' By this application under section 561-A, Cr. P. C. The petitioners seek quashment of criminal proceedings in Sessions Case No, 38 of 1970 under section 304/220/201/34, P. P. C. Which is at present pending against them and the respondent No, 2 in the Court of VI Additional Sessions Judge, Karachi.
2. The main ground urged in support of this application by Mr. Sami Ahmed, the learned counsel for the petitioners is total lack of evidence which must necessarily result in the acquittal of the petitioners. Mr. Ataur Rehman also prayed that the proceedings against respondent No, 2 be quashed for the same reason. In so far as the State is concerned Mr. Manzoor Hussain, the learned counsel conceded that there was no evidence against petitioners Nos. 1 and 2. While in relation to petitioner No, 3 and respondent No, 2 his contention was that there was evidence against them and though of weak nature will not in law justify quashment of pending proceedings against. Them.
3. The prosecution case as disclosed in the First Information Report dated 16-8-1968 shortly stated is that on 4-5-1968 at about 10-30 p. m. The accused petitioner No, 3 Abdal Hamid and the accused respondent No, 2 Mumtaz Hussain Shah alias Shabji picked up one Baqridi, a goldsmith by profession and his assistant P. W. Pappan, a boy aged 14 years from bus stop No,
5. North Karachi on the allegation of illegal dealing and possession of gold. They were detained at the bus stop till mid-night and thereafter brought to the Police Out-Post North, Karachi where both of them were wrongfully confined and beaten by all the accused petitioners and respondent No, 2 in presence of witnesses and during the course of this torture a piece of gold ret overed from said Baqridi was kept by A. S. I. Mujtaba Ahmed Khan, the petitioner No,
1. On the following morning P. W. Pappan was released after receiving illegal gratification of Rs, 100 from his father P. W. Nooruddin, while Baqridi continued to be detained at the police outpost and tortured for extorting money from him. The accused having failed in all attempts and finding Baqridi in bad shape and semi-unconscious asked Baqridi to leave the police out post who while getting out of the police out-post fell down and expired. Thereafter, the accused persons in order to screen the wrong committed by them sought to plant circumstances to show that deceased Baqridi was found lying unconscious on the road side and sent to Civil Hospital for treatment but he died on his way. It was further alleged that the accused caused disappearance of evidence of the offence committed by them by way of making false station diary entries and enquiry under section 174, Cr. P. C.
3-A. The two eye-witnesses who were examined in this case both before the committal Court and the Sessions Judge are P. W. 1 Sikandar and P. W. 6 Pappan. P. W. Sikandar deposed that he knew the accused persons before the incident for he used to move about too much in connection with his business of sale and purchase of plots in the area. According to him he had gone to the New Karachi Police Out-Post on 3-5-1968 with an application which he had made against one Hashmat, He gave this application to accused Mujtaba who was incharge of the police post and was asked to come on the 4th evening. He reached the police out-post on the next day at 6 p. m. And was asked to wait as accused Mujtaba was not present at the post. Mujtaba came at 10-30 p. m. Met him and directed the witness to go to the Head Moharrir Ishaque to whom Mujtaba had entrusted the application. At about 10 or 10-30 p. m. The witness saw Baqridi and Pappan being brought by respondent No, 2 Mumtaz Hussain Shah and petitioner No, 3 Amir Mohammad. These two persons were made to sit in the veranda. They were made to sit like 'Murgha' with their heads between their legs and stones were kept upon their heads by Ishaque and Rafique. At that time accused Mujtaba was sitting in his room in the police station and other accused were sitting in the adjoining rooms.
The witness further deposed that he was at the police station until 1 a. m. When Hashmat against whom he had made the application was brought at the police station by Ishaque and Rafique. The witness also stated that he had accompanied these officers to bring Hashmat and when he came back he saw Baqridi sitting handcuffed and Pappan sitting without handcuffs. The witness improved upon his statement at the committal Court by adding that the deceased Baqridi had told him that the police had brought him from bus stop No, 3 where he had gone for some work and that when he came at the next morning at 10 a, m. He saw the accused Mumtaz Hussain and Ahmed Mohamed taking deceased Baqridi in handcuffs in a taxi. In relation to accused Abdul Hamid he said that he did not see him doing anything in connection with the deceased at the police station though he was present there. In his cross-examination he admitted that in the lower Court he had not stated that accused Mujtaba Ahmed Khan was sitting in the room of the police station when deceased Baqridi and Pappan were made to sit like 'Murgha He also admitted in his cross-examination that in the identification parade he did not identify accused Amir Mohammad.
