ABDUL RAZAK A. THAHIMJ. This petition under Article 203 of Constitution of Islamic Republic of Pakistan 1973, has been filed on behalf of Muhammad Nawaz S/o Fateh Muhammad R/o Village Oduwal, Tehsil Chakwal, District Jhelum, who was in jail at the time of filing of this petition.
The facts arising out of this petition are that there is some dispute between Muhammad Nawaz (hereinafter to be referred for the sake of convenience as Petitioner) and respondent No.l Aziz Hussain and some cases were filed at Chakwal. It is stated that in the year 1975 the respondent No.l filed cases against the petitioner in the different courts at Karachi. The settlement was brought between them whereby respondent No.l promised that he would manage his acquittal from all such false cases. The petitioner went back to chakwal, District Jhelum.
It is alleged that respondent No.l Aziz Hussain is a mischief monger, a professional tout and previous convict. Some cuttings from News Papers and documents have been annexed to this petition in support of th? Contentions. He is mixed up with staff of City Courts and District Court Karachi and has access to the record of Judicial cases and files. He is said to be associated with Prosecution Agency and Local Police and by taking undue advantage of these things, he in collusion and conivance of the Court staff and Judicial Officers got the name of petitioner added, incorporated in the column No.2 of the Charge sheets of the case pending in various Courts showing him absconder and got Nonabilable warrants issued against the petitioner from time to time.
Under these circumstances this petition has been filed and following reliefs is claimed:-
(A) Call for the records and proceedings from the courts of Respondents No;2 to 5 in respect of cases as detailed in para 8 of the Petition and after perusal of the same be further pleased to order that detenu Muhammad Nawaz whose name has been added therein by committing forgery be exonerated of the false cases foisted upon him.
(B) Order for a full fledged enquiry in the matter pertaining to the commission of forgery with the judicial record and order for the registeration of a criminal case against all those who may be found guiIty of the offence including the present Respondents.
(C) Grant such other and further relief as this Hon'ble Court may be pleased to deem fit and proper in the nature and circumstances of this Petition including the compensatory damages to the detenu."
The cases referred in para No.8 are as follows:-
(a) Court of Miss Sabi ha Mirza, Addl. Sessions Judge, No. VI, Karachi, 1) Case No.1888/75 State Vs. Abdul Rehman & others F.I.R. No.269/75 U/s 363/34P.P.C. Of P.S. Ferozabad.
2) S.C. No.4075/76 F.I.R. No.74/73. PS. Korangi U/s 307/34 PPC Dated 5.3.1973.
(b) Court of Mr. Hazoor Bux, Sr.Civil/A.SJudge No.XI, Karachi.
1. Case No.1149/80, State Vs. Muhammad Nawaz & others. F.I.R. No.399/80, dated 30.9.1980 U/s 307/34 PPC of P.S. Ferozabad.
(c) Court of MrAli Nawaz Channa, Sr.Civil Judge/ Asstt.Sessions Judge, Karachi.
1) Case No.6780/76 State VsAlim Shah and other F.I.R. No.85/74 U/s 307/34 PPC of P.S. Qaidabad.
2) Case No.361/80 State Vs. Hanif Shah & others F.I.R. No.44/1980 U/s 307/34 PPC of P.S. Preedy.
(d) Court of Mr. Faheem Moghul, Assistant Commissioner & Sub-Divisional Magistrate, Harbour Division, Karachi.
Case No.72/83, State Vs. Muhammad Nawaz. F.I.R. No.88/80. U/s. 14 H.O. Of P.S. Docks, Karachi.This petition was admitted and record of all the above six cases as referred in para No.8 of the petition has been summoned. The comments were called from Presiding Officers of the Courts, who are shown as respondent No.2 to 5. A notice was issued to respondent No.6 Muhammad Ansar who appeared in person.
