' Talib Hussain (32); Sadiq (55); Roshan Din (43); Sharif alias Kaka (30); Muhammad Ali (51); Muhammad Munir (42); Muhammad Khan (46) and Mushtaq Ahmad (50) were tried alongwith Muhammad Yaqoob who died before the commencemnt of the trial by the learned Magistrate Section 30, Faisalabad, for offences punishable under sections 307/353/365/2214/225 and 148 read with section 149, P.P.C.
2. The learned trial Magistrate vide his judgment, dated 11th May, 1982 convicted and sentenced Talib Hussain, Sadiq, Roshan Din, Sharif alias Kaka, Muhammad Ali, Muhammad Munir and Muhammad Khan as under:- Under section 148, P.P.C. : One year R.I. Each. Under section 307/149, P.P.C. : Five years, R.I. Each. Under section 225/149, P.P.C. : One year R.I. Each. Under section 365/149, P.P.C. : Two years, R.I. Each. Under section 353/149, P.P.C. : One year R.I. Each. All sentences were directed to run concurrently.
3. Mushtaq Ahmad was convicted under section 224, P.P.C. And sentenced to two years. R.I. And a fine of Rs, 5,000 (Rs, Five Thousand only) or in default to six months, further R.I.
4. Criminal Appeal No, 24/4/82 has been preferred by convicts other than Mushtaq Ahmad, challenged their conviction and sentence while Mushtaq Ahmad has impugned his conviction and sentence through Criminal Appeal No,249 of 1982. This judgment shall dispose of both these appeals.
5. The occurrence took place on 27th October, 1976 at 9-00 a.m. In the office of S.D.O. WAPDA Jinnah Colony, Faisalabad. Mushtaq Ahmad appellant was the then S.D.O. WAPDA Jinnah Colony Faisalabad. This place is situated at a distance of half a mile from Police Station Gulberg, Faisalabad. The occurrence was reported through a written complaint Exh. P.W. 9/A by Ch.Shaukat Ali, (P.W.9), the then M.I.C. Faisalabad. Formal F.I.R. Exh.P.A. Was recorded by Mulazim Hussain S.I.
(P.W. 10).
6. The facts of the case as transpire from the contents of the F.I.R. Exh. P.A. Are that Muhammad Ishaque (P.W. 6) installed powerlooms in the jurisdiction of Bakkar Mandi, WAPDA Sub-Division.
Mushtaq appellant happened to be the Incharge of the said Sub-Division. Muhammad Ishaque approached Mushtaq Ahmad S.D.O. For electricity connection for his powerlooms at priority. Basis through Jamal Din (P.W. 5). Ch. Mushtaq Ahmad demanded a: sum of Rs,5,000 as illegal gratification for doing this favour. Muhammad Ishaque complained to Anti-Corruption Establishment at Faisalabad, whereupon Pervaiz Ali Shah (P.W. 7) the then S.I. AntiCorrupton Establishment, Faisalabad, arranged a raid on 27th October, 1976. The raiding party was headed by Mr. Shaukat Ali. (P.W.9), the then M.I.C. Faisalabad. The other members of the raiding party were Jamal Din (P.W.6); Muhammad Ishaque (P.W.6); Muhammad Hussain, Constable Anti-Corruption Establishment (P.W.1) and Pervaiz Ali Shah, S.I. Anti-Corruption (P.W. 7). At 9-00 a.m. Money was passed on to Mushtaq Ahmad, S.D.O. In his office. On the usual signal, Ch. Shaukat Ali, M.I.C.
Recovered the tainted currency notes from the possession of Mushtaq Ahmad S.D.O. While recovery memo, was being prepared, Muhammad Yagoob afore -.Said (since dead) who at that time was the President of Lyallpur/WAPDA Workers Union, entered the office room of Mushtaq Ahmad. The latter asked him to do something. Muhammad Yaqoob went out and gathered his men and other employees of WAPDA which included the appellants other than Mushtaq Ahmad.