He insisted that he had stated in the lower Court that deceased Baqridi had told him that police had brought him from bus stop No, 3, that stones were kept on the deceased when he was made to sit like "Murgha", that accused Mumtaz Hussain Shah and Amir Mohammad took the deceased Baqridi in handcuffs in a taxi and that he had given the name of accused Amir Mohammad in the lower Court but when confronted with his statement in the lower Court acknowledged that he had not made any of these statements.
4. The other eye-witness P. W. Pappan deposed that two persons in plain clothes picked Baqridi and him from bus stand at about 10-30 p.m. And took them to the Police Post New Karachi. He identified these persona as Mumtaz Hussain Shah alias Shahji and Amir Mohammad. At the police station three or four persons beat Baqridi with dandas and two of them were Mumtaz Hussain Shah and Amir Mohammad. Accused Shahji sent for the witness's father through P. W. Sajjad. All the accused persons were present at the police station. His father came from whom Shahji demanded Rs, 100 on the payment of which the witness was released in the morning. Before his release the witness stated that he and deceased Baqridi were taken to the house of deceased Baqridi by accused Shahji and one other person where they beat Baqridi with canes. In the house of Baqridi they met P. W. Siraj son of Baboo whom he asked to send his father Baboo to the police station.
Accused Sbabji and other persons, the witness went on to state, were demanding gold from Baqridi which he did not give them. They returned to the police station after taking tea at a Sindhi hotel and when they reached the police post the condition of the deceased worsened and ho was made to lie on the grass and the witness was allowed to go with his father. The witness further stated that at the identification parade he picked out only one person namely accused Mumtaz alias Shahji. In his cross-examination he admitted that the accused Shahji had been shown to him before the identification parade. He further stated that the condition of Baqridi became so worst due to beating that he could not walk and he was taken to his house in a taxi from the police post, though in the lower Court he had stated that one tall policeman took him and Baqridi to the house of Baqridi on foot. He admitted that he did not point out Amir Mohammad in the lower Court to be the person with accused Shabji at the bus stand nor had he stated in the lower Court that the other accused was present at the police station when they were taken there for the first time. He had not identified any of the accused at the identification parade except Shahji who had been shown to him before the parade. He for the first time alleged in kris cross-examination that police had given him 10 or 12 blows and 10-12 first blows at the police post but there were no visible marks of injury as he did not receive any injury and he had not related this fact to his father.
5. The next important witness is the Police Surgeon Dr. Mohammad Umer Khan P. W. 17 who had examined Bagridi on 6-5-1968. He deposed that the deceased Bagridi was about 60-65 years and he had examined his dead body after 26-30 hours. In his opinion the cause of death was heart failure due to myocardial infaraction (natural death). He further stated that the deceased heart could not have been caused by starvation for it was already diseased and the only reason for death was the heart failure ; that cane beating on the body would have marks on the body for some days and when he had examined the deceased he did not find any marks caused by beating with cane.
6. The other relevant witness in this connection is P. W. 13 Mohammad Shabir who had signed the inquest report prepared by accused Mujtaba Ahmed Khan who stated that he did not see any injuries on the person of the deceased.
7. Coming to the remaining evidence on record I will first refer to Siraj P. W. 3 who was at the relevant time a boy aged about 9 years and in whose father's shop Baqridi used to reside. He deposed that two persons in plain clothes had brought Baqridi and Pappan to his house in a taxi on a Sunday at about 10-11 a. m. Baqridi was shivering and he had told him to tell thewitness's father that two policemen had caught him and were beating him severely and the man in the plain clothes with the deceased gave him danda blows. Thereafter, they took away the deceased in a taxi. He went to inform his father but he was not available so he informed one Masterji. To his father, P. W. Baboo, he related the incident at night time. He further stated that he had at the identification parade picked up the two persons who had accompanied deceased but he could not identify them before the Sessions Judge. He was confronted with his lower Court statement in which he had not stated that Baqridi had told him that two policemen had caught him and beat him or that he had informed about this incident either to the persons working in his father's shop or to his father.