I have heard Mr. S. Eijaz Hussain learned counsel for the petitioner, Mr. Abdul Sattar Shaikh, Additional Advocate General, for respondent No.2 to 5 and State, and Muhammad Ansar respondent No.6, Muhammad Nawaz, petitioner, who is on bail now and appeared in person. The record of the cases have also been perused. The SHO of Police Stations where cases were registered also appeared, and they brought the relevant papers viz FTRs, Police Statements and Copies of Challans of the cases.
Mr. Abdul Sattar Shaikh, Additional Advocate General supports the petition.
Now I proceed to deal with each case seperately which are pending in various Courts where petitioner is being tried along with other accused.
1. Sessions Case No. 1888/75 State V/s Abdul Rehman and others U/s 363/34 P.P.C.
This case was registered at Police Station, Ferozabad, Karachi on 11.8.1975 and complainant is Mst.
Rashida. The charge sheet was filed on 15.10.1975. The petitioner has been shown as accused No.3 (absconder) in Column No.2. The charge was framed on 5.4.1982 which reads as under:- "I Miss Sabiha Mirza VIth Additional Sessions Judge, Karachi do hereby charge you:-
1. Abdul alias Abdur Rahim s/o Din Muhammad.
2. Abdul Rehman s/o Din Muhammad.
3. Mst.Noori w/o Din Muhammad, as under That on 10.8.75 at about 12.30 P.M. At Baluch Colony Karachi kidnapped minors Mst. Jamila and Mst. Hameeda from the custody of their mother Mst.
Rasheeda along with absconding accused Ghafoor and Mst. Sakinna and thus committed an offence punishable u/s 363 PPC within the cognizance of the Court of Sessions.
And I furthar charge you Abdul that in furtherance of common intention you took the minors to Lahore and on 8.9.75 you got Mst. Jamila married to absconding accused Ghaffor against her will and absconding accused raped her and thus, you committed an offence punishable u/s 364- A/368/376 PPC within the cognizance of the Court of Sessions.
And I hereby direct you to be tried by this Court." In the charge the petitioner has not shown as absconder whereas the names of absconder accused Ghafoor and Mst. Sakina are specifically mentioned. Akhtar Islam A.S.I, was examined. He produced two warrants of absconders and stated that Ghafoor and Mst. Sakina are not likely to be arrested. Till 15.12.1981 i.e. 6 years after the challan, the petitioner was not shown as accused (absconder). The order u/s 512 Cr.P.C, was passed by the VIth Additional Sessions Judge, Karachi on 5.12.1981 and thereafter the charge was framed on 5.4.1982.On 11.5.1983 an application was moved before the Additional Sessions Judge (Miss Sabiha Mirza) Karachi, purporting to have been filed by Mst. Rashida, complainant in which it was stated that proceedings be drawn against absconder accused Muhammad Nawaz s/o Fateh Muhammad. The Judge without any verification of the, facts passed the following order:- Tssue N.B.W. Against accused Muhammad Nawaz for 23.7.1983 and warrants u/s 87 and 84 Cr.P.C, against accused Ghafoor and Mst. Sakina."
The Petitioner, Muhammad Nawaz was arrested in pursuance of the warrants issued by the Additional Sessions Judge. The applications were moved before the Judge who finally passed the following order on 4.12.1983:- "I have looked into the challan and the FIR. It appears that the name of the accused has been added with a different ink and handwriting in the F.I.R, and the challan. As it will not be proper at this stage to acquit the accused on this application unless the case proceeds so in view of the report of SHO concerned and the request of the accused the accused is released on personal bond in the sum of Rs. 5,000/- for his appearance in Court."
While hearing this petition in this Court a counter affidavit was filed by the petitioner on the comments of the Judge.
The Additional Sessions Judge Karachi stated in her remarks; (extract from the remarks is as under):- "
"Regarding para 7, I submit that whatever I have done in this case as in good faith and without any motive or ill will with detenu Muhammad Nawaz. How, I am really shocked to learn that respondent or hny other enemy of detenu had with connivance and collusion with the corrupt officials of the Court committed forgery in the record of this file and by misleading me got Nonbailable warrants issued against a person5 who was not in fact Wanted in the two Sessions Cases. My humble submission is that the staff'and the person committed with the mischief be deaIt with according to law.