These persons assaulted the Magistrate and other members of the raiding party. They physically lifted the Magistrate and confined him in one room. The Sub-Inspector and other members were confined in other room. The assailants thereafter ran away from the place of occurrence. Pervaiz Ali Shah S.I. Managed his release and rescued the other members of .The raiding party including the Magistrate. Thereafter, they went to Police Station, Gulberg, Faisalabad, where Ch. Shaukat Ali, M.I.C.
Reported the matter through written complaint Exh. P.W.9/A.
7. Out of the members of the raiding party, Ch. Shaukat Ali, Syed Pervaiz Ali Shah and'Jamal Din P.Ws. Sustained injuries during the scuffle. They were medically examined by Dr. A.A. Khalid (P.W. 11) the then Medical Officer, D.H.Q. Hospital, Faisalabad on 27th October, 1976 in case of Ch. Shaukat Ali, Magistrate, the Medical,. Officer found six contusions on different parts of the body of the injured vide medico-legal report Exh. P.W.11/A. All these injuries were declared simple and caused by blunt weapon. In case of Syed Pervaiz Ali Shah, S.I.. Anti-Corruption Establishment, one lacerated wound, one contusion, two swellings and two complaints about feeling of pain were noticed vide medico- legal examination report Exh. P.W. 11/B. These injuries were also found to be of simple nature having been caused by blunt weapon. In case of Jamal Din as well, one scratch of two swellings and a complaint of pain were observed vide medico-legal report Exh.P.W. 11/C. His injuries were also declared as simple and to have been caused by blunt weapon.
8. P.W.9 Ch. Shaukat Ali, Magistrate P.W. 7 Pervaiz Ali Shah, 5.1. Anti-Corruption, P.W.5 Jamal, P.W.6 Muhammad Ishaque and P.W.1 Muhammad Hussain Constable, Anti-Corruption Establishment were examined as eye-witnesses at the trial.
9. Mr. Shaukat Ali, deposed that after the recovery of tainted money from Mushtaq Ahmad, S.D.O.
Muhammad Yaqoob deceased entered the office room of the S.D.O. And after he learnt about the raid he went outside and collected the members of the staff and thereafter with the help of other persons, they assaulted the raiding party. During the assault this witness and Perveiz Ali Shah were manhandled. They were also kept in confinement.
10. On the same day, complaint Exh. P.W. 9/A was sent by this witness to the Police Station for the registration of the case. He did not name any of the appellants as the assailants. In his cross- examination, he specifically stated that apart from Mushtaq and Yaqoob deceased, he could not identify any of the assailants and did not know their names. According to him 50/60 persons got collected and were liable for the assault. He also deposed that the names of the assailants in the complaint were written on the basis of information supplied by the police. Pervaiz Ali Shah (P.W.7) repeated the same story but he could not identify all the appellants as the assailants in the Court even at the time of trial. He expressly admitted that he did not know the accused previously and he could not tell as to whether any of the appellants was ever joined by him in any investigation conducted by him. Muhammad lshaque (P.W. 6) also conceded that he did not know the name of the accused prior to the occurrence. He could not disclose the source from which he came to know of the names of the accused subsequently. He admitted that he complained to Mr. Hanif Dogar, Advocate, that the S.D.O. Demanded illegal gratification for the action. The said Advocate took him to the Anti-Corruption Establishment. Jamal (P.W.5) deposed that Linemen etc. -who were present in the office of the S.D.O. Were liable for the assault. He could not tell the names of the assailants.
He also stated that those who informed this witness about the names of the assailants were present in the office in connection with the official work but he did not know their tames. Unlike other P.Ws.
He stated that first they went to the 'bungalow of Mushtaq Ahmad, S.D.O. Muhammad Hussain (P.W.1) stated that Yaqoob accused (since dead) came to the office of S.D.O. Immediately after the raid. He protested that Anti-Corruption unnecessarily used to conduct raids at their office. He went out of the office room and gathered the members of the staff. This witness also did not name any of the appellants as assailants. The Investigating Officer viz. P.W.2 Sarfraz Hussain S.I. Admitted that no identification parade of the appellants was held. He also admitted that many Linemen of the office of the S.D.O. Electricity WAPDA, Faisalabad, submitted applications for anticipatory bail in the Court of the learned Sessions Judge, Faisalabad.
