1. This Revision Application under section 19 - of the West Pakistan Control of Goondas Ordinance, 1959 is directed against the order of the Commissioner, Khairpur Division, dated the 13th of June 1968, dismissing the appeal brought by the applicant against the order passed against him under section 13 of the Ordinance by the District Magistrate, Sukkur, by which he was declared to be a Goonda and was required to furnish three sureties in the sum of Rs. 10,000 each, and his movements were restricted in the B-Section Police Station, Sukkur. He was further directed to report on every Monday to the City and Sub-Divisional Magistrate, Sukkur, and also to submit his footprints and photographs to the concerned authorities as and when necessary. These proceedings arose out of a complaint filed by Ulahibux S. H. O., B-Section of Town Police Station, Sukkur on 2nd of December 1966 in which it was complained that the applicant is said to be a person of bad character, a smuggler, and histoxy- sheeter, and action, therefore, be taken against him under section 13 of the Ordinance. In support of the complaint, it was stated that the applicant was concerned in the following cases:
(1) Crime No. 125/58 under 12 Martial Law Regulation and section 19-E, Arms Act challaned by section B--P. S Sukkur.
(2) Crime No. 133/1958 under Martial Law Regulation No. 12 Police Station New Foujdari, Shakarpur.
2. He has been challaned.
(3) Crime No. 40/1963 under section 374/411, Railway Police Station Khanpur, District Rahimyar Khan, and the said case is pending.
(4) Crime No. 23/1964 under section 19-E, Arms Act Police Station B-Section, Sukkur has been challaned.
(5) Crime No. 72/1966 under section 167(81), Land Customs Act of Police Station B-Section, Sukkur.
3. The property of Indian Madrasi Bidis and tea valued to forty-one thousand nine hundred were secured. The said case has been transferred to the Customs Department.
(6) Crime No. 73/1968 under section 13, Arms Ordinance of West Pakistan, Police Station B-Section, Sukkur, has been challaned.
(7) Crime No. 31/1968 under section 307, P. P. C. and 167(81), Land Customs Act has been challaned by Police Station, Darhaki.
(8) Vide Entry No. 8 dated 6-12-68 of Roznatncha and entry No. 12 dt. 15-12-1968 H. C. Rustom Khan reported that the offender Guloo Khoso was coming by teasing the Fardanashin ladies, but he escaped away on Patrol Party.
(9) Complainant Jamaluddin son of Fateh Mohammad Arain Qaumi Markaz, Su kur. He made a complaint on 25-8-66 to the Governor of West Pakistan and same has been received for investigation with his seal. The said application is in Urdu written by Jamaluddin himself. He has stated that accused Gul Mohammad Khoso is a smuggler, and Rs. 4,000 Indian currency and smuggled Brook Bond tea and Bidis and unlicensed rifle was secured from him.
(10) He is a bad character and history-sheeter, and the officer on duty had recorded that he is a Smuggler.
4. Five prosecution witnesses were examined who are Jamaluddin, Abbas Alt, Rustam Kban, lllahibux Faruqui and Noor Mohammad Turk, in defence, the applicant produced 8 witnesses in support of the assertion that he has been a iaw-abiding citizen and enjoying good reputation in Society. The learned Deputy Commissioner as a Tribunal under the Act held that: "In the mass of prosecution evidence of complaints, challans, cases, raids on the accused commencing from 1957 running through the years up-to-date, one fact emerges with continuous clarity, and that is that the accused is a smuggler as alleged in the present complaint against him.
5. The other allegation as teasing of women may remain unsubstantiated, but in so far as the fact of smuggling is concerned, everything points to it. The accused has put forward enmity as his main plea, but to ascribe every case against him of different Police Stations, of the C.
1. A. and of the Customs and Excise Departments due to his enmity, with the two Police officers is far-fetched, specially when sizeable recoveries as 100 tolas of gold, packets of tea or Indian currency worth Rs.
6. 4,000 were also made in some of the cases against him. On the other hand, the enmity itself appears to be subsequent to the acts of the police officers against this accused. This rather the result of the urge in the accused to avenge himself for the acts of the police officers done in the way of their duties. The defence witnesses produced by the accused show that the accused has land, a house, a Mill of some sort and is otherwise well-to-do. The charge against the accused is that of smuggling and the holding of wealth certainly does not exonerate a person from the charge of being a smuggler. In fact unaccountable wealth and sudden acquisition of property would point to the contrary. The O. Ws. have also said that the accused is of good character. This just shows the state of society wherein people of this calibre by virtue of a certain contention in living are considered acceptable at all levels of society."
