' The facts of the case are that the case F.I.R. No,697 was registered against the petitioner by respondent No,1 on 2-11-2002 under sections 409/420/468 and 471, P.P.C. The petitioner is seeking quashment of the said F.I.R. Mainly on the ground that respondent No,1 has no jurisdiction in the matter and that the entire proceedings commenced by him are coram non judice.
2. The petitioner has placed reliance upon rule 8 of the Punjab Anti-Corruption Establishment Rules, 1985 and contends that the petitioner who is a public servant, the registration of a case in respect of a scheduled offence, exclusively falls within the jurisdiction of Anti-Corruption Establishment and that the Local Police does not figure anywhere in the said scheme. In support of his contention the learned counsel for the petitioner has placed reliance upon the case of Muhammad Sharif v. S.H.O.
PLD 1999 Lahore 692; Muhammad Afzal v. Muhammad Siddiq 1992 M LD 311 and Aasia v. The State PLD 1996 Lah.
45. He has also relied upon the case of Muhammad Iqbal, A.S.-I. v. S.H.O. 2000 PCr.LJ 1924 for the same proposition.
3. On the other hand, the learned A.A.-G. For the State controverted this contention of the petitioner and submitted that the registration of cases at the ordinary police station even in case of scheduled offence was not illegal as section 8 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 had provided that the provisions of the said Ordinance were in addition to and not in derogation to any other law for the time being in force. It is contended that all provisions of Criminal Procedure Code were kept intact. It is stated that there was no jurisdictional defect in lodging of the F.I.R. Against the petitioner and that there was no force in the quashment proceedings. The learned A.A.-G. Has also-placed reliance upon the case of Mirza Muhammad Iqbal v. Government of Punjab PLD 1999 Lahore 109 and submits that the view expressed in this judgment has been upheld by the Honourable Supreme Court in C.P. S.L.A. No,1557-L of 1998.
4. Arguments have been heard and record perused.
5. Mumtaz Khan petitioner is the Secretary Union Council, Chak Bell Khan Tehsil and District Rawalpindi. Tehsil Nazim suspended the petitioner vide order dated 21-10-2002. It was alleged that despite the order of suspension from service, the petitioner collected 400 bags of wheat for the said Union Council although he had no authority to do the same. It was alleged that the bags of wheat were received with a criminal intention to misappropriate the same. It was on the basis of this complaint that S.H.O., Police Station, Waris Khan respondent No,1 registered a case against the petitioner vide F.I.R. No,697, dated 2-11-2002 under sections 409/420/468/471, P.P.C.
6. The point of law canvassed by the learned counsel for the petitioner does not bear scrutiny when viewed in the light of section 8, West Pakistan Anti-Corruption Establishment Ordinance, 1961.
According to this provision of law, the provisions of Ordinance are in addition and not in derogation of any other law for the time being in force. This would clearly show that the provisions of Criminal Procedure Code are meant to be kept intact. This being the position, rules 6, 7 and 8 of Punjab Anti- Corruption Establishment Rules, 1985 cannot be interpreted to have an overriding effect upon the provisions of section 154, Cr.P.C. The Rules of 1985 cannot supersede, superimpose or be construed in excess all the parameters laid down in the parent Ordinance viz. Section 8 of the Anti-Corruption Establishment Ordinance.
7. This view is fully supported by the case of Mirza Muhammad Iqbal and others v. Government of Punjab PLD 1999 Lahore 109 and another D.B. Judgment of this Court titled Shafqat Hussain and others v. Malik Sarfraz, Inspector Circle Officer ACE Hafizabad and another 2000 PCr.LJ 1995.
8. The learned A.A.-G. Had further submitted that the judgment rendered in case of Mirza Muhammad Iqbal (supra) has been upheld by the Honourable Supreme Court which deciding C.P.S.L.A. No,1557-L of 1998.
9. In view of the foregoing it is concluded that the provisions of rules, 6, 7 and 8 of the A.C.E. Rules, 1985 being subordinate legislation cannot control or override section 8 of the West Pakistan A.C.E.
Ordinance or section 154 of the Criminal Procedure Code.
10. Resultantly, there is no force in this petition which is hereby dismissed.
Petition dismissed.