8. P. W. Fakhruddin was examined to corroborate the witness Siraj that latter had gone to the shop and inquired about his father, but the father was not there and Siraj told him that two policemen had brought Baqridi in a taxi in their house and therefore he had come to call his father.
9. Siraj's father P. W. Baboo was examined in corroboration of Siraj's statement that the latter had informed the former about the incident of Baqridi and Pappan who had been brought to their house by the police as aforesaid.
10. The next witness P. W. 5 Soofi Mohammad who is the brother-in-law of Baqridi deposed that Siraj had told him that Bagridi had been taken by the police and was untraceable since then. He went to the New Karachi Police Out-Post but the police gave him no information about the deceased but one Hashmat who was present there told him that the police had severely beaten the deceased and the witness should make enquiries from the hospital. Hashmat has not been examined as a witness by the prosecution nor has Siraj deposed that he gave any information to Soofi Mohammad.
11. P. W. 8 Munney Khan is the owner of a bakery opposite the house of Baboo where deceased Baqridi was living and all he stated was that he saw deceased Baqridi and Pappan and two constables in a taxi and Baqridi was not in his senses but he could not identify the two constables from the accused present in Court nor at the identification parade held earlier.
12. P. W. Nooruddin is the father of Pappan and his deposition is confined to the bribe of Rs, 100 taken by Shahji and though he had gone to the police post early morning on 5-5-1968 and again at 1 p. m. And the previous mid-night. He did not see anything else. It may be mentioned here that accused Shahji was separately tried under section 161. P. P. C. Read with section 5 (2) of the Prevention of Corruption Act, 1947 for accepting bribe of Rs, 100 but was acquitted.
13. P. W. Mohammad Hussain was examined to corroborate the statement of P. W. 4 Fakhruddin, that P. W. Siraj had told Fakhruddin that Baqridi and Pappan were brought to Baqridi's house by two policemen on 5-5-1968.
14. The lest relevant witness is P. W. 14 the Investigating Officer, Mohammad Hussain woo was at the relevant time Dy. S. P. Crimes Branch. He produced the station diary and the diary of the enquiry conducted under section 171, Cr P. C. By accused Mujtaba Ahmed Khan. The station diary produced by him shows that accused Mujtaba Ahmed Khan returned to the police station on 4-5-68 at 23-25 hours after patrolling the area and left again at 20-30 hours in connection with a trespass case under section 453/448, P. P. C. And returned after investigating this case at 11-00 hours on 5-5-1968.
In so far as the accused Abdul Hamid is concerned the station diary shows that on 4-5-68 at 20.55 hours he was relieved from his duties and he went home and he returned to the police post at 08- 30 hours on 5.5-1968. It is- significant that this witness did not allege any forgery in respect of these entries in the station diary.
15. The other witnesses are of formal nature only, namely, P. W. 9 Mohammad Rafiq who had registered the case, P. W. 11 Zakir Hussain who is the Mashir of the vardat, P W. 12 Mohammad Ibrahim Qureshi, the Magistrate who had held identification parade, P. W. 15 Syed Shaukat, the inspector Crimes Branch who had directed P. W. 9 to register the case and P. W. 16 Sabihul Hassan, the Record Keeper of Civil Hospital to identify the signature of Dr. Alimul Haq who had received the dead body of Baqridi.
16. As regards petitioner Mujtaba Ahmed Khan all that was ascribed to him by the two eye- witnesses Sikandar and Pappan was that he was present at the police station when deceased Baqridi and P. W. Pappan were brought though neither of them had so stated before the committal Court. The station diary which remained unchallenged shows that Mujtaba was at the police station for five minutes only from 23-25 to 23-30 hours on 4-5-1968 and he did not return to the police station until 11-00 hours on 5-5-1968.
17. The petitioner Abdul Hamid also left the police station at 20-55 hours on 4-5-1968 and did not return until 08-30 hours on 5-5-1968. According to the eye-witness Sikandar, Abdul Hamid was merely present at the police station and he did not see him doing any thing with the deceased. The other eye-witness P. W. Pappan merely stated that all the accused were-present at the police station but did not ascribe any role to this accused. He could not identify any of the accused except Shahji at the identification parade. In these circumstances as was conceded by Mr. Manzoor Hussain. The learned counsel for the State it is obvious that there is total lack of evidence against these two accused.
