On 8th October, 1980 Umat-ul-Nabi Manager, Leaf Operation, Premier Tobacco Industries Limited, while checking the stock of tobacco in the godown at Yar Hussain Depot detected that 61 bundles of tobacco valuing Rs, 27,260.80 were missing from the said godown. The matter was subsequently reported to the local police on 20th October, 1980 by him and a case under section 406 of the Pakistan Penal Code was registered in Police Station Kalu Khan accordingly on the said report vide F. I. R. No, 448, dated 20th October, 1980.
2. Shamshul Qamar alias Sepoy son of Pasandai, resident of Yar Hussain, Tehsil Swabi, District Mardan, serving as a Chowkidar in the said godown was charged for criminal breach of trust on the allegations that he dishonestly removed and misappropriated the said bundles of tobacco.
3. The accused-petitioner was tried by one Malak Isa Khan, Magistrate 1st Class, Swabi on the basis of the said allegations and finding him guilty under section 408 of the Pakistan Penal Code, he was sentenced to two months' R.I.
The above order of conviction, dated 24th August, 1981 was challenged in a criminal appeal by the petitioner against his conviction in the Court of Mr. Ejazul Hassan, Additional Sessions Judge, Mardan at Swabi. Simultaneously a criminal revision was also filed by the said complainant, namely, Umat-ul-Nabi for enhancement of the sentence awarded, to the appellant (petitioner).
The learned Additional Sessions Judge by a single judgment, dated 30th October, 1981 disposed of both the appeal and the revision thereby dismissing the appeal against the conviction. He, however, while accepting the revision-petition filed by the complainant enhanced the sentence from two months' R. Ito one year's R. I. Plus a fine of Rs, 1,000 or in default thereof to suffer further R. I.
For three months.
' The above-mentioned order of conviction of the Magistrate 1st Class and the subsequent order of the learned Additional Sessions Judge, have been challenged in this petition under section 561-A of the Code of Criminal Procedure wherein a prayer has been made to the effect that the impugned orders of both the Courts be quashed and the petitioner be ;set at liberty as the material on record neither disclosed the offence with which he was charged nor his conviction was based on any evidence on record.
4. Learned counsel for the parties heard and the record perused with their assistance. Learned counsel for the petitioner contended that there was absolutely no evidence on the record to connect the accused-petitioner with the crime; that the prosecution itself was not sure as to when the incident had taken place and who had seen the occurrence as no eye-witness was mentioned in the First Information Report. He further contended that the solitary alleged eye-witness, namely, Gul Sher examined in the case was neither produced by the complainant nor his name was ever mentioned anywhere either in the First Information Report or in the subsequent statement of the complainant ; that the said eye-witness was examined by the police after fifteen days of the report of the complainant and his statement was recorded on the following day under section 164, Cr. P. C.
Without affording any opportunity to the petitioner to cross-examine him. Learned counsel for the petitioner also made a reference to the material available on the record and stressed that besides the petitioner there were other Chowkidars as well in the depot from where the bundles of tobacco were allegedly taken away and the possibility of the bundles having been removed by some other person could not be excluded. Reliance was placed on the cases reported as PLD 1978 Pesh. 38, 1976 P. Cr. L J 249 and PLD 1973 Kar.
643.
Learned counsel for the State, on the other hand, submitted that after the addition of section 439-A, to the Code of Criminal Procedure and clause (b) of subsection (4) to section 439 of the said Code, no remedy is left under the law to an accused-person whose appeal against conviction is dismissed and the sentence awarded to him by the lower Court enhanced in exercise of provisional jurisdiction under section 439-A of the Criminal Procedure Code.
5. The main question which comes to surface is whether in case the allegations are found correct, the impugned judgment/orders of the Courts below convicting the petitioner can be quashed by pressing into service the provisions of section 561-A, Cr. P. C. By adding section 439-A and clause
(b) of subsection (4) to section 439, Cr. P. C., the intention of the law-maker was to make the revisional jurisdiction exerciseable by either of the two Courts and in such a situation the revision petition does not lie once the Additional Sessions Judge, has exercised his revisional jurisdiction.
Confronted with that legal situation the accused petitioner has approached this Court for interference under the provisions of section 561-A of the Code of Criminal Procedure.
6. It is well-settled law that the jurisdiction under section 561-A44 Cr. P. C., is not to be used as an additional or alternate jurisdiction and as finally settled in the case of Ghulam Muhammad v.
Muhammad Khan and 3 others inherent jurisdiction under section 561-A, has been preserved "in the interest of justice" to redress the grievance for which no other procedure is available or provided by the Code. Inherent powers B are preserved to meet the lacuna in the Criminal Procedure Code in the extraordinary cases and are not intended for vesting the High Courts with powers to make any order which they are pleased to consider to be in the interest of justice. In Muhammad Samiullah Khan and another v. The State after an exhaustive and lengthy discussion a clear distinction has been brought by their Lordships about the application of sections 439 and 561-A, Cr. P. C. And it was concluded that the two jurisdictions are fundamentally different and the inherent jurisdiction cannot be invoked where there is an express provision in the Code under which the case can be adequately dealt with. A similar view was taken in Shahkot Bus Service, Shahkot V. The State and another wherein their Lorpships observed as under :-1 2 3 "It is, no doubt, true that where express provision is made in the Code itself for a particular purpose, recourse cannot be had to the inherent jurisdiction to achieve the same purpose, but at the same time it has to be pointed out that the inherent power of the High Court is of a very wide and indefinable nature and in exercise of its power the High Court can make all such orders which may be necessary to do real and substantial justice and prevent abuse of the process of the Court, subject only to the limitation that it cannot override an express provision of the Code."