005 YLR 1331 [Lahore] Before Ijaz Ahmad Chaudhry and M. A. Shahid Siddiqui, JJ THE STATE---Appellant versus NAZIR AHMAD and 16 others---Respondents Crl. Appeal No,86 of 1992, heard on 16th December, 2004.
Criminal Procedure Code (V of 1898)- ----5.417---Penal Code (XLV of 1860), Ss.302, 307, 382, 148 & 149---Appeal against acquittal--- Principles---Two , accused persons had also received fire-arm injuries---Trial Court had rightly found that even an illegal occupant in continued peaceful possession of land had a right to defend his possession against the true owner if some unlawful act was made to eject him. Therefrom---All prosecution witnesses were related inter se and with the deceased---Prosecution witnesses had admitted that they were not residents of the locality where alleged occurrence had taken place---Investigating Officer did not record statements of any of residents of the locality although according to him there were "Bheries" all around the place of occurrence---One of prosecution witnesses though was not related to the complainant party, but he too was resident of a place 10 miles away from the place of occurrence and he failed to give any plausible explanation for his presence at the spot at the relevant time---Presence of injured witnesses at the spot, no doubt was not at all doubtful and the occurrence, time and place of occurrence was admitted, but they all were interested witnesses and their statements could not be accepted as a gospel truth---Defence version that complainant party was aggressor, was borne out from evidence on record---Judgment of acquittal recorded by Trial Court, in circumstances could not be said to be the result of misreading or non-reading of any material evidence on record causing any miscarriage of justice---Accused persons could not be convicted and sentenced merely for the reason that they were involved in a heinous offence and three persons from complainant party were murdered---Appeal against acquittal had distinctive features and approach to deal with appeal against conviction was distinguishable from appeal against acquittal because presumption of double innocence was attached in latter case---Order of acquittal could only be interfered with when it was found on the face of it as capricious, perverse, arbitrary or foolish in nature, which were lacking in the present case---No improbability or infirmity in impugned judgment of acquittal recorded by Trial Court existed which being based on sound and cogent reasons did not warrant any interference by High Court---Judgment of acquittal was maintained, in circumstances. [p. 1338] A, B, & C Inayat Ullah Butt v. Muhammad Javed and others PLD 2003 SC 562 ref.
Ch. Muhammad Masud Sabir for the State.
Sahibzada Farooq Ali for Respondents.
Date of hearing: 16th December, 2004.
' IJAZ AHMAD CHAUDHRY, J.---This criminal appeal has been directed against the judgment dated 23-9-1991 passed by learned Additional Sessions Judge, Multan, by which, all the accused/respondents have been acquitted of the charge.
2. The statement (Exh.P.X) of Allah Bakhsh P.W.14 was recorded by Raja Khizar Hayat, Inspector/S.H.O., P.W.24 on 6-11-1989 at Kannu Moor at about noon time and on the basis of said statement F.I.R. No,209 of 1989 (Exh.P.X.1) was registered on the same day at about 12-30 p.m. At Police Station, Jalalpur Pirwala, District Multan by Muhammad Amin Head Constable, P.W.8 for an occurrence which had taken place on the same day at about 11-00 a.m. Within the area of Chak No,74-M, 11 K.Ms. Away from the said police station.
3. Briefly, the prosecution case was that the complainant was a Zamindar by profession and about 6/7 months ago Bashir Ahmad son of Khuda Bakhsh purchased State land (Lot No,10 comprised in Squares Nos.45 and 46) measuring 104 Kanals from Assistant Commissioner, Shujabad by way of auction and an amount of Rs,38,500 was also deposited by him in the public exchequer. After taking the possession of said land Bashir Ahmad had constructed two Katcha Kothas and also sown cotton crop therein. However, Sher Muhammad accused/respondent was alleged to be in possession of the said land as an illegal occupant previously. On the day of occurrence at about 11- 00 a.m. The complainant Allah Bakhsh and Muhammad Bakhsh were sitting with Bashir Ahmad deceased at his Bhaini when Manzoor Hussain armed with revolver .32-bore, Abdul Khaliq armed with hatchet, Sher Muhammad, Nazir Ahmad, Zahoor Hussain, Abdul Sattar, Allah Bakhsh, Abdul Rehman, Noor Muhammad son of Muhammad Bakhsh, Lal, Noor Muhammad son of Haider, Hazoor Bakhsh, Ghulam Haider, Jan Muhammad, Muhammad Hanif, Hussain Bakhsh and Hafiz Bashir Ahmad all armed with Sotas came there in order to take possession by force in consultation with each other. On seeing the accused persons, Bashir Ahmad started running towards North from the Bhaini and raised alarm. All the said accused (17 in number) chased him and raised Lalkara to Bashir Ahmad after chasing at a distance of about three acres that they would teach him a lesson for getting the Lot in auction. Complainant and Muhammad Bakhsh P.W. Followed them and within their view Noor Muhammad son of Muhammad Bakhsh gave a Sota blow on the head of Bashir Ahmad while the Sota blow inflicted by Allah Bakhsh hit on the head of Bashir Ahmad. Hafiz Bashir Ahmad then gave third Sota blow on the head of Bashir Ahmad, who fell down in the water-course.
