1. MUHAMMAD SALEEM JESSAR, J.---By this single Judgment I propose to dispose of above-noted two Criminal Appeals as both appeals arise out of the same judgment passed by the trial Court, besides factual and legal aspects in both the appeals are almost same.
2. Through these Criminal Appeals the appellants have assailed the judgment dated 29.09.2016 passed by learned Judge, Special Court (Central), Karachi in Case No.10 of 2015 arising out of FIR No.16/2015 registered at Railway Police Station Karachi Cantt. under sections 420/10/34, P.P.C. read with sections 114 of Railways Act and section 5(2) of P.C.A., 1947, whereby the appellants have been convicted under section 420, P.P.C. and sentenced to suffer R.I. for three years and to pay tine of Rs.20,000/- each, in case of non-payment of fine, to undergo S.I.G for three months more. The appellants have also been convicted under section 5(2) of PCA-II, 1947 and sentenced to suffer R.I. for three years and to pay fine of Rs.20.000/- each, in default to pay fine to undergo S.I. for three months more. The appellants have also been convicted under section 114 of Railways Act, 1890 and sentenced to suffer RI for three months and to pay fine of Rs.5,000/- each and in case of non- payment of fine, to further undergo S.I. for fifteen days. All the sentences were ordered to run concurrently.
3. However, the accused / appellants were extended benefit of section 382-B, Cr.P.C.
4. Precisely, the facts of the prosecution case, as disclosed by complainant Nasir Nazeer, DCO Railways, Karachi Division, in the FIR lodged on 14.5.2015 at Railway Police Station, Karachi Cantt. on the orders of SSP, are that Komal Azeem Jamali. who was recently posted as ACO-I, was given task of surprise checking of the black marketing of railway tickets at Railway Station Karachi Cantt. On 02.5.2015 she came at Railway Station Karachi Cantt. and observed that one police constable Belt No.270 was dealing with passengers regarding tickets. She also demanded three railway tickets of Karakorum Express from him, whereupon said constable demanded Rs.2,000/- for each ticket and promised to deliver the same to her at 1530 hours before departure of the train. The ACO contacted the said police constable at 3.30 p.m. who asked ACO-I to sit in Coach No.2 at Seat Nos.19, 20 and 23 where two constables namely Mohammad Naeem and Sarwar having Belt No.465 and 772 respectively appeared and handed over tickets to ACO-I and received Rs.6,000/- from her. These three tickets were of Economy Class which were booked in the names of one Arif, Rasheed and Kamil respectively.
5. After this incident SSP Railway Police Karachi Division was contacted and name of police constable having Belt No.270 was communicated to him, who directed SHO Karachi Cantt. and Constable Jabir Nadeem to meet with ACO-I. Constable Jabir Nadeem confessed his guilt and admitted his mistake. He also admitted that he received Rs.2.000/- for each ticket with other two constables. On further investigation, it revealed that the above tickets were booked by Reservation Clerk namely Akhtar Hussain who was posted at Kotri Railway Station. All the three constables were alleged to be involved in black marketing of railway tickets.
6. After usual investigation I.O. submitted challan against the accused/appellants before the concerned Court. A formal charge was framed against the accused persons to which they pleaded not guilty and claimed to be tried.
7. In order to prove its case prosecution got examined complainant P.W.1 Nasir Nazeer, Divisional Commercial Officer, Pakistan Railway at Ex.7, who produced his report as Ex.7/A, three original tickets as Ex.7/A/1 to 7/A/3.