Regarding contents of sub' para (b) I may submit that if was , pointed out to me by the Reader of this Court who misled me to believe that the name of accused was shown as absconder in the challartf Further that my Reader Jamal Ahmed, placed an application before me on 18.5.1983 purported to have been thumb marked by Mst.Rashida and who is first informant and complainant in this case for taking action against absconding accused. I, in good faith ordered the issuance of N.B.W. Against accused Muhammad Nawaz for 23.7.1983."
It is regretted that in spite of all the facts the learned Judge did not acquit the accused but continued the proceedings against him, even though petitioner was not required in a case, It is clear from the order passed on 14.12.1983 referred above that she had not taken any action against the Reader.
2. Sessions Case No.4075/76 pending in the Court of Vth Additional Sessions Judge. Karachi.
The HR of this case u/s 307/324/34 PPC was lodged on 5.3.1973 by Riaz Ali, at Korangi Police Station, Karachi. A charge sheet was submitted on 20.3.1973 against Umer, Babu and Kalcy Khan and VIth Additional Sessions Judge, Karachi (Miss Sabiha Mirza) framed charge against above named persons on 18.1.1982. This case was committed to the Court of Sessions on 25.9.1973. Till then petitioner Muhammad Nawaz was not shown as absconder. The case proceeded. All of a sudden on 11.5.1983 an application was moved iore the Court in which it was stated that the petitioner was also absconding since 1976. On this application the Proceedings were drawn against him. The Additional Sessions Judge, Karachi on 18.5.1983 passed the following order: - "Issue N.B.W. Against Muhammad Nawaz for 9.6.1983."
Muhammad Nawaz was arrested. He made an application stating therein that he is falsely involved due to forgery. The statement of Muhammad Yousif S.I. Police Koranngi was recorded, by the Judge who stated that petitioner Muhammad Nawaz was not accused person. In this case also the name of the petitioner is shown in column No.2 of the chalian with red ink. The Additional Sessions Judge has stated in the comments that petitioner is not accused. Moreover the SHO Korangi Choudhry Muhammad Ashraf has filed written statement in this Court on 13.2.1984 in which he has stated that Muhammad Nawaz (petitioner) is neither accused in crime No.74/73 nor was shown as obsconder, in the chalian. Therefore it is clear that petitioner is not required in the above case. His name in column No.2 has been incorporated in the Court with the convivance of the staff of the Court and nonbailable warrants were issued against the petitioner arid he was arrested and he remained in jail for some time.
3. Case No6780/75 State V/s Ali Muhammad Shah and others u/s 307/34 PPC and Case No.361/80 State V/s Hanif.
The case u/s 307/34/427 PPC was registered at Police Station Quaidabad on 18.4.1974 against Ali M.
Shah and others. The case was challaned. This petitioner was not shown absconder at that time but his name was subsequently added in the column No.2 of Charge Sheet in the Court.
4. Case No.361/80 Stale V/s Hanif Shah and others under Section 307/34 P.P.C.
This case was registered on 21.3.1980 at Preedy Police Station, Karachi. A charge sheet was filed on 27.3.1980 against Fateh Muhammad and Hanif Shah. The name of the petitioner is shown in Red Ink in Column No.2 of the charge sheet.
The cases bearing No.6780/75 and 361/80 are pending in the Court of Vth Senior Civil Judge/Assistant Sessions Judge, Karachi.
The Assistant Sessions Judge in his comments stated as under:- "I do not dispute that the name of Muhammad Nawaz was inserted in the challan later on in column of absconders. I am absolutely not in a position to say when this name was added and as to who is behind this whole drama.
Apparently and on the face of it the name of this Muhammad Nawaz was added with different ink and different hand."