7. He accordingly held that the prosecution had established the fact that the applicant "is a smuggler" and the order under section 13 of the Ordinance to the effect mentioned above.
8. In appeal against this order, the applicant contended that all the witnesses produced by the prosecution against him were police officers and no member from the public had been examined, and that he was falsely involved due to the enmity with the police officers. It was further contended by him that he had been acquitted in all the cases and there was therefore, nothing in support of the allegations levelled against him by the prosecution.
9. The learned Commissioner rejected the pleas in these words :-- "it is correct that the prosecution has by and large examined only police officers. They were incharge of the area in which the appellant conducted his operations, it is strange that ail the police officers posted in this area conveniently developed enmity against this appellant, starting from 1957 onwards.
10. During this period of 10 years, a large number of suspicions and cases were entered or registered against him for the allega tions mentioned in the notice. He was always able to get away from the clutches of law.
11. He may have been making applications against the police othcers. Making application is standard practice of such people to claim the enmity of the officers when the legal frame became too tight and uncomfortable for them.
12. In one of the cases, the appellant was held up for smuggling 100 tolas of gold being carried in a jeep. Both the gold as well as the jeep were confiscated (the jeep was later released by the Central Board of Revenue). It does not stand reason that the police officers, however well-to-do and howsoever inimical towards the appellant, would go the extent of financing a raid on him by staking 100 tolas of gold and a jeep.
13. The learned counsel for the appellant further urged that the appellant had been acquitted in all the cases. The appellant Bad suddenly acquired wealth which he liberally spent to defend himself. He could afford best legal advice to find technical independence of the iaw and was thus able to get away with his misdeeds and crimes. It is for such slippery criminals that the Goonda Ordinance had to be designed.
14. The defence evidence testilies only to the affluence of the appellant. In no way it belies the prosecution case. The parade of wealth alone is not enough to admit all and sundry in the realm of respectability. The sudden acquisition of 'lllgotten gear' only goes to prove the prosecution story.
15. The order of the District Magistrate is very well reasoned out and is based on solid facts. 1, therefore, see no reason to differ with the District Magistrate that the appellant falls in the category of Goondas, and has been rightly declared so. 1, therefore, dismiss the appeal."
16. In support of this Revision Application, the learned counsel for the applicant pointed out that in each and every case referred to by the prosecution in the complaint, the applicant has been acquitted. So far as Crime No. 125/58 under section 19-E, Arms Act, is concerned, the learned counsel referred to the discharge order passed by the City Magistrate, Karachi, in connection with this case on 21st November 1959. In this order the learned City Magistrate, Sukkur, pointed out that the challan of that case had been prepared for Martial Law Regulation No. 12 and section 19-F of the Arms Act. "butM. L. R. 12 appears to have been scored oh and initialled by the S. I. P. Even then this case was referred to the Martial Law Authorities for being tried under M. L. R. but they did not approve of it." It is admitted by the learned counsel appearing for the State that the cases under Crime No. 125/58 challaned by section-B of the Sukkur Police Station and Crime No. 133/1958 under Martial Law Regulation No. 12 challaned by the New Foujdari Police Station, Shikarpur, were tried by the City Magistrate, Sukkur and the Martial Law Authorities, but the applicant was discharged.
17. As regards Crime No. 40/1963 under sections 379 and 411, P. P. C. challaned by the Railway Police, Khanpur, District Rahimyar Khan, the position admittedly is that the applicant was acquitted by the judgment dated 4th of August 1967 passed by Ch. Abdul Hamid Jamil, Magistrate First Class with powers under section 30, Cr. P. Code.
18. In Crime No. 23/64 under section 19-E, Arms Act, the applicant faced trial before the Joint Civil Judge and First Class Magistrate, Sukkur, (Case No. 237/64) with the result that he was discharged by the judgment dated the 23rd of June 1965. It was observed by the learned Magistrate in the judgment that "he (applicant) cannot be made a scapegoat for the enmity of the above C.