8. P.W.2 Komal Azeem. Jamali, A.CO, Karachi Division-I, Pakistan Railway was examined at Ex.8, whereas P.W.3 Mohammad Suleman, SI/SHO, RPS, Karachi City was examined at Ex.9, who produced seizure memo of tickets as Ex.9/A. P.W.4 Ghulam Shabbir, Booking Supervisor Kotri Railway Station was examined at Ex.10, who produced copy of reservation chart and duty certificate of accused Akhtar Hussain as Ex.10/A and 10/B, mashirnama of recovery of documents as Ex.10/C. P.W.5 Ghous Ali was examined at Ex.11. P.W.6 Mohammad Afzal, S.I. Railway Police was examined at Ex.12, who produced letter of SSP Railway Police as Ex.12/A, FIR as Ex.12/B, mashirnama of arrest of accused Jabir Nadeem as Ex.12/C, application for permission for initiating investigation as 12/D. P.W. Mohammad Ameen was given up vide Statement Ex.11. Thereafter, prosecution side was closed vide statement Ex.13.
9. Statements of accused were recorded under section 342, Cr.P.C. at Ex.14 to 17, wherein they denied prosecution allegations and claimed to be innocent. However, neither they examined themselves on oath, nor produced any witness in their defence.
10. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, learned trial Court vide impugned judgment convicted and sentenced the accused/appellants, as stated above. Against the said judgment instant appeals have been preferred by the appellants.
11. I have heard learned counsel for the parties and perused the material available on the record.
12. Learned counsel for the appellants contended that the appellants have been falsely involved in the present case. They further contended that the impugned judgment passed by learned trial Court is based on surmises and conjectures and there is gross misreading and non-reading of evidence in the impugned judgment.
13. According to them, the impugned judgment is not a speaking order as learned trial Judge has neither discussed even a single contention of the defence counsel nor the law relied upon in favour of accused was taken into consideration, as such the impugned judgment is not sustainable in law. They further contended that there is inordinate unexplained delay of three days in lodging of FIR. They further contended that there is no independent witness in the case except P.W.5 Ghous Ali who has also not supported the prosecution case.
14. They further contended that there is violation of Article 71 of Qanun-e-Shahadat Order, 1984, as the Trap Officer Komal Aziz did not become complainant in the case, so also there is violation Article 22 of the Order ibid, as no identification parade was held before the concerned Magistrate. They further contended that the person in whose name the tickets were alleged to have been issued was not examined, nor even his 161, Cr.P.C. statement was recorded. They further contended that there is also violation of section 103, Cr.P.C. as no independent person was associated as mashir to recovery proceedings. Learned counsel for appellant Akhtar Hussain, in addition, contended that in the department inquiry appellant Akhtar Hussain has been absolved from all the charges which important aspect of the case has not been considered by the trial Court. He further contended that the learned trial Judge also did not pass any order on the application under section 265-K, Cr.P.C. moved on behalf of the accused. They further contended that no proper memo of recovery of tickets was made. According to them, the tickets have been foisted upon the accused. They prayed for setting aside the impugned judgment and acquittal of the appellants. In support of his contentions, Syed Ehsan Raza advocate relied upon the case-law reported in 2007 YLR 2179, 1995 SCMR 1345, 2009 YLR 1430, 2003 YLR 1861, 2004 YLR 983, 1992 SCMR 1134, whereas Mr. Riaz Hussain Soomro advocate relied upon the case-law reported in 1992 MLD 432, 2013 YLR 1349, PLD 2006 Pesh. 108, 1999 SCMR 1220, PLD 2008 AJ&K 1, 2008 SCMR 336 and 2006 YLR 622.
15. Conversely, learned advocates appearing for the complainant. Pakistan Railway as well as learned Assistant Attorney General Pakistan supported the impugned judgment and contended that the trial court has passed the judgment in accordance with the law and on the basis of evidence brought on record. According to them, prosecution witnesses have fully supported the prosecution version. They further contended that the accused were apprehended red-handed during the surprise checking/visit. They submitted that the impugned Judgment does not suffer from any illegality or impropriety, thus does not call for any interference by this Court. They prayed for dismissal of the instant appeals and maintaining the conviction and sentences awarded to the appellants.
16. From the perusal of impugned judgment it appears that the same is consisting of 11 pages. However, except half page at Page-9 of the Judgment and few lines at the bottom of page 10 and at the top of Page-11, entire judgment is nothing but narration and repetition of facts of the case and contents of evidence of PWs. I have not been able to find out even a single word about the contentions raised by the learned advocates appearing for the accused/appellants nor, any case-law cited by them has been discussed, rather not mentioned at all.