A similar view was taken in the case of Khawaja Fazal Karim v. The State . This very position was reiterated in the case of Burewala Textile Mills Ltd. v. The State and another .
7. On the contrary reliance was placed by the learned counsel for the petitioner on the cases reported as :-
(i) Muhammad Rashid and another v. The State PLD 1981 SC (A J& K) 110,
(ii) Durrarii-v. Muhammad Jan and 2 others PLD 1979 Quetta 17,
(iii) Amir Khan v. The State PLD 1982 Pesh. 34, and
(iv) 1976 P Cr. L J 249.
Some old authorities were also produced wherein it was held that where a case arises which genuinely demands interference and the Code does not specifically provide to meet such an eventuality the High Court can pass an order as the ends of justice may require. A view to this effect was expressed in Rashi Lai v. The Emperor . Similarly in AIR 1929 Born. 81, it was observed :- "This Court has also in my opinion, been given powers under section 561-A, Cr. P. C. In addition to what it possesses under its Charter and Letters Patent to interfere an order to secure the ends of justice."
In the above-mentioned Peshwar D. B. Case reported as PLD 1982 Pesh. 34 their Lordships were confronted with an extraordinary situation which required interference with a view of doing substantial justice. In that case the petitioner on conviction under section 307, P. P. C. Was sentenced to one year's R. I. By the trial Court. Hearing appeal against conviction side by side with a revision petition for enhancement of sentence, the learned Additional Sessions Judge, Peshawar dismissed the appeal against conviction and enhanced the sentence of the appellant to that of imprisonment for life with a fine of Rs, 5,000. Realising the sentence imposed by both the Courts below as improper in either case to secure the ends of justice and finding that the petitioner has no other remedy available to him, the learned Judges had no other alternate but to interfere in the interest of justice. As such in the exercise of powers under section 561-A, Cr. P. C. While maintaining the conviction of the appellant in that case they reduced his sentence to five years' R. I. The sentence of fine imposed by the revisional court was also reduced to Rs, 3,000.
8. No doubt clause (b) of subsection (4) to section 439, Cr. P. C. Has expressly excluded the jurisdiction of High Court to entertain any proceedings in revision with respect to an order made by the Session Judge under section 439-A, but this section does not override the provisions contained in section 561-A, Cr. P. C. And, therefore, it does not limit or add or effect the inherent powers of the High Court t make such order as may be to give effect to such order under that Code or to prevent the abuse of process of any Court or to secure the ends of justice. The exercise of jurisdiction by a subordinate Court under section 439-A, Cr. P. C. Would, therefore, not debar the jurisdiction of this Court statutorily conferred under section 561-A, as in that case only the jurisdiction under section 439 of this Court will b exhausted and not the jurisdiction under section 561-A, Cr. P. C. Having never been invoked and being quite distinct in nature. It is, however, to be made clear that normally the mentioned inherent powers are not to be invoked because inherent powers are preserved in extraordinary cases in the interest of justice such jurisdiction of the High Court being neither alternate nor additional in its character .Is, therefore, to be normally invoked only in the interest of justice so as to seek redress of grievances in which no other provision is available and that it is not to be used in manner to .Obstruct or divert the ordinary course of Criminal Procedure. The provision4 5 6 is thus meant to meet the lacuna in the Criminal Procedure Code in extraordinary cases as there may be cases and circumstances which are not covered by the express provisions of the Code where justice has to be done. The prescribed rule of procedure may be abused or so used as to obstruct the administration of justice. In such an event it cannot be said that the Courts have no powers to do justice or redress a wrong merely because no express provision of the Code can be found to meet the requirement of the case. Therefore, High Court may interfere with the order of Sessions Judge passed under section 439-A, Cr. P. C. Where the Court erroneously failed to exercise jurisdiction vested in it under section 439-A, Cr. P. C. Such powers, as already stated, being extraordinary in nature should be exercised sparingly, and with caution and only where such exercise I essential and justified by the tests specially laid down in the provision itself. Interference no doubt will be justified in cases where the injustice is of a clear character and there exist no other provisions of law, by which the party aggrieved would have sought relief. This conclusion, in my view, will not come in conflict with the law laid down by their Lordships of the Supreme Court in the cases cited above.
9. Reverting to the case in hand, it is to be seen whether it is a fit case for interference under the above-mentioned provision of law. It is well settled that powers under section 56I-A, Cr. P. C. Can be exercised where the question of law is involved or it is found to be a case of no evidence as the question of sufficiency or credibility of evidence is no ground for interference.
