempt to keep them under the surveillance of Muhammad Ashiq in Police Station Vanike could not possibly be justified.
Section 29 of the Police Act requires compliance with the lawful orders. Moreover, it makes punishable the withdrawal of any police officer from the duties of his office without per mission without any reasonable cause. Learned counsel for the petitioners points out that no duties were assigned to his clients in Police Station Vanike. Their being kept illegally under surveillance could not be said to have been tantamount to their having been performing any duties under the Police Act.
After having considered all the judicial material placed before me, I have arrived at the conclusion, that Gulzar Ahmad, Head Constable was convicted without sufficient grounds. It is settled law, that when an accused succeeds in creating a doubt about the genuineness of the prosecution case, it is the duty of the prosecution to resolve that doubt and if they fail to do so, the benefit shall go to the accused. In the case before me, Mian Arif Mahmood, learned Public Prosecutor has refused to support the surveillance order passed by the Superintendent of Police, Gujranwala. What I feel is that if the Police authorities in Gujranwala believed that these three Police Officials had mis behaved in connection with case under section 366/376 P. P. C. they should have been suspended at once and their departmental chitha should have been drawn up; but an unusual procedure was adopted in the case of these three people.
On paper, they were transferred to the Police Lines. But for all practical purposes, they were transported to Police Station Vanike and were being, physically, kept under the surveillance of Muhammad Ashiq Sub‑Inspector. This could not be done either under the law or under the Police rules. This order was unauthorized and, consequently, illegal. No offence under section 29 of the Police Act stands made out against Gulzar Ahmad Head Constable. Legally, therefore, his conviction cannot be sustained. I, therefore direct that a report be submitted to the High Court of West Pakistan, making a recommendation that his conviction Should be quashed. A formal report on the prescribed form to be drawn up.
Facts of the cases against the two foot constables are identical with those of Gulzar Ahmad, Head Constable, the only difference being that the two foot constables got themselves convicted on a plea of guilty and no appeal against conviction would ordinarily be maintainable. But Raja Hassan Akhtar, Advocate, learned counsel for the petitioners, points out that a plea of guilty, as understood in law, should comprise confession regarding all the ingredients of the offence charged. In this case, what the two foot constables admitted in the trial Court was, that they had absented themselves from Police Station Vanike. In the circumstances of this case, their absence from Police Station Vanike in disregard of illegal orders, does not amount to an offence under section 29 of the Police Act. Hence, it cannot be considered that the mere factum of the admission by these two petitioners about the absence from Police Station Vanike, constitutes a confession about all the ingredients of an offence, under section 29 Of the Police Act. This point is covered by authority and I have no hesitation in agreeing with Raja Hassan Akhtar on the point, Thus, I find that in spite of the fact that these two foot constables admitted that they had absented them selves from Police Station Vanike, this statement will not amount to their confession of the guilt. Hence, it is directed that their case as well be submitted to the High Court of West Pakistan, with a similar recommendation. Report to be drawn up on a prescribed form.
Parties to appear in the High Court of West Pakistan on 3rd of October, 1957.
---Gulzar Ahmad, Head Constable, and Muhammad Amin atta Muhammad Fazil, Foot Constables, were separately convicted by the learned Additional District Magistrate, Gujranwala, under section 29 of the Police Act. Each was fined Rs. 50, but whereas in the case of Gulzar Ahmad the period of imprisonment imposed in default of payment was 15 days, in that of the two foot constables it was one month each. The nature of the offence alleged to have been committed by the accused is that they disobeyed an order passed by the Superin tendent of Police, Gujranwala, forbidding them to leave Police Station Wanike without his permission.
2. The proceedings in all three cases were forwarded to this Court by Sheikh Muhammad Akbar, Sessions Judge, Gujranwala, with the recommendation that the convictions be quashed on the main ground that as the order forbidding the accused to leave Wanike without permission was illegal, the accused committed no offence in disobeying it. Since the same question arises in each of the three cases, all will be disposed of by this order.