17. On perusal of the contents of the Charge framed against all the four accused/appellants it further transpires that the same is defective. It would be advantageous to reproduce hereunder the contents of the Charge: "That on 02.05.2015, you all four accused while posted as above found involved in black marketing of railway tickets, as Three Economy Class Tickets bearing Nos. KOT-1503145514, KOT-1503145515 KOT-1503145516 of Karakoram Express from Karachi to Lahore which were already booked in the names of Arif, Rashid and Kamil respectively, which were resold in black to Ms. Komal Azeem ACO-1 Pakistan Railway Karachi by receiving Rs.2000/- against each ticket i.e. exorbitant rate than that of actual fare and, as such, you: being public servants by abusing your official position with the connivance of each other committed the offence punishable under sections 420/109/34, P.P.C. read with section 114 of Railways Act read with section 5(2), PCA-11, 1947 and within the cognizance of this Court."
18. Likewise, the allegations leveled against accused Akhtar Hussain in his Statement under section 342, Cr.P.C. are also in the same line. However, the contents of Point No.1, in the impugned judgment, which relates to accused Akhtar Hussain, are totally different from the contents of the Charge and the Statement of accused.
19. The same are reproduced as under: "Point No.1. Whether, accused Akhtar Hussain while posted as Reservation Clerk AT Kotri Railway Station on 29.04.2015, booked the Economy Class Railway Tickets Nos. KOT-1503145514, KOT-1503145515 KOT1503145516 of Karakoram Express from Karachi to Lahore in the name of fake passengers namely Arif, Rashid and Kamil which were subsequently resold to PW Komal Azeem Jamali, Assistant Commercial Officer
(ACO) Pakistan Railway by co-accused Mohammad Naeem, Mohammad Sarwar and Jabir Nadeem Police Constables of Railway Police Karachi Cantt against the exorbitant rate than that of actual fare as alleged by the prosecution?"
20. From above, it is crystal clear that there is mark difference between the contents of Charge framed against accused Akhtar Hussain, as well as the contents of his Statement under section 342, Cr.P.C. vis-a-vis. the actual allegations levelled against him, as narrated in Point No.1 of the impugned judgment. In the Charge as well as in his Statement under section 342, Cr.P.C. accused Akhtar Hussain was not confronted with the actual allegations leveled against him by the prosecution, inasmuch as there is no mention in the Charge as well as his Statement that he illegally by misusing his official position issued the tickets in question in the name of fake passengers. It seems that Charge as well as Statement of accused had not been recorded by the trial court in accordance with the law. Such conduct of the trial Courts has not been appreciated by the Superior Courts. In the case of Mohammad Shah v. The State reported in 2010 SCMR 1009, a Full Bench of honourable Supreme Court held as under: "It is important to note that all incriminating pieces of evidence available on the record, are required to be put to the accused, as provided under section 342, Cr.P.C. in which the words used are "For the purpose of enabling the accused to explain any circumstances appearing in evidence against him" which clearly demonstrate that not only the circumstances appearing in the examination-in-chief are put to the accused but the circumstances appearing in cross-examination or re-examination are also required to be put to the accused, if they are against him, because the evidence means examination-in-chief, cross-examination and re-examination, as provided under Article 132 read with Articles 2(c) and 71 of Qanun-e-Shahadat Order, 1984."
21. The above lacunas/legal flaws put dents in the prosecution case so far as the case of appellant Akhtar Hussain is concerned, benefit whereof is to be extended to him. It is also to be noted that during the pendency of the case, in a departmental inquiry accused Akhtar Hussain was absolved from the charges leveled against him.