1. A. constables whose evidence is a biased one."
19. So far as the case under section 167 (81), Land Customs Act, is concerned, the learned counsel for the applicant referred to the order passed by the Second Secretary, Central Board of Revenue in Revision Application No. 107/65 tiled by the applicant wherein it was held that "the Customs Department had failed to establish beyond doubt that Mr. Gul Khan, the owner of the jeep, was in the know of the fact that smuggled gold was being carried in his jeep, "The vehicle which has been confiscated by the Customs Department under section 168 of the Land Customs Act, was, therefore, returned to him."
20. In the next case, being Crime No. 73/1966, which was also in the same connection but under section 13-D of the Arms Ordi nance the learned counsel for the applicant pointed out that the applicant was discharged by the learned City and Sub-Divisional Magistrate, Sukkur by the judgment dated 10th December 1967. The learned Magistrate observed that all the prosecution witnesses, including the Inspector of Customs "have all said good-bye to the prosecution case, and all of them are declared hostile by the prosecution."
21. As to Crime No. 31/66 under section 307, P.. P. C. it may be said that the applicant was challaned and subsequently tried by the Additional Sessions Judge, Sukkur in Sessions Case No. 119/67. He was given the benefit of doubt and acquitted by the judgment dated 16th October 1967. The learned Additional Sessions Judge in his judgment observed that "the version of the accused is sound and cogent and the enmity of A. S. I. P. Zulfiqar Hyder stands proved on the record with the accused."
22. He added that :-- "Mr. Amanullah Qureshi, the learned Assistant Public Prosecutor who appeared on behalf of the State at the time of the arguments, has frankly admitted before me that for the reasons mentioned above by me, the evidence adduced by the prosecution against the accused is so absurd and unnatural that no implicit reliance can be placed on such a piece of evidence. He has also argued before me that the evidence adduced by the prosecution is suspicious and full of doubts and is interested one and is full of grudge and bias against the accused that no implicit reliance can be placed on it. Under these circum stances, the learned Assistant Public Prosecutor has argued that the accused is entitled to the benefit of doubt. In this connec tion, I totally agree with the arguments of the learned Assistant Public Prosecutor."
23. So far as the charge of teasing Purdanashin ladies is concerned, suffice to say that the learned District Magistrate, Sukkur has himself observed that it remained "unsubstantiated".
24. The only other allegations against the applicant were mere assertions that he is a bad character and history-sheeter, and the officers on duty had recorded that he is a smuggler and further that the complainant Jamaluddin Arain had made a complaint on 25th August 1966 to the Governor of West Pakistan to the effect the applicant is a smuggler.
25. In view of the fact that proceedings under section 13 of the Ordinance were initiated and based against the applicant on certain cases and these fhiled totally in the Courts of Law, no adverse inference in the same connection, after his acquittal, can be drawn against him. It is also to be noticed that in some of these cases the charges levelled against the applicant were held not to have been proved and baseless, and in the rest of it was held that these were made against him on account of the hostility of the Police Officers. In my opinion, therefore, the evidence of the four Police Officers, who deposed against the applicant in connection with these cases, cannot be used against him.
26. So far as the complaint of Jamaluddin addressed to the Governor of West Pakistan is concerned, the learned counsel for the applicant pointed out that this witness himself stated at the trial that he had made the allegations against the applicant on information received from A. S. I. P. Zulfiqar Hyder. Jamaluddin further stated that the applicant bears good character. The allegations made by him in his application pertained to cases that ultimately resulted in applicant's acquittal. It was alleged by the applicant that Jamaluddin was only a tool in the hands of the Police Officers who were hostile to him. In the circumstances, nothing said by this witness against the applicant can carry any weight. [4] to prove the prosecution story, are totally irrelevant and wholly unjustified, as the applicant had not to explain, in these proceedings, the property acquired by him. These observations were not based on any evidence on record. It is, therefore, clear that in passing the order under section 13 of the Ordinance, both the learned Officers acted on totally irrelevant considerations and in admissible evidence, which could not be utilised. The findings reached by them are based on no legal foundation. The learned Officers have, therefore, exercised jurisdiction illegally and contrary to law in declaring the applicant as a Goonda under section 13 of the Ordinance.
27. I, therefore, set aside the order passed by the learned Commis sioner, Khairpur Division, dated the 13th of June 1968, and that of the learned District Magistrate dated 20th December 1967 and direct him to rectify the error by cancelling the declaration of the applicant as a Goonda. This revision application succeeds, and is accordingly allowed. .