3. For a correct understanding of these cases, it is necessary to keep in mind the chronological sequence of events. The order or the Superintendent of Police directing the appellants to proceed first to the Police Lines and then immediately to Police Station Wanike was passed on the 13th of August 1956. The substance of the order was entered the same day in Register No. V of Police Station Wanike, with the addition that the accused would remain under the surveillance of the Sub‑Inspector, the Urdu expression used being "zeri nigrani". Although the reason for the transfer of the accused to Police Station Wanike was that they had refused to record a report of offences under sections 366, 376 and 161/109 of the Penal Code, they were not suspended until the 15th of August.
4. In his referring order the learned Sessions Judge remarks:-
"Mian Arif Mahmood learned Public Prosecutor, argues that these three officials were, as a matter of fact, transferred from the Police Lines to Police Station Wanike. I have requested him to refer me to any order of the. Superintendent of Police or any other competent Police Officer on that point. He has not been able to lay his fingers on any such order.
From this it appears that in the opinion of the learned Sessions Judge Ex. P. A. does not constitute a valid order of transfer, but if this is what he means, I cannot agree. The order in question is signed by the Superintendent of Police, Gujranwala, and contained a direction from him that the three accused should proceed first to the Police Lines and then immediately to Police Station Wanike. No further order of transfer was required, and the objection of the learned Sessions Judge is without substance.
5. The next contention of the learned Sessions Judge is that the direction incorporated in Ex. D. A. that the accused should remain under the surveillance of the sub‑Inspector Wanike is illegal. No authority has been cited for this assertion, and I am extremely doubtful of its correctness. A stronger argument would be that the original order of the Superintendent of Police contained no such direction, and that the Sub‑Inspector should not have issued it of his own accord, but I am in full agreement with the argument of the learned Public Prosecutor that whether or not the order of surveillance was unjustified, there was initially nothing illegal in the direction that the accused should not absent themselves from Police Station Wanike without permission.
6. The next point requiring consideration is whether, after their suspension on the 15th of August, the accused were justified in absenting themselves from Police Station Wanike on the ground that under sub‑rule (2) of rule 16.21 of the Police Rules they should have been transferred to the Lines. In my opinion they were not. It is perfectly clear that the object of the above rule is to ensure that a suspended officer should be prevented from interfering with the investigation or inquiry proceeding against him. In the present case the accused were, at the time of the commission of the alleged offence of refusing to register a report under the Penal Code, posted to A' pivisio Police Station, Gujranwala Town, and, before their suspension, had been validly transferred to Wanike, at some distance from Gujranwala. As the investigation would naturally be conducted in Gujranwala, the possibility of the accused's being able to impede its course was obviously remote, and, in fact, their transfer to the Police Lines in Gujranwala would have meant an increase in that risk.
7. The only ground on which the order of the Superintendent of Police directing the accused not to leave Wanike without his permission might have been challenged was that it did not allow them reasonable facilities for the preparation of their defence, but in the present case the stage of preparation of defence had not been reached. No proceedings, departmental or criminal, had been actually started against them at the time they absented themselves from the police station, and Raja Hassan Akhtar's argument that Gulzar Ahmad's absence can be justified on the ground that he filed an application in this Court for bail before arrest has no substance. No warrant had been issued, nor had any action been taken which could be reasonably considered as constituting preparations for his arrest. Further, it was clearly his duty to apply for permission before absenting himself.
8. Sub‑rule (1) of rule 16.21 of the Police Rules, based one the provisions of the Police Act, makes it clear that although, during the term of his suspension, the powers, functions and privileges vested in a police officer shall be in abeyance, he shall c continue subject to the same responsibilities, discipline and penalties and to the same authorities as if he had not bee suspended. The mere fact that no specific duties are said t have been assigned to them could not possibly justify the breach of discipline committed by the accused.
9. The learned Sessions Judge went behind the admission of guilty advanced by the two foot constables at the trial, but since the order they disobeyed was perfectly legal, an admission of absence from the thana without permission constitutes, in the circumstances, a valid plea of guilty.
10. For the above reasons I decline to accept the recom mendation of the learned Sessions Judge.
A. H. Recommendation not accepted.
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