22. Papers relating to such Enquiry along with Enquiry report are available at pages 79 to 85 of the case file.
23. It is to be noted that the prosecution witnesses have made certain statements/admissions in their evidence which go against the prosecution and in favour of the accused. P.W. Komal Azeem, who is the star witness in this case made following admissions: "It is correct that I did not give the cell phone number of the accused who was in my contact in my statement before the police. It is correct that similarly I did not give my cell phone number in my statement It is correct that 1 did not specifically stated in my statement before the police as to which accused has given me the tickets and which accused has received the amount from me. It is correct that I did not give denomination of the notes which I have given to the accused against the payment of tickets. It is correct that I did not inform-to the concerned SHO about my visit/checking about the black marketing of the tickets at Cantt. Railway Station, Karachi."
24. P.W. Ghulam Shabbir, who was working as Booking Supervisor at Kotri Railway Station at the relevant time, in his cross-examination stated as under: "It is correct that on the same date accused Akhtar Hussain has issued tickets according to his official capacity.
25. He has also deposited the cash against all the sold tickets."
26. P.W. S.I. Mohammad Afzal, I.O. of the case, in his evidence stated as under: "It is correct that none of the witnesses has stated in his statement 161, Cr.P.C. that accused Akhtar has charged extra amount than that of actual fare while booking the tickets It is correct that accused was performing his duty according to law."
27. "It is correct that FIR was lodged after about 3 days of the incident. It is correct that ACO Karachi Cantt. Railway Station Komal Azeem did not make any Roznamcha entry in the police station when she had reached there for the purpose of surprise checking. It is correct that according to Komal Azeem, she was contacting with accused Jabbar on telephone but she neither given the name and the phone number of accused Jabbar nor she herself disclosed his (sic) cell number in her statement. It is correct that Komal Azeem is sub ordinate of complainant of this case. It is correct that complainant Nasir Nazeer is not the eye-witness of this case. It is correct that no written permission was sent to me by the Divisional Superintendent for lodging FIR."
28. It has come in the evidence that there is delay in lodging of FIR as the incident took place on 02.5.2015 whereas FIR was lodged on 04.5.2015. The I.O. Mohanunad Afzal admitted in his cross-examination that the FIR was lodged after a delay of about three days. No explanation has been offered by the prosecution for such delay. In the case of Ayub Masih v. The State (PLD 2002 SC 1048) honourable Supreme Court held as under:- "The unexplained delay in lodging the FIR coupled with the presence of the elders of the area at the time of recording of FIR leads to the inescapable conclusion that the FIR was recorded after consultation and deliberation. The possibility of fabrication of a Story and false implication thus cannot be excluded altogether.
29. Unexplained inordinate delay in lodging the FIR is an intriguing circumstance, which tarnishes the authenticity of the FIR, casts a cloud of doubt on the entire prosecution case and is to be taken into consideration while evaluating the prosecution evidence. It is true that unexplained delay in lodging the FIR is not fatal by itself and is immaterial when the prosecution evidence is strong enough to sustain conviction but it becomes significant where the prosecution evidence and other circumstances of the case tend to tilt the balance in favour of the accused."
30. In view of above, possibility of false implication of the accused/appellants could not be excluded from consideration.
31. It seems that P.W. Komal Azeem was not officially assigned the duty to conduct surprise visit/raid as no such letter/document has been produced by her during the course of her evidence. She has admitted in her evidence that she did not specifically state in her statement under section 161, Cr.P.C. as to which of the accused had given her the tickets and which accused had received the amount from her. She also admitted that she did not give denomination of the notes which she had given to the accused against the payment of tickets. She also admitted that she did C not inform the concerned SHO about her visit/checking about the black marketing of the tickets. It is also of worth importance that she did not say a single word against accused Akhtar Hussain. It is obvious from her evidence that prior to the incident she did not know the accused persons. nor in her deposition she has mentioned their names. In this view of the matter, it was incumbent upon the Investigating Officer to get the identification parade of the accused persons conducted as required under Article 22 of the Qanun-e- Shahadat Order, 1984. It is now well settled that holding of identification would become mandatory if names of E culprits were not mentioned in the FIR. In the instant case although the FIR was lodged by DCO Nasir Nazeer but admittedly his evidence is only 'hearsay' and the entire FIR is based on the statement made by P.W. Komal Azeem. As regards the fact that although P.W. Komal Azeem has not mentioned the name of the accused Jabbir Nadeem but she has stated Belt Number of the accused by which accused could also be identified, it may be observed that FIR was lodged after a delay of about three days, and it is also an admitted position that accused Jabbir Nadeem was called in the office of DDO where P.W. Komal Azeem was also present. In this view of the matter, mentioning of Belt Number of the accused by her was insignificant because before lodging of FIR the accused was seen by her in the Office of DDO where could have easily noted down his Belt Number.