18. Now I come to the remaining two accused the petitioner No, 3 Amir Mohammad and the respondent No, 2 Mumtaz Hussain Shah alias Shabji. Mr. Manzoor Hussain, the learned counsel for the State was at pains to point out that if there was some evidence against these two persons irrespective of its character or weight there would be no occasion for this Court to quash the pending criminal proceedings against them. The learned counsel refereed me to the evidence of P.
W. Sikandar who deposed that Mumtaz Hussain and Amir Mohammad had brought the deceased Baqridi and Pappan to the police post at about 10 or 10-30 p.m. And Baqridi had told this witness that police had brought him from bus stand No, 5 and he bad seen these two accused taking deceased Baqridi, in handcuffs in a taxi. The learned counsel referred to the evidence of Pappan who had deposed that two persons in plain clothes had picked him and Baqridi from bus stand and brought them to the police post, and then two accused present in Court who had beaten up deceased with dandas and the accused Shahji and another person had taken them to the house of deceased Baqridi where they had beaten Baqridi with canes and the condition of the deceased Baqridi was worsen so much that he was made to lie on the grass. The third witness on which reliance was placed by the learned counsel for the State is Siraj P. W. 3 who had deposed that two persons in plain clothes had brought Baqridi and Pappan to his house and Baqridi had told him to tell his father that two-policemen had caught him and were beating him very severely and the man in plain clothes with the deceased gave the deceased Banda blows and that be had identified these two persons at the identification parade as being Shahji and Amir Mohammad.
19. I have carefully examined the evidence of the eye-witnesses and the material evidence of the doctor who had examined deceased Baqridi. The conclusion to my mind is irresistible that their evidence is not only weak as was opined by Mr. Manzoor Hussain but it will be impossible to convict either Shahji or Amir Mohammad for the offences, with which they are charged and it will, therefore, be futile to allow the trial to proceed against them. Both P. W. Pappan and Siraj deposed that the deceased Baqridi was badly beaten up by the police with dandas and canes, so much so that it resulted in his death, but significantly no marks of injury were found on the person of the deceased and the Police Surgeon ascribed his death entirely I to natural cause. P. W. Sikandar who was present at the police station unlike Pappan did not state that Baqridi was given any danda or cane blows and though that he knew all the accused and had named Amir Mohammad as one of the accused, he failed to identify him in the identification test. He had not stated before the committal Court that Baqridi had told him that police had brought him from bus stand No, 3 or that stones had been kept on the deceased when he was made to sit like Murgha, or that Mumtaz and Amir Mohammad had taken the deceased in a taxi. He had not given the name of Amir Mohammad as one of Vie accused in the committal Court. P. W. Pappan had failed to identify Amir Mohammad at the identification test. His allegation that these two accused beat up deceased Baqridi will have to be ruled out in view of the medical evidence. No doubt he identified Shahji both at the identification test as well as in Court but the witness admitted that he had been shown Shahji at the police station after the incident, He was not sure how he and Baqridi were taken to Baqridi's house for according to his statement before the Sessions Court it was in a taxi while before the committal Court it was on foot. He for the first time in his cross-examination alleged that he was given danda blows and fist blows but did not inform even his father about the same.
20. Mr. Manzoor Hussain conceded that evidence of two eye-witnesses Sikandar and Pappan in view of the medical evidence and in view of their attempt to involve falsely Mujtaba Ahmed Khan and Abdul Hamid will require corroboration but want on to argue that this corroboration was available in the evidence of P. W. Siraj. The evidence of Siraj, however, is of little assistance to the prosecution. Firstly, he must be disbelieved when he alleges that deceased was beaten up in his presence at his house in view of the medical evidence and though he alleged in the Sessions Court that the deceased had told him to tell his father that the two policemen had caught him and were beating him very severely he had not so stated in the committal Court. More important, however is the failure of this witness to identify either Mumtaz or Amir Mohammad from among the accused persons in the Sessions Court. P. W. Siraj did state before the Sessions Judge that he had informed both his father Baboo and P. W. Fakhruddin about the incident at the house of Baqridi but did not so state before the committal Court. Corroboration to be relied upon must be independent as well as cogent and the evidence of Siraj can hardly be regarded as cogent.
21. The result, therefore, is that this application is granted and the criminal proceedings in Sessions Case No, 38 of 1970 pending in the Court of VI Additional Sessions Judge, Karachi against the petitioners and respondent No, 2 is quashed.