11. It transpires from the testimonies of the witnesses as detailed above, that in fact there is no legal evidence on the record which could connect the appellants other than Mushtaq Ahmad with the crime. There is nothing on the record to suggest as to how the names of these seven appellants were ascertained as culprits. They were not identified as the assailants at any identification parade. The eye-witnesses could not identify them as assailants even at the trial. Muhammad Gan appellant has not even been named as the assailants in the F.1. R.
12. Investigation in this case has unfortunately been far from satisfactory and no effort has been made to connect the appellants with the offence. In the light of the evidence which has been led by the prosecution in this case, at the trial, there may be a chance that the appellants have been wrongly tried for the real 'culprits.
13. It is an established proposition of law that however morally convinced, a Judge may feel as to the truth of a particular fact, unless there is legal proof of its existence, he cannot take it as proof.
Obviously conjectures and suspicion cannot take the place of proof and the Court's decision must rest not upon suspicion but upon legal grounds established by legal testimony. That legal proof of course is lacking in the present case. The only conclusion which may thus be arrived at, keeping in view the well-established principles of safe dispensation of criminal justice is that the prosecution has utterly failed to bring home the guilt to the appellants beyond any reasonable doubt.
14. So far as case of Mushtaq Ahmad appellant in Criminal Appeal No, 249/82 is concerned, he has been convicted under section 224, P.P.C. There is not an iota of evidence on the record to suggest that Ch. Shaukat Ali, Magistrate or Pervaiz Ali Shah, S. I. Wanted to apprehend Mushtaq Ahmad and he resisted or illegally obstructed to his lawful apprehension. No witness other than P.W. 6 Muhammad lshaque has stated that Mushtaq Ahmad was ever apprehended by the raiding Magistrate or the Anti-Corruption Establishment and that he thereafter escaped from the lawful custody. Even Muhammad lshaque (P.W.6) in his cross-examination stated that after the fight, Mushtaq Ahmad accused ran away from the spot. He too has not disclosed that Mush Ahmad was apprehended and thereafter ran away.
15. It is also noteworthy that in the statement of Mushtaq Ahmad recorded under section 342, Cr.P.C. No question has been put to him to seek his explanation he resisted his apprehension or that he escaped from the lawful custody after his apprehension.
16. It has been observed by the Federal Court of Pakistan in Abdul Salam Maula v. The Crown PLD 1955 FC 129 that:- "Compliance with section 342 of the Criminal Procedure Code is absolutely essential in accordance with its terms, and where this is not done, the coviction might be quashed, or the trial might be set aside, if some prejudice appears to have been caused to the accused. Particular care should be taken that the important elements in the prosecution case which need some explanation from the accused should be put to him in a succinct form and his reply recorded. It is wholly against the provisions of the Criminal Procedure Code of the demands of natural justice that a person should be convicted on the basis of something, of which he was not given any notice."
17. Similarly, in Abdullah alias Babu and another v. The State 1974 P Cr. L J Note 129 it has been held by the Sind High Court that violation of the mandatory provisions of section 342. C.P.C. Vitiates the entire proceedings necessitating the conviction to be set aside.
18. In the light of the above observations, it is concluded that conviction of Mushtaq Ahmad under section 224, P.P.C. Cannot also be upheld. Thus, both the appeals are allowed, the conviction and sentence of the appellants are set aside, and they are acquitted.
19. Talib Hussain, Sadiq, Roshan Din, Sharif alias Kaka, Muhammad Munir and Muhammad Khan shall be released forth with, if they are not required in any other case. Muhammad Ali and Mushtaq Ahmad are already on bail. They shall stand discharged from their bail bonds.