32. Furthermore, strictly speaking in a legal sense, in pursuance of Article 71 of the Qanun-e-Shahadat, in fact, P.W.
33. Komal Azeem should have been the complainant in the case and not P.W. Nasir Nazeer whose evidence being hear-say has no evidentiary value according to said Article 71 of Order ibid. The tickets allegedly resold by the accused persons were also recovered two days after the incident. The mashirs of the seizure memo are police officials namely SIP Mohammad Suleman and ASI Shafiq ur Rahman.
34. Likewise, these two police officials are also mashirs of the memo of arrest of accused Jabir Nadeem from Railway Station Karachi Cantt. It is also surprising that instead of Boggie where the offence was allegedly committed i.e. railway tickets were handed over to PW Komal Azeem and payment was received from her by the accused, the memo of seizure of tickets was prepared at Police Station. Had the same been prepared at the proper place i.e. railway station, independent witnesses could have been surely found for acting as mashir because large number of private persons are always available at the railway station. However, deliberately the mashirnama was prepared at police station and that no independent witness was associated as mashir and both the marhirs are police officials.
35. Needless to emphasize that in view of provisions of section 103, Cr.P.C. the officials making searches, recoveries and arrests, are reasonably required to associate private persons, more particularly in thoese cases in which presence of private persons is admitted so as to lend credence to such actions, and to restore public confidence. This aspect of the matter must not be lost sight of indiscriminately and without exception. In the case reported as State v. Bashir and others (PLD 1997 SC 408). Honourable Supreme Court held as under: As regards above second submission of Mr. M.M. Aqil, it may be observed that it has been repeatedly held that the requirements of section 103, Cr.P.C. namely, that two Members of the public of the locality should be Mashirs of the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public."
36. Besides above, no independent witness was examined by the prosecution in support of its case. All the witnesses except P.W.5 Ghous Ali are official witnesses. It has also come on record that P.W. Mohammad Ameen was given up vide statement Ex.11. So far as the evidence of P.W. 5 Ghous Ali is concerned, he is the brother of Arif who is alleged to have been issued the tickets in question. He has not involved any of the accused in the commission of alleged crime. His evidence is only to the extent that his brother Arif had travelled in Karakoram Express from Hyderabad to Lahore and then he came back and left for abroad. It is a settled principle of law that despite availability of disinterested witnesses, non-examination of such witnesses in the case gives inference that in case such witnesses had been examined, they would have deposed against the prosecution. as envisaged under Article 129(g) of Qanun-e-Shahadat Order. In the case of Bashir Ahmed alias Manu v. The State reported in 1996 SCMR 308 it was held by honourable Supreme Court that despite presence of natural witnesses on the spot they were not produced in support of the occurrence an adverse inference under Article 129(g) of Qanun-e-Shahadat Order could easily be drawn that had they been examined, they would not have supported the prosecution version. In another case reported as Mohammad Shafi v. Tahirur Rehman (1972 SCMR 144) it was held that large number of persons had gathered at the place of occurrence but prosecution failing to produce single disinterested witness in support of its case, therefore no implicit reliance could be placed on evidence of interested eye-witnesses. In the case reported in 1980 SCMR 708, it was observed that no witness of locality nor owner of hotel was produced in support of prosecution case nor any independent evidence to corroborate testimony of the three eye-witnesses was produced, as such, the acquittal was upheld by the honourable Supreme Court.