In the meanwhile, Ghulam Farid and Sher Muhammad also attracted to the spot and on seeing them Jan Muhammad gave a Sota blow on the head of Sher Muhammad while Muhammad Hanif inflicted a Sota blow on the back of his right hand. Abdul Rehman gave a Sota blow on the backside of the left ribs of Sher Muhammad, who also fell down. Zahoor Hussain accused then inflicted a Sota blow on the upper part of right hand of Sher Muhammad. Manzoor Ahmad while raising Lalkara made a fire shot which hit on the upper lip near the nose of Sher Muhammad. Abdul Sattar then gave a Sota blow on the right side of head of Ghulam Farid, who also fell down. Lal inflicted a Sota blow on the nose of Ghulam Farid, who was lying on the ground. Hazoor Bakhsh caused Sota below on the back of right hand of Ghulam Farid. On the hue and cry of injured, Nadir, Amir, Khuda Bakhsh, Hamid, Allah Yar and Mahabat P.Ws. Reached there. Abdul Khaliq accused inflicted a hatchet blow on the right elbow of Nadir and thereafter Sher Muhammad, Nazir Ahmad, Lal, Ghulam Haider, Noor Muhammad, Jan Muhammad, Zahoor Hussain, Abdul Sattar, Allah Bakhsh, Abdul Rehman, Hafiz Bashir Ahmad, Hussain Bakhsh, Hazoor Bakhsh, Muhammad Hanif and Noor Muhammad son of Haider inflicted Sota blows turn by turn to Nadir, Amir, Khuda Bakhsh, Hamid, Allah Yar and Mahabat injured P.Ws. Allah Ditta brought out the licensed gun of Hamid P.W. From his house and handed it over to him. Hamid then made a gun shot hitting Allah Bakhsh and Abdul Khaliq, accused. However, second shot fired by him did not hit anybody. Noor Muhammad son of Muhammad Bakhsh finding an opportunity, snatched the gun single barrel .12-bore valuing Rs,2,500 from Hamid P.W. On seeing the other persons while attracting to the spot, all the accused persons/assailants decamped from the spot along with their respective weapons. The said occurrence was witnessed by the complainant himself besides Muhammad Bakhsh P.W. Bashir Ahmad succumbed to the injures at the spot after some time. Sher Muhammad and Ghulam Farid injured had become unconscious. All the accused persons, according to the complainant, in consultation with each other had committed this heinous offence.
4. After recording of statement (Exh.P.X), Raja Khizar Hayat, P.W.24 went to the spot, recorded the statements of witnesses, dead body of Bashir Ahmad was sent to mortuary. He also inspected the spot and took into possession the blood-stained earth from three different places. Sher Muhammad and Ghulam Farid injured were referred to Nishtar Hospital, Multan due to their precarious condition from the hospital of Jalalpur Pierwala while remaining injured witnesses remained admitted in the aforesaid hospital where their statements under section 161, Cr.P.C. Were recorded by said Raja Khizar Hayat. On 7-11-1989 Ghulam Farid was also reported to have died and the Investigating Officer sent his dead body to mortuary as well. On 8-11-1989 he arrested all the accused/respondents except Lal accused, who then was arrested on 15-11-1989. Allah Bakhsh, Abdul Khaliq and Zahoor Hussain accused also claimed to have received injuries during the alleged occurrence .And the Investigating Officer (P.W.24) got them medically examined as well.