He also frankly admitted in his comments that he after recording statement of Police Officer found that there was interpolation in the record. Mr. Muhammad Sarwar S.H.O. Quaidabad and Mr. Hamid Ahmed S.H.O. P.S. Preedy, Karachi have filed statements on 13.2.1984 to this Court in which they have stated that petitioner was not required in the cases referred above and he was not shown absconder in the charge sheets, submitted in the Courts.
5. Case No.l 149/80 State V/s Muhammad Nawaz under Section 307/34 P.P.C.
This case was registered at P.S. Ferozabad, Karachi on 30.9.1980. The charge sheet was submitted and on 4.4.1981 a charge was framed against Amer Aziz and three accused. The petitioner was not shown as absconder but subsequently at later stage his name was added in the challan in column No.2 and was shown as absconder. The case diary shows that till 28.4.1983 the process was being repeated against absconder accused shoeb only. It is only on 19.5.1983, a process in the shape of non-bailable warrants was ordered against petitoner Muhammad Nawaz, and thereafter the same order was repeated. The process order against Muhammad Nawaz was passed on application purported to have filed on 19.5.1983 by the complainant. The signature on this application also seems to be doubtful.
5. H.O. Ferozabad P.S. Muhammad, Hayat in his written reply stated that petitioner has not been shown accused in the above crime.
6. Case No.72/83 State V/s Muhammad Nawaz U/s 14 Hudood Ordinance.
The above case was registered at Police Station, Dock Karachi on 26.7.1980. The charge sheet was submitted on 26.7.1980 against Shoukat Ali. The petitioner Muhammad Nawaz was shown as absconder and his name appears in Column No.2 of the charge sheet. He was arrested on 26.7.1980. A charge was framed against him. The Asstt. Commissioner & Sub-Divisional Magistrate, Harbour, Karachi in his comments stated that co-accused of the case Shoukat Ali was convicted but petitioner was subsequently produced by Dock Police, Karachi along with a police report as he was shown absconder by A.C.M3, South Shariat Court, Karachi. He was arrested on 26.10.1982. He has however stated that according to record the petitioner was not accused in the case.
Muhammad Mehboob, SHO Dock Karachi, in his written reply in this Court has stated that petitioner Muhammad Nawaz was not required in the above case and only Shoukat Ali was challaned. He has clearly stated that name of Muhammad Nawaz was not included or mentioned in the charge sheet. The SHO's have made these statements after verifying the entire police record, available with them.
For the reasons discussed above in detail, it is crystal clear that petitioner Muhammad Nawaz was not required in all the above six cases but his name was subsequently added in the challan in the Courts. He was all along being harassed and put in jail from time to time due to gross negligence on the part of the Presiding Officers of the Courts. Not only this but even when it was pointed out to the Judges they failed to give him relief, though after holding enquiry they were satisfied that he is not required in the cases. Unfortunately he could not get justice and was not acquitted. I do not appreciate the way in which the cases of petitioners were deaIt with by the Presiding Officers. The Judical Officers should not only do the justice but see that justice done and win the confidence of the people.
The petitioner Muhammad Nawaz is not an accused in the above six rases. Acquittal is recorded for the accused person but his name was added by way of forgery and manipulation. I therefore order that his name be deleted from the chailans. The proceedings against him are hereby quashed.
This is a serious case of negligence on the part of Presiding Officers, am of the opinion that this mischief has been done in the Courts in illusion with some interested persons. It seems that some gang has been working and tempering with the Court record. 1 am satisfied that Judges who are responsible Judicial Officers cannot afford to be the party in such ugly things but definitely some members of the staff of the Courts are responsible for which enquiry should have been made by the officers concerned immediately, Presiding Officers have failed to do so. I order that learned Sessions Judge Karachi to conduct enquiry in this matter and take suitable action according to Rules against the persons responsible for this kind of mischief. A copy of this order along with copy of petition, comments of the Presiding Officers and Statements of SHOs be sent to the learned sessions Judge, Karachi. The R&P he returned back to Courts. They should proceed against the remaining accused according to law.