10. In the instant case, it is not known when the occurrence actually took place. The loss of 61 bundles of tobacco was detected on 8th October, 1980 but the matter was reported to police on 20th October, 1980. In the First Information Report the petitioner was named on the basis of hearsay evidence and on mere suspicions. It is also admitted that the duty hours were being shared by the petitioner with other three Chowkidars, namely, Nawar Khan, Ismail and Dost Muhammad. No recovery has been made from the house or the person of the petitioner. The godown containing tobacco is supposed to remain closed and locked during off hours and it is nowhere stated that the keys have ever remmined in possession of the petitioner or that any lock was broken by any body for the removal of the missing bundles of tobacco, date of removal of which is completely unknown.
11. Gul Sher (P. W.) who claims to have witnessed the petitioner in the process of carrying tobacco bundles to his house was neither mentioned in the First Information Report nor in the statement of the complainant. The fact that this witness was examined after fifteen days of the report and much after the actual occurrence creates reasonable doubt about his truth fulness and veracity.
In this background of the case complete reliance was placed on the testimony of this solitary witness resulting in the conviction of the petitioner and to crown all the appellate Court has accepted the 'revision petition, enhancing the sentence of the accused-petitioner while rejecting his appeal In the last portion of para. 8 of the judgment, the learned appellate Court appears to have taken into consideration the statement of the defence witness by stating that the said statement was not found sufficient to prove the innocence of the appellant (petitioner).
12. No explanation is available why Gul Sher (P. W.) remained silent right from 8th October, 1980 to 4th November, 1980 in spite of the fact that he is staying near the place of occurrence. In the absence of any explanation for such inordinate delay it would be unsafe to rely on the testimony of such a witness in the given circumstances. It has been observed by the Courts below that Gul Sher is unconnected and disinterested but the mere fact that a witness or an eye-witness is apparently disinterested would not be sufficient for concluding that what he says is true. As held in PLD 1970 Kar. 395, the truth and falsehood of a witness depends upon the circumstances which provide the guideline for its proper appreciation.
In this background to accept this evidence without considering the circumstances would be totally inconsistent with the safe dispensation of justice as it is always after proper scrutiny of the evidence with the assistance of circumstances and facts of the case that it is possible to say with certianty that the evidence is immune from all tents and is worthy of credit and belief. It is well- established that where a case is based on oral testimony which depends upon the testimony of a solitary witness such evidence must always be cogent, reliable, trustworthy, confidence inspiring and free of all inherent improbabilities. It is the duty of the Court t determine as to whether or not the witness is one on whose words implicit reliance can be placed without independent corroboration but when the very statement of the witness appears to be the outcome of doubtful circumstances, the testimony of such a witness cannot and should not relied upon and such solitary statement shall never be considered enough for conviction.
13. In the case in hand the conviction of the petitioner is based on the solitary statement of Gul Sher (P. W.) who, in the given circumstances, was examined after about a month of the detection of the loss. During all this period, he remained silent so much so that he was not mentioned even by the complainant in his statement. The possibility of his having been hired and procured for providing support to the F. I. R. And the prosecution version cannot, therefore, be excluded. In the absence of any plausible explanation for the inordinate delay to examine Gul Sher (P. W.) no reliance, whatsoever, can be placed on his evidence and his statement should not, therefore, be made the basis of conviction of the petitioner in the given circumstances. The very fact that he was examined after such an inordinate delay by the police is enough to show that he is not a witness of truth but he was made to state in the line with the suggestions of the I.
0. Reliance in the above view can be placed on the authorities reported as 1976 P Cr. L J 249, jatal v.
State and PLD 1978 Pesh 38.
14. In the circumstances narrated above, I am of the well-considered view that in the above- mentioned background and in the context of peculiar facts and circumstances of the case the appearance on the scene of Gul Sher (P. W.) after such an inordinate delay makes his solitary statement highly doubtful and unreliable and mere fact that he posed himself as disinterested does not necessarily mean that what he stated is not untrue. In the given circumstances to accept his statement without any independent corroboration would be totally inconsistent with the safe dispensation of the criminal justice. When the evidence of this witness is weighed in the context of facts and circumstances of the case in hand, it can be stated with confidence and certainty that his evidence is not at all worthy of credence and belief and the evidence of this witness excluded from consideration, the case becomes a case of no evidence. Consequently the conviction in the case is apparently based on no evidence, whatsoever. As stated it is a fit case for interference under section 561-A, Cr. P. C. For securing the ends of justice.
15. The upshot of the above discussion is that the present petition is accepted, judgment/orders of the Courts below are set aside and the conviction and sentence of the petitioner is accordingly quashed The petitioner is on bail and he is discharged of the liability of the bail bonds. PLD 1967 SC 317 PLD 1963 SC 237 1969 SCMR 325 PLD 1976 SC 464 PLD 1978 Lah. 287 AIR 1937 Oudh 271 PLD 1973 Kar. 6437 1 2 3 4 5 6 7