Site-plan was also got prepared by him. Recoveries of different kinds were effected from the accused/respondents and after completion of investigation report under section 173, Cr.P.C. Was submitted in the Court.
5. After receipt of above said report, copies of documents as required under section 265-C, Cr.P.C.
Were supplied to the accused and charge was framed against all the accused/respondents which was denied by them and prosecution in order to prove their guilt produced as many as 24 witnesses.
6. Medical evidence was adduced by Dr. Abdul Hassan, P.W.6 and Dr. Muhammad Altaf Hussain, P.W.1 while the ocular account was furnished by Allah Bakhsh, Muhammad Bakhsh, Allah Yar, Mahabat, Hamid, Amir, Nadir Ali and Khuda Bakhsh (P.Ws. 14 to 21) whereas Raja Khizar Hayat, P.W.24 had investigated the case. However, the remaining witnesses were less or more of formal nature.
7. The accused/respondents after the close of prosecution evidence were examined under section 342, Cr.P.C., wherein, they denied the allegations and to a question "that why this case against you and why the P.Ws. Have deposed falsely?", Sher Muhammad accused/respondent replied as under:-- "I along with my son Nazir Ahmad co-accused and my daughter Mst. Aisha and minor children were sitting in our Behani situated in Killa No,18/2 Square No,45 of Chak No,74/M when all of a sudden, the 3 deceased along with 6 injured P.Ws. And about 10/15 more persons attacked me and my family members in the Behani. They dragged us out of our Kothas and demolished part of it.
They had taken out our house articles from our Behani. Mst. Aisha my daughter and my minor children made good their escape while I along with Nazir were being dragged and when the complainant party had taken us to Killa No,10 of Sq: No,45, our alarm attracted Abdul Khaliq, Allah Bakhsh, Zahoor Hussain, Manzoor Hussain, Noor Muhammad son of Muhammad Bakhsh alias Muhammad Yar and Hazoor Bakhsh. They were fired at by the complainant party and as a result of which, Allah Bakhsh and Abdul Khaliq received the injuries and fell down. The gun shots attracted many other inhabitants of the locality who had, come armed with Sotas in order to rescue us and then during the fight, Zahoor, Noor Ahmad, Hazoor Bakhsh and Manzoor were also mercilessly beaten. Some of the rescuers caused injuries to the complainant side and to the aggressors. We had also in exercise of right of defence of persons and,property cause some injuries to the aggressors but their injuries are not as shown in M.L.Cs. Their numbers have been inflated thereafter with the connivance of S.-I. And the Doctor. The partisan attitude of the S.H.O. Is visible from the fact that we complained and requested to the D.S.P. Muhammad Ashraf Awan on 9-11- 1989 to get us medically examined who directed the S.H.O. And we were examined as such.
' I am in possession of Lot in dispute for the last 20 years. Bashir Ahmad deceased never took the possession, legally or illegally or Through Panchayat. The complainant party attempted to forcibly occupy the lot in the months of August, 1989 but they could not succeed. Mst. Aiysha my daughter then filed the writ petition against the complainant party for the registration of the case regarding that incident.
' On the day of occurrence, I was in possession of the whole of the Lot. Khasra Girdawari produced by the prosecution Exh.P.E.E. Is a forged and fabricated document which was prepared at the instance of Investigating Officer by the Patwari. We are the victims of the aggression. The complainant party got 17 innocent persons challaned and after the occurrence illegally occupied the whole of the Lot. Bashir deceased had not constructed any behani or/any construction in any manner in the lot up-till the occurrence nor he had sown any cotton crop."
' To the above said question the other accused/respondents also made the same reply. They also produced defence evidence and the learned trial Court acquitted them of the charges through the impugned judgment dated 23-9-1991, while discarding the prosecution evidence.
8. The State had filed the instant criminal case against the acquittal of all the respondents, but this Court admitted the same only to the extent of respondents, namely Allah Bakhsh, Nazir Ahmad, Sher. Muhammad, Manzoor Hussain, Abdul Khaliq, Hazoor Bakhsh, Zahoor Hussain and Noor Muhammad son of Ghulam Haider and non-bailable warrants of arrest were also issued against the said respondents.