37. Apart from above, there are also defects in the prosecution case which create doubts in the prosecution story benefit whereof is to be extended to the accused/appellants. For instance, no memo of wardhat was prepared and that only tickets were allegedly recovered but no amount allegedly received against payments for such tickets was recovered; secondly, the tickets in question were not sealed at the spot; P.W. Komal Azeem has not mentioned denomination of the notes which she had given to the accused against the payment of tickets; the person in whose name the alleged fake tickets were issued was neither made as an accused nor even cited as a witness in the case; no proper written permission for prosecuting the accused persons they being public servants has been produced in evidence, particularly in view of the Notification available at page 115 of case file of Cr. Appeal No.345/2016which says that no FIR against any official of Pakistan Railway would be registered without prior permission of the Principal Officer. It will be conducive to reproduce the Notification dated 04.09.2013, annexure-P available at P-115 of court file of Cr. A. No.S-345/2016 which reads as under:- PAKISTAN RAILWAYS DIVISIONAL OFFICE KARACHI NO:520-E/0/Misc/P-4 DATED: 4/09/2013 All Divisional Officer, Pakistan Railways, Karachi Division.
38. Senior Railway Police, Pakistan Railways, Karachi Division SUB: MISAPPROPRIATION OF RAILWAY REVENUE AMOUNTING TO RS. 14,641,721 BY BOOKING OFFICE AT KHANPUR A copy of Pakistan Railway Headquarters Office, Lahore LAN. 123/RV/12, Confdl-DT:08-011-2013 and Divisional Superintendent Pakistan Railways Multan L/No.C-11-A-17-2007 Dated: 30.8.2013 on the above subject is reproduce below for information and necessary action.
39. En/As above. for DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS KARACHI.
40. (COPY)
41. SUB: REFERRED ABOVE In terms of Dv: Director/E-1 Govt of Pakistan, Ministry of Railways, Railway Board Islamabad letter No.53/2/2012-E-1 Dated 2-10-2012, the competent authority has directed that no FIR against any staff/official will be registered without prior approval of the concerned Principal Officer(s) and it should be strictly followed by Pakistan Railway Police.
42. Please note and ensure compliance.
43. Sd/- (Shahbaz Iqbal Malik)
44. DCO For Divisional Superintendent Pakistan Railways Multan SUB: REFERRED ABOVE I am directed to convey that the competent authority has directed that no FIR be lodged against any staff/official without prior approval of the concerned Principal Officer(s) and should be strictly followed by Pakistan Railways Police.
45. Sd/- (WARTS ALI)
46. DY: Director/E-I The accumulative effect of the above said discrepancies, infirmities, legal flaws and lacunas in the prosecution case is that serious dents have been put and doubts have been created in the prosecution case. It is well settled principle of law that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt. In view of aforesaid defects and lacunas, it can safely be held that the prosecution has not succeeded in discharging such obligation on its part. Needless to emphasize the well settled principle of law that the accused is entitled to be extended benefit of doubt as a matter of right. In the present case, there are many circumstances which create doubts in the prosecution case. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story. In the case reported asTariq Pervaiz v. The State 1995 SCMR 1345 the honourable Supreme Court held as under:- "The concept of benefit of doubt to an accused is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
47. For the aforesaid reasons, by a short order passed on 07.05.2018 both the appeals were allowed and the impugned judgment dated 29.09.2016 handed down by Judge, Special Court (Central-I), Karachi in Special Case No.10 of 2015 (Re-State v. Mohammad Naeem and others) being subject matter of Crime No.16/2015 of R.P.S. Karachi Cantt., under sections 420, 109, 34 read with section 114 of Railways Act read with section 5(2) of P.C.A., 1947, was set aside. The appellants, who were present on bail, were acquitted of the charges and their bail bonds stood cancelled and sureties submitted by them were also discharged.
48. Above are the reasons for the said short order.