9. Written request for adjournment has been sent by Sardar Muhammad Latif Khan Khosa, Advocate, the private learned counsel for the complainant, on the ground that he is busy in election campaign of his son Sardar Khurram Latif Khan Khosa, Advocate from 16-12-2004 to 20-12- 2004 and his cases including the present criminal appeal may be adjourned. We are not inclined to accept this request for adjournment as the reason therefore does not seem to be proper. The main priority of an Advocate is to appear in the Courts and especially the cases fixed before a Division Bench cannot be adjourned on these lame excuses. Even otherwise, this appeal was filed by the State itself, which is represented by an independent Advocate and learned counsel for the complainant had already obtained numerous adjournments in this case, which practice cannot be allowed to continue any more as the Advocates are bound to adjust their activities according to the Roster of the Courts. No doubt every private party has a right to engage some counsel of their own choice but it is the duty of the said counsel before engagement in a case to ensure his availability on each and every date when the case is fixed unless some solid reasons for adjournment of the case are shown. Adjournments by a counsel on lame excuses cannot be allowed as the Courts are already over burdened and whenever cases are fixed for hearing, the respective counsel of the parties should appear in the Courts fully prepared with the brief as of their first priority. Hence, we are constrained to decide this State appeal on merits even in the absence of learned counsel for the complainant after hearing the learned counsel for the State as well as the respondents.
10. Learned counsel for the appellant/State contends that there was sufficient evidence on the record to connect the respondents under notice with the commission of crime; that five injured witnesses were produced by the prosecution to prove its version and their presence at the spot was not at all doubtful; that the occurrence took place at about 11-30 a.m. While Police Station was at a distance of 11 K.Ms. From the place of occurrence and the case was registered at about 12-30 p.m. With promptitude wherein the names of all the witnesses and the accused along with roles ascribed to them were mentioned and no time was left for consultation or fabricating a false story; that the witnesses were injured during the alleged occurrence and their presence at the spot was established; that the injuries on the body of accused persons were duly explained in the F.I.R. As well and the recoveries were also effected from their possession, which provided independent corroboration to the ocular account; that Bashir Ahmad deceased after purchasing the Lot through auction had taken over possession thereof through Punchait and the accused party while variously armed had come there to resume its possession forcibly but the learned trial Court wrongly held that the accused Sher Muhammad was in possession of said land, hence, the finding of acquittal is based on surmises and conjectures; that after perusal of evidence on record the only inference which can be drawn is that the prosecution was able to bring home guilt to the accused- respondents beyond any shadow of doubt, who committed a heinous offence, in which, three persons had lost their lives and, as such, the acquittal order may be reversed.
11. On the other hand, learned counsel for respondents opposes this appeal and has drawn our attention to the documentary evidence, which shows that though the Lot was allotted to the deceased Bashir Ahmad yet it was subject to confirmation by the Deputy Commissioner, which later on was not confirmed and all the auction proceedings were set aside by the Commissioner.
The possession was never delivered to deceased Bashir Ahmad and it was an admitted fact that Sher Muhammad accused/respondent was illegal occupant of the said land for the last about 10/11 years; that the Revenue Record establishes his possession over the said land from the last 10/11 years and admittedly Bashir deceased was not delivered the possession thereof in accordance with law after the auction proceedings, hence, the learned trial Court rightly held that the complainant was not in possession of the said land, who along with other persons had come at the spot while armed with deadly weapons in order to take the possession of the land forcibly and the respondents had a right to defend their person and possession over the disputed property; that occurrence had taken place due to the illegal act of complainant party and they were the aggressors and that the acquittal of respondents is based on sound reasoning, supported by the evidence on record, which cannot be upset by this Court merely for the reason that three persons had lost their lives.
12. We have heard the learned counsel for the parties and also perused the record. It is an admitted fact that the occurrence in the instant case had taken place at Lot No,10, which was purchased by Bashir Ahmad deceased in an open auction, held on 14-6-1989. Bashir Ahmad deceased was at serial No,10 of the bidders in Exh.D.A., who were recommended by the Assistant Commissioner/Collector, Shujabad for the approval of auction but the Board of Revenue vide letter dated 25-5-1989 had not approved the auction and order dated 14-6-1989 was duly passed by Assistant Commissioner, Shujabad in this regard. This document Exh.D.A./1 proves that the auction in the name of Bashir Ahmad regarding purchase of Lot No,10 was not approved and thus question of handing over of its possession to Bashir Ahmad did not arise. Another documents (Exh.D.B./1) is a copy of Roznamcha Waqiati of 75-M. It has been mentioned in Rapt No,242, dated 11-10-1989 that Bashir Ahmad one of the respondents had filed an appeal/revision against the order dated 24-6- 1986 passed by Assistant Commissioner/Collector regarding the above said land whereupon interim stay was granted and the said appeal was admitted by the Commissioner for regular hearing and fixed for 7-11-1989. The summons were issued on 9-10-1989 and the same were duly served as per Exh.D.B./1 on 11-10-1989:
13. We have also noticed that the copy of order was also placed, on record as Exh.D.M., which is at page 313 of the Paper Book whereas Exh.D.L. Is copy of an application which was moved by Bashir Ahmad deceased on 4-5-1989 for issuance of Dakhal Warrant in his favour on the ground that he had purchased the said land, but the report was made by the Revenue field staff that the said auction in favour of Bashir Ahmad deceased was not confirmed and "Warrant Dakhal" could not be issued. According to Khasra Girdawaries (Exh.D.O.) the said Lot was owned by the Government and it was under cultivation of Sher Muhammad one of the accused/ respondents.
14. From the perusal of above said documents, the claim of the complainant party that they had obtained the possession of the said land is belied. The oral assertion of P.Ws. That the possession was delivered through Punchait which fact was never incorporated in the Revenue Record cannot be preferred over the documentary evidence which establishes that Sher Muhammad was still in possession of disputed property even on the day of occurrence and its possession was never delivered to Bashir Ahmad. The possibility cannot be ruled out that having failed on the Revenue side to take possession of the disputed property they had tried to take its possession of their own forcibly while variously armed and as such they were aggressors. The learned trial Court has rightly observed that 9 persons of the complainant party and 8 from the accused, who were found dead or injured during the alleged occurrence, had participated in the occurrence, so it was not possible to fix the stretch or point of time at which the accused should have stopped causing further harm to the complainant party. Two accused persons also received fire-arm injuries. We are also in agreement with the learned trial Court that even an illegal occupant in continued peaceful possession of the land has a right to defend his possession even against the true owner if some unlawful act is made to eject him therefrom.
15. It is borne out from the evidence on record that all the P.Ws. Were related inter se and with the deceased. P.W. 14 admitted that they were not residents of the locality where the alleged occurrence had taken place. The Investigating Officer, P.W.24 did not record statements of any of the residents of the locality although according to him there were "Bhenies" all around the place of occurrence. Although P.W. 15, Muhammad Bakhsh was not related to the complainant party yet he too was resident of 10 miles away from the place of occurrence and failed to give any plausible explanation for his presence at the spot. No doubt the presence of the injured witnesses at the spot was not at all doubtful and the occurrence, time and place was admitted but they all were interested witnesses and their statements cannot be accepted as a gospel truth. The defence version that the complainant party was aggressor is borne out from the evidence on record.
16. In the light of above discussion, we do not find that judgment of acquittal recorded by the learned trial Court is the result of misreading or non-reading of any material evidence on record and has caused any miscarriage of justice. The accused persons cannot be convicted and sentenced merely for the reason that they were involved in a heinous offence and three persons from the complainant party were murdered. It is well-settled principle of law that an appeal against acquittal has distinctive features and the approach to deal with the appeal against conviction is distinguishable from appeal against acquittal because presumption of double innocence is attached in the latter case. An order of acquittal can only be interfered with when it is found on the face of it as capricious, perverse, arbitrary or foolish in nature, which are lacking in this case. Reliance is placed on "Inayat Ullah Butt v. Muhammad Javed, etc. PLD 2003 SC 562. There is hardly any improbability or infirmity in the impugned judgment of acquittal recorded by the learned trial Court, which being based on sound and cogent reasons does not warrant any interference by this Court and is accordingly maintained.
' Resultantly, this appeal is dismissed.